Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,144.72. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. Petitioner subsequently requested, by memorandum, a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,144.72; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. 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 29th day of April, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the transfer of John Jackson, Sr., be sustained. DONE and ORDERED this 24th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. John Jackson, Jr., Department of Environmental Regulation 2551 Executive Center Circle, West Lafayette Building Tallahassee, Florida 32301 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact By letter dated 2 September 1975, the Commissioner of Education notified petitioner that, as a result of reorganization of the Department of Education he was being demoted from an Assistant Chief, Research and Information, Pay Grade 33, to a Program Director, Pay Grade 32, with no change in his salary or anniversary date. On 22 September 1975 petitioner filed timely appeal with the Career Service Commission to protest this action. Thereafter the file was, transferred to the Division of Administrative Hearings, and, following several continuances, was set for hearing on 17 August 1976. By letter dated July 27, 1976 directed to the Commissioner of Education, petitioner resigned from his position in the Department of Education, effective 19 August 1976 to take another position. By letter of 30 July 1976 this resignation was accepted by the Commissioner. Petitioner acknowledged that he had suffered no loss of pay in his demotion; and, in fact, received an increase in pay when general state-wide pay increases were approved by the legislature in 1976. At the motion hearing petitioner's principal argument was directed towards his entitlement to attorney's fees in the event the hearing was held and he was successful in proving he had been wrongfully demoted.
Findings Of Fact Harold Thomas Scott obtained a bachelor of science degree in elementary education from Florida A & M University (FAMU) in 1961. He was employed by Petitioner, School Board of Dade County, as an elementary school teacher from 1961 until his suspension without pay in September, 1980. Scott obtained nine graduate credits from FAMU by attending night classes in Miami in 1968 and 1969. He did no further work toward a valid masters degree after that time. He met Eugene Sutton, a FAMU employee, during the 1977-78 school year when Sutton was in Miami to supervise FAMU students interning in education. Sutton discussed a "Graduate Independent Study Program" with Scott, and told him that he could obtain a masters degree working at his own pace in his own home. Sutton also held out the possibility that Scott could become a part-time educational consultant when he obtained the masters degree. During the year following their meeting, Scott gave Sutton a total of $2,500 in cash and checks made payable to Sutton. This amount purportedly represented fees for tuition and "service." Although Scott knew this amount was substantially more than the cost of other graduate programs, he did not question Sutton on this point and obtained only a partial accounting for these fees. Exhibit 3, a receipt for $231 on FAMU form, was the only documentation offered at the hearing. Scott has no contact with any instructor or FAMU representative other than Sutton. He received no course outline or syllabus and was not required to produce a thesis or dissertation, or take any written examinations. Scott prepared assignments given to him by Sutton which he delivered during Sutton's periodic visits to Miami. The assignments consisted mainly of assembling existing teaching materials in a manual or booklet format. Scott received no grades on these assignments nor was he aware of any specific courses which the work related to. He did, however, receive a FAMU transcript on completion of the program. In late 1978 or early 1979, Sutton advised Scott that his degree had been awarded and that he had registered it with the State Department of Education. Scott then applied to Petitioner for the masters degree pay increase and began receiving the higher salary in March, 1979. In September, 1980, Dade County School Board officials learned that Scott's masters degree was fraudulent and confronted him with this information. Scott offered to resign but was suspended instead. Scott concedes that he owes the $2,951.41 in salary overpayments demanded by Petitioner. As a result of criminal charges filed in this and related cases, Scott was arrested in Dade County and ordered to Leon County to stand trial. He entered a plea of nolo contendere to a charge of uttering a forgery and received three years probation. Scott did not contest the criminal charge as he feared a prison sentence was probable if he had gone to trial and lost. Respondent denies that he knew the masters degree he obtained was fraudulent. This denial is not credible in the circumstances of this case. Scott holds a bachelors degree from FAMU and had obtained nine graduate credits from that institution prior to his involvement with Sutton. Thus, he was thoroughly aware that university credits and degrees are awarded only upon meeting specific educational requirements. Scott's familiarity with the education system, both as a student and as a teacher, precluded his deception by Sutton. The exorbitant fees, the manner of payment, the non-existence of course materials, the absence of faculty and the lack of any substantial academic requirements would have, and did in fact, alert Scott to the fraudulent nature of his undertaking.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner suffered an unlawful employment practice pursuant to the pertinent provisions of Chapter 760, Florida Statutes, and relevant decisional law, by allegedly being the victim of disparate, discriminatory treatment based upon his race (white) by being denied compensation comparable to black professors of equal or lesser rank, credentials, qualifications and experience.
Findings Of Fact The Petitioner was hired as an employee of the Respondent, Florida A & M University (FAMU), in August 1988. He had previously worked for UNISYS Corporation in California. He was initially hired as an untenured assistant professor in the Computer Information Systems (CIS) Department of the College of Arts and Sciences (College) of FAMU. The Petitioner now is a tenured associate professor in the same department, employed on a nine-month faculty contract and often on supplemental contracts during summer terms. He now holds a Ph.D. degree in computer science, which he earned in 1992. The Respondent is a University which is a component of the State of Florida State University System. It meets the definition of "employer" under the pertinent provisions in Chapter 760, Florida Statutes. The Petitioner maintains that his claim concerning alleged discriminatory failure of the Respondent to adjust his salary to be equivalent to that of his black colleagues, based upon his race, white, is a jurisdictional claim. He maintains that the discriminatory treatment he complains of began from the time he earned his Ph.D. degree in 1992 until the day that he actually filed charges, because he continually suffered discriminatory treatment in terms of inequitable salary, compared to higher-paid black professors with equivalent or lessor qualifications and experience. He contends that the discriminatory actions against him were continuing during this time period, extending until the filing of his complaint on October 9, 1995, because during this time period his attempts to rectify his salary inequity were continually rebuffed by the University. Three assistant professors worked on their Ph.D. degrees in the CIS Department at FAMU from August 1988 to April 1991. They were employed in teaching and related duties at the CIS Department at FAMU while they worked on their Ph.D. degrees in computer science at Florida State University. Marion Z. Harmon is a black male, Sara M. Stoecklin is a white female, and the Petitioner is a white male. All were earning nine-month salaries in the mid to upper $30,000 range with the Petitioner earning $37,491, Dr. Stoecklin earning $38,421 and Dr. Harmon earning $39,383. Both Dr. Harmon and Dr. Stoecklin earned their Ph.D. degrees in the spring of 1991. Dr. Harmon, upon receiving his Ph.D., was awarded a salary adjustment. Dr. Stoecklin learned of this and raised an issue of fairness with the administration. She was told to seek other positions and get job offers as Dr. Harmon had, so as to establish her "market value." She produced the required job offer from her previous employer, Eastern Tennessee State University. Through their "market equity adjustments" of approximately $10,000 each (effective August 1991), Dr. Harmon's salary was raised to approximately $50,000 and Dr. Stoecklin's salary to a little over $48,000. The Petitioner contends that the "market equity increases" given to Drs. Harmon and Stoecklin in 1991 were given because they had earned their Ph.D. degrees. This is not clearly the case, however. Rather, because they had received their Ph.D. degrees their utility as professors was more marketable and, coupled with the offers they received from other institutions, prompted FAMU to make a counter-offer in the amount of the so- called "market equity increases." Moreover, although there is no written policy whereby salary raises, other than across-the-board increases granted by the Legislature, must be obtained only through the means of countering job offers from