The Issue The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position. Petitioner's supervisor in Marion County was Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing. In 1994, Petitioner learned that she was diabetic. From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job. Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11, 1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal. Ms. Bartsch wrote the following comment in the February 1994 performance appraisal: During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall." Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal. Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal. In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work. On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and signed by Ms. Bartsch and Petitioner contains the following comments: Strengths: being perfectionist; works in timely manner helps other people; always available lot of knowledge re HRS/investigations hard worker organized Areas Needing Improvement: (1) personality problems with co-workers The following changes will be made: isolate and stay from others letting Gloria speak in place On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows: Issues: court problems. calendar needs organization getting not enough support from attorneys doing better at getting along with people continue not allowing others to lean too much There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team. Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May 1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs. On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows: Issues: fantastic - no backlog work on trying to UPS or petition without removing kids if not in imminent danger interpersonal relations ignore other's comments say nothing to hurt people's feelings Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch "on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994. Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993. During some staff meetings, Petitioner felt that Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that Ms. Bartsch should have intervened on Petitioner's behalf during a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson. Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs. Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements. There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time. There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff. In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford. The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing. Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands. Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class. Regarding "failure to follow instructions," Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint. This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements. On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that from that time forward she was only willing to help one other PI who appreciated her work. On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file. Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part: Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit. The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers. Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child. Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns. There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works. Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you. You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue. * * * This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan. There are two "core" standards which must be met on the new RAPP form. They are: Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image. Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization. You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this. They strongly take this as lack of respect towards them on your part. Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also. You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues. Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct. Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help; In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours; (i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer. On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file. On January 19, 1995, Mr. Crawford complained to Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS. On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact, Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin. Anyway, it is too late now." In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions. Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations. On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose. On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida. At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson. On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her. On July 20, 1995, Ms. Bartsch wrote Petitioner a "Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP). On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel." When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred. On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996, Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996: Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work. At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter an order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cynthia Ausby 5 Hemlock Loop Lane Ocala, Florida 34472 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2018.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Petitioner has been employed by the City of Kissimmee (the City) from July 17, 1989, to the present as a tele- communicator in the Communications Center of the Police Department. Petitioner and his health care provider advised the City sometime in 1995 that Petitioner is diabetic. Diabetes has impaired Petitioner's work schedule and his willingness to train other employees but has not handicapped Petitioner. The diabetes has not substantially limited Petitioner in a major life activity and has not substantially limited Petitioner from performing a class of jobs or broad range of jobs in various classes. Petitioner is able to care for himself. Petitioner clothes himself, bathes, shaves, brushes his teeth, and combs his hair. Petitioner checks his own blood sugar level regularly during waking hours. Petitioner is able to perform other major life activities. Those activities include walking, driving a vehicle, performing manual tasks, seeing, speaking, hearing, learning, talking, and performing the duties of his occupation. Petitioner has walked for several years approximately 1.25 miles a day. Petitioner drives his own vehicle. Petitioner performs manual tasks. Petitioner operates a computer, though he has some difficulty doing so. Several months ago, Petitioner helped a friend hang an interior door. Petitioner has also helped friends paint walls in recent years. Petitioner