The Issue Is the Petitioner handicapped? Was the Petitioner capable of performing her duties satisfactorily? Did Respondent take adverse personnel actions against the Respondent? Were the adverse personnel actions which were taken against the Petitioner based upon her disability? Did the Respondent have a legitimate nondiscriminatory basis for taking the adverse actions against Petitioner? Were the reasons articulated by the Respondent pretextual? Did the Respondent provide reasonable accommodations for the Petitioner? To what relief is the Petitioner entitled if she prevails? Are the Petitioner's rights limited by her status as a non-tenured employee on annual contract status? Is the Petitioner entitled to costs and reasonable attorneys fees?
Findings Of Fact Dr. Tony Mason was employed by the School Board of Leon County, Florida, as the Coordinator for Diagnostic Services on January 2, 1986. As is done with all employees of the School Board, she was recommended for employment by the board by her immediate supervisor, Dr. Ruth Mitchell. Dr. Mitchell supervised from four to six coordinators of units similar to the Diagnostic Services during Petitioner's tenure with the Respondent. Each of these units was headed by an individual who was not handicapped and who had an educational background similar to that of the Petitioner. The position requirements for the position of Coordinator for Diagnosis Services were a background in physiology, social work, or a related field as well as educational and administrative background or experience. Dr. Mason holds the following degrees: Bachelor of Arts and Social Studies, English and Speech, Masters Degree in Counselling and Physiology, a doctorate in Administration and Supervision, and an Educational Specialist degree. She was employed by the U. S. Department of Education for several years in an administrative capacity. The Petitioner was well qualified for the position of Coordinator of Diagnostic Services Unit. At the time the Petitioner was hired she was handicapped. Her primary impairment is cerebral palsy. The Petitioner has suffered from this condition since the age of three. This condition is readily apparent from talking with and observing the Petitioner. The Petitioner also has had a partial gastrectomy. This latter condition is not observable. During her employment, she advised her supervisor, Dr. Mitchell, of the nature, symptoms, and problems associated with both conditions. Both impairments significantly limit Petitioner's major life activities. Cerebral palsy, a neuromuscular disease, impedes Petitioner's ability to walk, and causes her to speak slowly. In addition, her speech is distorted although very understandable. A partial gastrectomy is a surgical removal of a portion of one's stomach. Both of the Petitioner's disabilities are negatively impacted by extreme stress. Extreme stress causes the Petitioner's muscles to contract and lock causing intense pain. Inordinate stress causes the Petitioner to "dump" requiring her to go to the nearest restroom as quickly as she can. Both the Petitioner's disabilities are not affected by normal, everyday stress. There was no evidence presented that the Petitioner's disabilities in any way impaired her intellectual capacity or mental abilities. The Petitioner had never been terminated or asked to resign from any position prior to working for the Respondent. While working for the Federal Department of Education and completing her doctorate in 13 months, both of which are stressful activities, the Petitioner did not suffer stress induced impacts on her disabilities. The Petitioner performed the duties of Coordinator for Diagnostic Services for almost two years without difficulty. As Coordinator for Diagnostic Services, Dr. Mason was responsible for the administration of this unit which employed eight social workers and ten physiologists. They were responsible for testing students within the school district and preparing reports based upon their testing to determine the eligibility of the students for participation in various educational programs. The Diagnosis Services Unit (DSU) also employed two secretaries and, at various times during the Petitioner's employment, additional interns and part-time employees. The Petitioner was also responsible for preparing staff papers on matters related to Diagnosis Services for presentation to the School Board together with budget requests, schedules, preparations of grants, and other special reports which were from time to time requested by the Superintendent, Deputy Superintendent, or Petitioner's immediate supervisor. To assist her in the preparation of these reports, the Petitioner was initially assigned a secretary. This secretary also filed the unit's paperwork and generally assisted the Petitioner. The work load of the DSU was consistently high as the unit was responsible for evaluating approximately 2,000 students each year. There has been a steady increase in the work load of the DSU since 1976, and the work load continued to increase through the period of the Petitioner's tenure at the DSU and thereafter. The DSU had suffered from high work load and limited resources prior to and during the Petitioner's employment in the unit. A psychologist working in the unit testified that she suffered severe depression as a result of the stress created by the workload in the Unit. For assistance in preparing reports, the DSU could send draft reports to the word processing unit. However, the word processing unit was slow and not suited to the particular needs of the DSU because the word processing personnel were not familiar with the technical terminology used in the psychological and social work reports, and did not accurately transcribe the material which the DSU sent to them. This resulted in reports having to be returned to the word processing center for corrections. Because the Petitioner's unit was only third in order of priority for using the word processing center, the DSU's turn-around time was lengthy. One school psychologist had to wait an entire summer to receive materials she had sent to the word processing center, and then found it necessary to return them for corrections. The lack of adequate secretarial support adversely impacted the work of the DSU and the Petitioner's personal performance. Dr. Mitchell, the Petitioner's immediate supervisor, forbade the Petitioner to use her secretary for typing Petitioner's written reports because of the backlog in the unit. The Petitioner was forced to print her own work by hand. This was slow and adversely affected by her disability. Because the Petitioner could not use the secretaries who were assigned to and physically located in her unit, the Petitioner had to walk to the word processing center, where obstructions and uneven steps in the area of the unit's office made Petitioner's walking more difficult. This caused further delay. The practice of assigning short suspense projects made the absence of adequate secretarial support worse. The Petitioner paid for secretarial services to prepare various reports