other institutions, there is an unwritten practice of non-routine salary increases being obtained in this offer, counter-offer, or "bidding" fashion. However, there is no actual requirement that a professor, including Petitioner, can only obtain an equity adjustment to his or her salary in this fashion, and other means have certainly been used. In the academic year 1991-92, Dr. Harmon received tenure and a promotion to associate professor. His salary was likewise increased to $52,625 for that academic year. The Petitioner's salary remained at $37,945. In April 1992, the Petitioner earned his Ph.D. degree. On April 9, 1992, he requested a meeting with Dr. Aubrey M. Perry, Dean of the College of Arts and Sciences. The Petitioner wanted to discuss his salary situation and his future at FAMU with the Dean. In their May 5, 1992, meeting, the Petitioner asked for a salary adjustment similar to that given to Dr. Stoecklin and Dr. Harmon when they received their Ph.D. degrees. He informed Dean Perry that he could not remain at FAMU at his current salary. He was told by Dean Perry that his earning of the Ph.D. was commendable, his contributions to the CIS Department were valued, and although funds were very limited, Dean Perry promised to do his best to effect a salary adjustment. Dean Perry never instructed the Petitioner that in order to receive a salary adjustment he had to seek a job offer from another school. In fact, Dean Perry testified that if the Petitioner had presented an offer from another institution, there was still no guarantee that it would be matched by FAMU and that such an offer would not be required for a person to receive a salary adjustment. Dean Perry acknowledged, moreover, that if the Petitioner had his recommendation for a salary adjustment, the Petitioner could reasonably expect it to be accomplished. After earning his Ph.D., the Petitioner applied for faculty positions at other schools and interviewed for several, at least by telephone. He had one or more informal offers of positions, for instance at the college where he formerly taught before coming to FAMU. However, he chose not to pursue any potential employment positions with other institutions because of his wife's job in Tallahassee, his children's school enrollment, his purchase of a home, and other personal reasons. Among those other reasons was the prospect, he believed at the time, of a significant salary adjustment if he stayed at FAMU. None of the so-called "rejection letters" in evidence indicate that he was lacking in any way in his credentials or qualifications. Many of them were because his area of research and expertise did not fit the needs of the other school. Indeed his entire tenure at FAMU reflects that his performance has been good and his evaluations have been favorable. He ultimately received an award for meritorious teaching skills and performance. However, despite the Dean's asserted support for a salary adjustment for him, the Petitioner received no salary adjustment during the 1992-93 academic year. In the 1992-93 academic year, the Petitioner, Dr. Stoecklin and Mr. Malcolm Barnes, who is black, all applied for tenure. Dr. Stoecklin and the Petitioner also applied for the rank of associate professor. Mr. Barnes was already an associate professor, although he did not hold a Ph.D. He had also been serving as the CIS Department chair since 1990. Department chairs at the college are elected by their faculty-member colleagues in their departments and serve a three-year term, with a $1,500 supplement to their salary for their administrative duties, as well as a reduced teaching load. In April 1993 Mr. Barnes was voted out as the chair of the Department by his colleagues, and Dr. Harmon, the associate professor referenced above, was elected as chair of the Department for a three-year term beginning in August of 1993. In approximately that same period of time, in the spring of 1993, both Dr. Stoecklin and Mr. Barnes were denied tenure. Dr. Stoecklin was also denied her promotion to associate professor. The Petitioner was awarded tenure and promotion to associate professor in May of 1993. The Petitioner was granted no salary increase then as a result of his promotion and gaining of tenure. He was thus still earning his original salary of $37,491 per year at a time when Mr. Barnes maintained his salary of $56,288 a year as a non-Ph.D., associate professor who had just been denied tenure. Dr. Harmon was paid $52,625 as a newly- tenured associate professor. Upon failing to gain tenure and being voted out as Department chair, Mr. Barnes was accorded a new position, or at least new responsibilities, as a "program director" in the Department. This is not an official position on the Department's roster of positions. It was, rather, a creation of new duties for him, as shown by Dr. Harmon's testimony. Mr. Barnes is still carried on the faculty roster as an associate professor. Faculty who fail to earn tenure are generally terminated. Mr. Barnes was not terminated, but rather was given this new position or "role" as Dr. Harmon described it. This favorable treatment of Mr. Barnes initially may have been based upon the fact that Mr. Barnes had been an employee and faculty member for approximately 20 years. It may be that an attempt was being made by the administration of the University to recognize his long, faithful service, in creating new duties for him in an administrative capacity, to avoid the onus of having to terminate him for failing to gain tenure. Inferentially, Mr. Barnes' salary probably was higher than the Petitioner's salary level, even when the Petitioner was hired in 1988, due to Barnes' long service with FAMU. However, the large differential between their salaries was maintained and even widened after Petitioner became an associate professor and after he earned his Ph.D. and tenure. Dr. Stoecklin, on the other hand, was denied both tenure and a promotion. She thereupon took a one-year leave of absence and threatened legal action against the Respondent, feeling that she had been denied tenure because of being a white female. This dispute was eventually resolved, apparently by her being granted tenure, but she was never granted a promotion with any related raise. She was not required to change any aspect of her performance, credentials, or qualifications in order to gain tenure, nor was she ever given a reason for the initial, approximate, one-year denial of tenure. In April of 1993, Petitioner again met with Dean Perry. The Petitioner requested a salary adjustment to make his salary equitable with that of his colleagues. Dean Perry told him at this meeting that he would support his request, that the Petitioner should make a written request, and that the Petitioner should stop seeking to leave FAMU as his services were valued there and Dean Perry wanted him to stay. The Dean also informed him that his promotion to associate professor would put him in a good position to receive a substantial salary increase. Following that meeting, on or about April 23, 1993, Dean Perry approved a three-year grant proposal submitted by the Petitioner. In that grant proposal, the Petitioner had budgeted his salary at $50,000 for the first year, with an increase in later years of the three-year grant period. The Petitioner had previously discussed with Dean Perry his reluctance to engage in such a long-term grant program at his low salary of $37,491 per year. Upon his submission of the grant proposal with the $50,000 initial annual salary attached, no opposition was expressed by the Dean, but that salary was never awarded. Upon receiving his promotion to associate professor and his grant of tenure in May of 1993, the Petitioner followed Dean Perry's advice and made a written request for a salary adjustment by memorandum dated May 24, 1993, addressed to his Department chair. The Petitioner reasonably anticipated a significant salary adjustment for the upcoming 1993-94 academic year, based upon the Dean's assurance in the April 1993 meeting. The Petitioner believed that the Dean's authority over the large budget of the entire College of Arts and Sciences, his approval of the Petitioner's grant proposal, and the Petitioner being awarded tenure and promotion, when other higher-salaried faculty had been denied tenure and promotion, put the Petitioner in a good position to receive a significant salary raise. Because of this belief, the Petitioner suspended discussion with other institutions about potential job offers and took his house off the market, planning to stay at FAMU. Sometime in mid-1993, the FAMU administration again increased Dr. Harmon's salary as a result of an offer he presented to them from Winston-Salem State University. Dr. Harmon's salary was thus raised from $52,625 to $58,000. The Petitioner's salary still remained at $37,491. In August 1993 a new, black associate professor, Dr. Patrick Bobbie, was hired. His starting salary was set at $62,000. Dr. Bobbie had 11 years less experience in private industry and three years less teaching experience then did the Petitioner at that time. Certain faculty salary increases were announced in September of 1993 for the 1993-94 academic year. The Petitioner received only the standard across-the-board raise of approximately nine percent due to his promotion and received no pay equity increase of the type he and Dean Perry had discussed. The across-the-board promotion increase brought his salary to $41,427 per year at that point. Both Mr. Barnes and Dr. Harmon received increases at that time bringing their salaries to $58,332 and $59,740 annually, respectively. After not receiving the salary increase