The Issue The issues in this matter are whether Respondent violated section 112.313(6), Florida Statutes (2013),1/ by obtaining funds from Orange County in the form of a severance payment while remaining employed as General Counsel for the Orange County Clerk of Courts; and, if so, the appropriate penalty.
Findings Of Fact Respondent, Stephan Carter, served as General Counsel for the Orange County Clerk of Courts (the “Clerk’s Office”) from June 2003 through April 1, 2014. Respondent was a public employee at all times material to this action. Respondent was personally hired by Lydia Gardner, the Orange County Clerk of Courts. In January 2005, Respondent and Ms. Gardner executed an employment contract (the “Employment Agreement”). The Employment Agreement was signed by Respondent and Ms. Gardner, in her capacity as the Clerk of Courts, on January 10, 2005, and January 13, 2005, respectively. The Employment Agreement, paragraph 6, entitled “Termination of Employment,” established that the Clerk would pay Respondent a fee should the Clerk terminate the Employment Agreement prior to its expiration date (the “Severance Payment”). Paragraph 6 specifically provided: The Clerk may declare this agreement terminated at any time. . . . The Clerk shall promptly pay to the General Counsel a sum equal to i) the salary and deferred compensation that is accrued but unpaid as of the date of the termination, plus ii) an amount equal to the pro rata portion of his salary for all accrued but unused leave time, plus, iii) an amount equal to the salary and deferred compensation that the General Counsel would have received during the 180 days immediately following the date such termination takes effect, as if this agreement had not been terminated. At the final hearing, Respondent explained that when he accepted the position of General Counsel (then titled “Legal Counsel”) with the Clerk’s Office in June 2003, he informed Ms. Gardner that he would only agree to work for the Clerk’s Office if he could be protected from losing his position. Therefore, Respondent sought and obtained the Severance Payment provision should he be terminated for any reason other than his voluntary resignation. The Employment Agreement provided that Respondent’s term of employment continued until January 6, 2009. On January 7, 2009, Respondent and Ms. Gardner entered a signed agreement wherein the Employment Agreement was “extended indefinitely.” On February 5, 2013, Respondent and Ms. Gardner signed a second amendment to the Employment Agreement.2/ This “clarification of terms” stated: [A]s to the definition of termination in paragraph 6, for the purposes of the contract, termination by the Clerk includes the ending of the employment relationship for any reason other than General Counsel’s voluntary resignation. The amendment also provided that an $11,000 annual payment into Respondent’s deferred compensation plan contained in the original Employment Agreement be considered compensation under Florida Administrative Code Rule 60S-6.001(15)(relating to pensions) and not a fringe benefit. In February 2013, Ms. Gardner became gravely ill. Ms. Gardner’s illness caused her to be absent from the Clerk’s Office. In Ms. Gardner’s absence, Colleen Reilly, the Chief Administrative Officer for the Clerk’s Office, assumed Ms. Gardner’s responsibilities. Ms. Reilly was hired in 2009. At that time, Respondent prepared an employment contract for Ms. Reilly modelled on his own Employment Agreement. In April 2013, Ms. Reilly approached Respondent to talk about their future employment with the Clerk’s Office. Ms. Gardner’s health was deteriorating. Respondent and Ms. Reilly discussed the impact of Ms. Gardner’s death on their positions. Ms. Reilly was also concerned whether the new Clerk of Courts would honor their Employment Agreements. Respondent and Ms. Reilly’s conversation led to a discussion regarding how they could protect the Severance Payments under their respective Employment Agreements. Respondent and Ms. Reilly considered several possibilities. One position was that their Employment Agreements would remain in effect upon Ms. Gardner's death, and they could ask the new Clerk of Courts to honor the payout terms. Respondent, however, determined that the Employment Agreements were not clear on whether he and Ms. Reilly were entitled to the Severance Payments following a change of administration. Therefore, they became concerned whether the new Clerk of Courts would be legally bound to honor the Severance Payments should he or she decide not to retain their services. Respondent, without seeking legal guidance or consulting with outside counsel for the Clerk’s Office, concluded that the Employment Agreements would terminate upon Ms. Gardner’s death. At the final hearing, Respondent explained that he considered his employment to be tied specifically to Ms. Gardner and not the Clerk's Office. Therefore, Respondent reasoned that because both he and Ms. Reilly were hired by and worked directly for Ms. Gardner, her death would terminate their contracts. This termination, of course, would also entitle Respondent (and Ms. Reilly) to the Severance Payment because his employment would have ended for a reason other than his voluntary resignation. Respondent and Ms. Reilly also discussed their plans once their Employment Agreements were terminated. Respondent informed Ms. Reilly that he believed that after the Employment Agreement was terminated, they could continue to work for the Clerk’s Office as “at-will” employees without employment contracts. Respondent encouraged Ms. Reilly to take her Severance Payment then stay in her position with the Clerk’s Office. He intended to do the same. Late in April 2013, Ms. Reilly informed Respondent that she was planning to visit Ms. Gardner, who was on convalescent leave at her home, to ask her to formally terminate the Employment Agreements and make them at-will employees of the Clerk’s Office. Respondent encouraged Ms. Reilly’s endeavor. Respondent then drafted two versions of a memorandum Ms. Gardner could sign to effectuate the termination of their contracts. Ms. Gardner, however, did not agree to terminate the Employment Agreements or sign the paperwork Respondent had prepared. Consequently, the Employment Agreements remained in effect. When Ms. Reilly was not able to obtain Ms. Gardner’s consent to terminate the Employment Agreements, Respondent began to consider Ms. Reilly’s authority to terminate his Employment Agreement. Respondent determined that Ms. Reilly could terminate his contract under section 28.09, Florida Statutes, and they could still receive the Severance Payments. Section 28.09 describes the appointment of a clerk ad interim in the case of a vacancy occurring in the office of a clerk by death. Section 28.09 states that the clerk ad interim “shall assume all the responsibilities [and] perform all the duties” of the clerk. Therefore, because Ms. Reilly would assume all the powers of Ms. Gardner, she would be authorized the terminate his Employment Agreement. Ms. Gardner passed away on May 8, 2013. On May 9, 2013, Ms. Reilly was officially appointed as Clerk Ad Interim for the Clerk’s Office. Also on May 9, 2013, Respondent and Ms. Reilly immediately took steps to obtain their respective Severance Payments. To effectuate their plan, Ms. Reilly promptly terminated both their Employment Agreements using her newfound authority as the interim Clerk. Respondent hoped that this step would remove any questions of their entitlement to the Severance Payment that might be raised by the new Clerk of Courts. Respondent then went directly to the Clerk’s Payroll office. There, he approached Tracy Gasinski, the payroll administrator for the Clerk’s Office. Respondent informed her that Ms. Reilly had approved him to receive a payout. Respondent declared that his payout was authorized because his Employment Agreement was terminated. Respondent also instructed Ms. Gasinski to pay Ms. Reilly’s payout under her Employment Agreement. Respondent stressed that he wanted both payouts processed immediately. Finally, Respondent advised Ms. Gasinski that nobody needed to know about the payout. Ms. Gasinski felt pressured by Respondent. However, based on his representation that Ms. Reilly had approved the payout, she immediately processed a final paycheck for Respondent (and Ms. Reilly), which included the Severance Payment provided in his Employment Agreement. Ms. Gasinski calculated a payout for Respondent in the gross amount of $110,290.61. This figure included a Severance Payment of $76,844.00. In addition, per his request, Respondent was also paid $27,822.10 for all his unused vacation leave (405.57 hours times a rate of $68.60), as well as $5,624.51 for his unused sick leave (327.96 hours times a rate of $17.15). Ms. Gasinski paid 25 percent of Respondent’s sick leave per Clerk’s Office policy. The next day, on May 10, 2013, Ms. Gasinski issued Respondent a check in the amount of $58,400.00 which was deposited directly into Respondent's personal bank account. Ms. Gasinski also deposited a final paycheck into Ms. Reilly's bank account. On or about May 20, 2013, however, Respondent returned to see Ms. Gasinski. He was not happy with his payout. Respondent told Ms. Gasinski that the amount she deposited was incorrect, and he was due more money. Respondent demanded several adjustments which would maximize his Severance Payment. First, referencing the February 5, 2013, amendment to his Employment Agreement, Respondent wanted the $11,000 he received as deferred compensation to be incorporated into his base salary thereby increasing his rate of pay. Second, Ms. Gasinski, in calculating Respondent’s Severance Payment, computed the final payout based on six month’s salary in accordance with the standard practice of the Clerk's Office. Respondent, however, insisted that his Severance Payment be calculated based on “180 days” as specifically stated in his Employment Agreement at paragraph 6. This mathematical adjustment increased Respondent's payout by including payment for all Saturdays and Sundays.3/ Third, Respondent demanded that he receive 100 percent payout for his remaining sick leave instead of just 25 percent as was the Clerk’s Office policy. Fourth, Respondent requested that 56 hours (7 days) be reserved in his vacation leave account and not paid out.4/ Following their meeting, Ms. Gasinski voided the initial payout check. However, she was not comfortable with Respondent’s request based on her understanding of employment contracts. Respondent's and Ms. Reilly's transactions were out of the ordinary course of business for the Clerk's Office. In her experience, final paychecks to Clerk’s Office