The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER 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 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Petitioner, David J. Krasnosky, was employed by the Department of Labor and Employment Security from July l, 1973 until March 31, 1982 in its Pensacola, Florida office. He was initially employed as an employment counselor I from July l, 1973 until October, 1974. He was then promoted to an employment specialist I. He remained in that position until January, 1980 when he accepted a position in the next lower pay grade of employment interviewer. He attained permanent status for all three positions held. In late 1981 or early 1982, the Department of Labor and Employment Security suffered a loss in federal funding which required that the Department lay off a number of persons holding the position of employment interviewer. There were 23 such positions within the area, and after a layoff list was compiled, Petitioner was one of those who were laid off at the end of March, 1982. Respondent, Department of Administration, has promulgated rules governing the manner in which permanent status employees shall be ranked on a layoff list whenever layoffs are necessitated by a shortage of funds. Under a formula prescribed in Rule 22A-7.11(4)(d), Florida Administrative Code, permanent status employees in the affected class are ranked according to the number of retention points derived from seniority and performance. The formula provides that an employee shall be given one point for each month of satisfactory continuous state employment, regardless of class. The employee is also given "performance evaluation retention points" which are credited for each month of service in the affected class. These include one and one-half points for each month of service in which the employee was rated outstanding or above satisfactory, and one point for each month of service where the employee was rated satisfactory. Therefore, an employee is eligible to receive seniority points for each month of continuous state employment, regardless of class, while performance points are awarded only for those months that the employee has worked in the class affected by the layoff. The application of this formula resulted in Krasnosky receiving no performance retention points for the period of July 1, 1973 through December, 1979, since he did not work in the position of employment interviewer. Instead, he received such points only for the months of January, 1980 through March, 1982. He also received seniority points (except for several months when he took leave without pay) for all months of continuous state employment. Despite his long tenure with the State, other employment interviewers with less continuous state employment received more retention points than Krasnosky because of longer service in the class of employment interviewer. For this reason, he contends the rule is applied unfairly and conflicts with the general law that requires the Department to adopt a formula having "uniform application among all employees in the competitive area." Rule 22A-7.11 was originally adopted by the Cabinet, sitting as the Administration Commission, in 1976. It has been construed in a consistent fashion since that date. The rule has been amended on several occasions, and no objections there to have ever been filed by the Joint Administrative Procedures Committee, which reviews all rule amendments.
The Issue Whether Petitioner was subject to an unlawful employment practice by Respondent based on her race, national origin, or in retaliation for participating in a protected activity, in violation of section 760.10, Florida Statutes (2016);1/ and if so, what penalty should be imposed.
Findings Of Fact Background Petitioner, Ana-Marie Encui, is Caucasian, a native of Bucharest, Romania, and speaks with a Romanian accent. Petitioner’s son and daughter both reside with her. At all times relevant hereto, Petitioner’s son was 13 years old and her daughter, 11. Petitioner was first employed by Respondent, Department of Children and Families (“Department” or “Respondent”) as a Child Protective Investigator (“CPI”) in the Office of Family Safety in Brevard County, Region 5, on October 26, 2012. Petitioner and her children relocated to Pace, Florida, in Santa Rosa County in 2014. Petitioner was again employed by the Department as a CPI in neighboring Escambia County, Region 1, from May 9, 2014, until her resignation effective February 16, 2017. A CPI’s responsibilities are to investigate allegations of child abuse, neglect, and/or abandonment, received through the Department’s central abuse hotline and other sources. CPIs investigate allegations of abuse and neglect by interviewing children and adults involved in the allegations, as well as “collaterals,” such as relatives living outside the home, teachers, and other caregivers. Through investigation, CPIs assess the validity of allegations, document living conditions, and determine the steps needed to protect children from unsafe environments. CPIs