Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED. DONE and ORDERED this 9th day of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard Suite 406 Tallahassee, Florida 32303 William J. Manikas, Esquire 1215 Thomasville Road Jacksonville, Florida 32303 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact In July of 2006, Respondent advertised an opening for an Accountant II, position #70557, in its revenue and contracts division. The primary responsibility in the position was accounting for and paying or reimbursing expenses in state programs that were funded through federal money by drawing down the accounts in which the federal funds were maintained. Therefore, among other things, the position required accounting experience and a working knowledge of FLAIR. FLAIR is the computerized accounting and records system used by all state agencies in the State of Florida. The vacant position required significant knowledge and experience in both the accounting codes utilized in FLAIR and the computer screens associated with those codes. Additionally, there was a critical need to immediately fill the position with an experienced person because of the involvement with federal funds and due to the fact that another employee, Deborah Schimmel, was performing the work required in her position, as well as, the work required in the vacant position. In 2006, Petitioner, who is Caucasian and 67 years old, applied for the Accountant II position with Respondent. As part of the application process, Petitioner answered a series of qualifying questions relevant to the vacant position. The questions were used by Respondent to help with preliminary screening of the applicants. Some of the questions involved the applicants’ experience with FLAIR, grants and revenue. Petitioner answered the qualifying questions and indicated he had one year of experience with FLAIR, a college degree in accounting and experience with grants. There were four other applicants for the position. Petitioner did not know the race of any of the other applicants for the position and did not offer any evidence regarding the race of these individuals. Salwa Soliman, the Commission’s Revenue and Contracts Manager, was advised that the Accountant II position was vacant and had been advertised. She was also aware that the position needed to be filled as soon as possible with a person who could perform the accounting and billing duties of that position with little or no training. Ms. Soliman reviewed the applications for the vacant position. Based on a review of his application and qualifying questions, Petitioner was granted an interview because he was a veteran, held a bachelor's degree in accounting, had revenue experience and had experience with FLAIR. On October 13, 2006, Petitioner was interviewed for the position by Ms. Soliman and Ms. Schimmel. During Petitioner's interview, it was clear that Petitioner's experience with revenue related to tax returns and not grants. Likewise, Petitioner's experience with grants was only in writing or applying for grants. He had not billed or disbursed federal money from such grants. More importantly, Petitioner's experience with FLAIR was “view only” experience. “View only” experience or authorization meant that Petitioner was only able to view or look at certain screens but not input data or change the screens in FLAIR. Thus, Petitioner did not have experience with data input to FLAIR and/or the pull-down menus associated with such input. In short, Petitioner’s experience and skills did not relate to the work required in the position at issue. Neither tax experience nor grant writing experience was the type of revenue experience required for the vacant position. Additionally, Petitioner did not have sufficient experience or working knowledge of FLAIR to enable him to fill the position with little or no training. Petitioner was not hired for the position. In all likelihood, Petitioner could have been trained for the position. However, due to the nature of the position, Respondent reasonably wanted to hire a person who could immediately fill it. Indeed, none of the applicants for the position were hired because no person had the necessary working knowledge of FLAIR and grant billing to fill the Accountant II position immediately with little or no training required. There was no evidence that Respondent’s reasons for not hiring Petitioner were unreasonable or a pretext for discriminating against Petitioner. When a batch of applicants does not meet Respondent’s needs for a vacant position, Respondent’s policy was to review any applications for other employment opportunities with Respondent submitted within six months of the closing date of the job announcement for the current vacancy. Because of the critical need to fill the Accounting II position, Ms. Soliman asked that other previously submitted applications be forwarded to her by Respondent’s personnel department. In order to transfer an application from one job posting to another job posting, People’s First, the State’s contractor for some personnel matters, must transfer the previously filed application in its database to the file for the current vacancy. Other than requesting the transfer of the application, Respondent is not involved in the actions necessary to transfer