Findings Of Fact At all pertinent times, the Petitioner Fox was employed by the Department of Labor and Employment Security in Position Number 02076, class title, Unemployment Executive II. Petitioner's latest appointment to the Career Service was prior to July 1, 1972. Under the terms of the Governor's Recommendations for Implementation of the 1985-86 Fiscal Year Performance Incentive Increase, Petitioner's anniversary date was adjusted from October 30, 1985 to July 1, 1985. On July 25, 1985, the Petitioner was evaluated by his supervisors as "Exceeds Performance Standards." Petitioner qualified for and received a Performance Incentive Pay Increase, which advanced his base pay rate from $2,950.79 to $3,043.26 per month, the maximum for his class. The percentage increase equaled .03133737 of Petitioner's base salary. Petitioner received this increase without protest. No administrative, legal, or grievance action was filed by Petitioner challenging the propriety of his agency's calculation of the Performance Incentive Increase. On January 1, 1986, all Career Service pay ranges were increased pursuant to the Fiscal Year 1985-86 General Appropriations Act. This had the effect of increasing the maximum rate which could be paid to members of the Career Service System. As a result of the increase, Petitioner was once again below the maximum of the pay range. Petitioner's supervisor submitted an additional personnel action form, which sought an amount which would bring Petitioner's total performance incentive increase to five percent of his June 30, 1986, base salary. That increase equaled $55.07 per month for the months of January, 1986, through June, 1986. Plaintiff is, therefore, seeking a total additional salary increase of $330.42. At the time Petitioner received his July, 1985, pay increase, he was informed by certain Department of Labor and Employment Security officials that an additional performance incentive increase could be granted if the pay grade was subsequently adjusted and the maximum pay allowed for the class was increased. The Petitioner's supervisor within his agency apparently based this assumption on oral information which had been received from an unidentified individual within the Department of Administration. At the same time, the Bureau Chief of Classification and Pay within the Department informed agency personnel offices that such an increase was not authorized. By letter dated February 3, 1986, Don Bradley, Chief, Classification and Pay for the Department of Administration, officially advised the Department of Labor and Employment Security that the requested additional performance incentive increases could not be approved. Final Department of Administration action was taken by letter from Secretary Lambert to Secretary Wallace Orr dated June 20, 1986, which denied a special pay increase request in order to maintain fairness among all the departments. In anticipation of the adjustment to the maximum pay ranges, certain personnel officers within the agencies elected to postpone granting employee pay raises until after January 1, 1986. By doing so, they avoided running afoul of the Governor's Recommendation which states that "no employee shall be eligible to receive more than one merit salary advance during fiscal year 1985-1986."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for an A additional $330.42 salary increase be DENIED. DONE and ENTERED this 7th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 7th day of May, 1987. APPENDIX Petitioner's Proposed Findings of Fact numbered 1-9 have been accepted as modified. Respondent's Proposed Findings of Fact have been accepted, with the exception of those portions of the unnumbered paragraphs rejected as not being germane to this proceeding. COPIES FURNISHED: Gregg L. Fox 2509 Killarney Way Tallahassee, Florida 32308 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause. DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Kenneth H. Hart, Jr., Esquire 401 Collins Building Tallahassee, Florida 32304 Brian Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of unlawful employment practices by her employer because of her race and age.
Findings Of Fact Petitioner is a 28-year-old African-American female. Respondent operates one of the State’s largest psychiatric hospitals. In April 2004, Respondent had at least 3 openings for a full-time Secretary Specialist at different units of the hospital. In April 2004, Petitioner along with two other female applicants were contacted and asked if they were interested in being considered for three Secretary Specialist positions with Respondent. The positions’ duties involved, among other things, typing medical records and compiling reports on the units’ patients and recording, transcribing and disseminating all staff meetings held on these units. Petitioner and the two other women indicated that they would like to be considered for the positions. One of the women who applied for the positions was an older, white female who had worked at the hospital for at least 10 years. No evidence demonstrated the actual age of this older woman or how much older she was than Petitioner. The evidence also did not demonstrate if her work history extended beyond 10 years outside the hospital. The other applicant, like Petitioner, was a beginning employee at the hospital. Other than the fact she met the minimum qualifications for the positions, the evidence did not establish her race, age, or work experience. Petitioner’s application was not introduced into evidence. At the time, Petitioner had