also coordinate with, and refer clients to, social services for support, and conduct follow-up visits to ensure the safety of children is being maintained and supports are in place. CPIs may be called upon to testify in court regarding the circumstances of cases under investigation. Abuse Complaint Involving Petitioner’s Household On August 15, 2016, the Department received an anonymous complaint through the central abuse hotline regarding Petitioner’s household. Petitioner was not named as the perpetrator of abuse or neglect of children in the household. The complaint implicated other adult members of the household. Department Policy 170-16 (the “Policy”), Chapter 5, governs the procedure to be followed when Department employees are the subject of a report of abuse, neglect or exploitation. Such reports are designated as “special handling” reports. When a “special handling” report is received, the hotline supervisor must notify the appropriate manager, in this case the Region 1 Program Administrator, who must review the report immediately upon receipt. Section 5-6b. of the Policy provides, as follows: To maintain confidentiality, provide an objective assessment, and avoid the appearance of impropriety, the Circuit or Regional Program Administrator or Program Manager shall determine if the report needs to be reassigned to a different region or county. According to the Policy, in all cases in which the employee is the alleged perpetrator, the employee must be removed from customer contact while the investigation is pending, and the employee’s access to the Florida Safe Families Network (“FSFN”) database must be restricted by the close of business the following day. The Policy further provides that investigative activities on “special handling” cases “shall be expedited to ensure a timely but thorough investigation.” The decision regarding when, or if, the employee may return to assigned duties is at the discretion of the appropriate manager, which, in the case at hand is the regional manager. Stacy Amaro, DCF Region 1 Program Administrator, was notified of the “special handling” report involving Petitioner’s household. She approached Santa Rosa CPI, Katelyn Paschal, who was in line for assignment of the next case in the normal course of business. Ms. Amaro questioned Ms. Paschal about whether she knew Petitioner, who was a CPI in neighboring Escambia County. Ms. Amaro determined that Ms. Paschal had never worked directly with Petitioner, although the two had collaborated on out-of-town inquiries (“OTIs”) over the phone and via electronic mail, and may have attended Department trainings events together. Ms. Paschal was not friends with Petitioner, did not have social or personal interactions with Petitioner, and did not discuss Petitioner’s family or personal life with Petitioner. Ultimately, Ms. Amaro determined Ms. Paschal would be impartial and investigate the report fairly and thoroughly. Ms. Amaro decided to keep the report in the Santa Rosa office and assign it to Ms. Paschal for investigation. Ms. Paschal investigated the complaint from the date it was assigned to her--August 16, 2016--through October 22, 2016, when she closed the investigation finding the allegations of maltreatment of Petitioner’s children non-substantiated. During her investigation, Ms. Paschal interviewed Petitioner’s son at his school. Ms. Paschal asked Petitioner’s son questions about all the members of the household, activities in the household, arguments between adults, and the adults’ use of alcohol. During this interview, Petitioner’s son shared with Ms. Paschal that his sister had a learning disability. What Ms. Paschal said in response to that information was a subject of debate at the final hearing and is the crux of Petitioner’s complaint in this case. According to Petitioner, in Ms. Paschal’s subsequent interviews with collaterals, Ms. Paschal referred to her daughter as “slow” or “retarded,” or both. Ms. Paschal denied ever referring to Petitioner’s daughter as either “slow” or “retarded.” Petitioner’s Whistleblower Complaint On December 9, 2016, Petitioner filed a complaint with the Department’s Inspector General’s Office (“IG’s Office”), in Tallahassee, alleging the Department failed to follow correct procedures in investigating the abuse complaint involving her family. Petitioner alleged, and insisted at final hearing, that the complaint involving her family should have been assigned to a “neutral” county. Petitioner further alleged the CPI disclosed confidential health information regarding her daughter during interviews with collaterals, and failed to follow Department policy in other aspects of the investigation. On January 31, 2017, after a “preliminary review” of the complaint, the IG’s office responded to Petitioner in writing, as follows: [T]his office has determined that your complaint “does not demonstrate reasonable cause to suspect that an employee or agent of an agency or independent contractor has violated any federal, state, or local law, rule or regulation, thereby creating and presenting a