he expected with the September 1993 announcement of salary increases for the academic year 1993-94, the Petitioner scheduled another meeting with Dean Perry during September 1993. Once again, the Dean agreed that Petitioner's salary was too low and he assured the Petitioner that he would try to remedy that situation. However, he also told the Petitioner that funds were not available to give him an increase beyond the nine-percent promotional raise amounts that month. The Dean told the Petitioner to put his request in writing and have the Department chair endorse it and the Dean would see that it was presented to the University administration. The Petitioner wrote the memo and delivered it to the Dean's office after having it endorsed by Dr. Harmon, his Department chair. The memo was dated September 30, 1993, and was delivered on or shortly after that date. After making contact with the Dean's office on or about October 17, 1993, the Petitioner was informed that the Dean had apparently misplaced the memo and no action had been taken. The Petitioner immediately re-submitted it on that date. Dean Perry promised to act on the Petitioner's request upon returning from a trip. On November 29, 1993, he informed the Petitioner that he had sent the memorandum to the administration with a recommendation for positive action. However, as a result of Petitioner's inquiry on January 10, 1994, he learned from the Dean's secretary that the Dean had not yet written the required letter with his recommendation. As a result of this inaction, the Petitioner decided to engage in a salary equity study (SES) for that academic year of 1993-94. The SES was submitted on February 10, 1994, in accordance with the Florida Board of Regents-United Faculty of Florida (UFF) collective bargaining agreement. In the SES, the basis for the claim of sexual or racial inequity must be drawn from a self-study process in which the employee compares himself or herself with counterpart employees. The counterparts must meet specific criteria and the comparison must be based on specific criteria set forth in published guidelines. The underlying principle of the SES, as indicated by Section 240.257, Florida Statutes, is that employees in similar positions with similar credentials and performance should make similar salaries, independent of their sex or race. The Petitioner was earning $41,427 at the time of his SES. His main counterparts in the study, Dr. Harmon, Mr. Barnes, and Dr. Bobbie, were then earning $59,740, $58,332 and $62,000, respectively. When he initially did not get a favorable decision, the Petitioner allowed the self-study to run its course through the internal university appeal process. The university appeal was to an appeals committee of two members appointed by the president, one of whom was black and one of whom was white. Through the course of the self-study, two faculty committees, the University Salary Equity Committee and the President's Appeal Committee, as well as Dean Perry and Dr. Hogg, the Provost, all reached the conclusion that the Petitioner's salary was inordinately low in comparison with his colleagues. The administrators maintained, however, that the inequity was not related to race, but purportedly resulted from such factors as "compression" or "inversion," a phenomenon where later hired employees in equivalent positions, make more money than their earlier-hired counterparts because salary rates or levels have increased. In his decision Dean Perry acknowledged that the Petitioner's market value for one of his rank and experience in his discipline was much higher than his current rate of pay reflected. The Dean informed the Petitioner that he would recommend that his salary be adjusted to reflect his current market value. Dr. Hogg, the Provost, informed the Petitioner in a letter of early May 1994 that the Appeals Committee had urged that Dean Perry review the Petitioner's salary and make the best adjustment possible during the 1994-95 academic year, which commenced in August of 1994, assuming that sufficient funds were available. That letter indicated that Dr. Hogg concurred with that decision. The policies or regulations provided the Petitioner by the Respondent, during the salary equity study, indicated that any equity adjustment awarded would be effective on the same date as other salary increases for that academic year. Because of this and because the SES committee recommended that his salary be adjusted (albeit not for reasons of racial discrimination, in the view of the committees) and because of the assurances given him by Dean Perry and Provost Hogg, it was the Petitioner's reasonable expectation that he would receive a salary adjustment as a result of his SES on November 1, 1994, during the 1994-95 academic year. That was the date the Legislature had mandated for any faculty salary increases. In addition to funds allocated by the Legislature for faculty salary increases, effective November 1, 1994, Dean Perry announced on June 30, 1994, that additional funds were available to give all associate and full professors at FAMU a $1,000 "market equity increase." This increase was to be effective August 8, 1994, and, as established by Mr. Rollins’ testimony, was the result of essentially "left over funds," that is, salary money that was not already scheduled to be spent but, as surplus, was to be used to give faculty members an increase. Mr. Rollins testified that the administration had considerable flexibility in shifting funds, including to salary accounts, which had been unexpended for other purposes. Consequently, it was decided to give all associate and full professors a $1,000 "market equity increase." The recipients of this increase were not required to present offers of employment from other institutions in order to establish their "market value." Many of the recipients of the increase, such as Drs. Harmon and Bobbie and Mr. Barnes, were already paid much more than the average salaries for professors of their rank in their disciplines. The Petitioner received notice of the $1,000 raises and immediately wrote a letter to Dean Perry reminding him of his inequitable salary situation and attaching Dr. Hogg's letter containing his assurance of a salary adjustment. The Petitioner was concerned that the unprecedented, $1,000 raises indicated that extra funds had become available at the beginning of the 1994-95 academic year and yet, even on November 1, 1994, the Petitioner did not receive the SES-related, market equity adjustment assured him by Dr. Hogg and Dean Perry. Additionally, in August of 1994, Dr. Deidre Williams was hired. She is black and was a recent Ph.D. graduate. She had no research publications to her credit at the time of hiring and had at least 10 years less teaching experience and 10 years less industry experience than the Petitioner. She was not tenured. As reflected by Dr. Harmon's testimony, she had been hired without a faculty search or advertisement in outside publications, such as professional journals. She was hired as an assistant professor, a rank below that of the Petitioner, who at the time was an associate professor. She was hired at a starting salary of $55,000 with a reduced teaching load compared to the Petitioner. Dr. Harmon, the Department chair, testified that it was his policy since he became Department chair in approximately August of 1993, to allow newly hired faculty with Ph.D. degrees reduced teaching load, for instance, two classes instead of four classes, in order "to get their research off and running." She was hired at approximately $13,000 above Petitioner's salary, and at over $11,000 above the national average salary for entry-level assistant professors at public universities. The average salary in a four-year public institution for a new assistant professor in computer and information sciences was $43.612 as of September 1, 1994, as shown by statistical evidence accepted and referenced by both parties in this proceeding. Dean Perry testified that the reason Dr. Williams was hired at $55,000 for a nine-month salary was to match an offer she had received from another institution. Neither the Dean nor any other witness testified concerning the reason it was necessary to match another offer she had purportedly received from another institution in order to hire her. In fact, no evidence was offered concerning whether her qualifications were equal to or superior to any other applicant, nor did Dean Perry or any other witness state that she was hired by matching an offer because of her superior qualifications for the untenured, entry-level position. Dean Perry’s testimony, and evidence adduced by the Petitioner, shows that the Respondent believes that black professors with Ph.D. degrees, even entry-level professors who are recent graduates, must be hired at substantially higher salaries than their white counterparts and that black professors with Ph.D. degrees command a higher salary in the nationwide marketplace for professors with Ph.D. degrees in that discipline, because they are scarcer. Dean Perry in his testimony, however, did not claim that the university, the college, or the Department had any reason to select and hire black professors in order to promote any remedial "affirmative action-diversity" related goal. When Dr. Williams was hired, there were already five black faculty members on the full-time CIS faculty of ten professors, and a substantial majority of black professors in the College of Arts and Sciences. Therefore, there has been no showing of any market-related or other necessity for the Respondent to hire black professors with Ph.D. degrees at substantially-higher