employees were always accompanied by paperwork from the Clerk’s Office’s Talent Management division. This paperwork came in the form of an Employee Change Notice (“ECN”). However, Respondent did not produce, nor had Ms. Gasinski received, an ECN supporting Respondent’s payout. In Clerk’s Office accounting practices, Talent Management and the Payroll office act as a check and balance for each other. Typically, Talent Management initiates the paperwork, and then Payroll issues the checks. The normal process for a payout when a Clerk's Office employee leaves employment is for Talent Management to notify Ms. Gasinski who then processes the final payout. Respondent did not have the authority to direct Ms. Gasinski to issue the checks. Similarly, Ms. Gasinski did not have the authority to write checks to either Respondent or Ms. Reilly. Furthermore, a final payout upon termination is always via a paper check. Direct deposit to a personal bank account is never an option. The terminated employee picks up the paper check from Talent Management who verifies that the employee's garage pass and badge have been returned. Because of her discomfort with issuing Respondent’s payout check, Ms. Gasinski sought advice from her supervisor, Mike Murphy, the Chief Financial Officer for the Clerk’s Office. Mr. Murphy suggested that Ms. Gasinski contact Talent Management. On May 21, 2013, Ms. Gasinski spoke to Joann Gammichia, the Director of Talent Management, about Respondent’s request for a payout. When Ms. Gammichia learned of the situation, she had immediate concerns. First, Ms. Gammichia wondered why Payroll was issuing a check without any documentation from Talent Management such as an ECN. Ms. Gammichia testified that each employment activity requires completion of an ECN which acts as a recordkeeping system for the Clerk's Office. Because Respondent approached Ms. Gasinski in the Payroll office directly, no ECN or other written record was generated explaining why the Clerk’s Office was issuing the payout to Respondent. Ms. Gammichia explained that the policy of the Clerk’s Office is that payouts, severance checks, termination, or any kind of position change should only occur with an ECN in order to maintain and track the complete history of an employee's tenure with the Clerk's office. Ms. Gammichia also wondered why Respondent went directly to Ms. Gasinski with his demands. The normal starting point for employee changes begins with Talent Management, and the end of the line is financial services and Payroll. The fact that Respondent was attempting to verbally change his employment status in the Payroll office was “highly irregular.” Ms. Gammichia was also puzzled why the Clerk’s Office was issuing a severance payout on an employment contract when the employment was not ending. Consequently, Ms. Gammichia told Ms. Gasinski not to issue the adjusted payout check. Ms. Gasinski then notified Respondent via e-mail dated May 21, 2013, that she could not process the final payout until she received the proper documentation from Ms. Gammichia in Talent Management. Shortly thereafter, Respondent visited Ms. Gammichia’s office to inquire why she was involved in his payout matter. According to Ms. Gammichia, Respondent became “pretty aggressive.” Respondent told Ms. Gammichia that she had no authority or business being involved. It was a personal matter. Respondent warned Ms. Gammichia that she was directly violating an order from Ms. Reilly to make the Severance Payments. Ms. Gammichia informed Respondent that not only was she involved, but she was not authorizing the payout check to go through. Ms. Gammichia further advised Respondent not to contact Ms. Gasinski regarding the payout. Later that day, Ms. Gammichia contacted her supervisor, Cathi Balboa, the Director of Administrative Services for the Clerk’s Office, to discuss Respondent’s payout request. Ms. Gammichia relayed to Ms. Balboa that Ms. Gasinski was upset because she was being asked to prepare a large payout based only on verbal instructions without any supporting paperwork. At the final hearing, Ms. Balboa recalled that Respondent’s urgent request for a payout was highly irregular. Ms. Balboa relayed that the Clerk’s Office should not issue a final payout unless an employee was truly terminated from his or her position. Based on their concerns, Ms. Gammichia and Ms. Balboa called Ms. Reilly, who was sick at home, to confirm whether Ms. Reilly was aware of the payouts that Respondent said she had authorized. Ms. Gammichia also wanted to report the fact that Ms. Gasinski felt that she was being coerced and harassed by Respondent. Ms. Gammichia described Ms. Reilly’s reaction as hostile and negative. Ms. Reilly did not seem happy that others were involved. Ms. Reilly asked Ms. Balboa, “How did you get involved in this?" The next morning, on May 22, 2013, Ms. Reilly returned to the Clerk’s Office and called a meeting with Mr. Murphy, Ms. Balboa, and Respondent. Ms. Reilly opened the meeting by asking Mr. Murphy and Ms. Balboa "what do you think your role is in this organization," and "where do your loyalties lay?" Ms. Reilly then announced that “it was a private matter, it was their personal business, [and] to stay out of it." Ms. Balboa testified at the final hearing that Ms. Reilly intimidated her in their meeting. Mr. Murphy conveyed that he understood that they were not to get involved in the severance payout matter. After the meeting, Ms. Gasinski was told to proceed with the payouts for Respondent and Ms. Reilly. On May 23, 2013, Ms. Gasinski processed a second severance payout check for Respondent and Ms. Reilly. Ms. Gasinski prepared for Respondent a revised final paycheck in the total amount of $156,443.11. This amount included a Severance Payment of $106,387.20. Respondent was also paid $25,826.23 for his vacation leave (349.57 hours times a rate of $73.88), as well as $24,229.68 for all his unused sick leave (327.96 hours times a rate of $73.88). A check in the net amount of $99,125.45 was deposited in Respondent’s personal bank account. On May 23, 2013, Respondent repaid the initial payout of $58,400.00 to the Clerk’s Office by personal check. After Ms. Reilly terminated his Employment Agreement on May 9, 2013, Respondent never left his position with the Clerk’s Office. Respondent considered himself an at-will employee and continued to report to work as General Counsel. There was never any break in his employment. At no time did Respondent (or the Clerk’s Office) initiate or complete any paperwork to rehire Respondent after either Ms. Gardner’s death or Ms. Reilly terminated his Employment Agreement. No documentation was prepared transitioning Respondent from a contract employee to an at-will employee. Respondent continued to perform the same duties under the same terms, conditions, and compensation contained in the Employment Agreement as if he never left office.5/ At the final hearing, Respondent testified why his interpretation of his Employment Agreement justified his actions and motives. Respondent first remarked that his Employment Agreement was not typical for a Clerk’s Office employee. It contained certain provisions which were not to be “exposed generally,” such as the termination clause and the contact termination fee. Therefore, he desired to keep his employment terms quiet. Respondent further disclosed that he did not initiate an ECN because his Severance Payment was not a human resources issue, it was a matter of contract. Respondent also explained that at the end of 2008, when his Employment Agreement was nearing its initial termination date, Respondent became concerned with his future at the Clerk’s Office. He began to wonder what would happen if Ms. Gardner left her position as Clerk. Therefore, he prepared, then executed, the 2009 amendment to the Employment Agreement extending it “indefinitely.” In 2013, Respondent prepared, then executed, the second amendment clarifying the term “termination.” Regarding collecting his Severance Payment without leaving his position with the Clerk’s Office, Respondent contended that just because his Employment Agreement was terminated (thus, entitling him to the Severance Payment) did not mean he had to leave employment with the Clerk’s Office. Respondent characterized the payment as a “contract termination fee.” Therefore, he asserted that the Clerk could terminate his Employment Agreement without actually terminating him from his position as General Counsel. Consequently, nothing prevented him from becoming an at-will employee. Accordingly, when Ms. Reilly terminated the Employment Agreements on May 9, 2013, by exercising her prerogative as the interim Clerk, she also decided that both Respondent and she would stay on with the Clerk’s Office as at-will employees until the new Clerk of Courts determined what to do with them. In February 2014, the new Clerk of Courts, Eddie Fernandez, determined to initiate an investigation to review the propriety of the 2013 Severance Payments to Respondent and Ms. Reilly. On March 28, 2014, Respondent was placed on administrative leave with pay. On April 1, 2014, after the investigation recommended that Respondent’s employment be terminated, Respondent resigned from his position with the Clerk’s Office. As a condition of his resignation, Respondent was not eligible for rehire by the Clerk’s Office. Respondent reimbursed the full amount of the money that he received as the Severance Payment from the Clerk’s Office. Commenting on the circumstances of his resignation and restitution, at the final hearing, Respondent urged that he did not act dishonestly, but, maybe he exercised bad judgment. Respondent also proclaimed that he received his Severance Payment because the interim Clerk ordered it, not by reason of his actions or conduct. Therefore, he personally never violated any duty of his office. Based on the evidence and testimony presented during the final hearing, the competent substantial evidence in the record establishes, by clear and convincing evidence, that Respondent acted corruptly, with a wrongful intent, in seeking and obtaining the Severance Payment when he never intended to leave his public employment with the Clerk’s Office. Accordingly, the Advocate proved that Respondent violated section 112.313(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Steven Carter, violated section 112.313(6), Florida Statutes; and that Respondent be subject to public censure and reprimand. DONE AND ENTERED this 3rd day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 January, 2017.
The Issue The issues are whether Respondent committed an unlawful employment practice against Petitioner, and if so, what corrective action should be taken.