has difficulty with his uncorrected vision. With reading glasses, however, Petitioner reads documents most of the time. Petitioner uses a device identified in the record as a CPAP machine to assist him in breathing at night. However, Petitioner does not need to use the machine during the work day to do his job. No health care provider has advised Respondent that Petitioner is disabled. Petitioner’s diabetic specialist is Dr. Jose Mandry. Dr. Mandry did not testify at the hearing. Dr. Mandry informed Respondent that Petitioner has diabetes in a note the City received on or about February 6, 1995, when Respondent attempted to schedule Petitioner for a night shift in the Communications Center. The note from Dr. Mandry did not indicate that Petitioner was handicapped (disabled), or that any accommodations were required in order for Petitioner to continue working. The note requested the City to keep Petitioner on daytime shifts "if possible." The note did not indicate that a daytime schedule was medically necessary. Rather, the note indicated that working day shifts would be “desirable.” On March 23, 1995, Dr. Mandry provided another letter to the City regarding Petitioner's medical condition. The note stated that Petitioner needed to “be accommodated with a normal daytime work schedule.” In July 1995, the City established a regular daytime work schedule for Petitioner. The City never regarded Petitioner as disabled, and the daytime work schedule for Petitioner was not an “ADA Accommodation.” The City employee who granted the request for a daytime schedule was identified in the record as Police Department Commander Johns. Commander Johns did not have authority to provide an ADA accommodation. The authority to provide an ADA accommodation is vested in the city manager and city attorney. They make a final determination of whether the City will provide an ADA accommodation to a particular employee. The city manager and city attorney did not authorize the City to provide any ADA accommodation to Petitioner. The daytime schedule granted to Petitioner is part of Respondent’s general practice and policy of working with impaired employees and employees who have personal needs. The policy attempts to help such employees with their schedules when it is possible to do so without an adverse impact on the City’s ability to provide services. Assuming arguendo that City employees had the authority to provide ADA accommodations to Petitioner in the absence of a formal determination by the city manager and city attorney, Petitioner relies on evidence of interactions between City employees and Petitioner in an attempt to show the City provided Petitioner with ADA accommodations. The relevant evidence involves two time periods. The first is the period from June 4, 1996, until June 5, 2002. The second is the period from June 5, 2002, through March 16, 2006, when Petitioner filed the Charge of Discrimination with the Commission. The record evidence does not support a finding that City employees provided an ADA accommodation to Petitioner. The daytime work schedule authorized in 1995 remained in effect until June 4, 1996, when Dr. Mandry advised the City that Petitioner could work up to 12 hours a day, as long as the 12 hours were daytime hours. Between 1996 and June 5, 2002, the City allowed Petitioner to work overtime when he wanted to, based on Petitioner's self-assessment of his physical condition. Petitioner acknowledged the overtime schedule in a memo that he wrote to Lieutenant Donna Donato on June 5, 2002 (the memo). The memo described Petitioner's plans for his future work schedule. The memo stated that Petitioner was providing notice “that due to self-assessed health issues” Petitioner intended to restrict the amount of his overtime in the future. (emphasis added). In relevant part, the memo advised the City that Petitioner did not intend to “demand the imposition of the restrictions [on his work schedule] as addressed by City Management in June of 1995.” Instead, the memo advised that Petitioner would address his concerns “to the best of [his] abilities by modifying [his] agenda. " Petitioner listed a number of items that may be fairly described as terms or conditions for when and under what circumstances Petitioner would work overtime. Petitioner provided no new medical evidence to support a finding of medical necessity for the terms and conditions that Petitioner prescribed in the memo. Petitioner acknowledged that his concerns were based on “self-assessed health issues” and asserted that “no further documentation should be necessary.” Petitioner did provide a note from Dr. Mandry on June 20, 2002. The note states: The following is a letter as requested by the above-captioned patient [David Dey]. As you know, he suffers from diabetes and also requires insulin for his control. David needs to monitor glucose levels and follow fairly stable meal patterns in order to try to achieve good control of diabetes and avoid complications. It would certainly be to his advantage and much preferable if he could have a stable work shift where he could regulate his meals and his injections properly. (emphasis added) Respondent's Exhibit 18 (Hereinafter R-18, etc.). During the second period of time between June 5, 2002, and the Charge of Discrimination, the City hired a new manager for the Communications Center. In July 2002, the City hired Ms. Jean Moe to manage the Communications Center at the Police Department, and Ms. Moe remains responsible for the supervision and management of Petitioner. Ms. Moe is diabetic. Ms. Moe met with Petitioner on August 6, 2002. The two discussed the issues Petitioner raised in his memo and agreed on a number of items outlined in Ms. Moe’s memo of August 6, 2002 (the Moe memo). The Moe memo provides in relevant part: Beginning today, August 6, 2002 you will only work your twelve (12) hour shift assignment [sic]. You will not volunteer or be assigned any overtime. You are also no longer on the standby schedule. Here you had some concern on the overtime issue, however, as stated by your doctor in writing he is recommending that you do not work any extra hours. Should he feel your health improves and he authorizes your overtime, I will take his note under advisement. That does not mean I will immediately give you overtime but will review his letter and his suggestion. Along with the above issues, your supervisor has been advised under no circumstances will you miss your assigned lunchtime or breaks, these are important to keep you regulated on your medication per your doctor. You also requested you be allowed to lift your feet after working several hours, this will also be under consideration when I receive a note from your doctor stating it R-19. would be another requirement for health reasons. In 2004, the City Police Department considered changes to the normal work schedule for employees in the Communication Center. The City advised employees, including Petitioner, that the City would require employees to rotate work shifts between daytime