salaries, than it pays its white faculty members. This is especially true in light of the testimony of the Respondent's witness, the Department chair, Dr. Harmon, establishing that funds are not allocated to advertise open faculty positions in publications such as professional journals. Inferentially, no nationwide or regional search is conducted in order to fill vacancies. This keeps the pool of potential applicants for positions very small, according to Dr. Harmon less than twelve for a recent opening. Dr. Harmon testified that some of the applicants are referrals from colleagues or members of the administration. This evidence shows that the University is not really competing in a regional or national market for these professors with Ph.D. degrees and thus further illustrates that there is no economic necessity that black professors with Ph.D. degrees have to be hired or have to be hired at a substantial salary over non-black professors with Ph.D. degrees. Rather, the evidence shows, through Dr. Harmon's testimony, that there is a glut of computer science professors with Ph.D. degrees on the open market. He described, for instance, a vacancy at the University of Florida which drew approximately 500 applicants. Logically, therefore, a large number of qualified applicants could be obtained for these positions (and likely hired at salaries more near the national average, regardless of race), if the Respondent was not of its own volition limiting the applicant pool. Dr. Harmon testified that assistant professor, entry-level positions are typically initially offered at a salary of "$45,000 negotiable" and that he recently offered one at $42,000 to $45,000, which is near the nationwide average salary for such entry-level positions. Because these positions are not widely advertised, a substantial number of potential applicants are not aware of these positions and do not apply. Otherwise, it is reasonable to infer that, in such a market, glutted with computer science Ph.D.s, many qualified applicants, even if non-black, could be found who would take the assistant professor positions for the salary initially offered or at or near the nationwide average for such positions. Therefore, if black professors with Ph.D. degrees do command a higher salary on the national market as the Respondent claims, the Respondent can have no economic incentive for hiring them. In fact, there is an economic dis-incentive for this pattern of salaries awarded, since, if the University competed in a meaningful way in the national market for computer science Ph.D.s, it could undoubtedly find well-qualified candidates, regardless of race, at lower entry-level salaries and thus have more funds to address salary inequities of employees such as the Petitioner. Significantly, Dean Perry testified that no white faculty members had been hired into the Department in tenure- earning positions in the past five years. Although Dean Perry testified that occasionally incumbent faculty members apply for such positions and that the Petitioner could have applied for the positions himself, the evidence shows that the open positions involved were for untenured, assistant professors. It is not reasonable to assume that there was any incentive for the Petitioner, already a tenured, associate professor, to apply for a lower-ranking position as an untenured, assistant professor, or even for an equal associate professor position, especially when he had been told that his salary equity problem would soon be adequately addressed. In early September 1994 the Petitioner wrote another letter to Dean Perry reminding him of his substantial salary inequity and again requesting his help. The letter pointed out to the Dean that the average, nationwide salary for an associate professor in computer and information sciences at four-year public universities was approximately $51,588, according to a generally-accepted survey. In a meeting on November 2, 1994, Dean Perry informed the Petitioner that he could not recall receiving that letter so the Petitioner sent him a letter dated November 18, 1994, complaining that the new assistant professor in the Department was hired without the benefit of a faculty search and at a salary significantly above market value. The national average salary for a new assistant professor in this discipline was $43,612 for 1993-94, more than the Petitioner’s associate professor salary. The Petitioner complained that while the inequity in his salary had not been addressed due to a purported "lack of funds," the University did find the funds to hire the new assistant professor, who is black, at $55,000. In the meantime, on October 24, 1994, the Petitioner was notified of a salary increase for the 1994-95 academic year. These legislatively-mandated raises were to be effective November 1, 1994. The Petitioner received no market equity adjustment related to his salary equity study. Instead, he was paid a $600 across-the-board increase, a discretionary increase of $1,170, and the $1,000 "market equity increase" that had been granted, effective August 8, 1994, to all associate and full professors, regardless of the salary they were then earning or their salary equity situations. The Petitioner received no "salary compression increase" at this time, and, indeed, under the University policy did not qualify for one since he would have to have been employed for seven full years before he could qualify for a compression increase. These salary adjustments, announced in August and October, 1994, raised the Petitioner's annual salary to $44,197, effective November 1, 1994. The gap between this salary and his black counterparts in the Department widened. Dr. Harmon's salary became $65,733 annually or $21,536 more than the Petitioner’s, where there had formerly been an $18,313 difference. The gap between the Petitioner's salary and that of Mr. Barnes, who was raised to $61,798 per year, increased from a difference of $16,905 before November 1 to $17,601 after November Dr. Bobbie, also an associate professor, was raised to $63,600 (from $62,000), resulting in a gap between his and the Petitioner’s salary of $19,403. The Petitioner tried again to get Dean Perry and Provost Hogg to correct his salary inequity. He expressed his sentiments in a letter to the Dean and Dr. Hogg on October 29, 1994. He noted therein that discretionary salary actions taken for other individuals indicated that funds were available to have given the adjustment previously promised by Dean Perry and Dr. Hogg. He advised Dean Perry, Dr. Harmon, and Dr. Hogg that, in addition to the situation involving Dr. Williams, hired at a salary of $55,000 in August of 1994 as a relatively- inexperienced, assistant professor, a discretionary raise had been given to black faculty member, Mr. Barnes, an associate professor, who was already making more than $60,000, with no tenure or terminal degree. Mr. Barnes had recently been denied tenure and voted out as Department chair by the faculty, based on performance. He was not recommended for an increase by the new Department chair, Dr. Harmon and, because of lack of experience was limited in the courses he could teach. Moreover, a discretionary raise had been given to another black, department faculty member, Ms. Johnson, who was being paid more than $55,000 for a substantially-reduced workload. She did not then have a terminal degree and taught no courses. She only had research duties. The Petitioner thus advised them of his resultant belief that he was being discriminated against. A meeting was held on November 2, 1994, between the Petitioner and Dean Perry. Dean Perry assured the Petitioner that he would schedule a meeting with the President to seek approval of an increase in Petitioner's salary. They discussed a $10,000 increase, but no promises as to an exact figure were made. Later that day, the Dean called the Petitioner and informed him that a meeting with the President was set for November 9 and he would be notified of the outcome. The Petitioner called the Dean's office on November 15 and then encountered the Dean on November 21, both of which contacts led him to believe that nothing had been done on the issue. In the meantime, the College of Arts and Sciences Teacher Incentive Program (TIP), through its award committee, recommended the Petitioner to Dr. Hogg for a $5,000 teaching excellence award on November 16, 1994. The Petitioner, however, did not receive this award during the 1994-95 academic year. Dean Perry wrote a letter to Dr. Hogg on November 22, 1994, finally requesting a salary adjustment of $5,000 for the Petitioner. The Dean made no mention that this salary adjustment had been promised to be an equitable adjustment, resulting from the SES done by the Petitioner. In fact, Dean Perry assured Dr. Hogg that the request was not related to the previous SES. In recommending the $5,000 increase to Dr. Hogg, the Dean declined to compare the recommended salary for the Petitioner to that of his black, associate-professor colleagues, Dr. Harmon, Dr. Bobbie, and Mr. Barnes, nor, for that matter, even to assistant professor Dr. Williams, the black, recent Ph.D. graduate. Instead, he compared it to the white assistant professor, Dr. Stoecklin. This fact is established by Dean Perry's somewhat reluctant testimony and Petitioner's exhibit 73 in evidence. This shows the base salaries in the Department before the January 1, 1996, increases, and shows that the Petitioner's salary on November 22 would have been $44,197, with Dr. Harmon's at $65,733, Dr. Bobbie's at $63,300, Mr. Barnes at $61,798, assistant professor Dr. Williams at $55,000, and white assistant professor, Dr. Stoecklin