Findings Of Fact Petitioner is a forty-one-year-old black male. He is a 1977 graduate of the University of Florida with a bachelor's degree in Business Administration. His undergraduate major was Finance. Petitioner has approximately 30 credit hours in Accounting from the University of North Florida, which he earned between 1983 and 1988. Petitioner is currently enrolled in the University of North Florida's Masters of Public Administration program. He has completed 30 of the 39 required credit hours in that program. From November of 1979 to March of 1991, Petitioner worked for Occidental Chemical Company as an accountant. After leaving this job, Petitioner was self-employed from April of 1991 to December of 1991. Respondent's District Two office in Lake City, Florida, hired Petitioner on March 6, 1992, as a Purchasing Agent I. Respondent hired Petitioner under administrative rules pertaining to career service employees as promulgated by the Department of Management Services. Petitioner received a copy of Respondent's disciplinary and conduct standards when he was hired. Petitioner worked as a Purchasing Agent I until September of 1992. His salary during that time was $609.00 bi-weekly. In September of 1992, Respondent promoted Petitioner to the position of Accountant II in Respondent's Office of Financial Services. His bi-weekly salary was $752.91, a 23.5 percent increase. As soon as Petitioner became a member of the fiscal section, he received five weeks of intensive training relative to vouchers. This training was necessary because Respondent's central office was beginning to relinquish many functions to its district financial offices, including the vouchering process. Petitioner's direct supervisor in the fiscal section was Faye McClellan. She occupied the position of Accounting Services Supervisor I. Petitioner was indirectly supervised by David Sheffield, District Financial Administrator. On March 1, 1993, David Sheffield hired Karin Davis Charron, a white female, as an Accountant I in Respondent's Office of Financial Services. Her salary was $674.14 bi-weekly, or ten percent above the minimum for an Accountant I. Prior to her employment with Respondent, Ms. Charron had 15 credit hours in Business Administration and Accounting, which she earned at Lake City Community College. Her prior work experience included the following: (a) head cashier at a food store, October of 1983 to June of 1984; (b) accountant/bookkeeper in private business, July of 1984 to September of 1985; (c) Fiscal Assistant I, Department of Corrections, November of 1985 to April of 1987; (d) Secretary Specialist/Cashier, Department of Corrections, April of 1987 to May of 1988; and (e) Fiscal Assistant II, Department of Corrections, May of 1988 to March of 1993. In March of 1993, Petitioner completed his probationary period as an Accountant II. On March 27, 1993, Faye McClellan and David Sheffield gave Petitioner an overall performance rating of "exceeds." On June 1, 1993, Petitioner was promoted to the position of Accountant III. At this time, Petitioner's salary was increased by 10 percent to $828.20 bi-weekly. On August 20, 1993, Respondent hired Ricky Haddock, a black male, as a Fiscal Assistant II at a bi-weekly salary of $549.90. Ricky Haddock testified that soon after he was employed, Ms. Charron told him that "we can make your life a living hell." This statement is not credible due to Mr. Haddock's poor memory concerning the circumstances under which Ms. Charron allegedly made this statement. On or about March 11, 1994, Respondent promoted Ms. Charron to Accountant II with a bi-weekly salary of $766.94, a ten percent increase. Subsequently, Dave Sheffield received a promotion and vacated his position as District Financial Administrator. Linda Green, a white female, took his place. Ms. Green had over ten years of managerial experience when she accepted this position. As manager of the fiscal section, Linda Green became responsible for the direct supervision of Faye McClellan. She was Petitioner's and Ms. Charron's indirect supervisor. On or about March 17, 1994, Faye McClellan gave Petitioner a special performance appraisal. The appraisal form indicates that Petitioner, as an Accountant III, had attended voucher quarterly meetings, SAMAS contract training, payroll training, ADA training, and conduct standards training. The appraisal form described Petitioner as a team player. Of special note was his participation in the Youth Motivator Program in the Columbia County School System. Petitioner received a overall performance rating of "exceeds." Linda Green concurred in Ms. McClellan's assessment of Petitioner's job performance. On September 9, 1994, Respondent promoted Petitioner to the position of Accountant IV. The promotion increased Petitioner's salary by ten percent to $938.36 bi-weekly. Linda Green, as manager of the financial office, recommended Petitioner for this promotion. As an Accountant IV, Petitioner's duties primarily consisted of auditing consultant contracts. These contracts are the most complicated contracts that the financial office processes. Petitioner was also responsible for the payroll and for the supervision of other contract auditors. About two months after Petitioner became an Accountant IV, his immediate supervisor, Faye McClellan, requested and received a position reassignment in Respondent's purchasing office. Petitioner filed an employment application to fill the vacancy created by Ms. McClellan's reassignment. On November 21, 1994, Respondent promoted Petitioner to the position of Accounting Services Supervisor I. The promotion increased Petitioner's salary by 19 percent to $1,161.31 bi- weekly. Linda Green recommended Petitioner for the Accounting Services Supervisor I promotion. She became his direct supervisor. As Accounting Services Supervisor I, Petitioner was responsible for the direct supervision of several subordinate Fiscal Assistants and Accountants, including Ms. Charron. Petitioner was the only black supervisor in Respondent's second district. Historically, the financial section is one of the more racially diverse offices in District Two. From November of 1994 through June of 1995, there were approximately ten people working in the fiscal section. Three of these employees were black. At least two employees were members of other minorities. Petitioner, Ricky Haddock, and two other minority employees were the only employees in the financial office with a college education. On December 23, 1994, Respondent promoted Ms. Charron to Accountant IV. Her bi-weekly salary became $928.50 which was equivalent to the minimum of the pay grade for that position. Linda Green recommended Ms. Charron for the promotion to Accountant IV. Petitioner participated on the panel that selected Ms. Charron as the most qualified candidate to fill Petitioner's former position. In so doing, he reviewed her application and interviewed her for the job. There is no credible evidence to support Petitioner's current allegation that Linda Green allowed Ms. Charron to misrepresent her qualifications for the position of Accountant IV. Ms. Charron's application in February of 1994 for the position of Accountant II, and her application in November of 1994 for the position of Accountant IV, accurately describe all duties and responsibilities that she performed at Stafford's Fire Extinguisher Service in 1984-1985. In 1994, an applicant for the position of Accountant IV was required to have a bachelor's degree in accounting, or a certificate as a Certified Public Accountant, or equivalent work experience in accounting. Neither the Petitioner nor Ms. Charron possessed a bachelor's degree in accounting or a certificate as a Certified Public Accountant when Respondent promoted them to their respective Accountant IV positions. Nevertheless, the evidence indicates that they were well qualified for the position of Accountant IV, at the time of their respective appointments, based on a combination of their education and work experience. Petitioner had a bachelor's degree in Finance, over eleven years of accounting experience in private industry, and more than four years of experience in state governmental accounting. Ms. Charron, on the other hand, had less then one year of formal education in business administration/accounting, over one year of accounting experience in private industry, and more than eleven years of experience in state governmental accounting. State employees have to comply with numerous statutes and rules which do not apply to private enterprise. In this case, Ms. Charron's experience in working for the state more than compensated for her lack of formal education. As Accounting Services Supervisor I, Petitioner's supervisory responsibilities increased. In February of 1995, he directly supervised Rick Haddock and three other Fiscal Assistant II positions, two of which were vacant. He also had direct supervision over Ms. Charron. Ms. Charron, in turn, was responsible for the direct supervision of four other Accountant positions. On February 13, 1995, Petitioner signed a Review and Performance Planning (RAPP) form. This was a new form which Respondent began using just prior to implementing a major career service reform within the agency. The form states that from February 1, 1995, through January 31, 1996, Petitioner would be evaluated based on his performance of the following duties: Supervise district vouchering section. Active participation/supervision vouchering section. Coordinate workloads. Provide liaison with personnel, DOT and State Comptroller. Assist in Legislative budget request. Assist with budget preparation for various programs. Assist in formulating budget information into the different entities LBR's. Manage contract section. Manages all contracts. Verifying information and all supporting documentation for payments to vendors. Audit district disbursements. Audit disbursement for accuracy in accordance with GAP and pertinent federal/state/department rules/ regulations/statutes. The RAPP form lists the following as Petitioner's departmental responsibilities: 1. Coaching; 2. Delegation; 3. Management control; 4. Leadership/Influence; 5. EEO/Affirmative Action; 6. Performance goals; 7. Planning and organization; 8. Judgment; Resources; and 10. Safety practices. Linda Green wanted to increase the cross-training of all employees so that work would not become back-logged when one of them took leave. She also wanted to give Petitioner an opportunity to broaden his experience in other functions of the financial office. In order to accomplish her goals, Ms. Green gave Petitioner additional budget responsibility and deleted his property administration duties in February of 1995. Linda Green gave Petitioner's property administration duties to Ms. Charron. From February 1995, through May 1995, Ms. Charron spent a portion of her time working on the inventory. Ms. Charron continued to work on several special projects to supervise other accountants. As Accounting Services Supervisor I, Petitioner's desk was located in a glass enclosed area within a larger office. Petitioner was supposed to be a "working" supervisor. However, Petitioner spent an inordinate amount of time in his office with the door closed. During these times, Petitioner had long social visits with an employee from another office in the building. He discussed personal matters with an auditor from the central office on the phone for extended periods of time. At times Petitioner's door was locked, so staff could not use the computer which was located in his office. Petitioner's subordinates were reluctant to disturb Petitioner during these times even if they had a question they needed to ask him. They began to complain to Linda Green about Petitioner's unavailability. Linda Green observed Petitioner sleeping during meetings. At first she ignored the situation. However, employees from other offices began to complain about Petitioner's sleeping during meetings. Linda Green also received complaints from other employees that Petitioner was misusing state property. They claimed that he was receiving facsimile transmissions not related to department business. Linda Green began taking notes about these complaints on her computer. She did not share these notes with Petitioner. Linda Green discussed the prohibitions against misuse of state property in staff meetings. She also discussed her concerns about Petitioner's sleeping in meetings, talking on the telephone, and entertaining visitors with Petitioner personally. In February of 1995, Respondent initiated a new job classification and pay plan. The 1994 Legislature mandated this new system, which is distinct from the career service rules promulgated by the Department of Management Services. The new system is unique to Respondent as an agency. Under the new system, Respondent's employees retain career service status and benefits. However, Respondent changed position descriptions, job classifications, employment qualifications, and pay scale ranges to create more flexibility in hiring, promoting, and reassigning duties of employees within the department. The new system concentrates on the knowledge, skills, and abilities required for each position rather than a minimum qualification for each class specification. Formal education remains important, but it is not the paramount consideration in deciding whether to hire or promote employees. The focus of the new system is to ensure that employees can perform the required functions and duties of the specific positions