and night shifts. On July 14, 2004, Petitioner wrote to the City Human Resources Department and requested a “final, permanent accommodation . . .” for daytime work only. Petitioner provided copies of documents from Dr. Mandry, which did not include a medical opinion that Petitioner is disabled. Assistant Human Resources Director Andrea Walton wrote to Dr. Mandry on July 15, 2004, and requested clarification of his letters in order for the City to arrange an appropriate schedule for Petitioner. Ms. Walton specifically inquired about the possibility of Petitioner's working a rotating work schedule and asked Dr. Mandry to clarify Petitioner's ability to work overtime. The City wanted Dr. Mandry to clarify previous statements that Petitioner could work overtime as a parking enforcement specialist but that Petitioner's overtime work as a tele-communicator must be limited. Dr. Mandry responded to Ms. Walton on July 26, 2004. The response explained that Petitioner was able to work in a rotating schedule and for unspecified amounts of overtime if control is optimal and under ideal circumstances. Dr. Mandry was unable at that time to give more specific information to the City. He explained: R-27. With regards to some of the other issues, again, it is very difficult, if not impossible, for me to give you a specific answer, and I would rather you talk to Mr. Dey specifically so that he can let you know what his current limitations are. On August 3, 2004, Ms. Beth Stefek, the director of Human Resources for the City, wrote to Petitioner and explained that the City was willing to work with Petitioner to arrive at an appropriate work schedule. Ms. Stefek did not indicate that the City considered Petitioner to be disabled. Sometime after August 3, 2004, Petitioner experienced further difficulties in controlling his diabetes. On August 10, 2004, Dr. Mandry wrote to the City again. Dr. Mandry told the City: I just saw David today who seems to be having some further difficulties with his health and his control of diabetes. At this time, I have reviewed his records, and I think it would clearly be in his best interest that from now on, he work only on a stable daytime work shift only [sic]. He certainly is not doing well when he tries to do overtime, and traditionally in the past has always become more complicated and his health has deteriorated whenever he tries to do either night shifts or overtime shifts. I have, therefore, at this time, recommended that David should not be allowed to work any overtime and/or nighttime shift. Of course, he needs to have accommodations for meals and monitoring or blood sugar levels as necessary, and he needs to have access to food in case he becomes hypoglycemic. R-29. The difficulties Petitioner experienced in controlling his diabetes were attributable to an increase in stress that Petitioner experienced between June and September 9, 2004. Petitioner's father died in June 2004, and three hurricanes impacted Petitioner’s home from August through September 2004. The hurricanes also increased stress at work due to increased demand on City services. On August 15, 2004, Petitioner advised Ms. Moe that he was intentionally running his blood sugars “higher than desired” at work to “offset and reduce the possibility of a hypoglycemic situation.” Toward the end of August 2004, the City moved Petitioner to the night shift in the Communications Center. Petitioner worked the night shift for a few nights. On September 5, 2004, Petitioner advised Ms. Moe that he was available to be part of a voluntary group of dispatchers to work catastrophic disasters like hurricanes if she decided to form the group. On or about September 9, 2004, while Petitioner was at home, Petitioner fell unconscious and was transported to the hospital for treatment. On September 16, 2004, Dr. Mandry wrote to the City and advised that it was necessary for Petitioner to refrain from working "any overtime shifts and/or nighttime shifts.” On or about September 21, 2004, Petitioner returned to work, and the City placed Petitioner on a daytime work schedule through the remainder of 2004. On January 6, 2005, Ms. Moe advised Petitioner the City needed Petitioner to work the night shift for a few nights. However, the City was able to satisfy its needs without placing Petitioner on the night shift at that time. Petitioner responded to Ms. Moe on January 6, 2005, by stating that he was going to begin a search within the City for another position that would meet his medical needs. On January 20, 2005, Petitioner inquired about an opening within the City for a parking enforcement specialist. On January 25, 2005, Petitioner informed Ms. Moe and others at the City that he would not consider either the parking enforcement position or a community service officer (CSO) position that had become available because both jobs contradicted his "medical requirements.” On April 4, 2005, Ms. Moe sent a memo to Petitioner advising him that the City would place Petitioner on a list identified in the record as the call-back list for emergency back-up in the Communication Center. Ms. Moe specified that the placement of Petitioner on the call-back list was subject to the work conditions previously established in July 1995 by Commander Johns. Ms. Moe advised Petitioner that he would be placed on the call-back list effective April 20, 2005, but only in those weeks when he was scheduled to work 33 hours so that his work week did not exceed 40 hours. She assured Petitioner that absent some extraordinary circumstances, the City would not call Petitioner back to work a night shift and would not schedule Petitioner on a call-back that would result in Petitioner working more than 40 hours in a work week. The memo from Ms. Moe expressly indicated that the City did not consider the Petitioner to be ADA disabled. Ms. Moe told Petitioner to advise her if he thought there was some medical or ADA reason why he could not be on the call-back list. On April 13, 2005, Attorney Edward R. Gay wrote to the City on behalf of Petitioner. Mr. Gay stated that Petitioner believed there was a medical reason that prevented Petitioner from being placed on the call-back list. On April 21, 2005, Attorney Lucille Turner, the City’s special labor counsel, responded to Mr. Gay. Ms. Turner provided Mr. Gay with a copy of the City’s April 4, 2005, memo detailing the call-back restrictions applicable to Petitioner. Ms. Turner repeated that it was not the City's intent to call Petitioner back to work a night shift or to schedule Petitioner to work more than 40 hours a week in the absence of “some extraordinary circumstance." The City, through its counsel, expressly advised Petitioner that the City had never undertaken a formal review of whether Petitioner should be classified as a person protected by the ADA. Instead, the City had informally worked to develop a work schedule for Petitioner that takes into account the information provided by Petitioner's health care providers. The City provided Petitioner with written guidance concerning the