for the Respondent paying in one year over $900.00 for secretarial support to meet the demands of her job. The Petitioner made verbal requests for a secretary to her supervisor, Dr. Mitchell, and these requests were denied. The Petitioner made requests to the Superintendent and other members of the School Board Staff, and caused a letter to be written by her physician to the Board explaining the need for secretarial assistance as a reasonable accommodation for her disability. Although the Respondent denies that Petitioner made a request for a secretary as a reasonable accommodation for her disability, Petitioner's Exhibit No. 2, a memorandum to William Wolley from the Petitioner dated May 4, 1989, which specifically addressed other issues references the aforementioned physician's letter as follows: There is also a letter from a physician earlier relative to that issue in requesting some reasonable accommodation in terms of secretarial assistance that was an attempt to get my Secretary III reinstated . . . [.] The Respondent never assigned a secretary to assist the Petitioner in doing her work although the timeliness of the Petitioner's work was the primary complaint regarding the Petitioner. The school board's yearly payroll was in excess of $110 million. The salary for a secretary varied between $15,000 and $20,000 a year. At the time of Petitioner's employment, the Petitioner walked without the use of a walker although she walked slowly and with some difficulty. The Petitioner wanted to postpone using a walker to assist her in walking because use of a walker causes certain muscles to become dysfunctional and atrophied. Although the Petitioner had a walker in her office restroom and in her car, she avoided use of a walker wherever possible because, as stated above, they can cause the muscles to become dysfunctional, and because they can cause the individual to trip by catching on the uneven surfaces. In late spring or summer of 1988, Dr. Mitchell, the Petitioner's supervisor, told the Petitioner that she wanted the Petitioner to use a walker around the office complex. Dr. Mitchell made the Petitioner's use of a walker a condition of continued employment after Petitioner fell outside the Board's offices when she tripped over an uneven joint in the sidewalk and landed on a piece of broken curbing. A coworker, who is an R.N., was aware of how Petitioner felt about being asked to use a walker and explained to Dr. Mitchell that victims of cerebral palsy strive to maintain the maximum independence and postpone the use of such devices. Dr. Mitchell advised the coworker that if Petitioner wanted to work for the Respondent that she would have to use the walker. The Petitioner felt that Dr. Mitchell's demand was unwarranted, improper, not in her best interest, and refused to use a walker in the absence of a physician's recommendation. The Respondent never referred Petitioner to a physician for evaluation. Subsequent to Dr. Mitchell's demands that the Petitioner use a walker and Petitioner's refusal, Dr. Mitchell made derogatory comments to staff about how slow Petitioner walked. At this time, the professional relationship between Dr. Mitchell and the Petitioner became strained. Dr. Mitchell arranged to have a study done in early 1988 by Case Management Services Inc. Dr. Mitchell requested that Dr. Mason participate in this study which was presented to Dr. Mason as an assessment of the work environment of the board offices; however, the report prepared by the consultant appears to address not the work area, but Dr. Mason personally. The purpose of this report was to support Dr. Mitchell's demand that Dr. Mason use a walker. Notwithstanding the findings by the consultant that there were architectural and facilities maintenance problems which posed a danger to the handicapped, the consultant's first recommendation primarily addressed Dr. Mason's use of a quad-cane (walker). The second recommendation, "occupational therapy evaluation to determine means for enhanced functioning among campus architectural problems," appears to be limited to the Petitioner. In the spring of 1989, Dr. Mitchell gave Petitioner her first unsatisfactory annual performance evaluation. In addition, Dr. Mitchell only extended Dr. Mason's service contract for three months beyond the existing contract and denied Dr. Mason an increase in salary. Dr. Mason appealed Dr. Mitchell's evaluation and Dr. Mitchell reevaluated Dr. Mason's performance as satisfactory. Dr. Mitchell told Dr. Mason that this was the last time she would amend her evaluation of Petitioner pursuant to an appeal. Although not readily apparent from the file, Dr. Mason's employment contract was extended for an entire year and pursuant to that contract she was evaluated again in June of 1990. At that time, Dr. Mitchell evaluated Dr. Mason as unsatisfactory and extended her contract for only three months. During the year 1989-90, Dr. Mitchell documented every instance in which Dr. Mason appears to have departed from school board procedure or failed in any way to meet Dr. Mitchell's expectations. Dr. Mitchell contacted other supervisors of other activities within the school system and requested that they provide her with any information related to the failure of DSU to meet their expectations. See the memorandum of Dr. Mitchell to Beverly Blanton dated June 19, 1989. Dr. Mitchell required Dr. Mason to perform additional work unrelating to any specific program or project, and announced her intention to attend Dr. Mason's staff meetings, to hold weekly meetings to review Dr. Mason's logs and summaries of activities, and to work with Dr. Mason on staff development. (See memorandum Dr. Mitchell to Dr. Mason dated April 10, 1989, subject: Suggestions for improvement in evaluation.) These requirements, placed upon Dr. Mason under the guise of improving her performance, formed the basis for additional criticism of Dr. Mason while at the same time taking up more of her time and undercutting Dr. Mason's authority with her subordinates. Dr. Mitchell also requested access to Dr. Mason's medical records, a request she did not make of any other employee. Dr. Mitchell demonstrated an amazing lack of tact with Dr. Mason. Dr. Mitchell advised Dr. Mason on one occasion when Dr. Mason was hospitalized for burns suffered in an accident while on school business that Dr. Mason had picked an extremely bad time to be injured, and when Dr. Mason was recuperating at home from a severe fall, Dr. Mitchell threatened to bring a television crew to Dr. Mason's house for an interview if Dr. Mason could not come to work. One of the major complaints against Petitioner by Dr. Mitchell was the quality of the reports provided by Dr. Mason's unit to Ray King. A complete file of these reports was provided to Dr. Mitchell by Mr. King's staff as a result of a memorandum from Dr. Mitchell. (See Tab 6, Respondent's Exhibit 3.) The first of these 103 reports is dated May 18, 1988 and the last of these dated December 15, 1989. There were 97 reports returned from Mr. Ray's to Dr. Mason's section between 