at $48,921. The $5,000 increase recommended by Dean Perry (as he finally acknowledged in testimony) was only comparable to the salary of Dr. Stoecklin, the white, tenured, Ph.D. assistant professor, who, even after the January 1, 1996, increases, was only paid an annual salary of $50,297. It is apparent that in presenting a salary recommendation to Dr. Hogg, Dean Perry chose to ignore the equity comparisons the Petitioner had made in his SES with his black counterparts and other higher black faculty salaries, apparently believing it appropriate to compare his salary to that of his white colleague, a lower ranking professor, Dr. Stoecklin. It is significant that, although the Respondent references the original market equity increase given to Dr. Stoecklin shortly after she earned her Ph.D. degree in 1991, (after a similar increase to Dr. Harmon), as indicating that white professors in the Department were treated equitably compared to black Ph.D. professors and that, therefore, the Petitioner's salary increases were retarded because of his failure to obtain outside offers which would establish his "marketability" the unrefuted evidence shows that after receiving that increase Dr. Stoecklin received no other salary increase until the January 1, 1996 raises. Even then she was still approximately $5,000 below the salary of equal-ranking, but less- experienced, assistant professor Dr. Williams, who was hired much more recently, in August of 1994, at $55,000 annual salary. Moreover, upon earning her Ph.D. and being granted the raise, she was then denied tenure for unexplained reasons for approximately one year and has never been given a promotion. There is no evidence that her performance is other than satisfactory. She has twenty-five years of relevant experience, eight years at FAMU, and more than twelve years' teaching experience. She has been quite effective in obtaining grants and has published comparable papers and received better teaching ratings than most faculty members. She was finally given a raise to a level comparable to that of Dr. Williams in August, 1996, during the pre-hearing portion of this proceeding. Under the circumstances, she cannot serve as an exemplar of equitable salary treatment of white professors in the Department compared to black Ph.D. associate professors or even assistant professors. The absence of the expected SES-related salary adjustment in the salary increase notification received by Petitioner on October 24, 1994 and the 30-day filing deadline from the time of an action giving rise to a grievance caused the Petitioner to file a grievance on November 23, 1994. This related to the non-discrimination provision in the Florida Board of Regents - United Faculty of Florida collective bargaining agreement, pursuant to which the grievance was filed. On December 19, 1994, Dr. Harmon wrote a letter to Dr. Frederick S. Humphries, President of FAMU, recommending that the Petitioner receive an immediate $10,000 salary raise, retroactive to the date he earned his Ph.D. Indeed, to his credit, Dr. Harmon had previously consistently supported the Petitioner's request for a salary adjustment in earlier communications with the administration. He did not have authority to make the decision, however. He never conditioned that support on a requirement that the Petitioner "prove his marketability" by obtaining a job offer from another institution. Both he and the Petitioner testified that they had discussed the possibility of the Petitioner seeking an outside job offer as a means of cajoling the administration into granting a salary increase, but Dr. Harmon never directed the Petitioner to seek such an offer and testified that he had not actually suggested it to him. On approximately January 17, 1995, the Petitioner received notice of Dr. Hogg's response to Dean Perry's November 22, 1994, letter recommending the $5,000 equity increase. Dr. Hogg denied the requested salary increase, referencing lack of available funds, rather than lack of a competitive outside salary offer, as the impediment to granting the raise. Dr. Hogg's letter expressed that nothing could be done in the 1994-95 academic year, but another attempt at adjusting his salary in the 1995-96 academic year would be made. Soon thereafter, on January 31, 1995, the Petitioner presented his grievance in a "step one" grievance meeting with Mr. David M. Voss, President Humphries' representative for contract administration, and the Respondent's representative for the step-one grievance proceeding. The basis for the Petitioner's grievance is consistent with his position in his complaint and petition filed with the Florida Commission on Human Relations in this proceeding. He presented statistical evidence in his grievance proceeding, and in this proceeding, showing the inequity between his salary and the salary of Dr. Harmon, Mr. Barnes, and Dr. Bobbie, which had been made worse during the course of the period of time when the Respondent acknowledged the inequity and had made assurances to try to re-address it. The Petitioner also presented statistics in his grievance proceeding, and in the instant proceeding, which showed that actions by the Respondent with regard to hiring and salaries, from 1991 to 1996, had aggravated significant differences between the salaries of black and non-black Ph.D.s generally and associate professors in the CIS Department in particular. These statistics show, for example, that black Ph.D.s on the average were paid over $16,000 more than non-black Ph.D.s and black associate professors were paid an average of $21,000 more than non-black associate professors. See, for instance, Petitioner's exhibit 52B. The University maintained through the grievance decision process and in the instant proceeding that race was not a factor in the differentials between the salary of the Petitioner and those of his black colleagues, although it did rely in the grievance process and in the instant proceeding on a purported economic, market value reason for the significantly- higher salaries paid to black faculty members. Specifically, the Respondent's grievance decision at step one of the process states that: In the grievant’s discipline . . . race and gender affect salaries. The scarcity of black male and especially black female Ph.D.'s [sic] contributes to salary differentials. . . . Blacks who hold a Ph.D. in grievant’s discipline do command a higher salary. . . . These statements were concurred in by Dean Perry in his testimony. He testified essentially that blacks are hired at the higher salaries they command for market reasons. That is, the University must pay blacks who hold Ph.D.s in computer science significantly higher salaries in order to hire them and retain them in competition with other institutions and therefore, that there is very little discretionary money to raise the salaries of equally qualified and deserving incumbent whites or non-blacks. He also testified that that should not lower the Petitioner’s expectations, although in his communications with the Petitioner in the last several years concerning the Petitioner's salary complaint, and in his testimony, he acknowledged that there was a continuing inequity in the Petitioner's salary verses his black colleagues. In the "step one" grievance decision and in the SES decision, the University made assurances to the Petitioner that it would effect an equitable adjustment in his salary. This had not been done through February of 1995. The only adjustments granted to the Petitioner since earning his Ph.D., tenure, and promotion to associate professor, in 1992 and 1993 were his promotion increase, the $600 across-the-board increase, a discretionary increase of $1,170, as well as the $1,000 "market equity increase" given to all associate and full professors on the faculty, irrespective of salary circumstance, as of August and November 1994. The resultant continuing and widening pay inequity is reflected in the above findings. Upon the University's rejection of the Petitioner's grievance in its step-one decision, the Petitioner appealed to a "step two" grievance decision process, which was presented on April 20, 1995, to Ms. Cynthia Vickers of the Office of Human Resources of the Board of Regents. In his argument at the step- two grievance meeting the Petitioner argued that "compression and inversion" as a factor could not explain the large differential between his salary and those of his black colleagues since he had not been employed at the University long enough to qualify for a compression increase and too large an inequity had already occurred to be explained by this reason. Further, there was no proof of any concrete pay plan showing maximum and minimum rates for the relevant positions which might show a legitimate reason why later-hired colleagues were paid so much more. Moreover, Dr. Harmon started in 1990-91 with a salary only $2,000 or so above the Petitioner's and Mr. Barnes was hired well before the Petitioner. Thus compression/inversion cannot explain their large differentials compared to the Petitioner's salary. The Petitioner presented the same data he had presented at the step- one meeting and which he also presented in evidence in this proceeding, showing his disparate treatment as to salary. Additionally, evidence he presented at the step-two grievance meeting and also in the instant proceeding shows the Oklahoma State University survey information on faculty salaries nationwide by rank. These statistics were not refuted by any evidence offered by the Respondent nor were they disputed. These and other statistics in evidence show that the majority of black, associate