which they occupy or for which they apply. Under the new system, Respondent can reward employees for productivity by increasing their salary without having to promote them to a new position or reclassify their existing positions. Respondent can increase or decrease salaries within a new classification, depending upon the actual duties assigned and performed by the employees. The new plan reduced the number of career service job classes from over 52 occupational groups with 1700 job classifications to 16 occupational groups divided into six levels. Respondent uses the fourth and fifth levels within an occupational group to recognize the distinctive, but equivalent, value of technical and managerial expertise. For example, each occupational group embraces a Level IV and Level V which corresponds to technical and managerial expertise respectively. A reassignment from a Level V managerial position to a Level IV technical position, or vice versa, is not a demotion or promotion, respectively. The new Level IV and Level V positions allow Respondent to reassign employees to different duties to meet the demands of the changing work load and work force without adversely affecting their work status, employment records, or incomes. Thus, Respondent can shift employees from obsolete duties to new and viable tasks where they are more productive. When Respondent initiated the new system, and for one year thereafter, Respondent's central office had to approve every reassignment from an old career service position "title" to the corresponding new title. In performing this duty, Respondent's central office verified the salary for each position to ensure that the salary corresponded to the duties assigned to that position. The initial reassignments in the new system were effective February 24, 1995. At that time, Linda Green, Ms. Charron, and Petitioner were reassigned to the new Accounting, Audit, and Tax occupational group with no change in their respective salaries. Linda Green was assigned to Level VI, as District Financial Services Manager. Petitioner was assigned Level V, Accounting Services Supervisor I, which required that Petitioner spend over 51 percent of his time supervising other employees. Ms. Charron was assigned to Level III as an Accountant IV. Petitioner continued to be Ms. Charron's direct supervisor. A personality conflict developed between Petitioner and Ms. Charron after she became an Accountant IV in December of 1994. Ms. Charron did not want the employees that she supervised to seek or receive assistance from Petitioner, even though he was her supervisor. If Ms. Charron disagreed with Petitioner, she would go over Petitioner's head to Linda Green to resolve the conflict. Petitioner resented not having total control over all of the employees under his direct and indirect supervision. His attitude became confrontational with other employees when they asked a question or made a comment that he perceived as undermining his authority. At times he was overly assertive in an effort to prove that he was right on one point or another. Linda Green did nothing to open lines of communication between Petitioner, as supervisor, and Ms. Charron, as his subordinate. Petitioner did not seek Ms. Green's assistance in resolving the conflict with Ms. Charron. As the power struggle between Petitioner and Ms. Charron ensued, dissension and poor morale became a problem in the fiscal section. On one occasion, Debbie Williams and Laura Kennon were working with the central office to correct an invoice error on one of Petitioner's consultant contracts. Petitioner questioned the method they were using to correct the problem. He wanted them to correct the error without involving the central office or the State Comptroller's office. Ms. Williams wanted to leave a proper audit trail. Before the situation was resolved, all three employees became angry and confrontational. Around the end of February 1995, a member of the financial services staff requested a meeting to discuss the problems the office was having as a result of the dissension between Petitioner and Ms. Charron. Jean Jones, District Two's Director of Administration attended the meeting. Linda Green and Jean Jones advised the staff that they could go to either Petitioner or Ms. Charron for answers to any questions about their work. Linda Green did not tell her staff in this meeting, or any other meeting, that education did not mean anything in Respondent's financial section. After the meeting was over, Jean Jones told Linda Green that some changes had to be made to better define the lines of communication within the office. Ms. Jones instructed Ms. Green to do some research and develop a solution to the problem. A large part of Ms. Charron's duties included working on special projects. These projects necessitated frequent consultations between Linda Green and Ms. Charron. There is no persuasive evidence that Linda Green showed favoritism to Ms. Charron by conspiring with her against Petitioner in private meetings and conversations. To the contrary, the dissension that existed in the office was the result of a personality conflict between Petitioner and Ms. Charron. Ms. Green's inability to establish a clear chain of command aggravated the situation. Prior to November of 1994, Respondent provided Petitioner with an abundance of training in technical and management subject areas. Some of the technical seminars included consultant procedures and negotiation, contract fund approval and encumbrance, and contractual services training. Other training programs included office staff skills enhancement, employee selection, conduct standards and discipline, district budget development, supervisory decision making, employee performance appraisal, fundamental skills of communication, fundamental skills of management, and Certified Public Management Level I. After November of 1994, Petitioner continued to receive training to enhance his career. Some of the programs he attended included review and performance planning, how to supervise people, managing change, presentation skills, budget and budget orientation, federal aid training, records retention, and management problems of the technical person in a leadership role. Linda Green encouraged Petitioner to participate in the training programs. She gave him the opportunity to develop the skills necessary to enhance his career. In the spring of 1995, Linda Green worked on training plans for all personnel in the fiscal section including Petitioner. On April 7, 1995, Ms. Green discussed Petitioner's training plan with him. On April 25, 1995, a copy of Petitioner's training plan was discovered on his desk with the word "bullshit" written across the bottom. Petitioner admits that he wrote this expletive on his training plan in the presence of Ms. Charron. In April of 1995, the State Comptroller's office rejected and returned a great number of invoices to the financial office. Linda Green responded by assigning Petitioner the responsibility of handling the returns and correcting the errors. In order to stay apprised of the situation, Ms. Green required that all mail relating to returns be directed to her before being delivered to Petitioner. She did not review Petitioner's mail unrelated to the returns. In April of 1995, Linda Green became aware that certain work assigned to Petitioner and/or Petitioner's subordinates was not being performed in a timely manner. Ms. Green had to enlist the help of other personnel to complete the work. In April of 1995, Linda Green initiated the procedure to issue reprimands to Petitioner concerning his continued misuse of the office telephones and facsimile machines, his sleeping on duty, and his social visits that wasted time. However, this procedure was delayed because Petitioner was hospitalized for surgery. Petitioner was out of work on sick leave from April 27, 1995, to May 30, 1995. During his illness, Linda Green extended Petitioner's probationary period for his Accounting Services Supervisor I position. In the 1992-93 fiscal year, the financial services office had approximately 12 primary responsibilities. The financial office gained 10 additional duties in the 1993-94 fiscal year and 18 new duties in the 1994-95 fiscal year. During this time, the number of positions in the financial office doubled. In May of 1995, Linda Green began to plan the reorganization of the financial section. She discussed the reorganization with her supervisor, Jean Jones. They made a decision to divide the responsibilities in the financial services office between Petitioner and Ms. Charron, the two established supervisors. They based the decision in part on a need to accommodate the increased work load. They also decided to split the supervision duties in an effort to improve the lines of communication within the office and to eliminate dissension. Officials in Respondent's central and district offices approved the reorganization. Under the reorganization plan, Ms. Green decided to give Petitioner responsibility for the following: supervising the concentration account; processing purchase orders, local purchase orders, local charge accounts, and utility invoice transmittals; processing travel and individual reimbursements; handling deposits; supervising warrant distribution; and processing mail. Ms. Green deleted Petitioner's duties relative to payroll and contracts. Ms. Charron's duties under the reorganization included supervision of the following: contracts, reconciliations, compliance reports, interest payments, and journal transfers. She assumed supervision of the payroll at the express request of Jean Jones. Additionally, Ms. Charron was assigned numerous special projects. When Petitioner returned to work from sick leave on June 1, 1995, Linda Green discussed the reorganization with Petitioner and Ms. Charron. She advised them that Ms. Charron would supervise four Level Two positions, one of which was vacant. Petitioner would supervise five Level One positions, all of which were occupied. Petitioner and Ms. Charron would report directly to Linda Green. Linda Green decided to have Petitioner supervise the Level One positions because they needed more supervision than the Level Two positions. Petitioner was better qualified than Ms. Charron to supervise the five entry level positions occupied by minority and non-minority employees. On June 15, 1995, Linda Green promoted Ms. Charron to Accounting, Audit, Tax Level V. Her salary was increased by 20 percent to $1,114.20 bi-monthly. The promotion was effective before the expiration of Ms. Charron's probationary period as an Accountant IV. The decisions to reorganize the section and promote Ms. Charron were made while Petitioner was absent on sick leave. Linda Green did not deliberately choose to promote Ms. Charron without consulting Petitioner as her supervisor. Moreover, Ms. Green, as manager, had no duty to consult with Petitioner before reorganizing the office. On June 16, 1995, Linda Green issued two official written reprimands against Petitioner. The first written reprimand involved a violation of Respondent's Conduct Standard 14-17.012(4)(a)6., Florida Administrative Code, for sleeping on duty. The reprimand documented the following occasions that Petitioner violated this conduct standard: November 30, 1994; December 1, 1994; January 5, 1995; March 13, 1995; March 20, 1995; March 21, 1995; March 30, 1995; June 5, 1995; and June 7, 1995. Prior to June of 1995, numerous employees were observed sleeping in meetings. The record contains no evidence that any of them were given written reprimands for sleeping on duty. Except for one of these employees, there is no evidence that their respective supervisors were aware that they were sleeping on duty. One employee, Jim Spencer, was observed sleeping on duty by his direct supervisor, Jean Jones. He was not on permanent career status at the time. Jean Jones decided to extend Mr. Spencer's probationary status rather than issue him a written reprimand. Ms. Jones made a conscious decision to give Mr. Spencer an opportunity to correct his behavior before dismissing him from employment. The second official written reprimand charged Petitioner with violating Respondent's Conduct Standard 14-17.012(4)(a)25., Florida Administrative Code, for unauthorized use or misuse of state property, services, equipment or personnel, and Respondent's Conduct Standard 14-17.012(4)(a)7., Florida Administrative Code, for loafing. This reprimand was the result of Petitioner's continued abuse of telephone privileges from January through June of 1995, misuse of the facsimile machines from February through May of 1995, and extended social visits with an employee from another office from January through March of 1995. Petitioner's alleged misuse of Respondent's facsimile machine was due to his involvement with the Safe and Drug-free Schools Advisory Council sponsored by the Columbia County School Board. Petitioner was cautioned in staff meetings on February 13, 1995, and February 21, 1995, against using state property for personal reasons. After those meetings, he received announcements of advisory council meetings on February 27, 1995, and April 26, 1995. He received a third fax transmission from the school board on May 16, 1995, while he was on sick leave. The school board solicited Petitioner's participation in the advisory council during one of Respondent's staff meetings. Respondent's employees did not have to request leave to attend the meeting. Nevertheless, Respondent did not give its employees