5-18-88 and 4-20-89. There were six reports returned from Mr. Ray's section after 4-20-89. Contrary to the assertions made by Respondent, the number of reports kicked back by Mr. King during the period following Dr. Mason's initial unsatisfactory evaluation were significantly reduced. The Respondent attempted to justify its denial of a secretary as a reasonable accommodation to Dr. Mason by stating that it was having fiscal problems, and by providing Dr. Mitchell with a computer. Because of Dr. Mason's handicap, she is unable to utilize a computer to prepare her own work. Further, notwithstanding Dr. Mason's inability to use a computer, Dr. Mitchell required her to be conversant in the operation of a computer so she could utilize the computerized data base. Contrary to the Respondent's assertion that Dr. Mason was only required to be knowledgeable about the computer's capabilities, Dr. Mitchell required Dr. Mason to demonstrate use of the computer to her secretary, and was harshly critical of Dr. Mason's inability to do so. Although additional memoranda purportedly documenting additional failings on the part of Dr. Mason and the DSU were introduced, Dr. Mason's explanations are adequate, and these secondary reasons for the adverse personnel action are not meritorious. Because of budgetary constraints in 1990, Dr. Mason's requests for authorization to fly to St. Petersburg to make a presentation at an educational conference was denied. Dr. Mason was told to drive to the conference or not to attend because attendance at the conference was not a part of her normal duties and responsibilities. Presentations at such conferences are considered professionally beneficial both to the individual and to the board. However, Dr. Mason admitted that she had not requested air travel as reasonable accommodation due to her handicap which makes long trips by car very painful and debilitating. On September 22, 1990, the Petitioner received a memorandum from Dr. Mitchell that her contract would not be renewed, and that Petitioner should leave all records in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: The Respondent reinstate the Petitioner to a position comparable to the position from which she was terminated (or in which the Respondent denied the Petitioner employment), The Respondent pay the Petitioner backpay, to include insurance and retirement benefits less $25,241, in accordance with this order, The Respondent pay the Petitioner's reasonable attorney fees and costs, and The Respondent be enjoined from further discrimination against the Petitioner. DONE and ENTERED this 19th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6043 Proposed findings of both parties were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings: Para 1-9 Adopted. Para 10 Irrelevant. Para 11-14 (1st sentence) Adopted. Para 14 (2d sentence) Contrary to best evidence. Para 15,16 Adopted. Para 17 Irrelevant. Para 18-42 Adopted. Para 43 Subsumed in 44. Para 44-45 Irrelevant. Para 49-54 Adopted. Para 55 Irrelevant. Para 56-80,82 Adopted or Subsumed. Para 81 Irrelevant. Para 83-92 Irrelevant. Para 93-99 Adopted. Para 100-118 Adopted. Respondent's Findings: Para 1-3 Adopted. Para 4-5 Irrelevant. Para 6 Contrary to best evidence. Para 7-11 Irrelevant. Para 12-13 Contrary to best evidence. Para 14 Irrelevant. Para 15 Contrary to best evidence. Para 16-17 Irrelevant. Para 18,19 Contrary to best evidence. Para 20, 21 The letter was not considered. Para 22-24 Contrary to best evidence. Para 25-27 Adopted. COPIES FURNISHED: Kathryn Hathaway, Esquire 924 North Gadsden Street Tallahassee, Florida 32303 Leslie Holland, Esquire Suite 800 2800 Biscayne Boulevard Miami, Florida 33167 Deborah J. Stephens, Esquire Graham C. Carothers, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301 Richard Merrick, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304-2907 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent's alleged repeated absences without receiving prior approval from her supervisor in December 1998, and January and February 1999, alleged insubordination and conduct unbecoming a school board employee, constitute just cause for termination/discipline.
Findings Of Fact The employment relationship between the School Board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the School Board and the Seminole Educational Clerical Association, Inc. (SECA). The Respondent, Helena Clark, is currently employed by the Petitioner, School Board, as a Finance Cashier assigned to the Human Resources Department. Her direct supervisor is John Reichert, Director. The Superintendent of Public Schools of Seminole County, Florida, is authorized to recommend the suspension and termination of non-instructional employees to the School Board. The School Board is authorized to suspend and terminate non-instructional employees upon the recommendation of the Superintendent of Public Schools, provided that just cause for suspension and termination is present. The Respondent is currently under suspension without pay pending the outcome of the administrative hearing process. Prior to being employed in the Human Resource Department, Respondent was employed for several years as a finance clerk in the school district's finance department. In settlement of disciplinary proceedings for misconduct, Respondent was given a two-day suspension without pay. In addition, Respondent was transferred from the Finance Department to the Human Resources Department on February 5, 1997. At that time, Respondent was instructed that she should perform her duties in a professional and courteous manner. Respondent complied with the directive to conduct herself in a professional and courteous manner for about the first six months of her tenure in the Human Resources Department. Thereafter, Respondent began engaging in unprofessional and discourteous conduct directed to other employees on a regular basis, including: "Shooting them a bird;" spraying one fellow employee with Lysol spray; and making threatening gestures to two employees in a manner that reasonably caused them to believe that their physical safety was in danger. Additionally, Respondent failed to follow procedures for notifying her supervisor that she required personal leave with pay for December 23, 1998; vacation leave for January 12 and 13, 1999; and personal leave without pay for December 18, 1998. Because the leave requests were submitted after the fact, in violation of the Petitioner's published policies and the terms and conditions of the collective bargaining agreement, they were denied. Respondent was deemed to have been "absent without leave" on each of the respective days. Initially, Respondent's supervisor, John Reichert, intended to recommend a five-day suspension without pay for the "absent without leave" infractions. However, following her meeting with Reichert, Respondent engaged in unprofessional, threatening, and discourteous conduct directed to Barbara Williams, Mary Kristeff, and Barbara Thayer. He then determined to recommend that she be terminated. Prior to being transferred to Human Resources Department pursuant to the agreement of February 5, 1997, Respondent had an extensive disciplinary record involving unprofessional and discourteous conduct while assigned to the Finance Department. Respondent's conduct had a negative effect upon the day-to-day operation of the Human Resources Department. Respondent's conduct in December, January, and early February 1999 was insubordinate and conduct unbecoming a School Board employee. Just cause for the termination of Respondent has been shown.