about 6 years of work experience as an office manager and /or an executive secretary. The experience does not appear to be in the medical or psychiatric field. As can be seen from a review of the evidence and pleadings in this case, Petitioner’s writing skills are very poor and are replete with poor grammar and incorrect word usage to the point of being almost incomprehensible. Therefore, the quality of her executive secretary skills are questionable. As part of her application packet, Petitioner submitted several educational/professional credentials to Respondent. The credentials consisted of certificates in the areas of Office Supervision II and III and Post Secondary Office Supervision and Administration. Petitioner claims that these credentials entitled her to a higher salary than she would have received as a beginning employee or at the least allowed her to negotiate for a higher salary. However, no evidence was offered that supported Petitioner’s contention that such credentials entitled her to a higher salary or that she lost her opportunity to negotiate for a higher salary. The fact that the position may have been advertised as “open-competitive” does not mean that an applicant is entitled to or will receive a higher salary offer. The classification only enables an employer or employee to negotiate a salary based on qualifications. The employer and employee are not required to negotiate and either may elect not to negotiate. Indeed, negotiation may be non-existent based on budget considerations and the availability of other applicants willing to work for less pay. At some point, an interview was scheduled for Petitioner by Deborah Joyce. In setting up the interview, Ms. Joyce advised Petitioner that the starting salary for the position was $766.52 every two weeks. Petitioner indicated that she wished to be interviewed for the positions. All three womens’ application packets were reviewed by a hiring committee. All three women were offered employment as Secretary Specialists at different units. Petitioner and the other beginning applicant were offered employment at $766.52 every 2 weeks. The older, white woman was allegedly offered employment at a higher salary than the two beginning employees. However, there was no evidence that demonstrated how much the older woman’s salary was, whether it differed from Petitioner’s and its relationship to the salary she had been receiving in her then current position at the hospital. Petitioner did not introduce into evidence the pay scale for the position to which she applied. Some evidence suggests that the offered salary was the beginning and lowest salary for that position. Petitioner testified that the offered salary was at the low-end of the scale for the position that she applied for. Her testimony in that regard is accepted. Petitioner was informed by telephone of the Respondent’s offer of employment to work on the unit known as Cypress Village. The telephone call was made by Lela Parker- Clark, a black female and the medical unit’s specialist (MUS). The unit’s treatment and rehabilitation director (UTRD) was Sateria Gunter, a black female. Ms. Gunter and Ms. Parker-Clark would be Petitioner’s supervisors. The evidence indicated that both women had been working on the unit for several years and apparently had done various routines and reports in the same manner for some time. No evidence was offered as to the actual age of Ms. Gunter or Ms. Parker-Clark, other than they were both older than Petitioner and had possibly worked their way up to their administrative positions from direct care staff. Because the offered salary was not what Petitioner desired, she inquired further of Ms. Parker-Clark about the salary. Petitioner learned that her educational credentials had been lost and possibly had not been reviewed by the committee. Ms. Gunter indicated that she would have the committee review its offer if Petitioner would fax her the documents. Petitioner faxed the documents to a fax machine at the hospital. It is unclear whether the documents were received and reviewed by the committee or whether the committee was made aware of Petitioner’s additional educational documents. The evidence conflicts on this point. At the time of the hearing, neither the original nor faxed documents were in Petitioner’s personnel file. Indeed, only copies of later-supplied documents that were specially marked by Petitioner are in Petitioner’s personnel file. In any event, the salary offer was not changed. No one from the committee testified at the hearing regarding the documents reviewed by the committee or otherwise made known to the committee. No evidence was offered that demonstrated that such added credentials would have made a difference in the salary offered to Petitioner. Petitioner offered no evidence that Respondent elected to negotiate any salaries with any of the people it hired as Secretary Specialists. The fact that a white, 10-year employee of Respondent may have been offered a higher salary than Petitioner does not demonstrate that the salary was negotiated or that Respondent otherwise discriminated against Petitioner based on her race or age since the employee in question was already an employee with more years of experience at the hospital. Without such evidence, it is impossible to determine whether the absence of the documents was deliberate or unintentional, motivated by Petitioner’s race or age or even caused an adverse impact in the conditions or terms of Petitioner’s employment. Ms. Gunter informed Petitioner that the position was still available