substantial and specific danger to the public’s health, safety, or welfare or has committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty” as required under section 112.3187-112.31895, Florida Statutes, also known as the “Whistle- blower’s Act.” The IG’s office simultaneously forwarded Petitioner’s complaint to the Department’s Northwest Region Manager, Walter Sachs, for “any action deemed appropriate by [his] office.” Finally, because Petitioner’s complaint raised the possibility of a HIPPA violation, the IG’s office also forwarded Petitioner’s complaint to Herschel Minnis, Human Resources Administrator, Civil Rights Division. Petitioner’s Corrective Action Plan On January 24, 2017, Petitioner was presented with a Performance Corrective Action Plan, or PCAP, by her supervisor, Shavon Terrell. The PCAP noted seven different performance expectations for which Petitioner had fallen short, along with a summary of the particular reasons Petitioner’s performance was substandard. In each and every section, the summary included, “see write up for specific case information.” The “write-up” referred to an Employee Disciplinary Action Proposal Form, completed by Julie Yeadon, Ms. Salter’s assistant. The Form summarized specific cases with deficiencies in case follow-up, danger assessments, and case notes, and documented untimely submission of her cases to her supervisor when danger was identified. The Form documented Petitioner’s historic case backlog and past efforts to address the backlog by transfer of her cases to other CPIs. The PCAP period was two months--January 24 through March 24, 2017--during which Petitioner was expected to correct the noted performance expectation deficiencies by completing the specific corrective actions noted in the plan. The PCAP expressly stated the corrective actions must be taken “to attain satisfactory performance in your current position.” The PCAP expressly stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal may be initiated.” The PCAP provided that the plan was in accordance with “Standards of Conduct and Standards of Disciplinary Action for Department Employees CFOP 60-55, chapter 1.”2/ Petitioner refused to sign the PCAP agreeing to participate in the corrective action plan. Petitioner’s Resignation On January 31, 2017, Petitioner informed Ms. Terrell that she would not agree to the PCAP and would, instead, resign her position. In her resignation letter, Petitioner explained that she was resigning due to retaliation, unfair treatment, and negative job action taken against her for expressing her concerns regarding the “unlawful, unprofessional, and disrespectful manner that [her] children and family were approached and treated” during the investigation of the complaint involving her household. Petitioner’s resignation was effective February 16, 2017. Retaliation Claim Petitioner maintains the PCAP was a means of retaliation against her for filing the IG Complaint with the Department. Respondent presented Petitioner with the PCAP on January 24, 2017, 26 days after Petitioner filed the IG Complaint on December 9, 2016. The decision to place Petitioner on a PCAP was made by the following employees of the Escambia County office: Petitioner’s supervisor, Ms. Terrell; Operations Management Consultant, Julie Yeadon; and Program Administrator, Ms. Salter. Although the IG Complaint concerned the actions of, and was investigated by personnel in, the Santa Rosa office, Ms. Salter was aware in December 2016 that Petitioner had filed the IG Complaint. Ms. Yeadon was not aware of the IG Complaint until she began preparing for testimony in the instant proceeding. The record does not support a finding of whether Ms. Terrell had knowledge of the IG Complaint prior to participating in the decision to place Petitioner on a PCAP. Between May 2014 and September 2015, Petitioner was supervised in the Escambia County office by CPI Supervisor (“CPIS”) Tonja Odom. On January 28, 2015, Ms. Odom issued Petitioner a Documented Counseling for Poor Performance. The following excerpt is notable: As you are aware, the Family Functioning Assessment (FFA) is a valuable tool we use to help determine whether a child is safe or not. If a child is determined to be unsafe, then the family is referred to services with a Family First Network (FFN) provider. We have 14 days to complete [the FFA] and turn the case over to our FFN provider. Lately, you have missed the 14 day deadline and have cases that have exceeded 30 days. * * * In one of the overdue cases, (14-316539), the children were deemed unsafe; yet your FFA documents were not complete and the transfer to the provider did not take place timely. On January 22, 2015, this case was scheduled to be heard [by a judge] for a Case Plan approval. Your lack of action resulted in the FFN caseworker not being able to fulfill their duties and could have potentially harmed a child. Fortunately, the agency did not receive a penalty and the children are safe. Prior to this latest incident, I had several conversations with you, individually and within