procedure for Petitioner to follow to seek a classification from the City as ADA disabled. In relevant part, the letter advises: If [Petitioner] believes that his diabetes (or any other medical condition) requires the City to not include him on the call back list, or to change his work schedule, he should provide the City with further information in support of his request. This should include information about the legal basis for his disability claim . . . [keeping in mind case law cited earlier in the letter indicating diabetes is not a per se disability]. . . . The City will then review the information to determine whether Mr. Dey has a disability as defined by the ADA, and, if so, what accommodations can be reasonably made. R-54, at 3. Petitioner did not ask to be classified as disabled. Rather, Dr. Mandry wrote to the City on June 8, 2005. Dr. Mandry stated that he was writing at the request of Petitioner. In relevant part, Dr. Mandry explained: R-1. Mr. Dey is by no means disabled, and he can clearly work and satisfy the capacities of his job as long as there is some stability involved in it. (emphasis added) In March and August 2005, the City did not select Petitioner to fill respective vacancies for a shift supervisor in the Communication Center and a parking enforcement specialist for the City. Neither action constituted an adverse employment action against Petitioner. The job duties for the vacant shift supervisor in March 2005 required the successful applicant to work night shifts. Petitioner did not apply for the shift supervisor position. When the City posted the notice of vacancy for the shift supervisor, Petitioner requested Ms. Moe to provide Petitioner with information about the job requirements for the position. Ms. Moe responded on March 14, 2005, and advised Petitioner that the position was night shift duty and required the supervisor to train other employees. On March 23, 2005, Petitioner wrote to Ms. Moe indicating he had concluded that multiple aspects of my physical disability are contradictory to the requirements of the supervisory position and that he had elected not to apply for the position. If Petitioner were to have applied for the shift supervisor position, Petitioner was not qualified to perform the essential requirements of the position. Petitioner was unable or unwilling to work the night shift and was unable or unwilling to train subordinate employees. The Communications Center receives 911 calls from the public. Employees receive calls and dispatch them to the police department and fire department 24 hours a day. The work schedule at the Communication Center is divided into two shifts. The day shift begins at 6 a.m. and ends at 6 p.m. The night shift begins at 6 p.m. and ends the following day at 6 a.m. Approximately four to six employees work each 12-hour shift in the Communications Center. However, only one supervisor works each shift. A shift supervisor oversees the duties of all employees at the Communications Center and trains, advises, and assists subordinates. Supervisors are routinely required to work overtime, perform on-call duty, fill in for other shift supervisors, and hold over for indefinite times at the end of a shift to handle ongoing calls. Petitioner claims to suffer from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. Petitioner has previously asked on two separate occasions to be relieved of responsibility to train personnel because it was too stressful for him. In each instance, the City relieved Petitioner of any training responsibilities. In August 2005, Petitioner applied for a job opening as a parking enforcement specialist for the City. The City selected another candidate identified in the record as Ms. Evelyn Thurman. The selection of Ms. Thurman over Petitioner to fill the vacant position of parking enforcement specialist was not an adverse employment action against Petitioner. Ms. Thurman was more qualified by training and experience. When the City selected Ms. Thurman to fill the vacant position of parking enforcement specialist, Ms. Thurman had 24 years of law enforcement and security experience in various agencies. From 1980 until 1996, Ms. Thurman worked as a crime scene investigator for the City of Miami Police Department, where she received numerous commendations, and her performance evaluations rated her as an above average employee. Ms. Thurman also worked at the Sheriff’s Office in Tampa, Florida, and in Security at the Florida Department of the Lottery. Petitioner was unable to meet the essential functions of the job requirements for a parking enforcement specialist. A parking enforcement specialist routinely works alone and is required to work at night. The nature of the job does not permit the type of schedule Petitioner requires. The work schedule of a parking enforcement specialist is not limited to daytime hours that do not exceed 33 to 40 hours a week. A parking enforcement specialist may be required to work evening shifts, long hours, overtime, and holidays. A parking enforcement specialist also must adjust his or her work schedule when needed. A parking enforcement specialist also must be available during emergencies to alleviate calls for service from patrol officers. A parking enforcement specialist works alone. Petitioner suffers from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. The episodes can occur at any time, and Petitioner prefers not be alone on the job if possible. On October 31, 2005, Ms. Moe issued a verbal reprimand to Petitioner for insubordination. The verbal reprimand is not an adverse employment action against Petitioner. The City did not reduce Petitioner's pay and did not change the terms, conditions, or privileges of Petitioner's employment as a result of the reprimand. In preparation for Hurricane Wilma earlier in October 2005, Ms. Moe sent an e-mail to employees in the Communication Center instructing them to come to work the following day with the supplies they would need if events required them to stay at the Communication Center during the hurricane (the Moe email). Petitioner and most of the other employees did not bring their hurricane supplies with them when they reported to work the morning after the Moe email. The City sent Petitioner and the other employees home to fetch their supplies and did not impose a time limit for the task. Petitioner took about 90 minutes to get his supplies and return to work, and the span included the regular lunch hour. The time he took was not an issue of concern and did not provide a basis for the verbal reprimand. Petitioner did not eat lunch during the time he retrieved his supplies. Later in the day, Petitioner requested a meal break, and his supervisor denied the request. Petitioner took a second meal break. On October 23, 2005, Ms. Moe delivered to Petitioner a Notice of Intent to Discipline for insubordination. On October 31, 2005, Ms. Moe issued an Oral Warning to Petitioner. Petitioner grieved the verbal reprimand. During the grievance procedure, the City offered to rescind the warning to resolve the grievance. Petitioner rejected the offer as unsatisfactory unless the City also destroyed the record of the discipline. The City advised Petitioner that it could not destroy the document because the document was a public record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July 2007.