an application to another file for a vacant position. In this case, Respondent’s personnel department requested People’s First to transfer applications from an earlier-filled Accountant II position with Respondent. One of the transferred applications was from Debra Shriver who was 23 years old and Caucasian. For unknown reasons, in the computer process of transferring the application, the date on Ms. Shriver’s application was changed. The evidence was clear that Respondent did not ask for or cause the date on Ms. Shriver’s application to change. In fact, the change in the application’s date was immaterial to Respondent’s criteria or requirements in filling the position at issue here and does not demonstrate any fraud, falsification or misrepresentation on the part of Respondent in filling the position. Based on her application, Ms. Soliman interviewed Ms. Shriver for the vacant position. The evidence was clear that Ms. Shriver had the experience and knowledge being sought and required for the position at issue. She was currently working in the grant billing division in another state agency and had significant experience and working knowledge of FLAIR as it relates to grants and billing. Ms. Soliman had worked with the successful candidate before but they were not personal friends. Ms. Soliman knew that Ms. Shriver was a competent employee. Based on these facts, Ms. Shriver was hired for the vacant position and did not require significant training once she began working in that position. There was no evidence that Ms. Shriver’s selection was based on her race or her age. She was selected based on her qualifications to immediately perform in the position for which she was hired. Likewise, there was no evidence that Petitioner was not hired based on his race, which was the same as Ms. Shriver’s, or his age. Petitioner was not hired because he did not have the experience necessary to enable him to immediately begin performing the duties of the position for which he applied. Finally, there was no evidence that Petitioner’s requirements for selecting a person to fill the vacant position or for selecting Ms. Shriver were unreasonable or a pretext for discrimination against Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that a final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of April, 2008, 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 8th day of April, 2008. COPIES FURNISHED: Albert H. Beddy 7281 Sycamore Road Quincy, Florida 32351 Stan M. Warden, Esquire Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue Whether Petitioner, Steven A. Ramunni (Petitioner), employed by a city as a part-time city attorney, is entitled to membership and service credit in the Florida Retirement System (FRS) from October 1, 2003, through the present.
Findings Of Fact Based on the evidence, the following Findings of Fact are determined. The City is a Florida municipal corporation classified as a local agency, which participates in the FRS. The city attorney is a regularly-established position, pursuant to Article IV of the Charter of the City. The City has no legal department. The cost for legal services rendered by its city attorney is included as a line item in the City's annual budget. The position is part-time, and Petitioner is permitted to engage in the private practice of law. The city attorney's immediate supervisors are the mayor and City Council of Moore Haven (City Council). Petitioner's primary legal duties consist of mandatory appearances at two regularly-scheduled monthly meetings and attendance at special meetings or workshops, scheduled by the mayor. The meetings always take place in City Council chambers in Moore Haven, Florida. Petitioner's legal duties and the dates and times of all meetings are subject to the discretion and control of the City Council. Petitioner regularly reports to City Council at each meeting. Petitioner provides legal advice/opinions to the mayor, City Council, and to all city department heads. City Council prioritizes all matters assigned to Petitioner. Petitioner represents the City in all litigation and official business. The Petitioner is paid a monthly salary for attendance at the above-described meetings and is obligated to be available, as needed, by city staff or individual council members on a daily basis, if necessary. The salary paid to Petitioner is in the form of W-2 wages, pursuant to the Internal Revenue Service classification. Other legal work is billed to the City by invoice in a pay-as-you-go basis for legal services requested beyond the scope of Petitioner's regular part-time services. The City provides administrative assistance to Petitioner when he is engaged in legal projects for the City and some supplies. Petitioner has no equipment and has limited office space on City premises. More recently, the City hired a city manager whose responsibility, in part, is to draft proposed legislation for review by Petitioner. All costs or expenses incurred by Petitioner are reimbursed by the City. The City hires and supervises the administrative staff. The City pays for legal seminars attended by Petitioner that are related to administrative and local government law. Petitioner is reimbursed for any per diem expenses incurred while performing the City's official business, including