our group, stressing the importance of completing the FFA timely. The families we serve do not receive the needed services available if the FFA is not completed timely. * * * Your actions are unacceptable and any future violations may result in disciplinary action, up to and including dismissal. Petitioner acknowledged receipt of the Documented Counseling by her signature dated January 28, 2015. Ms. Salter was the Program Administrator in 2015 and was aware of the performance issue with Petitioner and issuance of the Documented Counseling. Ms. Salter testified, credibly, that Petitioner’s performance improved “for a brief while” after the Documented Counseling. Within a couple of months, Ms. Salter and Petitioner’s then-supervisor, Ms. Terrell, were discussing with her again the importance of timely follow up with victims and inputting notes in the system. In October 2016, the Department reassigned a number of Petitioner’s cases to other CPIs in order to address Petitioner’s backlog. When the cases were reviewed upon reassignment, the Department discovered that follow-up investigations had not been conducted timely, victims were not being seen according to protocols, OTIs were not processed timely, and documented appropriately, and there was an overall lack of documentation of Petitioner’s cases. In October and November 2016, Ms. Salter, Ms. Yeadon, and Ms. Terrell embarked on an effort to get Petitioner back on track with her investigations and case work. Following a meeting in which Department management discussed how to address backlogs with a number of CPIs, Ms. Yeadon, at Ms. Salter’s direction, reviewed Petitioner’s case files and documented specific deficiencies in follow up and documentation. That documentation was recorded on the Employee Disciplinary Action Form which was later used in conjunction with Petitioner’s PCAP. Ms. Yeadon subsequently drafted the PCAP which is the subject of the instant proceeding. Prior to presenting the PCAP to Petitioner, Ms. Yeadon discussed the PCAP with Petitioner’s supervisor, Ms. Terrell; Ms. Salter; and, ultimately, the Northwest Region Operations Manager for District 1. The PCAP provided Petitioner with specific performance improvement objectives to be performed within a two-month period. The PCAP provided that failure to comply may result in disciplinary action, up to and including termination. PCAP as Pretext Petitioner claims the PCAP and the Department’s allegations of poor work performance in late 2015 through 2016 are false and a mere pretext for unlawful retaliation. Petitioner argued that her performance evaluations from the Department were very good. Further, she argued that the Department would not have continued to assign her heavy caseloads in 2015 and 2016 if her performance were substandard as the Department represented. In support of her argument, Petitioner introduced spreadsheets reporting individual monthly totals of cases assigned to CPIs for the years 2014, 2015, and 2016 in the Escambia office. Petitioner was assigned only 64 new cases in calendar year 2015; however, in 2016, Petitioner was assigned a total of 231 new cases. For 2016, out of 44 CPIs, Petitioner was one of only nine assigned more than 200 cases. Twice in late 2016, Ms. Salter directed the transfer of cases from Petitioner in order to address her case backlog. Ms. Salter first directed the transfer of 40 of Petitioner’s cases, followed by another 20 in late December to Ms. Yeadon for management. Three of Petitioner’s relevant performance evaluations were introduced in evidence. For the review period July 1 through December 31, 2013, Petitioner received an overall rating of Satisfactory, scoring 3 out of a possible 5. Notably, the supervisor commented, “CPI Encui at times struggles to provide timely information to bring her cases to closure. She is actively working to improve in this area.” For the review period January 1 through June 30, 2014, Ms. Odom rated Petitioner Satisfactory, assigning a score of 3 out of 5. This performance evaluation was made prior to Ms. Odom’s January 2015 Documented Counseling to Petitioner. For the review period July 1, 2014 through June 30, 2015, Ms. Odom again rated Petitioner Satisfactory, assigning a score of 3 out of 5. Ms. Odom made the following relevant comments: Ana has improved greatly in completing her assignments timely. She is learning how to prioritize her workload. * * * If provided a weekly list of cases needed to be submitted, Ana works diligently to get these files submitted to supervisor on time. * * * Ana’s cases have been submitted for closure prior to the 60 day deadline with supervision from management. Ana often needs to be prompted by management to complete her FFA corrections within 24 hours. This performance evaluation was made during the year in which Ms. Odom issued the Documented Counseling to Petitioner. No performance evaluation for FY 2015-2016 was introduced in evidence. Tina Cain is the Northwest Region Operations Manager for Circuit 1. She transferred to the Escambia County office as Program Administrator