Findings Of Fact Petitioner is a corporation formed in 1972, whose majority stockholder and president is Ima Jean Strickland, a minority person. The parties have stipulated that Petitioner corporation has in the past and continues to meet all eligibility criteria for MBE certification except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility for recertification in this regard depends on whether or not Petitioner continues to employ "25 or fewer permanent full-time employees." Petitioner engages in the provision of electrical work for commercial and residential construction and in electrical services for business and residential customers. Approximately ten percent of its business is the service work for residential and business customers and residential construction. The remainder of its business consists of new construction. On its recertification application, Petitioner claimed to have only eight permanent full-time employees and at the time of formal hearing, testimony of its witnesses acknowledged only 9-10 permanent full-time employees. Petitioner considers an employee to be "permanent full-time" only when that employee has been with the company for at least five years. Only after an employee has been with Petitioner for five years does Petitioner pay the premiums on that employee's health insurance and give that employee a paid annual one week's vacation. (See Finding of Fact No. 8, infra.) By Petitioner's interpretation, a "permanent employee" is a different category-than a "full-time employee." In Petitioner's parlance, "full-time" refers to how many hours the specific employee works per week; whereas, "permanent" refers to an employee with a long-standing relationship with the Petitioner and who has attained full benefits. As of the date of formal hearing, only ten of Petitioner's employees were vested its profit and pension plan. (See Findings of Fact Nos. 46-47, infra.) Petitioner's hiring goals and employment practices emphasize long-term employment. Such policies benefit Petitioner by the retention of accessible, qualified labor in an industry with consistently high employee turnover. Petitioner's employees normally work 7:30 a.m. to 4:00 p.m. When possible, such employees are allowed to make up the hours when they have been absent without pay and where a job/project has been closed for a hcffliday All of Petitioner's employees are subject to a 90- day probationary period during which they are observed for performance and attendance. Petitioner encourages new employees to attend its apprenticeship program at Lively Vo-Tech. If the employee gets past the 90-day probationary period, his employment continues until he voluntarily terminates the employment relationship or until Petitioner terminates his employment due to his failure to perform adequately. If residential jobs/ construction projects are not awarded to Petitioner, the employee may not be able to work but would be encouraged to return to Petitioner when work again becomes available. All Petitioner's employees are eligible to participate at their own expense in the company-sponsored group health plan after 90 days of employment. When an employee can become eligible to join the group medical insurance plan at his own expense is tied to the probationary period. When the company pays an employee's group health plan premiums is tied to his attaining "permanent" status at the five years' employment stage. DGS duly promulgated Rule 13-8.005(4) (c) F.A.C. in November 1988 in order to establish uniform review of MBE applicants on the "25 or fewer permanent full-time employees" statutory criterion contained in Section 288.703(1) F.S. In applying Rule 13-8.005(4)(c), DGS considers the number of permanent full-time employees that the applicant acknowledges to be permanent and full-time and the number of positions the applicant needs to actually carry out its work. However, DGS does not add these two figures because it wishes to avoid "doublecounting" positions. This agency policy/procedure/ interpretation of the rule has been consistently applied to all MBE applicants since the rule has been in effect and was applied to this Petitioner. In determining the number of employees Petitioner actually needs to carry out its business, DGS considered its annual gross receipts, the number of supervisory positions that are used, and the quantity of work it performs. The rule permits this latitude. In determining the number of permanent full-time employees who are employed by the Petitioner, DGS reviewed its Florida State Unemployment Compensation reports, payroll ledgers, financial statements, listing of projects, and listing of managerial supervisory employees. In practice, DGS considers "permanent" to mean the number of positions that an employer uses on a regular and predictable basis to carry out its work. In practice, DGS personnel make a distinction between "full-time" and "permanent" employees. In evaluating the Petitioner, DGS evaluated two criteria: 1) the continuum or permanency, that is, the regularity and predictability with which a position appears, and 2) the length of service given by that position in a particular quarter--12 to 13 weeks being the cutoff for the count. Only when those two elements are met simultaneously does DGS count a position for purposes of applying Rule 13-8.005(4)(c) F.S. The agency does this as a result of two final orders addressing the number of employees for MBE certification. See, Dees, Inc. and Falcon Mechanical, Inc., supra. Contractors determine the number of people they need to do a project by reviewing the specific plans and specifications for each job/project. In preparing bids, contractors determine how much work is involved in a given job and how long it is going to take to accomplish it. It is DGS' experience that contractors will know how many employees they need to hire for any particular job/project/contract and that the number of employees needed will be represented on the contractors' Florida Employer's Quarterly Wage and Tax Reports (unemployment compensation tax reports) Petitioner's reports, like those of every other applicant, list all employees who worked for the company during each 13-week period, regardless of duration of employment. Bobby Strickland, Petitioner corporation's minority qualifying person's husband, is qualified to determine the number of employees Petitioner needs on each job. He has held a master electrician's license for 18 years and has been involved in the electrical contracting business for 31 years. He currently determines the amount and cost of materials involved and the number of employees required to complete each contract by reviewing the plans. In submitting Petitioner's bids, he has taken into account