travel to and from those seminars. Petitioner has continuously performed legal services as the part-time city attorney since November 25, 1986. Petitioner is hired annually on October 1st (the beginning of the fiscal year), by the majority vote of City Council. Petitioner's services can be ended at will. Likewise, Petitioner can resign at will; there is no written employment contract with Petitioner. The City may not instruct Petitioner how to do his job as an attorney, although the City does have some control over what course of action or inaction he may take in a particular case. As a part-time city attorney, Petitioner may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from City Council and the mayor. Pursuant to an oral employment agreement between Petitioner and City Council on October 1, 2003, Petitioner was included in the FRS. In addition, Social Security and Medicare taxes were paid by the City, and Petitioner was classified as a W-2 employee. The oral employment agreement has been renewed annually since October 1, 2003. However, on October 1, 2007, Petitioner was elevated to Senior Management Classification, under the State of Florida Classification System. Petitioner is paid as an employee. The City reports to state and Federal agencies that annual earned income to Petitioner as "wages for income tax purposes by form W-2." As such, Federal income taxes are withheld and Federal Social Security and Medicare deductions are withheld from Petitioner's annual pay. The City matches contributions for Petitioner's Social Security and Medicare payments. When not engaged in city business, Petitioner is a partner in a law firm, with its principal place of business in Ft. Myers, Florida, from which he offers his legal services to the general public. The City employs other part-time employees, who are all included in the FRS. All part-time employees, including Petitioner, do not receive any additional benefits from the City. Some of these part-time employees have "side jobs" while not in the employ of the City. At least one similarly-situated person, E. Dan Stevens (Stevens), who was employed as the part-time Hendry County attorney prior to 1997 and again in 1999, was not included in the FRS. Stevens, while serving as part-time Hendry County attorney, also maintained a private law practice in the State of Florida and also in the State of Michigan. The evidence demonstrates that the position of city attorney is a regularly-established position as defined by law and the rules of Respondent. The evidence demonstrates that Petitioner's relationship as the part-time city attorney is that of an "independent contractor" with the City, as that term is defined by law and rule. Therefore, he is not eligible for participation in the FRS from October 1, 2003, through present.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from October 1, 2003, through the present. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 3rd day of November, 2010.
The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
The Issue Is the Petitioner handicapped? Was the Petitioner capable of performing her duties satisfactorily? Did Respondent take adverse personnel actions against the Respondent? Were the adverse personnel actions which were taken against the Petitioner based upon her disability? Did the Respondent have a legitimate nondiscriminatory basis for taking the adverse actions against Petitioner? Were the reasons articulated by the Respondent pretextual? Did the Respondent provide reasonable accommodations for the Petitioner? To what relief is the Petitioner entitled if she prevails? Are the Petitioner's rights limited by her status as a non-tenured employee on annual contract status? Is the Petitioner entitled to costs and reasonable attorneys fees?
Findings Of Fact Dr. Tony Mason was employed by the School Board of Leon County, Florida, as the Coordinator for Diagnostic Services on January 2, 1986. As is done with all employees of the School Board, she was recommended for employment by the board by her immediate supervisor, Dr. Ruth Mitchell. Dr. Mitchell supervised from four to six coordinators of units similar to the Diagnostic Services during Petitioner's tenure with the Respondent. Each of these units was headed by an individual who was not handicapped and who had an educational background similar to that of the Petitioner. The position requirements for the position of Coordinator for Diagnosis Services were a background in physiology, social work, or a related field as well as educational and administrative background or experience. Dr. Mason holds the following degrees: Bachelor of Arts and Social Studies, English and Speech, Masters Degree in Counselling and Physiology, a doctorate in Administration and Supervision, and an Educational Specialist degree. She was employed by the U. S. Department of Education for several years in an administrative capacity. The Petitioner was well qualified for the position of Coordinator of Diagnostic Services Unit. At the time the Petitioner was hired she was handicapped. Her primary impairment is cerebral palsy. The Petitioner has suffered from this condition since the age of three. This condition is readily apparent from talking with and observing the Petitioner. The Petitioner also has had a