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board find that Respondent's actions constitute absence without approved leave, insubordination and conduct unbecoming a school board employee; and that Respondent's conduct constitutes just cause for termination. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of August, 1999. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County Public Schools Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Dr. Paul J. Hagerty, Superintendent School Board of Seminole County Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Helena Clark 1114 West 8th Street Sanford, Florida 32771
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was formerly employed as a Tax Auditor II in Respondent's Fort Lauderdale office. In May, 1987, Petitioner filed a charge against Respondent with the Equal Employment Opportunity Commission (EEOC). The charge was docketed as Charge No. 150871115. Eleven months later, Petitioner filed a second charge against Respondent with the EEOC. This second charge was docketed as Charge No. 150881243. By letter dated May 3, 1988, Petitioner requested that he be granted leave without pay "until both EEOC investigations [were) over." Petitioner's request resulted in a memorandum of understanding and agreement between Petitioner and the Acting Director of Respondent's Division of Audits, Glenn Bedonie. The memorandum was signed by Bedonie on May 9, 1988, and by Petitioner the following day. It provided in pertinent part as follows: This memorandum will confirm our agreement that the Department is granting your request for leave without pay until such time as the two Equal Employment Opportunity Commission (EEOC) investigations are completed and the findings or conclusions are rendered and final. This action is based upon your voluntary request dated May 3, 1988 attached herein. You will remain on approved leave without pay commencing at 8:00 a.m., Wednesday, May 11, 1988 for (12) twelve calendar months or until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations. If a finding is not so rendered in both investigations within (12) calendar months, and if you make a timely request to this office the Department agrees to request an extension from the Department of Administration of your leave of absence without pay under Rule 22A- 8.016(2), F.A.C. Such extension is to last until such time as an investigative finding or conclusion is rendered and becomes final in both investigations. On May 10, 1988, the same day he signed the foregoing memorandum of understanding and agreement, Petitioner advised his supervisor in writing that the following were "two addresses where mail will reach me:" P.O. Box 22-2825, Hollywood, Florida 33022 and 8311 Dundee Terrace, Miami Lakes, Florida 33016. Petitioner did not indicate any other manner in which he could be contacted. By letter dated August 31, 1988, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No. 150871115, that the evidence obtained during the investigation [did] not establish a violation of the statute." The letter also contained the following advisement: This determination does not conclude the processing of this charge. If the charging Party wishes to have this determination reviewed, he must submit a signed letter to the Determination Review Program which clearly sets forth the reasons for requesting the review and which lists the Charge Number and Respondent's name. Charging Party must also attach a copy of this Determination to his letter. These documents must be personally delivered or mailed (postmarked) on or before 09-14-88 to the Determinations Review Program, Office of Program Operations, EEOC, 2401 E. Street, N.W., Washington, D.C. 20507. It is recommended that some proof of mailing, such as certified mail receipt, be secured. If the Charging Party submits a request by the date shown above, the Commission will review the determination. Upon completion of the review, the Charging Party and Respondent will be issued a final determination which will contain the results of the review and what further action, if any, the Commission may take. The final determination will also give notice, as appropriate, of the Charging Party's right to sue. Petitioner requested review of the Miami District Director's determination in Case No. 150871115. By letter dated April 28, 1989, Petitioner and Respondent were notified of the results of that review. The body of the letter read as follows: The Commission has reviewed the investigation of this charge of employment discrimination and all supplemental information furnished. Based upon this review, we agree with the determination issued by our field office and hereby issue a final determination that the evidence obtained during the investigation does not establish a violation of the statute. Therefore, the Commission dismisses and terminates its administrative processing of this charge. As the charge alleged a Title VII violation, this is notice that if the Charging Party wishes to pursue this matter further, (s)he may do so by filing a private action in Federal District Court against the Respondent(s) named above within 90 days of receipt of this Determination. IF CHARGING PARTY DECIDES TO SUE, CHARGING PARTY MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS DETERMINATION; OTHERWISE THE RIGHT TO SUE IS LOST. By letter dated March 8, 1989, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No, 150881243, that the "evidence obtained during the investigation [did) not establish a violation of the statute," The letter further advised: If the Charging Party does not request a review of this determination by March 22, 1989 this determination will become final the following day, the processing of this charge will be complete, and the charge will be dismissed. (This letter will be the only letter of dismissal and the only notice of the Charging Party's right to sue sent by the Commission.) FOLLOWING DISMISSAL, THE CHARGING PARTY MAY ONLY PURSUE THIS MATTER FURTHER BY FILING SUIT AGAINST RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN 90 DAYS OF THE EFFECTIVE DATE OF THE DISMISSAL. Therefore, in the event a request for review is not made, if a suit is not filed by June 21, 1989 the Charging Party's right to sue will be lost. Petitioner did not request review of the District Director's determination in Case No. 150881243. Therefore, this determination became final on March 23, 1989. On May 5, 1989, Respondent's Personnel Officer, William P. Fritchman, sent Petitioner a letter by certified mail, return receipt requested, directing