permission to use its facsimile machines to receive notices about advisory council meetings or other volunteer work. Petitioner contacted the school board staff to tell them not to send him notices using Respondent's facsimile machines. The record is not clear as to when Petitioner made this request. Petitioner did not receive facsimile transmissions from the school board after he received the reprimand in June of 1995. The record contains evidence of four written reprimands for employee misuse of state property from December 1994, through May 1995. From February 1996, through June 1996, six employees were given written reprimands for misuse of state property. The reprimands of other employees included misuse of telephone privileges, computers, and agency stamps and stationary. These reprimands, together with competent evidence that Petitioner abused his long-distance telephone privileges as set forth below, eliminate any concern that Petitioner received disparate treatment regarding his reprimand for misuse or unauthorized use of state property. There is no evidence that Respondent has ever cited anyone but Petitioner for loafing. Nevertheless, the record supports this charge against Petitioner. Juanita Aiken works in Respondent's central office as an Disbursement Services Analyst. She testified that she often discussed personal matters with Respondent's employees in long- distance telephone conversations before she addressed the business purpose of her call. Linda Green personally informed Petitioner in January of 1995 that he needed to confine his long-distance telephone conversations with Ms. Aiken to department business. Petitioner did not heed her verbal warning. Ms. Aiken's personal telephone conversations with Petitioner did not cease until Linda Green and Jean Jones contacted her supervisor in Tallahassee. In the spring of 1995, Linda Green solicited Debra Williams' help in monitoring Petitioner's personal telephone calls. Ms. Williams declined to become involved and requested that her desk be relocated to another area. Linda Green assigned Ms. Charron a desk in Petitioner's private office in April of 1995. Ms. Charron complained to Ms. Green that Petitioner was talking on the phone for 30 to 45 minutes everyday and sometimes twice a day. The personal nature of the calls made Ms. Charron feel uncomfortable. Olu Olyewole worked for Respondent as a Distributor Computer Systems Analyst. He was responsible for connecting personal computer terminals to the networking system. He visited Petitioner regularly for extended periods of time until Ms. Green complained to his supervisor. When Mr. Olyewole visited Petitioner, the door to Petitioner's private office would often be closed. Early in 1995, Wanda Jean Hills desk was located in the glass-enclosed office with Petitioner's desk. On one occasion she could not get to her desk because she believed Petitioner and Mr. Olyewole were having a private conversation. The long social visits with Mr. Olyewole wasted time in an office that was overburdened with work. The visits interfered the performance of work by Petitioner and his subordinates. Petitioner was unavailable to his subordinates during these visits because they were reluctant to disturb his conversations, even when they needed his assistance. Linda Green did not reprimand any of her subordinates except Petitioner for misuse of state property, sleeping on duty, or loafing. However, there is no evidence that other employees under her authority violated the same conduct standards that Petitioner violated. There is evidence that Linda Green sold Amway products to employees on Respondent's property over a two-month time span. The record does not reflect the exact period of time in which Ms. Green engaged in this activity. The greater weight of the evidence indicates that Linda Green passed out Amway brochures and delivered merchandise before work in the mornings. At times, her co-workers would place an order with Ms. Green during work hours because they were familiar with Amway products and knew that she was an Amway representative. Occasionally, Respondent's employees would hand Ms. Green a check or leave one in her desk during work hours. Linda Green did not aggressively pursue her private enterprise during work hours. There is no evidence that Ms. Green's private business activities interfered with her duties or usurped a significant portion of her time as manager of the financial section. Respondent did not give Linda Green a written reprimand for conducting private business on Respondent's property. The record does not reflect whether Ms. Green was verbally reprimanded. It does not appear that her supervisor, Jean Jones, was aware that Ms. Green was involved in selling Amway products on department property. The record does not contain evidence of any written reprimand based solely on unauthorized solicitation on state property. It does contain evidence that Respondent issued a written reprimand to an employee for conducting personal business while using a state vehicle. The employee's actions, like Ms. Green's, were incidental to the performance of his duties. The employee's supervisor did not require the employee to reimburse the agency for any cost. On June 16, 1995, Linda Green gave Petitioner a special performance appraisal to evaluate his performance as a supervisor since November 21, 1994. To conduct this evaluation, Ms. Green used the performance appraisal form for supervisors and managers that was in effect when Petitioner was promoted to Accounting Services Supervisor I in November of 1994. Linda Green admits that she did not conduct the required initial review of the relevant performance standards with Petitioner within two weeks of his promotion. Nevertheless, Petitioner's claims that he was not familiar with the performance standards used by Ms. Green to evaluate his performance is not persuasive. Petitioner attended at least two seminars in performance appraisal and performance planning. Petitioner was familiar with the performance standards for a supervisor, which became effective after Respondent initiated its career service reform in February of 1995. He signed the RAPP form on February 13, 1995. The standards contained on the new appraisal form are substantially similar to the performance standards listed on the older appraisal form. Linda Green gave Petitioner an overall performance rating of "below" standards. The record supports her determination that Petitioner's work performance began to fall short of expectations after he assumed the position as an accounting supervisor. Linda Green determined that Petitioner's performance in two categories deserved the highest rating of "achieves." These two categories were EEO/AFFIRMATIVE ACTION and SAFETY PRACTICES. Linda Green determined that Petitioner's performance was substantially below expectations in at least one area of each of the remaining six categories for the following reasons: PLANNING, CONTROLLING AND ORGANIZING WORK Petitioner failed to operate his work areas efficiently. He did not notify his supervisor of job related problems. Petitioner did not take necessary and appropriate action on performance and shortcomings of subordinate employees. SUPERVISION/LEADERSHIP OF PEOPLE Petitioner failed to delegate effectively. Petitioner demonstrated dissension toward other staff members. PERFORMANCE APPRAISALS Petitioner did not take necessary and appropriate action on performance shortcomings of subordinate employees. PROBLEM ANALYSIS/DECISION MAKING Petitioner failed to inform and/or consult with necessary persons during the decision- making process. SELF DIRECTION/PERSONAL SKILLS Petitioner failed to use his work time effectively. He abused his telephone privileges. He wasted time visiting with an other employee. JOB PERFORMANCE Petitioner failed to perform specific job assignments as outlined on his position description or as assigned by appropriate management. A job applicant claimed that he earned 2400 credit hours in a U.S. Army finance school within a two-month period. Petitioner offered the applicant a job without verifying this information. Linda Green subsequently determined that the applicant had misrepresented his qualifications and withdrew the job offer. Based on this incident alone, Petitioner did not meet the standard for job performance in general. In December of 1995, Rick Haddock received a promotion to a Level II accountant. His salary increased by 20 percent to $715.27 bi-monthly. In March of 1996, Petitioner had a confrontation with Mary Caldwell, a white female accountant. Petitioner's voice was loud; he sounded very angry and threatening. The disturbance alarmed several employees who were in the vicinity. Ms. Caldwell and Petitioner went into a private office where the argument continued. Petitioner's behavior toward Ms. Caldwell was totally inappropriate. On March 22, 1996, Linda Green gave Petitioner a written reprimand for violation of Respondent's Conduct Standard 14-17.012(4)(a)16., Florida Administrative Code, involving rudeness, display of uncooperative or antagonistic attitude, actions or behavior. That same day, Ms. Green gave Petitioner a mandatory Employee Assistance Program Referral. In June of 1996, Linda Green deleted Petitioner's duties involving the budget and supervision of the vouchering section. Linda Green gave Patsy Green, a white female, Petitioner's budget responsibilities. Linda Green took this initiative because of the increased work load resulting from continued decentralization. The central office initiated a process in 1996 to conduct a periodic formal Quality Assurance Review (QAR) in each district office. The purpose of the QAR was to ensure that all vouchers were correct before they were sent to the billing office of the State Controller. Ms. Green wanted Petitioner to focus his energy on making sure that District Two's vouchers were in compliance with all state regulations. In June, 1996, Linda Green gave Petitioner additional duties including financial audits and investigations, quality assurance reports, reconciliations, comptroller returns, and liaison with the State Comptroller's office. His new duties were in-depth auditing and accounting responsibilities involving job cost reporting and making sure that the accounting system stayed in balance. Petitioner's salary was not decreased when his job description changed. At the same time, Linda Green gave Ms. Charron additional duties including contract funds management, joint participation agreements, settlement agreements, management reports, training, and numerous special projects. Ms. Green deleted Ms. Charron's supervisory responsibilities over the contract section. Linda Green received information in June 1996, that the central office intended to audit the supervisory positions in District Two. The central office wanted to make sure that all Level V positions in the Accounting, Audit, and Tax occupational group were held by employees spending at least 51 percent of their time in supervision. Petitioner and Ms. Charron were not spending 51 percent of their time in supervising the work of other employees. Accordingly, both of them were reassigned on June 14, 1996, to Level IV of the Accounting, Audit, and Tax occupational group. The working title for each of them became Accounting Services Administrator. This change was not a demotion and did not effect their respective salaries. Instead, the reassignments accurately reflected the actual duties of their positions. After Petitioner filed his Charge of Discrimination, Michael Klump, from Respondent's Minority Program Office in Tallahassee, Florida, was assigned to furnish all information requested by FCHR and to prepare the agency's response to the complaint. Mr. Klump's duties did not involve investigating the alleged charges on behalf of FCHR. Respondent's Minority Program Office prepared a letter dated September 11, 1995, addressed to Petitioner. The purpose of the letter was to advise Petitioner that the agency had received the complaint. It states that Petitioner should contact Mr. Klump if Petitioner had any additional information or questions regarding this matter. There is no competent evidence to indicate whether Petitioner received the letter from the Minority Program Office. Mr. Klump visited Respondent's District Two Office in Lake City to gather the information requested by FCHR. He did not interview Petitioner while he was there. Respondent's Minority Program Office does not routinely interview complainants who file a charge of employment discrimination with FCHR unless the complainant responds to a letter similar to the one addressed to Petitioner. There is no credible evidence that Respondent prepared its response and/or position statement to FCHR with the intention of misrepresenting material facts. Linda Green gave Petitioner a copy of her computer notes relative to dissension in the office when he first requested them. However, she edited the notes to delete the names of employees that had complained about Petitioner. At the hearing, Ms. Green produced an unedited copy of the notes which had been updated beyond the time relevant here. There is no persuasive evidence that Respondent intentionally discriminated against Petitioner on the basis of his race or gender or retaliated against him for filing his Charge of Discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claims of racial and gender discrimination and retaliation. Recommended this 15th day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1994.