partial gastrectomy. This latter condition is not observable. During her employment, she advised her supervisor, Dr. Mitchell, of the nature, symptoms, and problems associated with both conditions. Both impairments significantly limit Petitioner's major life activities. Cerebral palsy, a neuromuscular disease, impedes Petitioner's ability to walk, and causes her to speak slowly. In addition, her speech is distorted although very understandable. A partial gastrectomy is a surgical removal of a portion of one's stomach. Both of the Petitioner's disabilities are negatively impacted by extreme stress. Extreme stress causes the Petitioner's muscles to contract and lock causing intense pain. Inordinate stress causes the Petitioner to "dump" requiring her to go to the nearest restroom as quickly as she can. Both the Petitioner's disabilities are not affected by normal, everyday stress. There was no evidence presented that the Petitioner's disabilities in any way impaired her intellectual capacity or mental abilities. The Petitioner had never been terminated or asked to resign from any position prior to working for the Respondent. While working for the Federal Department of Education and completing her doctorate in 13 months, both of which are stressful activities, the Petitioner did not suffer stress induced impacts on her disabilities. The Petitioner performed the duties of Coordinator for Diagnostic Services for almost two years without difficulty. As Coordinator for Diagnostic Services, Dr. Mason was responsible for the administration of this unit which employed eight social workers and ten physiologists. They were responsible for testing students within the school district and preparing reports based upon their testing to determine the eligibility of the students for participation in various educational programs. The Diagnosis Services Unit (DSU) also employed two secretaries and, at various times during the Petitioner's employment, additional interns and part-time employees. The Petitioner was also responsible for preparing staff papers on matters related to Diagnosis Services for presentation to the School Board together with budget requests, schedules, preparations of grants, and other special reports which were from time to time requested by the Superintendent, Deputy Superintendent, or Petitioner's immediate supervisor. To assist her in the preparation of these reports, the Petitioner was initially assigned a secretary. This secretary also filed the unit's paperwork and generally assisted the Petitioner. The work load of the DSU was consistently high as the unit was responsible for evaluating approximately 2,000 students each year. There has been a steady increase in the work load of the DSU since 1976, and the work load continued to increase through the period of the Petitioner's tenure at the DSU and thereafter. The DSU had suffered from high work load and limited resources prior to and during the Petitioner's employment in the unit. A psychologist working in the unit testified that she suffered severe depression as a result of the stress created by the workload in the Unit. For assistance in preparing reports, the DSU could send draft reports to the word processing unit. However, the word processing unit was slow and not suited to the particular needs of the DSU because the word processing personnel were not familiar with the technical terminology used in the psychological and social work reports, and did not accurately transcribe the material which the DSU sent to them. This resulted in reports having to be returned to the word processing center for corrections. Because the Petitioner's unit was only third in order of priority for using the word processing center, the DSU's turn-around time was lengthy. One school psychologist had to wait an entire summer to receive materials she had sent to the word processing center, and then found it necessary to return them for corrections. The lack of adequate secretarial support adversely impacted the work of the DSU and the Petitioner's personal performance. Dr. Mitchell, the Petitioner's immediate supervisor, forbade the Petitioner to use her secretary for typing Petitioner's written reports because of the backlog in the unit. The Petitioner was forced to print her own work by hand. This was slow and adversely affected by her disability. Because the Petitioner could not use the secretaries who were assigned to and physically located in her unit, the Petitioner had to walk to the word processing center, where obstructions and uneven steps in the area of the unit's office made Petitioner's walking more difficult. This caused further delay. The practice of assigning short suspense projects made the absence of adequate secretarial support worse. The Petitioner paid for secretarial services to prepare various reports for the Respondent paying in one year over $900.00 for secretarial support to meet the demands of her job. The Petitioner made verbal requests for a secretary to her supervisor, Dr. Mitchell, and these requests were denied. The Petitioner made requests to the Superintendent and other members of the School Board Staff, and caused a letter to be written by her physician to the Board explaining the need for secretarial assistance as a reasonable accommodation for her