Petitioner to report to work immediately. The letter was mailed to P.O. Box 22- 2825, Hollywood, Florida 33022. The body of the letter provided as follows: This letter is to notify you that your tax auditor II position in Fort Lauderdale, Florida is ready for you to return to work. Your return to work will be effective immediately upon your receipt of this letter. The Department of Revenue agreed to your request for a leave of absence without pay for 12 months or until EEOC in Miami had concluded its investigation of your EEOC charges, numbers 150-88-1234 [sic] and 150-87-1115. As you know, EEOC has now concluded its investigations and issued its findings in both cases. The Department considers the reason for granting the leave of absence to be expired. Please contact Mr. Bill Hammock, Chief of Audit Activity or Mr. Howard Maxwell, Field Audit Supervisor, immediately upon receipt of this letter concerning your intentions regarding your actual reporting to work in Fort Lauderdale. Their phone number is (904) 488-0310. Your immediate supervisor will be Ms. Mary Jane Myscich. Please report to her concerning any necessary details surrounding your reporting to work. If you do not contact either of the above individuals as instructed in this letter within three workdays from the date you receive this letter, the Department will consider that you have been on unauthorized leave without pay for that three workday period. Such unauthorized leave will be considered to be abandonment of position and a resignation from the Department of Revenue as outlined under Rules 22A- 7.010(2) and 22A-8.002(5). Please contact me at (904) 488-2635 if you have any questions concerning this matter. Efforts to deliver the letter to Petitioner were unsuccessful. It therefore was subsequently returned to Fritchman as "unclaimed." By letter dated May 7, 1989, but not mailed until May 10, 1989, Petitioner requested "an extension of leave without pay status for six additional months."/1 In support of his request, Petitioner erroneously stated the following in the letter: Findings and conclusions of both EEOC Charge Nos.:150871115 dated 5/13/87 and 150881243 are as EEOC has informed you are rendered but not final. The former charge is still under appeal. Petitioner's May 7, 1989, letter, as well as the envelope in which it had been sent, reflected that Petitioner's current mailing address was 8311 Dundee Terrace, Miami Lakes, Florida 33316. Accordingly, on May 12, 1989, utilizing a next- day delivery service, Fritchman sent to that address the following letter informing Petitioner of the denial of his leave request: I am in receipt of your letter sent May 10, 1989 to Mr. Bedonie. In your letter you request the Department to seek an extension of your leave without pay for an additional six months. For the reasons expressed in my letter to you dated May 5, 1989, copy attached, your approved leave of absence is concluded. Under the written agreement between you and the Department the two EEOC investigations have concluded; therefore the reason for your leave no longer exists. A copy of my letter to you dated May 5, 1989 is attached to this letter and incorporated by reference as if fully set forth. If you have already received a copy of that letter, then your return to work is effective on that date of your receipt. You are expected to resume your duties as a Tax Auditor II. Please contact me at (904) 488-2635 if you have any questions concerning this matter. The next-day delivery service unsuccessfully sought to deliver this letter and attachment to Petitioner at 8311 Dundee Terrace, Miami Lakes, Florida 33316. On May 18, 1989, the letter and attachment were returned to Fritchman. Later that same day, Fritchman attempted to contact Petitioner by telephone, but was unable to reach him. As of May 18, 1989, Petitioner had not yet returned to work, notwithstanding that he had not received authorization to be absent at any time subsequent to the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement. In view of Petitioner's failure to report to work, Fritchman sent to Petitioner's Hollywood post office box a letter dated May 19, 1989, informing Petitioner that, because he had been absent without authorized leave for three consecutive workdays, he was deemed to have abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. Fritchman further explained in the letter as follows: You did not report to work on May 11, 1989 under the terms of your agreement with the Department. You were therefore on unauthorized leave without pay effective May 11, 1989 or on receipt of the May 5, 1989 letter, whichever occurred first. You have not reported to work as agreed in the May 11, 1988 agreement. You are not entitled to rely on a unilateral request for an extension of leave without reporting to work. Rule 22A-8.002(5)(b), F.A.C. states: "If an employee's request for leave is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service." You did not report to work on May 11, 1989 nor any day after that. The Department considers you have been on unauthorized leave of absence for three consecutive workdays. The Department considers that effective certainly no later than 5:00 p.m., Thursday, May 18, 1989 you have abandoned your position and resigned from the Career Service. The Department's records will indicate that this is a voluntary resignation from employment with the Department. It is this determination that Petitioner abandoned his position and resigned from the Career Service which is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1989.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, contends that Respondent, Department of Environmental Protection (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost two years to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. From June 1965 until April 1994, Petitioner worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fishery biologist," "fishery technician, and "equal employment opportunity counselor." Petitioner then presumably retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record. After leaving federal service, Petitioner says he filed around 120 job applications with various state agencies, including the Department. When a position becomes vacant and is ready to be filled, all state agencies provide a short summary of information regarding that position to the Department of Management Services (DMS) so that potential job applicants are aware of the vacancy. The information provided by the agencies constitutes "the bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and an agency contact person. That information is then placed by DMS into a computer program (COPES), which generates a document known as a vacancy announcement. The vacancy announcements can be accessed by other state agencies who have a COPES terminal. While employed by the DOR, which apparently had such access, Petitioner relied upon the vacancy announcements generated by COPES for filing various applications with the Department. During the relevant time period, and even continuing until