how many persons he will need to carry out each contract, understanding that some employees on any given job on any given day may not report for work. The rule does not require that DGS make a determination of how many employees are needed to perform each job/project/contract on the basis of such plans, and DGS does not review any plans, does not assess the complexity of any contract, and does not substitute its judgment call for that of the contractor applicant on that basis. Rather, it reviews documents prepared by the contractors indicating actual number of employees used and revenues generated. See also, Finding of Fact 29, infra. The number of employees Petitioner needs on each job depends in part on the quantity of work subcontracted out. Petitioner contracts out certain portions of its construction contracts. All witnesses concur that it is reasonable to count the subcontractors as independent contractors and not as employees. Subcontractors and their employees do not appear on Petitioner's payroll as its own employees and there has been no demonstration that they appear on any of the other forms/ documentation listed in Rule 13-8.005(4)(c) F.A.C. The number of employees and the names of the employees whom Petitioner had on its payroll for any given quarter is reflected in its Florida Employer Quarterly Wage and Tax Reports (unemployment compensation reports). During 1986, 1987, 1988 and the first three quarters of 1989, Petitioner reported the following number of employees on its Florida Employer's Quarterly Wage and Tax Reports: MONTH QUARTER 1986 1987 1988 1989 January 39 44 51 6 February 39 32 55 64 March 1st 40 39 55 53 April 39 62 56 51 May 43 67 57 58 June 2nd 46 65 57 49 July 46 67 61 46 August 46 57 73 40 September 3rd 43 54 66 44 October 45 53 57 November 49 50 60 December 4th 45 46 60 The total number of employees on Petitioner's payroll fluctuated from a high of 73 to a low of 32 between the quarters ending 3/31/86 and 9/30/89. In the last three years, Petitioner employed a total of 273 different persons. Two hundred thirty-three of these 273 persons worked less than one year. Stated differently, in that period, at least 40 persons were employed by Petitioner for a duration of one or more years. On October 9, 1989, Petitioner employed 36 people, which it admittedly needed to keep its business going in terms of the construction projects it had at the time. By the date of the formal hearing, Petitioner had increased the number of its employees to 38; 22 field workers were spread among five construction jobs, plus two service staff employees, two warehouse staff employees, and three office/clerical staff employees. The balance may be supervisory staff. Of the 38 employees paid by Petitioner's October 24, 1989 payroll, nine had been employed more than three consecutive years. At no time between the quarter ending 3/31/86 and the quarter ending 9/30/89 did Petitioner employ fewer than 26 employees who were working from 12-13 weeks in any quarter. The least number of employees working full-time for a minimum of 12 weeks in any particular quarter for the quarters ending 3/31/86 through 9/30/89 was 26, and the largest number was 49. Twenty-six employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/87 also appeared on the unemployment tax report for the quarter ending 12/31/87. Thirty employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/88 also appeared on the unemployment tax report for the quarter ending 12/31/88. Thirty employees were listed on Petitioner's payroll for the quarter ending 3/31/89 who were also listed on the payroll as of 10/31/89. In determining the number of employees that an MBE applicant needs to carry out its business, DGS also considers the number of projects the applicant enters into and the quantity of work performed because it is DGS' experience in investigating businesses in the construction industry that the greater the number of contracts an applicant has, the greater its revenues and the greater the number of employees an applicant will need to carry out its business. The rule permits this latitude. Bobby Strickland conceded that the amount of work and the number of employees the Petitioner needs fluctuates with the number of contracts it has and the amount of work required under those contracts at any given time. According to J. Kinson Cook, however, gross revenue is not determinative of the number of employees required to complete a contract. J. Kinson Cook, Inc., a general construction firm, has 12 "permanent full-time employees," as Mr. Cook personally defines that term, and its contracts total an average of $20 million per year. However, J. Kinson Cook, Inc. is not a certified MBE, and Mr. Cook's opinion as an expert in the construction field was not rendered on the basis and criteria established by Rule 13-8.005(4) (c) F.A.C. In 1986, Petitioner had 32 commercial construction contracts totalling $4,760,539. In 1987, Petitioner had 10 commercial construction contracts totalling $814,593.90. In 1988 Petitioner had 16 commercial construction contracts totalling $2,143,412. As of the date of formal hearing in 1989, Petitioner had 13 commercial construction contracts as follows: Dittmand Chemistry $ 8,295 Sugar Creek Theatres 150,000 Village Green 12,961 Sewage Pumping Stations 155,986 Koger-Osborne Building 182,000 Wal-Mart 187,000 Mayo Building 29,000 FSU-Sports Complex 925,000 Kentucky Fried Chicken n/a Hartsfield Elementary School 190,000 Victoria's Secret 13,700 John Wurst n/a $1,853,942 Some of the contracts listed for 1986-1989 include projects that have extended (will extend) into later years. Beyond construction income which has been reviewed supra., Petitioner also performs residential and commercial service work, the income from which was $354,076.56 in 1986; $268,718.42 in 1987; and $375,157.94 in 1988. Petitioner projects its income produced from service work in 1989 to be $200,000. Petitioner's residential service work includes the electrical work on the construction of new homes. On October 9, 1989 Petitioner had eight residential construction projects. Petitioner does repeat business in its commercial service work and in the construction of new homes (residential service work). Petitioner's gross receipts were $4,193,064 in the fiscal year ending July 1, 1989 and $2,150,289 in the fiscal year ending July 1, 1988. Petitioner's gross revenues for the fiscal year ending in July 1987 were $2,156,722. Petitioner projects its gross revenues for the fiscal year ending July 1990 will be between 2.5 and 3.0 million. Petitioner has nine supervisory employees: six construction foremen, one warehouse supervisor, one office supervisor (Ima Jean Strickland), and one field supervisor (Bobby Strickland). Petitioner conceded that each supervisor must have at least one subordinate to supervise, but it is also clear that the number of persons supervised fluctuates with the skill of the workers and the complexity of the jobs in progress. As of the date of hearing, foreman Ronald Fraser was supervising