professors in the College of Arts and Sciences (22 out of 31) earn above the Oklahoma State University survey average for associate professors in that discipline, and also show that every non-black associate professor in the College of Arts and Sciences (14 out of 14) earn below that average. The Oklahoma State University salary survey information was acknowledged as authoritative particularly in Mr. Rollins testimony. The Petitioner's step-two grievance decision was issued by the Board of Regents' (BOR) committee on or about June 13, 1995. It incorporated a $5,000 salary increase and new contract from the University which brought the Petitioner's salary to $49,197 per year. This decision described the adjustment as a "good faith effort to ease the acknowledged salary differences." The Board of Regents' decision in discussing the University's position stated: Although it acknowledges there is inequity between grievant and his peers . . ., the University's position is that this salary disparity is due to the discipline's national market value for black males and females with terminal degrees. The Petitioner responded in writing to the BOR's step- two decision claiming, as before, that the $5,000 increase accorded him as a result of the grievance process was inadequate to address his salary inequity and reiterating his argument that race had been and was a significant factor in his original and continuing salary inequity situation. He requested an appeal to arbitration from his United Faculty of Florida representative or committee. The statewide United Faculty of Florida committee, pursuant to the Board of Regents/United Faculty of Florida collective bargaining agreement voted to appeal the BOR's step- two grievance decision to an arbitration process. The Board of Regents/United Faculty of Florida collective bargaining agreement limits the ability of an arbitrator to award back pay or to assess penalties for discrimination. Inasmuch as some salary increases had finally been granted to the Petitioner as a result of his grievance and a significant teaching award (the TIP award) had been recommended for him (although not yet awarded), the United Faculty of Florida committee decided, as is its right under the collective bargaining agreement, not to pursue the arbitration process any longer. This was because of the cost involved and because the Petitioner would still be free to pursue his dispute before the Florida Commission on Human Relations (FCHR). On August 4, 1995, the Petitioner filed a complaint with the FCHR alleging continuing salary discrimination based upon his race. In that same month, Dr. Clement Allen who had recently earned his Ph.D. was hired as an untenured, assistant professor at a salary of $52,000. Dr. Allen is black. The Petitioner's salary at this same time was only $49,197. On January 1, 1996, faculty members were granted across-the-board increases by the Legislature and the Petitioner was given a new contract by the University that provided for a $4,440 "other salary increase" as well as a $1,988 "salary compression increase." This last was because the Petitioner had finally qualified for a compression increase as he had by then been on the faculty for the required seven years. These increases brought the Petitioner's salary to $55,625, equivalent to the salary of Dr. Williams, the black, untenured, assistant professor, who had been hired in August of 1994 at a salary of $55,000. Later in March 1996, the Petitioner was finally given his $5,000 "TIP" award for teaching excellence (not an actual salary equity adjustment), which had been recommended in 1994, but never awarded. This made his salary $60,625 per year, which was his current salary at the time of the hearing. There is no evidence to show that the Petitioner's black colleagues Mr. Barnes, Dr. Bobbie, Dr. Harmon, Dr. Williams, (or Dr. Allen) had received any teaching awards to achieve their current salaries which are $63,883, $65,225, $68,141 and $55,625. Dr. Allen, hired as a new assistant professor at $52,000 was apparently no longer on the payroll of the CIS Department at this time in 1996. The un-refuted evidence shows, and there is no dispute, that the Petitioner's performance was consistently excellent during his tenure at FAMU and particularly after earning his Ph.D. His excellence in teaching was recognized, his research papers were accepted at international conferences, and his overall performance was judged excellent by the administration at all pertinent levels. Indeed, in his conversations with Dean Perry after he earned his Ph.D. concerning his salary expectations, Dean Perry urged him to remain at FAMU. Mr. Rollins testified for the Respondent, as Assistant Vice President for Academic Affairs, to the effect that in the last several years more flexibility and discretion had been accorded the University, presumably by the Legislature or Board of Regents, to shift funds from one category to another, such as from expenses to salaries. This was in the course of his testimony explaining how the $1,000 "market equity increase," from "surplus" salary funds, was awarded, effective August 8, 1994, to all associate and full professors. Nevertheless, during this period, when Mr. Rollins described the increased flexibility in shifting funds among categories, including awarding unused salary funds for such a general discretionary pay increase for faculty members, the Petitioner was still being denied a salary equity adjustment purportedly for "lack of funds" according to the information he was provided by Dean Perry and Dr. Hogg. This was at the same time that more advantageous compensation treatment was accorded certain black faculty members. Mr. Barnes, for instance, after being denied tenure was nevertheless retained as a generously-paid associate professor, rendered immune from tenure requirements, and was given a reduced teaching load in return for duties, at one time as much as fifty percent of his time, of an unknown nature in President Humphries' office. The specifics of these duties were unknown to his Department chair, Dr. Harmon. Ms. Thorna Humphries was paid a full salary as an assistant professor during the 1995-96 academic year during the time she was on an approved educational leave of absence pursuing her Ph.D. at the University of Denver. In fact, during that academic year, Ms. Humphries received a $625 salary raise, effective January 1, 1996. Dr. Harmon in his testimony acknowledged that fact and also that Ms. Humphries is no longer being paid for the 1996-97 academic year. Mr. Stephen Payne, a white associate professor who is also pursuing his Ph.D., is still required to teach four courses in return for his salary ($41,350 as of January 1996). The recent new black Ph.D. hires were given reduced teaching loads in addition to their higher salaries, according to Dr. Harmon, in order to give them time to get their research "up and running." Such treatment was not accorded Mr. Payne with regard to earning his Ph.D., although Dr. Harmon, to his credit, has reduced Mr. Payne's workload by arranging his course schedule so that he only has to do two preparations instead of four preparations for his four courses. Additionally, Ms. Lynette Johnson, who is black and who was hired around 1988, was paid a salary from the CIS Department's budget during the year 1995-96 despite having no teaching or other faculty duties, including research, within the Department. She does not have a Ph.D. and is currently paid $59,085 per year. In August 1996, she was transferred from the Department payroll and apparently placed on the Education Department's payroll. Mr. Rollins explained that this is because she was selected as a person to do entirely research duties in order to meet a Legislative or Board of Regents mandate to the effect that faculty members must be shown to be devoting more time than in former years to teaching, with required reduced research time or duties. In order to accomplish compliance with this requirement, Mr. Rollins explained in his testimony that personnel such as Ms. Johnson are selected to perform more research, with no teaching duties, so that research duties can be shifted away from those faculty members who are required to teach. Her substantially-higher salary without a terminal degree versus that of the Petitioner with teaching, publication, research duties, tenure, and a Ph.D., was unexplained. Dean Perry's testimony was equivocal and vague in a number of pertinent areas. Upon cross-examination, he admitted that the Petitioner's colleague he referred to in his letter to Dr. Hogg of November 22, 1994, (Respondent's Exhibit 15) was Dr. Stoecklin. This is with reference to his recommendation in that letter that the Petitioner's salary be adjusted by $5,000 which he said would "make his salary comparable to that of one of his colleagues with equivalent credentials." He attempted later to recant that testimony only to have to admit that Dr. Stoecklin was the only colleague who he could have been referring to, given the salary figure he recommended. He professed not to know whether Dr. Stoecklin was an assistant or associate professor, even though he was the Dean in 1993 when controversy ensued surrounding the denial of her tenure and promotion at that time. She was and still is an assistant professor and therefore is not a colleague of "equivalent credentials" to the Petitioner in any event. Additionally, the Dean testified that current positions at the assistant professor level in the CIS Department are advertised at salaries within the "fifties" (or $50,000-plus range). He was unaware, apparently, that Dr. Harmon had already