today, whenever a vacant position occurs, the Department prepares a Job Opportunity Announcement (JOA) which lists, among other things, the position's minimum qualifications; class title; description of job duties; required entry-level knowledge, skills, and abilities; a contact person in the Department who can provide further information; and the deadline for submitting an application. It is fair to say that this document contains far more information regarding the position than the vacancy announcement generated by DMS. The Department also prepares a Selection Criteria Form for each vacancy which enumerates a number of essential and preferred selection criteria which the applicant must satisfy in order to be considered for employment. In addition, the form contains the name, address, and telephone number of a Department employee who can be contacted for further information on the position. Like the JOAs, this document is available to an applicant upon request, and the Department's general practice is to fax or mail this form to the applicant within 24 hours after a request is made. Although each job application form advises the applicant to "[l]ist the knowledge, skills, and abilities that you will bring to the job," and to refer to the JOA or listed contact person to determine those specific requirements, Petitioner did not have the JOA or the Selection Criteria Form when he prepared and filed his applications, nor did he speak with the contact person. After a position has been filled, the Department prepares a Recruitment Report, which identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the hiring person's justification for choosing that individual. During the initial screening of all applications, a Department personnel specialist reviews the applications to determine if an applicant meets all essential and preferred selection criteria listed on the Selection Criteria Form. If an applicant fails to meet any of these criteria, the applicant is automatically cut from the list. The applicant is also cut from the list if the application is filed after the deadline or is incomplete. In determining whether an applicant meets all selection criteria, the personnel specialist will attempt to "glean" from the applicant's work history whether he or she satisfies a particular criterion. If the subject matter is highly technical, the specialist will seek technical advice from other Department personnel to make that determination. It goes without saying that the applicant who has the JOA and the Selection Criteria Form can better tailor his or her work experience on the application to the specifics of the job being sought. For those applicants who do not meet all selection criteria, who have filed their application after the filing deadline, or who have filed an incomplete application, the Department sends out a standard form letter advising them that they have not been selected for the position. Petitioner received such a letter after each application was filed. There is no requirement that the rejection letter contain a detailed explanation of the reasons why a specific candidate was not selected. Although Petitioner applied for a number of positions with the Department since 1994, only four applications are in issue here. They are positions 11390; 20340; 10084; and 10301. The first three positions were classified as an Environmental Specialist II, while the last position was classified as an Environmental Specialist III. Positions 20340 and 10301 were processed by the Department's Tallahassee office while positions 11390 and 10084 were processed by the Department's Pensacola office. Petitioner submitted virtually identical applications for each of these positions. As to position 10301, an Environmental Specialist III, 76 applicants applied for the job, and 10 were ultimately given an interview. Although Petitioner met the minimum qualifications listed in the vacancy announcement, he was "cut" from the list during the initial screening process because the position was a "groundwater position," and he had "little experience in water supply plans and development and large scale water management projects." Thus, he could not meet all essential and preferred criteria. On the other hand, the successful applicant, a white male (age unknown), met all essential and preferred criteria; he also had 16 years experience in water management with specific experience "on such issues as water supply planning, establishing minimum flows and levels, establishing pollutant load reduction goals and total maximum daily loads, and watershed management." The evidence shows that a better qualified person was hired for this position, and Petitioner did not meet all essential or preferred criteria. Position 20340, an Environmental Specialist II, required that the successful applicant have knowledge of the Everglades ecosystem. Ninety-eight persons applied for the job, and only six were invited for an interview. Petitioner met all minimum qualifications, but like many other candidates, he failed to meet all of the essential qualifications. In addition, "[o]ther applicants provided information indicating better qualifications with regard to essential and preferred selection criteria." The successful applicant, a Department employee, was a white male (age unknown) who "[f]ully [met] all essential selection criteria" and "nearly fully [met] all preferred selection criteria." Further, the successful applicant had "much relevant experience with monitoring, sample analysis and data interpretation relevant to/taken from the Everglades." In this instance, the most qualified person was hired, and Petitioner again failed to meet all essential qualifications for the position. As to position 10084, an Environmental Specialist II, 50 persons submitted complete and timely applications, but only 14 were interviewed. In addition, 20 other applications were filed by persons who were either unqualified or filed their applications after the deadline; they were automatically cut from any further review. Because Petitioner's application was filed after the December 23, 1996, deadline, his application was not considered. Therefore, on this basis alone, Petitioner's claim must necessarily fail. As it turned out, a white male (age unknown) who met all essential and preferred selection criteria was selected for the position; that individual was found to exceed the education, experience, and knowledge requirements of the job. The evidence shows that the most qualified person was selected for the job. Finally, as to position 11390, also an Environmental Specialist II, 42 persons applied for the position, but only 8 were given an interview. Petitioner submitted no information on his application which indicated that he had knowledge of the Department's Pollution Control Program, or that he was versed in ecosystem management, both essential selection criteria for the job. Ultimately, the successful candidate was a white female (under age 40), who had "hands on" experience in ecosystem management and grant writing and displayed outstanding