disability. Although the Respondent denies that Petitioner made a request for a secretary as a reasonable accommodation for her disability, Petitioner's Exhibit No. 2, a memorandum to William Wolley from the Petitioner dated May 4, 1989, which specifically addressed other issues references the aforementioned physician's letter as follows: There is also a letter from a physician earlier relative to that issue in requesting some reasonable accommodation in terms of secretarial assistance that was an attempt to get my Secretary III reinstated . . . [.] The Respondent never assigned a secretary to assist the Petitioner in doing her work although the timeliness of the Petitioner's work was the primary complaint regarding the Petitioner. The school board's yearly payroll was in excess of $110 million. The salary for a secretary varied between $15,000 and $20,000 a year. At the time of Petitioner's employment, the Petitioner walked without the use of a walker although she walked slowly and with some difficulty. The Petitioner wanted to postpone using a walker to assist her in walking because use of a walker causes certain muscles to become dysfunctional and atrophied. Although the Petitioner had a walker in her office restroom and in her car, she avoided use of a walker wherever possible because, as stated above, they can cause the muscles to become dysfunctional, and because they can cause the individual to trip by catching on the uneven surfaces. In late spring or summer of 1988, Dr. Mitchell, the Petitioner's supervisor, told the Petitioner that she wanted the Petitioner to use a walker around the office complex. Dr. Mitchell made the Petitioner's use of a walker a condition of continued employment after Petitioner fell outside the Board's offices when she tripped over an uneven joint in the sidewalk and landed on a piece of broken curbing. A coworker, who is an R.N., was aware of how Petitioner felt about being asked to use a walker and explained to Dr. Mitchell that victims of cerebral palsy strive to maintain the maximum independence and postpone the use of such devices. Dr. Mitchell advised the coworker that if Petitioner wanted to work for the Respondent that she would have to use the walker. The Petitioner felt that Dr. Mitchell's demand was unwarranted, improper, not in her best interest, and refused to use a walker in the absence of a physician's recommendation. The Respondent never referred Petitioner to a physician for evaluation. Subsequent to Dr. Mitchell's demands that the Petitioner use a walker and Petitioner's refusal, Dr. Mitchell made derogatory comments to staff about how slow Petitioner walked. At this time, the professional relationship between Dr. Mitchell and the Petitioner became strained. Dr. Mitchell arranged to have a study done in early 1988 by Case Management Services Inc. Dr. Mitchell requested that Dr. Mason participate in this study which was presented to Dr. Mason as an assessment of the work environment of the board offices; however, the report prepared by the consultant appears to address not the work area, but Dr. Mason personally. The purpose of this report was to support Dr. Mitchell's demand that Dr. Mason use a walker. Notwithstanding the findings by the consultant that there were architectural and facilities maintenance problems which posed a danger to the handicapped, the consultant's first recommendation primarily addressed Dr. Mason's use of a quad-cane (walker). The second recommendation, "occupational therapy evaluation to determine means for enhanced functioning among campus architectural problems," appears to be limited to the Petitioner. In the spring of 1989, Dr. Mitchell gave Petitioner her first unsatisfactory annual performance evaluation. In addition, Dr. Mitchell only extended Dr. Mason's service contract for three months beyond the existing contract and denied Dr. Mason an increase in salary. Dr. Mason appealed Dr. Mitchell's evaluation and Dr. Mitchell reevaluated Dr. Mason's performance as satisfactory. Dr. Mitchell told Dr. Mason that this was the last time she would amend her evaluation of Petitioner pursuant to an appeal. Although not readily apparent from the file, Dr. Mason's employment contract was extended for an entire year and pursuant to that contract she was evaluated again in June of 1990. At that time, Dr. Mitchell evaluated Dr. Mason as unsatisfactory and extended her contract for only three months. During the year 1989-90, Dr. Mitchell documented every instance in which Dr. Mason appears to have departed from school board procedure or failed in any way to meet Dr. Mitchell's expectations. Dr. Mitchell contacted other supervisors of other activities within the school system and requested that they provide her with any information related to the failure of DSU to meet their expectations. See the memorandum of Dr. Mitchell to Beverly Blanton dated June 19, 1989. Dr. Mitchell required Dr. Mason to perform additional work unrelating to any specific program or project, and announced her intention to attend Dr. Mason's staff meetings, to hold weekly meetings to review Dr. Mason's logs and summaries of activities, and to work with Dr. Mason on staff development. (See memorandum Dr. Mitchell to Dr. Mason dated April 10, 1989, subject: Suggestions for improvement in