The Issue The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.” The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances, including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to control, and that when business turns down, they are the most obvious place to cut expenses. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses. Mr. Schmidt also laid off service advisors and two lube technicians. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.” Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any more money than his current detailers were receiving. Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him. Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically, that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/ Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a rational business decision necessitated by a severe decline in sales revenue. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 13th day of September, 2010.
The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, pursuant to Chapter 760, Florida Statutes, by its failure to promote Petitioner, an African-American female, and its promotion of a Caucasian female who was less qualified.
Findings Of Fact Petitioner is an African-American female. Respondent School Board of Lake County, Florida, is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material, Paul Haskins (Caucasian male) was the supervisor of the Warehouse and Grounds Department. In that capacity, he supervised the functions of Plant Operations, Central Warehouse, Grounds, and Property Control, including the Property Control Specialist position. Mr. Haskins has been employed with the School Board for approximately 33 years. For the past 20 years of his employment with the School Board, Mr. Haskins has served in a supervisory capacity. In that position, he has the authority to hire and fire employees under his supervision. Mr. Haskins made the decision to hire Jane Adams (a Caucasian female) for the Property Control Specialist position in 2003-2004. His hiring of Ms. Adams is the subject of Petitioner's charge of discrimination/Petition for Relief. In 1976-1977 Petitioner worked for the federal government at Robbins Air Force Base as a clerk typist, where she performed numerous duties at Pay Grade GS XI, Civil Service Supervisor. While at Robbins Air Force Base, Petitioner held the position of Shipping Clerk. In her last year at Robbins Air Force Base, she held a temporary position supervising four clerks. Petitioner continued work at MacDill Air Force Base, where she concluded her civil service career of over 10 years. During the course of her civil service experience, Petitioner was Custodian of Records, Classified Air Craft Designs. Immediately prior to being hired by Respondent, Petitioner worked in a clerical position for the City of Eustis, Florida. Petitioner has been employed with Respondent Lake County School Board for approximately 17 years. Petitioner was hired by Respondent in April of 1988, as a Maintenance Worker III. In 1992, Petitioner was promoted to the position of Fiscal Assistant II with Respondent's Maintenance Department. She continues to be employed in that capacity today. Petitioner has worked for Respondent in the capacity of Fiscal Assistant II for approximately 15 years. However, she has never worked under the supervision of Mr. Haskins and has never worked directly with Ms. Adams. The Fiscal Assistant II position is an accounting support position and does not require an accounting degree. The duties Petitioner performs as a Fiscal Assistant II include assisting and preparing the documents related to budgets and purchase orders in the maintenance department. She prepares orders for materials for that department. She maintains property for the department with respect to its locations, and if the materials have a value of over $1,000.00, Petitioner is responsible for in-putting the data in the SA 400 computer software system, which is Respondent's current financial network. Petitioner is very skilled in using the SA 400, but Petitioner's computer system work has been primarily office or secretarial work related to accounting for its four million dollar budget. By the date of hearing, Petitioner had completed over 30 semester hours at Lake-Sumter Community College in Leesburg, Florida, towards an Associate of Arts degree. The hearing occurred nearly two years after any date material to the promotion involved in this case. In December 2003, Darlene Elliot (Caucasian female), Respondent's Property Control Specialist, announced her retirement. The Property Control Specialist position operated under the umbrella of the Warehouse and Grounds Department, managed by Mr. Haskins. The opening was posted and advertised. The pay grade for the position was Level Eleven. Current School Board employees could apply for the upcoming vacancy simply by providing a letter of intent or completing an application for the position. Several applicants applied for the position. Petitioner submitted a letter of interest, along with her resume which detailed her qualifications and background for the position. Ms. Adams submitted only an application, which was not signed or dated. Several other employees from different departments also submitted their letters of intent for the Property Control Specialist position. Mr. Haskins unilaterally selected only six applicants to be interviewed. All the applicants selected to be interviewed were already employees of Respondent. Petitioner and Ms. Adams were among them. The six applicants interviewed were: Petitioner, Ms. Adams, Sonja Charlene Gore, Stephen Miller, Debra Parker, and Laura D. Sullivan. Of the applicants, both Ms. Gore and Petitioner are African-American, and both are Fiscal Assistants. The remainder of the applicants are Caucasian. All six applicants, with the exception of Mr. Miller, were female. Mr. Miller also was a Fiscal Assistant II, with a background in data processing and records keeping. He also had already earned an associate's degree. Ms. Sullivan was a Grounds Worker III with prior bookkeeping experience. Ms. Parker's experience is not clear. Petitioner's charge of discrimination initially stated an allegation of sex discrimination, but she did not pursue that claim at the disputed-fact hearing. The job description for the Property Control Specialist position listed the requisite job duties for that position. Among the requisite job duties were: performing audit and inventory procedures pursuant to state and federal statutes and pursuant to rules of the Auditor General; in- servicing each school's new property custodian and insuring correct records at each school; coordinating purchasing, bookkeeping, and warehouse and grounds maintenance with each school; tagging all new equipment; processing tags, titles and registrations on rolling stock; reconciling property records with expenditures; working with various auditors; preparing lists of equipment and rolling stock for insurance renewal each year; coordinating disposal of surplus equipment; and preparing and reviewing audit reports and dispositions to go to the School Board. The Property Control Specialist job description also sets forth the necessary knowledge and skills for that position. Among the knowledge and skills listed are: knowledge of accounting procedures; knowledge of equipment used in schools; ability and desire to establish and maintain an amiable relationship with vendors and all School Board personnel; physically move student desks, chairs, and equipment from one cost center to another; ability to withstand extreme heat and cold for extended periods of time; ability to lift 30 lbs; and ability to walk, bend, stoop, and climb stairs. Also, a valid Florida Driver's License was required, and a high school diploma or a GED was preferred. The Property Control Specialist position was described as very physical. Many audits are performed in the summer, and much of the work is done out in the field, which can be very hot and dusty. Mr. Haskins, Beth Minnix (Caucasian female), and Barbara Harper (Caucasian female), participated in interviewing the six candidates selected for interviews. However, the selection of one of the interviewees to fill the position was made unilaterally by Mr. Haskins. The retiring Ms. Elliot had hurt feelings because Mr. Haskins did not make her a member of the interview team. During the six interviews, Ms. Minnix and Ms. Harper did not ask the interviewees questions, but they were encouraged to take notes and privately offer their opinions to Mr. Haskins on each of the applicants interviewed. They were also intended to serve as witnesses, in the event that Mr. Haskins needed them to recall an applicant's response. They were also intended to observe Mr. Haskins' conduct of the interviews. Ms. Adams has a high school education and has worked as a farm worker and a custodian. For 14 years she has been a grounds worker in Respondent's employ. She was familiar with all the schools in the District and had done heavy duty deliveries and pest control at most of them. She had covered for Ms. Minnix, Mr. Haskins' Purchasing Agent, during Ms. Minnix's two pregnancies and had been cross-trained by her in purchasing. Ms. Harper, Mr. Haskins' Fiscal Assistant, was also familiar with Ms. Adams' training, experience, and personality, because Ms. Adams had covered for Ms. Harper during Ms. Harper's vacation. At the time of the interviews, Ms. Adams had worked for the School Board for approximately 14 years, and her current primary function was pest control. She was initially hired in a custodial position. Five months later, she was promoted to the position of Grounds Worker III. At all times during her 14 years of employment with the School Board, she had worked under Mr. Haskins' supervision. Over that period of time, she had performed various duties such as "jack rabbit" mail courier to all the schools; general secretarial work; answering phones; filing; processing purchase and work orders; inventory and warehouse receiving; tagging inventory, property, and equipment; transferring property; performing custodial work; using the SA 400 computer system; inventorying and auditing of physical, tangible property; payroll; setting up new schools' physical plants; pest control; and supervision and direction of summer employees. A few of Ms. Adams' foregoing skills and functions had been performed under Ms. Elliot's direction. However, a lot of Ms. Adams' work for Ms. Elliott, which was directly that of the position she sought in 2003-2004, had occurred 10 years before the vacancy at issue. In approximately 1994, Mr. Haskins, who was always Ms. Elliot's supervisor, had given Ms. Elliot a choice of selecting either Ms. Adams or Ronnie Calloway to become her assistant Property Control Specialist. Ms. Elliot had selected Ronnie Calloway (an African-American male) over Ms. Adams (a Caucasian female). In Ms. Elliot's view, Ms. Adams was not dependable, was consistently tardy in her arrival at work; and took off early from work. However, Ms. Elliot had no factual knowledge that Ms. Adams was abusing sick or annual leave. Indeed, there is affirmative evidence that Ms. Adams often left work early with permission to care for a sick husband. In Ms. Elliot's opinion, Mr. Calloway was an excellent worker in every respect, so she hired him. Ms. Elliot did no interviewing