public speaking skills. She also led the State "in the indicator studies." While Petitioner argues that based on his education and work experience, he "matches the criteria better than the selected applicant," the more persuasive evidence supports a finding that the position was filled by the best qualified person and that Petitioner did not meet all preferred and essential selection criteria for the position. Notwithstanding the foregoing, Petitioner contended that without the Selection Criteria Form, there was no way he could accurately tailor his work experience to the specific criteria required for the job. However, the form was readily available to any applicant by simply calling the number given on the vacancy announcement and requesting that it be faxed or mailed the same day. Petitioner also contended that he had no time to request a JOA or Selection Criteria Form since applications generally were due within a matter of days. This time constraint, however, uniformly applied to all candidates. Further, the evidence shows that if an applicant telephoned the Department contact person before the deadline had run and advised that he wished to file an application but could not file it before the deadline, a short extension would normally be granted. Petitioner next contended that in several instances the Department violated a DMS rule by using a vacancy to promote an existing employee. As to this contention, Petitioner misconstrued the manner in which the rule is applied, and the evidence shows that the Department fully complied with all DMS personnel rules when it filled the questioned positions. Petitioner further contended that the investigation conducted by the Florida Commission on Human Relations (Commission) was flawed, and that the reason given by the Commission investigator for recommending a determination of no cause was not true. He also criticized the length of time it took to complete the investigation, saying this deprived him of an opportunity to seek redress in state courts. Since Petitioner was given a de novo hearing to challenge the Commission's preliminary determination, the investigator's conclusions are irrelevant. At the same time, the Department should not be faulted for the Commission's delay in processing the complaint. Finally, Petitioner contended that his educational background surpassed that of the successful applicants, and that his rejection is a clear indication of discrimination on the part of the Department. The positions in question, however, are highly technical in nature; besides the educational requirements, a candidate must also satisfy essential and preferred selection criteria that fit the duties of the job. In most cases, these can only be met through direct work experience in the specified areas, which the evidence shows that Petitioner lacked. On the other hand, all of the successful applicants satisfied these essential and preferred selection criteria. There was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 29th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 29th day of March, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Respondent as a Vocational Rehabilitation Supervisor. As a Vocational Rehabilitation Supervisor, the Petitioner was responsible for supervising the performance of counselors and other employees in the Manatee County office. The Manatee County office employed nine persons, including five Vocational Counselors and four clerical and administrative employees. The position description applicable to the Petitioner's employment provided that he was responsible for hiring, evaluating, training, and managing employees in the office. He was responsible for managing and coordinating the fiscal resources available to the office. He was responsible for recruitment of new employees, and for the performance evaluation of existing employees. The Petitioner developed criteria used to hire new employees, created interview questions, and participated in the interview process. The Petitioner's employment recommendations were always approved by his supervisor. The review of the Petitioner's job performance focused primarily on his success in supervising his employees. He received an evaluation of "excellent" and "effective" in such categories as planning based on the missions and goals of the agency, implementation of quality control standards, efficient work organization, budget management, leadership, staff management and discipline, and effective evaluation of subordinates. As part of his supervisory responsibilities, the Petitioner was responsible for approval of all leave requests and travel reimbursement. He was also responsible for the employee evaluation process, including recommending staff members for performance based bonuses. The Petitioner was also responsible for any disciplinary action taken related to his subordinate employees. There is no evidence that the Petitioner did not perform his duties as described by the applicable position description. At the hearing, the Petitioner acknowledged that he was the supervisor for the office and its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Vocational Rehabilitation Supervisor" position held by Britton Townsend on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ORDERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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, 2004. COPIES FURNISHED: Margaret O'Sullivan Parker, Esquire Department of Education Office of the General Counsel 1244 Florida Education Center Tallahassee, Florida 32399-0400 Britton Townsend 331 11th Avenue, West Palmetto, Florida 34221 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 South Hyde Park Boulevard Tampa, Florida 33606 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue The issues in this matter are whether Petitioner was a supervisory employee as defined by Subsection 110.205(2)(x), Florida Statutes (2001), and was, therefore, properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact The 2001 Florida Legislature enacted a substantial revision of the Florida Civil Service system referred to as the "Service First" initiative. (See Chapter 2001-43, Laws of Florida). This revision, which became effective on July 1, 2001, substantially expanded the parameters of the Selected Exempt Service classification to include many positions which had previously been identified as Career Service positions. Generally, Selected Exempt Service employees serve at the pleasure of the agency head and are considered at-will employees; whereas, Career Service employees have greater employment rights and job security. Petitioner was employed by Respondent at the Pinellas Maintenance Yard from December 15, 1997, to September 19, 2002. Initially, Petitioner held the position of Office Support III, but was eventually promoted to Office Support V in June 2001, both Career Service classifications. Following the enactment of the Service First initiative, Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2001. On September 19, 2002, Petitioner was terminated from employment without explanation. His annual salary was $32,500. Following the decision in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), Respondent notified Petitioner of his rights to seek an administrative hearing and challenge the reclassification. Petitioner timely challenged Respondent's action. During his tenure working for Respondent, Petitioner, pursuant to his written position description, was responsible for various administrative functions, including personnel, records, and fiscal matters, as well as supervisory responsibilities, including the supervision of a few administrative staff. Specifically, his position description provides in part: 20% of time: Supervises and/or participates in the daily administrative activities . . . . Ensuring the reception telephone and radio are fully staffed at all times. . . 