The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
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 finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact In 1985, Petitioner was employed by the Department as an Engineer III. He was eventually promoted to Engineer IV and then to Engineer IV coordinator. Prior to July 1, 2001, Petitioner’s positions were classified as career service. On July 1, 2001, Petitioner’s position was changed from a career service classification to an SES classification and designated as an Engineer Supervisor IV. A knew job description was also prepared. Throughout his employment, Petitioner’s main duty was to inspect, maintain and repair fire and security alarm systems in State office buildings. In that capacity and depending on the particular system, Petitioner worked as part of and coordinated with a team of one to two other inspectors. Petitioner’s position as an Engineer IV was a position within the PERC certified Professional Career Service collective bargaining unit, represented by Florida Public Employees Council 79, Association of Federal, State, County and Municipal Employees Union (AFSCME). For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In fact, Petitioner’s positions as an Engineer III and IV did not involve supervisory functions. However, when he became an Engineer IV coordinator, Petitioner had some supervisory duties. Those duties were primarily approving time sheets and performing annual employee performance evaluations. Employee assignments and training were handled as a team with a particular employee’s specific equipment knowledge and building knowledge being key factors. When work was performed together, the employee with the greater expertise with the system directed the work. Prior to his termination, Petitioner supervised Ed McCann and Richard Lamberto. Approximately 90 percent of Petitioner’s time was spent responding to calls regarding the malfunctioning of fire and security systems. About five percent of his time was spent performing routine maintenance on such systems and another two to four percent on responding to fire marshall’s inspection reports. Less than one percent of his time was spent on supervisory duties. Petitioner’s primary duties involved the exercise of independent judgment. His duties were not routine or clerical in nature. Petitioner did not have the power to hire and fire an employee or the power to make purchase decisions. He could make effective recommendations regarding those decisions. He did not have authority over any budgetary matters. There was no evidence that Petitioner’s position dealt with confidential matters. In fact, Petitioner’s actual job performance did not change after his position was reclassified to Engineer Supervisor IV, SES. His day-to-day performance did not change primarily because his office was seriously understaffed for the statewide duties of their office. However, the new SES description expanded the supervisory or managerial duties of Petitioner’s old career service position description. In pertinent part, the position description as of July 2, 2001, stated the following: 20% Supervisory: Supervision of Fire & Safety employees in their duties and responsibilities. Evaluations and review of job performance, recommendation of disciplinary action if necessary, training and continued education. Supervise the project management duties that include the approval of timesheets, project specification, drawings, purchase orders, requisitions, correspondence, travel, purchase order completion of contract pay requests. Meet regularly with subordinate staff to discuss office procedures, work assignments and Division issues and goals. Addresses performance issues promptly and uses progressive and corrective action to resolve employee performance problems. Updates, discusses and presents Performance Planning and review forms, position descriptions and office procedures to subordinate staff. Provides each employee with a performance review within the designated time period in accordance with established rules and procedures. Ensure staff attend necessary training with designated time frames. Follows established rules, regulations and procedures for attendance and leave, travel reimbursements, appointment procedures, affirmative action and invoice processing. Duties contained in numbers three through eight were expanded from his earlier 1999 position description. The 2001 position description also had expanded supervisory or managerial duties contained in its other sections. The description stated, in relevant part: 40% preventive Maintenance: * * * * 2. Ensure the desired maintenance is being performed on a timely basis that does not fall within normal operations. * * * * Assist in providing engineering direction on system modifications, installations, upgrades and also see that the actual preventive maintenance efforts are being carried out. Set priorities for maintenance projects; * * *. * * * * 10% Specifications: * * * * 2. Monitor contractors through contract period for compliance with specifications. * * * * Instruct user personnel on the prescribed utilization, operation, testing and maintenance of alarms on the alarm systems installed. * * * * 10% Other: * * * * Keeps supervisor fully informed regarding work-related activities, relevant issues, upcoming events and potential problems. Ensures requests for leave are submitted and approved in accordance with established rules and Division procedures. * * * * Petitioner remained employed under the new classification until his termination on August 12, 2002. Petitioner was terminated in part for failing to perform his duties as a supervisor in overseeing the timely performance of repairs and setting priorities for accomplishing those tasks. The evidence demonstrated that Petitioner’s supervisory duties were expanded to include a significant amount of supervision and management. However, the evidence did not demonstrate that Petitioner actually spent a majority of his time supervising his staff. The evidence did show that he did spend some amount of time engaged in non-routine, non-clerical activities that involved the exercise of independent judgment, combined with a significant role in employee personnel administration in that he had the authority to effectivey recommend employment actions. The fact that he did not exercise such authority is not controlling and only demonstrates that the need for such action had not arisen. Given these duties, the reclassification of Petitioner’s position was appropriate under the Service First Initiative.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position was appropriately reclassified as Select Exempt Service. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of January, 2007. COPIES FURNISHED: Avery McKnight, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950 Linda South, Secretary Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue application from Sydney McCray on the basis of race or national
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer’s position, he and his sister, Alice Larkins, contacted the City Manager’s office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray’s claims for several reasons. First, the City provided evidence to contradict Mr. McCray’s position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson’s office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson’s lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson’s personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson’s office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of “Laborer” with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin’s testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, FL 32514-5661 Post Office Box 586 Milton, FL 32572 Human Relations Commission Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esquire Building F, Suite 240 325 John Knox Road