for the assistant position to which she promoted Mr. Calloway at that time. Mr. Calloway retired after approximately six years. His position was filled by another male (race unspecified). After Ms. Elliot hired Mr. Calloway as her assistant Property Control Specialist about 1994, Ms. Adams did much less work with property control. However, over the intervening years until 2003-2004, Ms. Adams had sporadically worked in the property control office for Ms. Elliot, helping her in some periods less than others. Race was not discussed during the interviews conducted by Mr. Haskins to replace Ms. Elliot or during any of the discussions among the interviewers regarding the candidates. Mr. Haskins asked the same initial questions of each applicant. Those questions were: (1) Tell me about yourself from school up to today's date, including education and employment; (2) Tell me what you know about the Property Control Specialist position; (3) Why are you applying for this position; (4) Explain a situation where you had a conflict and how you handled the situation; and (5) Tell me about your knowledge of all the various computer programs that you have used. After his initial six questions, Mr. Haskins then asked follow-up questions based upon each applicant's individual responses to the initial questions posed. Each applicant also was required to draft and type a letter on the topic of why s/he should be hired for the position. Ms. Harper administered that portion of the interview process to each of the interviewees in another room.1/ After the interviews, Mr. Haskins scored the applicants in the following nine categories, which he deemed important for the position: appearance; verbalization; knowledge; experience; technology skills; compatible with operations; physical demands per job description; written expression; and initiative. Mr. Haskins' scoring methodology was his own and had not been previously approved by Respondent's School Board or Human Resources Director. No standard criteria was used. No key for assigning scores was used. The assignment of points was at Mr. Haskins' will. No School Board requirement provided otherwise. Prior to the interviews, Mr. Haskins had knowledge of Ms. Adams' work performance for him over the whole of her employment. He had conducted evaluations of Ms. Adams' work performance each year. Each of his evaluations had complimented her positive attitude, her flexibility in the various tasks assigned to her, her ability to fill in wherever needed, or her initiative in enhancing her computer skills. Prior to conducting the interviews in December 2003, Mr. Haskins also had knowledge that Ms. Adams had a very good rapport with the school principals, custodians, and other personnel from working out in the schools, got on well with the other office staff, and had taken some computer classes. It is entirely possible, and, frankly, probable, that Mr. Haskins allowed his prior high opinion of Ms. Adams to color his rating of her interview sheet. However, there is no indicator that race or racial animus played any part in his scoring system or in his actual scoring of any interviewee. Indeed, Ms. Elliot (Caucasian female) and Chloe Womack (African-American female), both of whom testified on Petitioner's behalf, would not say they believed race affected Mr. Haskins' dealings with employees. They both testified that African-Americans were only hired by Ms. Haskins for outside jobs, and Ms. Womack testified that Fiscal Assistants like herself and Petitioner had always been discouraged from applying for work in the Grounds and Warehouse category by being told how dusty and physical it was.2/ However, Ms. Womack further testified that "the good old buddy" system was apparent in Mr. Haskins' office and that those who worked there, including Ms. Adams, probably got preferential treatment in promotions for that reason, as well as for having more inside knowledge of the jobs there. This belief that office preference or favoritism was the reason for promoting from within the Warehouse and Grounds Department or from the vicinity of Mr. Haskins' office also was expressed by other witnesses who had been applicants for the promotion in question. Ms. Elliot testified that she had no factual information that Mr. Haskins discriminated in hiring on the basis of race but that she felt he discriminated on the basis of whom he liked and disliked. She conceded she did not know how he came to like some people, and not others, and that she could not relate his dislikes specifically to race.3/ Mr. Haskins scored each applicant on a possible 100 points. He assigned total scores to the applicants as follows: Jane Adams 94; Charlene Gore 91; Stephen Miller 81; Petitioner 80; Dee Sullivan 78; and Debra Parker 65. Charlene Gore, an African-American female who received the second highest score of all applicants, testified that she did not feel that there was anything racially discriminatory about the selection process or the selection of Ms. Adams. Had she felt there were race discrimination, she would have complained about it. Ms. Adams, Ms. Gore, and Petitioner were scored by Mr. Haskins as follows: Adams Gore Petitioner (Caucasian) (African- (African- American) American) Appearance 10 10 10 Verbalization 8 10 8 Knowledge 10 8 5 Experience 15 10 10 Technology Skills 13 14 13 Compatible with Operations 10 9 8 Physical Demands per Job Description 10 10 10 Written Expression 8 10 9 Initiative 10 10 7 94 48. No weighting clearly in favor 91 of the Caucasian 80 candidate over the African-American candidates is evident in the foregoing scores rated by Mr. Haskins. Ms. Adams was rated highest, by comparison to the others, in the categories of knowledge, experience and compatible with operations. All three of these categories were ones in which Mr. Haskins had personally observed Ms. Adams over many years. Mr. Haskins testified that he considered a good attitude to be important for the Property Control Specialist position. He also looked for an individual who would fit in with the structure of his department. He explained that the nature of the position required the Property Control Specialist to possess the ability to work cooperatively with the other individuals in the department and in the School District. He wanted to select a person with "people skills" who had the demonstrated ability to handle conflict effectively and deal with school administrators regarding sensitive issues. Upon Mr. Haskins' inquiry during the interview, Petitioner cited as an example of handling conflict, an incident where another employee asked her to order supplies and she replied, "I can’t buy pencils, that’s not my job. I don’t do that. I buy trucks." This response caused Mr. Haskins concern that Petitioner would not be a good fit for the position. Her answer was confrontational, and Mr. Haskins had concerns with her willingness to multi-task and to be flexible in performing job duties. Mr. Haskins explained that the employees who work under him are often called upon to perform tasks that are technically outside their job description. Petitioner has been critiqued in a past evaluation by a different supervisor for her lack of ability to maintain composure when dealing with stressful situations with co-workers or vendors. However, Petitioner has been evaluated as improving in this regard. At one point during her interview, Petitioner's voice became elevated when describing a perception that the women in her department did not get along, and asserted that such a perception was not accurate. Petitioner became very loud and confrontational, and spoke about the topic for several minutes. This left a bad impression with the whole of the interview committee.4/ Mr. Haskins perceived Petitioner as lacking knowledge of what the Property Control Specialist position entailed, particularly in comparison to Ms. Adams, because when he asked Petitioner during the interview what she knew about the Property Control Specialist position, she replied, "You go out and tag property, I guess." Ms. Adams' response included a detailed explanation of the process and paperwork involved in the position she sought. Several of the applicants, including Petitioner, Ms. Gore, and Mr. Miller had experience as fiscal assistants. Experience as a fiscal assistant and working with budgets were not preferred criteria for Mr. Haskins and the remainder of his committee, nor did they feel such qualifications warranted any particular weight in considering the requirements for the Property Control Specialist position. Mr. Haskins selected Ms. Adams for the position. He felt Ms. Adams was the most qualified applicant, since she was familiar with many of the duties of a Property Control Specialist and had experience in performing them. He may have believed her experience under Ms. Elliot was greater than it actually was or not realized that much of her experience with Ms. Elliot was remote in time (see Findings of Fact 32 and 35), but among the relevant duties Ms. Adams had performed prior to the interviews were: taking inventory; tracing and reconciling any discrepancies in inventory; servicing property custodians; coordinating with schools; purchasing; bookkeeping; warehouse and grounds, and maintenance; tagging new equipment; transfer of equipment when cost centers separate, move, or disband; and working with various auditors. Mr. Haskins also had observed Ms. Adams perform receiving, accounts payable, work on the budget; other work involving accounts procedures and mathematical computations. He observed that she kept her secretarial and computer skills up-to-date and was very knowledgeable of all the equipment used in schools. Because of the physicality of her then-current job position, he felt Ms. Adams also had demonstrated the physical ability to lift 30 pounds, move equipment, and withstand extreme heat and cold. Ms. Adams also demonstrated the ability to make decisions and to work independently. She was familiar with the relevant computer program, the SA 400, and had been authorized to use it since 2000. Ms. Minnix and Ms. Harper agreed with Mr. Haskins' assessment of Ms. Adams as the most qualified applicant for the position. In an attempt to establish a pattern of racial discrimination by Mr. Haskins, Ms. Elliot testified that years prior to her retirement, Mr. Haskins had given her a choice of selecting whom she wanted to assist in her office and had approved her selection of Ronnie Calloway, an African-American male, to assist her instead of Jane Adams. (See Finding of Fact 33.) This does not pass muster as discrimination against African-Americans. Ms. Elliot then testified that on multiple occasions, several Caucasian male employees called Mr. Calloway "Shine;" that Mr. Haskins heard them; and that Mr. Haskins, himself, had referred to Mr. Calloway as "Shine." Mr. Haskins vehemently denied ever using that term. Mr. Haskins testified without refutation that he had overheard another employee use that term toward Mr. Calloway, and thereafter, in the presence of several other employees, he had reprimanded the employee for using the racially derogatory nickname. Mr. Calloway never reported any further problems to Mr. Haskins, so Mr. Haskins believed the problem with the nickname "Shine" had been resolved. Ms. Elliot conceded that Mr. Calloway previously told her he was not offended by the nickname, anyway. Likewise, to