15% of time: Supervises and/or participates in the personnel activities for Pinellas Maintenance Office. Counsels employees in matters of retirements, benefits, grievances, discipline and other personnel and work related problems. . . 15% of time: Supervises and/or participates in the fiscal activities for the Pinellas Maintenance Office. Supervises the maintenance of ledgers and Journals associated with local Purchase Orders, local Charge Accounts and Purchase Requisitions, Utility Invoice Transmittals, Contract Invoice transmittals, Partial Payments, etc. . . 10% of time: Directs purchasing for the Pinellas Maintenance Office. . . 10% of time: Serves as representative of the Pinellas Maintenance Engineer at meetings. . . 10% of time: Receives incoming mail, reviews and distributes to appropriate personnel. . . 5% of time: Participates in the selection process for entry level Field Operations Unit positions. . . 5% of time: Directs and coordinates the maintenance and use of records storage. . . 5% of time: Trains employees in methods for performing an efficient and effective job. 5% of time: Performs other related duties as required. Petitioner admits that he was responsible for and routinely engaged in many activities that were supervisory in nature. The evidence supports the fact that Petitioner performed these duties, and his performance evaluations reflect his activity. Petitioner's position description allocated specific time frames to the written duties and responsibilities. Upon careful review, the position description provides that the Office Support, Level V position employee shall "supervise and/or participate" in administrative, personnel, and fiscal matters 50 percent of the work-time. The remaining 50 percent of work-time is allocated to other duties, including purchasing, attending meetings, mail distribution and inquiries, assisting with the selection process of certain entry level positions, coordinating records storage, training certain employees, and performing other "related duties as required." While Petitioner admits that he performed supervisory activity, he contends that it consumed a small percentage of his work-time. He further argues that he was authorized and required to spend 50 percent of his time "supervising and/or participating in" certain activities. Petitioner alleges that he spent little time "supervising" and most of his time "participating" and actually performing the activities. The evidence demonstrates that among the 80 to 100 people employed at the yard, Petitioner supervised a personnel technician, a financial clerk, a clerical employee, and a receptionist, all of whom required limited supervision. Petitioner primarily served as the personnel liaison for all of the employees, maintained their files, researched personnel matters, and responded to inquiries. He handled the personnel paperwork related to hiring and firing, leave, pay adjustments, travel reimbursements, and employee benefits. In addition, Petitioner investigated and processed workers' compensation claims and handled the yard's safety and training records. He worked on special projects including ferreting out overtime abuse, installing a security system, and handling certain maintenance issues. In addition to his administrative personnel responsibilities, Petitioner admittedly supervised, trained, directed, and evaluated four subordinates and was responsible for improving their performance via counseling and corrective action. He initiated disciplinary action and issued a written reprimand to one employee with poor attendance. On occasion, Petitioner conducted staff meetings with his subordinates and also met with them individually. He managed attendance and approved leave for his staff of four. He participated in interviewing and selecting candidates for open positions under his supervision and determined the appropriate criteria, created the interview questions, and was a member of the interview panel. Petitioner was evaluated, in part, upon his supervision of subordinates. One evaluation noted that he needed to improve follow-up with assignments made to others and another indicated that he capably initiated change, but occasionally required assistance to effectuate it. Petitioner's evaluations also assessed his leadership and delegation skills, and one noted that he delegated well, but needed to work to regain better control of his areas. Although some of Petitioner's time was spent supervising, the evidence demonstrates that the vast majority of his work-time was spent performing non-supervisory activities. The facts show that Petitioner actually performed the noted activities the majority of the time and supervised those activities on occasion. Furthermore, Mr. Nawab, who periodically served as Petitioner's supervisor, provided credible evidence that Petitioner's primary responsibilities and the majority of his work-time involved non-supervisory activities. While Petitioner, during his testimony, diminished the time he spent engaged in supervisory work, the credible evidence demonstrates that he spent the minority of his work-time communicating with, motivating, training, and evaluating employees and planning and directing employees' work. Although Petitioner may have demonstrated mediocre supervisory skills, which does not make the position any less supervisory, neither Petitioner's supervisor nor his position description required him to spend the majority of his work time engaged in those supervisory activities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The position of Office Support V for the Pinellas Maintenance Yard for the State of Florida Department of Transportation was not exempt from Career Service classification as defined in Subsection 110.205(2)(x), Florida Statutes (2001); Respondent improperly reclassified the position as Selected Exempt Service; and Petitioner should be reinstated with the full benefits accrued since his termination on September 19, 2002. DONE AND ENTERED this 25th day of May, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 25th day of May, 2004. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 324 South Hyde Park Boulevard Tampa, Florida 33606 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 16th day of December, 1983.