nine employees on the Wal-Mart project. At the time of his deposition, October 12, 1989, he was supervising eight employees on that project. He supervised approximately twenty-five employees on the Department of Education Building and anticipated that he would supervise 10 employees on the Hartsfield School project. As of the date of hearing, foreman Kenneth Cushing was supervising four employees on the Koger Center project. Ima Jean Strickland regularly supervises the two office employees. At the time of his October 12, 1989 deposition, foreman Charlie James was supervising three employees, which is the average number of employees he supervises. As of she date of his October 12, 1989 deposition, foreman Donald Metcalf was supervising five employees redoing the fire alarms at Florida State University. On an average, Mr. Metcalf supervises 4-5 employees. Foreman John Garrett Hemanes normally supervises one employee, on average. As of the date of formal hearing, Bobby Strickland was responsible for supervising all of the field employees. His is a higher level of supervision than that of the respective construction foremen and their chain of command often passes through him. Therefore, his position should be counted only once. Thomas J. Strickland, a/k/a Jeffrey Strickland, supervises one employee. He is the warehouse supervisor. None of Petitioner's employees are eligible for paid sick leave; however, all employees may take unpaid sick leave with Bobby Strickland's approval. Petitioner's employees are eligible to participate in an employer-sponsored profit sharing plan after six months of employment. Vesting in the pension plan is determined by federal regulation, not company policy. After an employee has been with the company for 12 months of continuous service, the employee can benefit from profit sharing in the form of a cash bonus. Additionally, an employee who has not had an accident during a 12-month period is entitled to a safety bonus. During the years 1986-1989, Petitioner's contracts have primarily been in Leon County and the surrounding area, and therefore, it has been able to circulate staff from project to project for its own advantage. By so doing, Petitioner encourages good employees to stay with Petitioner longer. In order to keep an ample amount of work going, Petitioner continuously reviews potential jobs and prepares and submits bids. On an average, Petitioner bids 3-4 contracts a month. Petitioner's decision to bid is affected by the amount of work in progress and whether or not it has adequate manpower. If it has more work than it can handle, Petitioner does not bid up more.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of General Services enter a final order which: Dismisses that portion of the Petition addressing the constitutionality of the statute, Finds Petitioner to employ more than 25 permanent full-time employees, and Denies Petitioner recertification as a Minority Business Enterprise under Chapter 288 F.S. DONE and ENTERED this 9 of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4402 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 4, 7-10 and 12-14 are accepted. 2, 3, 5-6 and 11-17 are accepted as modified to conform to record as a whole. is rejected as a FOF and as a Conclusion of Law (COL) and as contrary to the record as a whole. and 18 are rejected as immaterial since this is a de novo proceeding. See the COL. Moreover, presentation of Summary 15 in the de novo proceeding is sufficient, in light of the Petitioner's burden of proof. 19 is rejected as immaterial and as legal argument in light of the duly promulgated rule. 20-23 are rejected as stated as immaterial since this is a de novo proceeding. See the COL. Some of this material has been incorporated in substance into the Recommended Order so as to demonstrate that application of the rule relies upon applicant- generated information after the applicant has assessed its own needs, and that such needs are not "second-guessed" by whoever applies the rule. Respondent's PFOF: 1-3, 5, 11-18, 20-22, 26-36, 40-44, 46-56, 59, 62, and 64-66 are accepted. 4, 6-9, 19, 24-25, 37, 39, 45, 57-58 and 60-61 are accepted as modified to clarify the concept, and to eliminate unnecessary, subordinate or cumulative material and mere description of testimony or exhibits. 10 is rejected as unnecessary. 23 and 63 are accepted as modified to eliminate legal argumentation and to reconcile the testimony and evidence as a whole. 38 is rejected as unnecessary and unduly speculative. COPIES FURNISHED: E. Thomas Brushwood, Esquire Brushwood and Gruver, P.A. Post Office Box 10117 Tallahassee, Florida 32302-2117 Susan B. Kirkland, General Counsel Alma Gonzalez-Neimeiser, Staff Attorney Department of General Services 2737 Centerview Drive-Suite 309 Tallahassee, Florida 32399-0950 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issues before the Hearing Officer were defined as follows: Whether the Respondent is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representative election petition under Florida Statutes, Chapter 447. Whether the Employee Organization is a properly registered organization within the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before PERC. The Petitioner and the Employer stipulated that the Employer is a Public Employer and Petitioner is an Employee Organization within the meaning of Chapter 447, Florida Statutes. As to issue number 3, the PERC record reflects a sufficient showing of interest, and the Employer did not seek to show any fraud, misrepresentation, etc. regarding the signature cards submitted by Petitioner. Issue number 4 resulted in an admitted stipulation by the parties that the Petitioner is a registered organization. For the purposes of this brief, only issue number 5 remains to be considered.
Findings Of Fact The Employer, through witness Henry Willis, Assistant Director of Personnel, testified that the County, through its recently adopted Civil Service Career Program in September 1974 and through its Personnel Department, provided the following services countywide throughout all divisions and department, inter alia: Testing new applicants for employment. Interviewing new applicants for employment. Recommending new applicants for employment. Provides for all transfer policy. Provides for all discipline policy. Provides for all common benefits policies, such as: Common Leave policy. Common Promotion policy. Common Pay Plan. Common Insurance Plans. Common Recordkeeping (personnel files). Administers the reduction in force policy. Coordinates all inter-division and department personnel policies. Processes grievances and employee disputes. Prepares job descriptions for all County jobs, defining skills and duties for such jobs. In addition to the above, Mr. Willis testified that the County employs a category of employees (approximately 206 in all) referred to as CETA employees. This general description encompasses employees hired pursuant to federal grants and are paid from federal grant monies. CETA employees must enjoy, pursuant