establish a pattern of racially disparate treatment, Ms. Elliot asserted that an African-American male who smelled of alcohol was fired, while three Caucasian males who smelled of some controlled chemical substance were not fired. Her evidence on this issue was not corroborated by anyone, and it was not clearly indicated what was known by Mr. Haskins or anyone else in management about any of the four men. Petitioner believed that Mr. Haskins did not select her for the Property Control Specialist position because of her race. She testified that she did not know of any African- American females that Mr. Haskins had ever hired; knew of only two African-American males he had hired; and believed that none of the African-American males Mr. Haskins had hired worked inside the office, as opposed to working in the warehouse or in the grounds. Petitioner admittedly was unaware of how many individuals Mr. Haskins had hired in the last 20 years, of how many African-Americans applied for open positions under Mr. Haskins' supervision or control during that time, or of any instance where Mr. Haskins hired a less qualified Caucasian candidate over a more qualified African-American candidate. The greater weight of the evidence demonstrates that Mr. Haskins has hired at least 20 African-Americans for positions under his supervision in the Warehouse and Grounds Department, including Petitioner's daughter for a summer job. The evidence also demonstrates that there were only three employees who actually worked in the office setting for the majority of the day. Of those positions, there was very little turnover. Caucasians have been hired to replace Caucasians recently. However, the credible evidence as a whole demonstrates that Mr. Haskins hired Ronnie Calloway as an assistant Property Control Specialist in the office upon Ms. Elliot's request, and hired Archie Mitchell, who worked in the warehouse. Both were African-American males. One element of office turnover appears to have been Bernice Odums, an African-American female fiscal assistant, who voluntarily took early retirement six months to a year after a reorganization placed her in Mr. Haskins' office, under the supervision of, or at least in close contact with, Ms. Harper and Ms. Minnix. Ms. Elliot and Ms. Womack credibly represented that Ms. Odums was desperately unhappy due to her relocation and the atmosphere in the Warehouse and Grounds Office. However, whether Ms. Odums' extreme unhappiness was the result of the physical move of her office, was the result of being overseen by others as opposed to being in charge of fiscal matters in the way she had been previously, was the result of having a mere secretary with no prior fiscal experience placed over her as a superior, was the result of personality problems among the women, was the result of racial animus, or was the result of something else entirely is simply not clear. No racial reason for Ms. Odums' tearful retirement was clearly proven.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 13th day of April, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 13th day of April, 2006.
Findings Of Fact Jody A. Strain was recruited and hired in 1984 by Reflectone, Inc. as a computer systems engineer. At the time of her dismissal Petitioner was a Level 3 engineer. During the 5 1/2 years Petitioner was employed by Respondent her evaluations were above average (Exhibit 2) and she received several letters recognizing her contributions to the projects to which she was assigned. Respondent has never contended that Petitioner was dismissed because of her work performance. Reflectone, Inc. develops flight simulators which it sells primarily to the U.S. military and to commercial airlines. These contracts are generally awarded following a request for proposal submitted by the purchaser to several companies capable of accomplishing the proposed tasks; and these companies, including Reflectone, submit bid proposals which, when accepted, result in an $8-$10 million contract. Each contract will generally run from 24 months to 30 months before completion. Accordingly, the number of employees needed at any one time is largely reflected by the number and scope of on-going projects. Because of this variation in workload Respondent's project managers prepare an evaluation of staffing needs for the future at two month intervals. These are coordinated and as new contracts are accepted they are staffed by people with the necessary qualifications who are working on expiring contracts. On September 12, 1989, Petitioner was placed on emergency maternity leave with an expected duration of nine weeks (Exhibit 3). On November 13, 1989 Petitioner was called by Janis Batt, Engineering Manager, Computer Systems at Reflectone and told that she was selected for lay- off. At the time Petitioner commenced her maternity leave the project on which she was working had not been completed; however, that part of the project on which Petitioner was working had been completed. Finalizing the project, which had been delayed by non-receipt of data from the purchaser, was completed by John O'Reilly, the team leader on the acoustics portion of the project on which Petitioner had participated. At the time Petitioner was laid off there was no new project starting up which required an engineer of her qualifications. The general policy at Reflectone is not to replace an engineer working on a particular project with another engineer except in cases of emergency. Since a large part of the work done by engineers such as Petitioner is writing computer programs for the project, continuity on the project is deemed by Reflectone to be the most important factor. As a result seniority among engineers is given considerably less weight in this business than in most other businesses where one engineer can generally replace another engineer with equivalent qualifications. Petitioner had earlier been granted maternity leave and returned to work at Reflectone. No evidence was presented that other employees had been terminated at Reflectone involuntary while on maternity leave or as a result of their pregnancy. At the time of Petitioner's dismissal there were some six to eight engineers in the computer systems division headed by Janis Batt. One was a Level 5, three were Level 4, two were Level 3 and one position was filled by a USF student working as a co-op one semester and going to school the next semester. This position was arranged by an agreement between Reflectone and USF. The one other Level 3 engineer in the computer systems division was Chet Kwistowski who had been hired much later than Petitioner. However, in October 1989 Kwistowski was working on an on-going project. Due to the lack of work in late 1989 staffing studies showed not enough work at Reflectone for all systems engineers. In July 1989 another group at Reflectone experienced lay-offs. In total some 50 people out of a work force of 500 were laid off in 1989. By reduction in force recommendation dated November 9, 1989 Janis Batt recommended Petitioner be selected for lay-off by reason of lack of work for an engineer of her qualifications. This was approved by the vice-president of Human Resources for a separation date of November 15, 1989 (Exhibit 8). By request for department transfer dated August 25, 1989, Janis Batt proposed that Petitioner be assigned to computer systems as her work on her then present assignment (SH2/SH3) had been completed. Respondent's policy and procedure manual policy number 29 (Exhibit 7) provides that employees furloughed because of lack of work may have a one (1) year recall period afforded them at the concurrence of the employee's supervisor and the vice-president, Human Resources. Petitioner contends that she was not rehired pursuant to this policy as retaliation for having filed her initial complaint of discrimination. During the Petitioner's recall period no new Level 3 engineers were employed in the computer systems division. However, one Level 4 engineer and two Level 1 engineers were hired. The Level 4 engineer hired, John Pfost, had voluntarily left Reflectone some two years earlier as an Engineer 2. Although Petitioner contends that Pfost was hired as a Level 4 to offuscate the failure to rehire her, Respondent presented credible and unrebutted evidence that Pfost had special skills necessary for the project for which he was hired. Another engineer had been denied promotion from Level 3 to Level 4 because she "did not have enough time in Level 3" yet she had more time as a Level 3 than the interval between Pfost leaving as Level 2 and his rehiring as Level 4. However, she did not have the supervisory experience Pfost had gained during the two years he worked for a competitor of Respondent. Petitioner did not apply for the Level 1 positions that were filled during her one year recall period and she was not offered either of those positions because she was deemed to be overqualified for the position. Although Petitioner indicated at the hearing that she would have accepted a Level 1 position she did not specifically testify that she would have accepted that position if offered. In this regard, from all of the evidence presented it is clear that Reflectone staffs various jobs with personnel holding the skills required for that job. Jobs requiring entrance level skills were staffed with Engineers 1 and jobs requiring Engineering Level 2 skills were staffed with Engineers 2, etc. No Engineer 2 or 3 personnel were assigned to jobs requiring Engineer 1 or Engineer 4 skills. Accordingly, the failure of Respondent to offer Petitioner the position of Engineer 1 was due to this general policy and not because Petitioner had filed her discrimination claim.
Recommendation It is recommended that Jody A. Strain's Petition for Relief from an unlawful employment practice be dismissed. DONE and ENTERED this 5th day of November, 1992, at Tallahassee, Florida. K. N. AYERS 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 5th day of November, 1992. APPENDIX Petitioner's proposed findings are unnumbered. To attempt to rule on these proposed findings I have numbered them 1-23 attempting to keep one fact to each number. Treatment accorded these numbered findings is as follows: Accepted (number of engineers hired). Accepted except that Petitioner would have accepted a level 1 position if offered. No testimony was presented to support this fact. Rejected as argumentative. Accepted (re hiring Kwistowski). 5.-9. Accepted. Accepted as testimony by Petitioner. However, Batt repeated the evidence in Petitioner's finding of fact 9 at the hearing. Accepted. Accepted as the testimony of Batt (performance evaluation). Other sections of this proposed finding are rejected as argumentative. Statement accepted. Questions and balance of this proposed finding are rejected as argumentative. 14.-15. Rejected as argumentative. Accepted. Two questions are rejected as argument. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Respondent's proposed findings are accepted except as noted below. Those proposed findings not included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached: 2. Date of Petitioner's layoff on November 6, 1989 rejected as inconsistent with Exhibit 8. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Jody A. Strain 12404 Cardiff Drive Tampa, Florida 33625 John E. Phillips, Esquire 400 N. Ashley Tampa, Florida 33602