testified that such positions were advertised at "$45,000- negotiable" and that one such position was currently being advertised for $42,000 to $45,000 per year. He testified that blacks in the Petitioner's discipline are able to command higher salaries, even "substantial salaries" as he put it, but did not quantify the approximate "premium" salaries blacks could command, even though his position requires him to approve or disapprove recommended starting salaries of new faculty members. The Respondent’s counsel argued at this point that, regardless of available salary dollars, the rate authorized for a position controls what its incumbent can be paid. In response to questioning by the Respondent's counsel, the next witness, Mr. Rollins, testified that salary "rate" for a position is what controls how many dollars the faculty member in that position can be paid, irrespective of the total salary dollars available in the department’s, college’s or university's salary budget. Such testimony begs the question, however, concerning why, sufficient rate and dollars (or at least dollars) were found to pay substantially higher salaries not only to the Petitioner's black colleagues of equivalent educational attainment, experience, and credentials, but even to those assistant black professors who had substantially less experience in teaching, in industry, in research, in publications, and in credentials. It strains credulity to accept that the "rate" for an assistant professor position would allow a new assistant professor to be paid approximately $15,000 more that the "authorized rate" for an associate professor position, occupied by a much more experienced and qualified incumbent. Additionally, Dean Perry was unable to recall a close estimate of his total, approximate salary budget, while adhering to his position that there was little discretionary money for an equitable salary raise. Finally, Dean Perry testified that the University attempts to raise white faculty members up to some equivalent level of pay to that of higher paid, newly-hired black counterparts, but the evidence indicates that, as to the CIS Department, this was only partially done for the Petitioner after he ultimately appealed his grievance procedure to the Board of Regents level and initiated this proceeding. It has not been done for other non-black CIS faculty members included in the statistics the Petitioner presented into evidence, most notably Dr. Stoecklin, who for the reasons found above, cannot serve as the exemplar of equivalent treatment for white faculty members that the Respondent maintains her to be. Accordingly, for these reasons, the testimony of Dr. Perry is accorded less weight and credit than that accorded to the testimony of Dr. Harmon, Dr. Stoecklin and the Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, a career service employee of the Department working in the economic services unit of the Department's District 9 (hereinafter referred to as the "District"). His employment with the Department began on September 30, 1987, when he was hired to fill a Public Assistance Specialist (hereinafter referred to as "PAS") position. On May 6, 1994, Petitioner was promoted to a Senior PAS position. The Senior PAS classification was relatively new. It was established in August of 1993. Along with his promotion, Petitioner received a 10 percent salary increase. It was then, and it has remained, an accepted general, Department-wide practice (but not a requirement) to give salary increases of 10 percent, if possible, to Department employees upon promotion. Whether such a 10 percent promotional increase should be given in a particular instance to a promoted employee working in a district office is a matter that is within the discretion of that district's district administrator. By letter dated January 6, 1995, the Department requested the Department of Management Services (hereinafter referred to as "DMS") to grant upward pay grade adjustments for the PAS and Senior PAS classifications. 1/ The letter read as follows: As you are aware, Florida's error rates for public assistance programs have been well over the national average and the federal government has imposed penalties in both our food stamp program and . . . Aid to Families with Dependent Children. The department has worked very hard to develop strategies to reduce error rates and subsequent penalties by decreasing fraudulent practices, improving communications between workers and clients, improving the FLORIDA system and providing better training staff. A major effort is being made to attract and retain good employees and to reward and retrain current staff and decrease turnover rates. In order to ensure the success of these efforts, we are requesting upward pay adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist with an effective date of December 30, 1994. We wish to adjust the pay for the Public Assistance Specialist from pay grade 015 to 016 and give employees assigned to the class the difference in the minimum salaries for these pay grades. This increase will be in the amount of $40.91 biweekly per employee. We also wish to adjust the pay for Senior Public Assistance Specialists from 016 to 017. Because these employes were recently promoted and received a promotional increase at that time, we are requesting approval to only increase the salary of those employees assigned to the class who are below the new minimum. These employees will receive an increase to the minimum of the new range. Employees who are above the minimum salary of the adjusted pay grade will receive a one- time lump-sum bonus payment using productivity enhancement monies in lieu of a salary increase in order to provide some equity in the class. There is sufficient rate and budget to support this request. If you have any questions, please let me know. We will be happy to meet with you or your staff to discuss this request. PASs and Senior PASs are included in a collective bargaining unit represented by AFSCME Council 79 (hereinafter referred to as the "Union"). In accordance with the provisions of the collective bargaining agreement covering this bargaining unit, DMS, by letter dated March 15, 1995, notified the Union of the Department's proposed pay grade adjustments and invited the Union to comment on the proposal. On March 20, 1995, the Union gave DMS written notice that it "approved" of the proposed pay grade adjustments. By letter dated March 23, 1995, DMS informed the Department of its decision to make the requested adjustments (hereinafter referred to as the "1995 pay grade adjustments"). The letter read as follows: This is in response to your January 6 letter requesting pay grade adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist. Based on the information provided and that funding is available, we concur with your request and have adjusted the pay grades for the classes of Public Assistance Specialist, Class Code 6057, from Pay Grade 15 to 16, and Senior Public Assistance Specialist, Class Code 6050, from Pay Grade 16 to 17. All other designations remain the same. The pay grade adjustment for the class of Public Assistance Specialist will be accomp- lished by increasing the employees' base rate of pay by the difference between the minimum of the pay grades, provided it does not place their salary above the maximum of the range. The class of Senior Public Assistance Specia- list was established effective August 4, 1993. Based on your statement that employees were promoted over a year ago into this class and received a promotional increase at that time, we concur with your request to increase the salary of those employees assigned to the class who are below the new minimum to the minimum of Pay Grade 17. As requested in your letter and our conver- sation with the Office of Planning and Budgeting, these actions are effective December 30, 1994. If you have any questions concerning this matter, please call me or Ms. Mary Dinkins at . . . . Petitioner was among the Senior PASs employed by the Department whose salary was below the minimum salary for Pay Grade 17. Accordingly, as a result of DMS having reassigned the Senior PAS classification from Pay Grade 16 to Pay Grade 17, Petitioner's salary was increased (by $1.47 biweekly, retroactive to December 30, 1994) to $813.96, the minimum salary for the newly assigned pay grade. The salaries of all other similarly situated Senior PASs in the state were likewise increased to the minimum salary for Pay Grade 17. 