evaluation.) These requirements, placed upon Dr. Mason under the guise of improving her performance, formed the basis for additional criticism of Dr. Mason while at the same time taking up more of her time and undercutting Dr. Mason's authority with her subordinates. Dr. Mitchell also requested access to Dr. Mason's medical records, a request she did not make of any other employee. Dr. Mitchell demonstrated an amazing lack of tact with Dr. Mason. Dr. Mitchell advised Dr. Mason on one occasion when Dr. Mason was hospitalized for burns suffered in an accident while on school business that Dr. Mason had picked an extremely bad time to be injured, and when Dr. Mason was recuperating at home from a severe fall, Dr. Mitchell threatened to bring a television crew to Dr. Mason's house for an interview if Dr. Mason could not come to work. One of the major complaints against Petitioner by Dr. Mitchell was the quality of the reports provided by Dr. Mason's unit to Ray King. A complete file of these reports was provided to Dr. Mitchell by Mr. King's staff as a result of a memorandum from Dr. Mitchell. (See Tab 6, Respondent's Exhibit 3.) The first of these 103 reports is dated May 18, 1988 and the last of these dated December 15, 1989. There were 97 reports returned from Mr. Ray's to Dr. Mason's section between 5-18-88 and 4-20-89. There were six reports returned from Mr. Ray's section after 4-20-89. Contrary to the assertions made by Respondent, the number of reports kicked back by Mr. King during the period following Dr. Mason's initial unsatisfactory evaluation were significantly reduced. The Respondent attempted to justify its denial of a secretary as a reasonable accommodation to Dr. Mason by stating that it was having fiscal problems, and by providing Dr. Mitchell with a computer. Because of Dr. Mason's handicap, she is unable to utilize a computer to prepare her own work. Further, notwithstanding Dr. Mason's inability to use a computer, Dr. Mitchell required her to be conversant in the operation of a computer so she could utilize the computerized data base. Contrary to the Respondent's assertion that Dr. Mason was only required to be knowledgeable about the computer's capabilities, Dr. Mitchell required Dr. Mason to demonstrate use of the computer to her secretary, and was harshly critical of Dr. Mason's inability to do so. Although additional memoranda purportedly documenting additional failings on the part of Dr. Mason and the DSU were introduced, Dr. Mason's explanations are adequate, and these secondary reasons for the adverse personnel action are not meritorious. Because of budgetary constraints in 1990, Dr. Mason's requests for authorization to fly to St. Petersburg to make a presentation at an educational conference was denied. Dr. Mason was told to drive to the conference or not to attend because attendance at the conference was not a part of her normal duties and responsibilities. Presentations at such conferences are considered professionally beneficial both to the individual and to the board. However, Dr. Mason admitted that she had not requested air travel as reasonable accommodation due to her handicap which makes long trips by car very painful and debilitating. On September 22, 1990, the Petitioner received a memorandum from Dr. Mitchell that her contract would not be renewed, and that Petitioner should leave all records in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: The Respondent reinstate the Petitioner to a position comparable to the position from which she was terminated (or in which the Respondent denied the Petitioner employment), The Respondent pay the Petitioner backpay, to include insurance and retirement benefits less $25,241, in accordance with this order, The Respondent pay the Petitioner's reasonable attorney fees and costs, and The Respondent be enjoined from further discrimination against the Petitioner. DONE and ENTERED this 19th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 19th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6043 Proposed findings of both parties were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings: Para 1-9 Adopted. Para 10 Irrelevant. Para 11-14 (1st sentence) Adopted. Para 14 (2d sentence) Contrary to best evidence. Para 15,16 Adopted. Para 17 Irrelevant. Para 18-42 Adopted. Para 43 Subsumed in 44. Para 44-45 Irrelevant. Para 49-54 Adopted. Para 55 Irrelevant. Para 56-80,82 Adopted or Subsumed. Para 81 Irrelevant. Para 83-92 Irrelevant. Para 93-99 Adopted. Para 100-118 Adopted. Respondent's Findings: Para 1-3 Adopted. Para 4-5 Irrelevant. Para 6 Contrary to best evidence. Para 7-11 Irrelevant. Para 12-13 Contrary to best evidence. Para 14 Irrelevant. Para 15 Contrary to best evidence. Para 16-17 Irrelevant. Para 18,19 Contrary to best evidence. Para 20, 21 The letter was not considered. Para 22-24 Contrary to best evidence. Para 25-27 Adopted. COPIES FURNISHED: Kathryn Hathaway, Esquire 924 North Gadsden Street Tallahassee, Florida 32303 Leslie Holland, Esquire Suite 800 2800 Biscayne Boulevard Miami, Florida 33167 Deborah J. Stephens, Esquire Graham C. Carothers, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301 Richard Merrick, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304-2907 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