in June 2016. At that time, Ms. Cain was confronted with a number of employees with performance issues including a number of CPIs with case backlogs. Evaluations were due to be performed in June and July, but, as Ms. Cain explained, unless an employee was on a performance improvement plan prior to their evaluation, the employee could be rated no lower than Satisfactory, a 3 out of 5. Ms. Cain met with her supervisors and instructed them to prepare improvement plans for employees who were not meeting expectations. She directed her supervisors, many of whom were new, to coordinate with Human Resources to prepare the plans appropriately. Ms. Yeadon was instructed to assist Ms. Salter in preparation of Petitioner’s PCAP, as well as plans for other employees under her supervision. Ms. Yeadon prepared the specific case “write-up” on the Employee Disciplinary Action Form out of ignorance, as she was not familiar with the correct forms to use. Once the error was brought to her attention, Ms. Yeadon prepared the PCAP form with reference to specific case notes on the “write-up.” At Ms. Cain’s direction, PCAPs were developed for several employees in the Escambia office in October, November, and December 2016. Petitioner did not prove the PCAP was a pretext for retaliation. The evidence supports a finding that Petitioner’s performance issues were documented in the years prior to Petitioner’s IG Complaint, and that Petitioner’s supervisor and other management discussed and began preparing the PCAP to improve Petitioner’s performance months prior to Petitioner’s IG Complaint. PCAP as Disciplinary Action The Department contends that the PCAP itself is not disciplinary action. The Department follows a progressive disciplinary policy. The first step is a verbal counseling. If the issue is not resolved after a verbal counseling, it is followed by a documented counseling. If the issue is not resolved following a documented counseling, the employee is placed on a performance improvement plan. Ms. Salter testified that, if the employee fails to meet the expectations in a performance improvement plan, the employee may be subject to discipline in the form of termination or placement on a probationary period. The PCAP form stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal[.]” The PCAP did not materially alter the terms, conditions, or privileges of Petitioner’s employment. Racial Discrimination Claim Petitioner was directly supervised in Escambia County first by Ms. Odom, an African-American female, then by Ms. Terrell, also an African-American female. Ms. Salter, also an African-American female, supervised Ms. Odom and Ms. Terrell and directly participated in the decision to place Petitioner on a PCAP. Ms. Salter’s second in command was Ms. Yeadon, who is a Caucasian female. Ms. Yeadon directly participated in drafting Petitioner’s PCAP. Ms. Cain, who is a Caucasian female, directed Ms. Yeadon and Ms. Salter to prepare Petitioner’s PCAP. Petitioner contends that her African-American supervisors discriminated against her by creating a hostile work environment and disciplining her unfairly. When asked to recount specific remarks made by her supervisors that were derogatory in nature, Petitioner could only recall references such as “this type of people” or “those people.” Petitioner admitted that the remarks were not “really clear cut” discrimination. National Origin Discrimination Claim Finally, Petitioner claims her supervisors discriminated against her and created a hostile work environment based on her national origin. Specifically, Petitioner claims that her supervisors and other employees made fun of, or picked on her about, her accent. When asked by the undersigned to identify the specific individuals and statement made by them, Petitioner identified Ms. Odom as rude and disrespectful to her for the entire period in which Ms. Odom was Petitioner’s supervisor. Petitioner stated Ms. Odom frequently responded to Petitioner’s questions with, “I think this is a language problem” or “This must be a comprehension problem.” Petitioner identified no additional specific comments made by Ms. Odom regarding Petitioner’s national origin or her accent. Petitioner never complained to anyone at the Department regarding Ms. Odom’s treatment of her prior to her resignation. Ms. Odom was Petitioner’s supervisor from May 2014 to September 2015. Ms. Terrell became Petitioner’s supervisor in September 2015 and continued as Petitioner’s supervisor until Petitioner’s resignation. Although Petitioner testified that Ms. Terrell made derogatory remarks about Petitioner’s national origin and her accent, she was unable to give any specific example. Petitioner also complained that Ms. Salter made fun of her accent, but could not remember any specific statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700691. DONE AND ENTERED this 17th day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 17th day of October, 2017.
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
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