2/ There are employees in the District presently filling Senior PAS positions who have fewer years of service with the Department than Petitioner, but whose salaries (for reasons that have no apparent connection to their job performance, qualifications or duties) are nonetheless greater than his. 3/ (These are employees who were promoted to their Senior PAS positions after the pay grade for the Senior PAS classification was upgraded to a Pay Grade 17 and who, in addition to their promotions, received a 10 percent increase in salary upon their promotions, as Petitioner had when he was promoted to his Senior PAS position.) On May 24, 1995, Petitioner filed an employee grievance with the Department requesting that the Department "make [his] salary equitable with those Senior P[ASs] whose promotions were granted after 12/31/94 and . . . restore to [him] all pertinent back pay, since 1/1/95." Petitioner's grievance was presented to a grievance committee, which issued the following written "summary/recommendation:" It is the findings of this Committee that while the public assistance upgrades caused some variations with how individual PAS[s] and Senior PAS[s] ended up on the pay scale in comparison to each other, based on when promoted to a Senior PAS, all staff in like positions were treated in the same manner statewide. The variations resulted in trying to create a career ladder as well as upgrade entry level positions. Mr. Chernaik is correct in that he- and also other Senior PAS[s]- might be paid less and have more experience than a PAS who now gets promoted to Senior PAS. This issue may be resolved on a statewide basis. However, if the statewide resolution does not occur, this Committee recommends that every effort should be made to correct this inequity by like compensation for all Senior PAS[s] at the local level. As stated in the grievance filed by Mr. Chernaik, this inequity began 12/31/94 and compensation should begin retroactive to this date if salary and rate would be available. Although difficult to establish a definite time frame for action, this Committee will suggest that the State of Florida act upon this matter by December 31, 1995. At that time, if no resolution can be found at the State level, this Committee recommends that District 9 pursue all options to correct this inequity by 6/30/96 retroactive to 12/31/94. After reviewing the grievance committee's written report, the District Administrator denied Petitioner's grievance on September 7, 1995. On September 21, 1995, Petitioner requested "Secretarial review" of the District Administrator's decision to deny his grievance. By letter dated December 18, 1995, the Department's Human and Labor Relations Administrator, David Wilson, responded to Petitioner's request. Wilson's letter read as follows: This is in response to your request for a Secretarial Review of your Career Service grievance dated May 2[4], 1995. I have been designated by the Secretary to review the concerns expressed in your grievance. Our examination of the relevant data finds that the Grievance Review Committee did a thorough job in its investigation. The committee found that subsequent to the public assistance specialist pay grade adjustments, some newly promoted senior public assistance specialists may have received a higher salary than existing senior public assistance specialists with more experience. The committee recommended that if this situation could not be resolved as a statewide issue, means should be found to address it within District 9. Finally, the committee recommended that any compen- sation adjustments should be retroactive to December 31, 1994. The threshold issue in this grievance is whether or not there have been any violations of the state's pay rules. In its letter of March 23, 1995, the Department of Management Services (DMS) approved the Department of Health and Rehabilitative Services' (HRS) request to adjust only the salaries of those Senior Public Assistance Specialists " . . . assigned to the class who are below the new minimum of Pay Grade 17." This method of implementation was requested by HRS due to the limitation of available funds at the time the pay grades for the classes in ques- tion were adjusted. Personnel Rule, Section 60K-2.006(2), Florida Administrative Code, Upward Pay Adjustments, states in relevant part, "When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted. This procedure for granting pay adjustments shall apply unless a different method of implement- ation is required by the department." Based on the fact that DMS approved this method of implementation as provided for in the above cited rule, there is no violation of the Rules of the Career Service System. As it relates to the recommendation that there should be retroactive salary increases, there is no provision in the Personnel Rules of the Career Service System for retroactive pay. In fact, it is specifically prohibited. Section 60K-2.022(3) states in relevant part: "An agency shall not establish a retroactive effective date for any salary action." In the September 7, 1995 response to your grievance, District Administrator Suzanne Turner correctly stated that pay grade adjust- ments and pay adjustments related to the minimums of classes are statewide issues, as noted above. Subsequent to her response, it was determined that this issue was to be handled at the district level after conside- ration of available budget and rate. Based on the foregoing, I find no violation of the Rules of the Career Service System. Petitioner thereafter requested the Department to "grant [him] a Section 120.57 hearing on the matter." The Department granted the request and referred the matter to the Division. In addition, on or about January 11, 1996, Petitioner brought his grievance to the attention of DMS. DMS responded by sending Petitioner a letter, dated February 7, 1996, which read as follows: We received the documents you submitted regarding your career service grievance on which a final decision was issued by Mr. David Wilson of the Department of Health and Rehabilitative Services on December 18, 1995. Rule 60K-9.004(7), states that the agency head's decision on a grievance is final except as provided in Section 60K-9.004(6), which states: "That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or designee's decision." We have reviewed Mr. Wilson's answer and concur that there has been no violation of any Career Service rules and regulations. Inasmuch as your grievance does not cite additional violations of Career Service rules and regulations, we consider the agency head's decision final on the matter. On February 23, 1996, DMS sent the following letter to Petitioner: 4/ This is in reference to your February 20 tele- phone call to Ms. Mary Dinkins regarding my February 7 letter to you. We have again reviewed your grievance and do not find any violations by the Department of Management Services (DMS) in approving the pay grade adjustment for the Senior Public Assistance Specialist class. Section 60K-2.006(2), Florida Administrative Code, indicates "This procedure for granting pay adjustments shall apply unless a different method of implementation is required by the department." The Department of Health and Rehabilitative Services requested the method of implementation and DMS has the authority to approve it. On April 30, 1996, DMS sent a third letter to Petitioner, which read as follows: 5/ This replies to your career service grievance of January 11, 1996, asserting that the Department of Management Services violated section 110.209(1), Florida Statutes, by creating an inequitable pay plan when it approved, by letter of March 23, 1995, the request of the Department of Health and Rehabilitative Services to adjust the pay grade of the classification of Public Assistance Specialist, class code 6057, from pay grade 15 to pay grade 16 and the class- ification of Senior Public Assistance Specia- list, Class Code 6058, from pay grade 16 to pay grade 17. We understand the basis of your assertion that DMS created an inequitable pay plan to be that when the upgrade was put into effect you received a pay raise only to the minimum pay for the classification and that thereafter employees who were promoted from PAS to Senior PAS were promoted with pay raises that gave them higher salaries than yours although you had more seniority. The HRS letter of January 6, 1995, requested approval to increase the salaries of only those in Senior PAS positions who were below the new minimum, and to increase them to the new minimum, because those employees had been recently promoted and received a promotional increase at that time. The DMS approval of that request was authorized by Rule 60K-2.006(2). On March 15, 1995, DMS wrote to the President of AFSCME pursuant to Article 1, Section 3 of the collective bargaining agreement, explaining the proposed action. AFSCME approved it in writing on March 20. Under Section 110.209, DMS provides a broad salary range for each class, and each employing agency determines the specific salaries. DMS was not involved in the pro- motions and salary decisions that were made after the pay upgrade. HRS did not submit those proposed actions to DMS for approval, and DMS does not exercise approval authority over such actions. The later promotions with higher pay were not contemplated in the March 23 approval. It is our position that our approval did not create an inequitable situation and that DMS did not have any responsibility for the subsequent pay decisions. Your letter of March 4 requests a hearing on the grievance. Rule 60K-9.004(5) provides for a 14-day deadline to file a grievance; that is, 14 calendar days after the event that give[s] rise to the grievance. Your grievance against DMS is untimely. There is no statute or rule providing for a hearing on a career service grievance, even if the grievance had been timely. The DMS decision on a career service grievance is the final action. Your request for a hearing is denied. The Public Employees Relations Commission has ruled that it does not have jurisdiction of career service grievances. Copies of two PERC orders to that effect are enclosed (Goll and Sullivan cases).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department (1) find that Petitioner did not receive an "underpayment," as defined in Rule 60L-8.003(1), Florida Administrative Code, and is not entitled to the backpay he has requested; and (2) exercise its discretion, pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code, to increase Petitioner's rate of pay (prospectively) so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1996. 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 29th day of July, 1996.
The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2012.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