to the terms of the grants, all County Civil Service benefits except that they do not take the Civil Service examination, their tenure is determined by the federal grant under which they are hired, and they have no bumping rights, nor can they be bumped. If a CETA employee converts to Civil Service employment, the employee must take the Civil Service examination and tenure or time of service is computed from the date the employee becomes a Civil Service employee. CETA employees are employed in a variety of job categories to include jobs throughout the County. They are assigned to work alongside other Civil Service employees. CETA employees receive comparable pay, benefits, and have the same supervisors as Civil Service employees. CETA employees may also be designated, if qualified, to become a foreman or supervisor if such a position were approved as indicated below. It should be noted that CETA employment is dependent upon federal grant momies which are annual grants, and that although CETA employees have the same compensation package as Civil Service employees, they do not have the degree of job security but are dependent upon continued federal grants. CETA positions have to be created and generally correspond to the entry level position within Civil Service. Because of low job security and low pay, there is a higher turnover rate with CETA employees. Exhibit 1 is an organizational chart of the Broward County Government. There are seven departments under the County Administrator, and various divisions under each of these departments. The employees which Petitioner seeks to represent are all located within the maintenance division of the Department of Central Services. Exhibit 2 indicates the number and type of unskilled and semiskilled employees within the Broward County government by division. This exhibit indicates, in addition to the trades and trades helpers, all such positions with the organization of the Employer. Employer's Exhibit 2 states by name and position title the unskilled and skilled employees within each of the divisions within the county. The number of such employees in each division, as follows, was extracted from Exhibit 2: Central Warehouse 5 Motor Pool 3 Maintenance 104 Convict Camp 1 Motor Vehicle Inspection 93 Medical Examiner 5 Lot C1earing 4 Engineering Traffic 33 Mosquito Control Local 12 County pound 21 Youth Services 16 Parks and Beaches 85 Water Management 11 Agriculture 11 Airports 44 Roads and Bridges 125 Utilities - Solid Waste 64 Utilities - Waste Water 119 Witness Liaison Program 2 Mental Health Funding Agreement 13 The Petitioner seeks to represent 107 of the 764 unskilled and semiskilled employees of the County, or approximately 14 percent of the total number. There are a total of 41 CETA employees who are employed in unskilled or semiskilled positions, 26 of which are employed in trades or as trades helpers. Five such CETA employees are employed within the Maintenance Division. As indicated in Exhibit 2 and the record, the Employer employs mechanics, painters, vehicle equipment operators, carpenters, plumbers, electricians, gardeners, stock room employees, welders, locksmiths, air conditioning employees, parking lot attendants, custodians, etc., who primarily work within their own divisions within the County structure. However, there is some exchange of services between the various departments and Divisions. As an example, the Division of Roads performs work at the airport, even though the airport employs its own road crews. Likewise, the Division of Maintenance provides service for approximately ninety-four (94) County-owned or lease buildings throughout Broward County, Florida. Regarding the position of superintendents and whether they should be excluded, the record indicates that the Division of Maintenance has 160 employees, two superintendents and one director. One of the two superintendents is in charge of the mechanical trades employees and the other is in charge of the carpenters, painters, custodians, and welders. The superintendents carry out their duties through his working foreman. The superintendents have disciplinary authority and are empowered to resolve grievances, if possible, at their level. The superintendents present requests for specific equipment, tools, and personnel from which the director prepares the divisional budget. The director only has the authority to release personnel. The superintendents assign work to the various foremen for accomplishment. The superintendents constitute the level of administration between the director and the foreman. The record reflects that Broward County, at the time of hearing, had entered into collective bargaining contracts or was in the process of doing so with County fire fighters, airport police, and the employees of the Mass Transit Division. Petitioner argued, specifically with regard to the voluntary recognition of Local 1267 representing the transit workers, that this recognition was inconsistent with the Employer's position with regard to the unit under consideration, and indicated that the Employer had already recognized a divisional unit. The Employer introduced evidence and testimony that what is now the Mass Transportation Division was once a private company acquired by the County. In order to receive federal funds, pursuant to the provisions of Section 13(c) of the Urban Mass Transportation Act of 1964, the County executed two agreements (Exhibit 6A in 1972 and Exhibit 6B in 1975) which guaranteed no diminution of rights, specifically collective bargaining rights, as a result of the County acquisition of the private company. In 1975 when the contract expired, the County, being satisfied with the union's majority status as a result of a recent election, voluntarily recognized the union's majority status. The Employer argues that the voluntary recognition of what constitutes a divisional unit in mass transit is not inconsistent with its position in regard to Petitioner's proposed unit but is distinguishable on the facts. The Employer argued that the proposed unit would fragment and compartmentalize employees who share a community of interest as Civil Service or CETA employees who had virtually the same types of job classifications. Further, the Employer asserted this violates the criteria provided in Section 447.009(4), F.S. The Petitioner presented testimony that the employees of the Division of Maintenance desired representation by Petitioner, and that the history of collective bargaining showed the Employer to have recognized fire fighters, police, and transit workers units. The Petitioner indicated its desire and willingness to participate in any directed election in any unit found to be appropriate by PERC. This report respectfully submitted this 30th day of January, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Theodore P. Mavrick, Esquire Counsel for the Petitioner Joseph A. Caldwell, Esquire Counsel for the Public Employer Chairman Public Employees Relations Commission
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