at the original salary offer of $766.52. Instead of attempting to negotiate further by declining the offer, Petitioner accepted employment and began working at the unit on May 21, 2004. Petitioner accepted the offer because she needed the income. There was no evidence that demonstrated Petitioner, who is a competent adult, was somehow coerced into her decision to accept the offer by Respondent. In the beginning, the relationship between Ms. Gunter, Ms. Parker-Clark and Petitioner was reasonably good. However, once Petitioner began to question the manner in which Ms. Parker-Clark did things the relationship deteriorated. Ms. Parker-Clark became abrasive and, Petitioner claims, more strict regarding Petitioner’s leave than with co-workers. She would belittle Petitioner in front of co-workers. Ms. Parker- Clark had the security desk record when Petitioner arrived at work. Based on the recorded time, both women claimed Petitioner was falsifying her timesheet and forced her to change her claimed time on several occasions. Many of the accusations arose from the fact that Petitioner was often late because of difficulties with her daughter, who had learning disabilities. Additionally, Petitioner sometimes arrived early and sometimes stayed late; that, in Petitioner’s view, made up her time. However, per hospital policy, such early arrival or late stay was not credited unless pre-approved by Petitioner’s supervisor. Outside of Petitioner’s claims of forced time-sheet changes based on time she had to take to deal with her daughter’s disability or disallowed overtime, etc., there was no evidence that other similarly-situated employees were treated differently than Petitioner. In fact, the only testimony regarding Ms. Parker-Clark’s and Ms. Gunter’s treatment of other employees was that there were some employees they treated well and some employees they did not treat well and that there may have been ongoing “management problems” on the unit. There was no evidence that such treatment was based on the race or age of the individual employee. Petitioner assumes and asserts that she was entitled to family medical leave, credit for overtime for staying late or more flexible hours. However, she offers no proof that she was entitled to such. Without such evidence Petitioner cannot show that she has suffered an adverse impact in the terms or conditions of her employment. Petitioner also claims she received unwarranted disciplinary actions. Again there was no evidence offered that such discipline was unwarranted. Indeed Petitioner admits that actions she received written reprimands for occurred. Around September 28, 2004, relationships between Ms. Parker-Clark and Petitioner came to a head when Petitioner came to the conclusion that Ms. Parker-Clark had never placed her educational credentials in her personnel file. Petitioner based this conclusion on the fact that, while training herself to use the new computerized personnel system, Peoples First, adopted and, at the time, being implemented, by the State, she discovered that her educational credentials were not listed on the system. Petitioner was training herself because Ms. Parker– Clark refused to train her. Petitioner contacted the personnel office for the hospital and was told that her file was not in their office because it had been sent to Peoples First to be scanned into the system. Unfortunately, the Peoples First system is known for glitches and errors in its records. Petitioner met with Ms. Gunter and Ms. Parker-Clark in a very heated meeting to discuss the lack of information on the Peoples First system and her feelings that Ms. Parker-Clark had intentionally lost the educational documents. Petitioner also voiced her opinion that she was entitled to an increased salary based on her credentials. Petitioner was not satisfied with the response from Ms. Gunter in the meeting. Around October 5, 2004, Petitioner met with Ennis Harris, the assistant administrator of the hospital, over her “issues” with Ms. Parker-Clark and what she should do. Mr. Harris suggested she apply for a transfer to another unit. On October 7, 2004, Petitioner, applied for a transfer to the position of Internal Senior Clerk on another unit. He also indicated that he would approve flex-time for her if Petitioner requested it and that she might be entitled to leave under the Family Medical Leave Act. Around October 13, 2004, Petitioner requested flexible working hours. As promised, Mr. Ennis approved her schedule. At about the same time, Petitioner requested transfer to a Senior Clerk position on another unit. On October 18, 2004, Petitioner requested that her salary be increased by 16 1/2 percent and that she receive such increased pay from the beginning of her employment. There was no evidence that demonstrated the basis for a 16 1/2 percent increase or that such an increase was warranted. On October 21, 2004, the increase was denied by Ms. Gunter. On October 27, 2004, Petitioner grieved Ms. Gunter’s decision. Personnel policy requires that a grievance be filed within 14 days of the act that caused the grievance. The human resources manager returned the grievance without action because 14 days had passed since Petitioner began employment on May 21, 2004, and Petitioner had the opportunity to decline the offered salary if she so desired. On November 1, 2004, Petitioner’s request for transfer was declined because of personnel rules based on the Union contract with the State that prevented transfer of a probationary employee to a higher position. On November 10, 2004, Petitioner appealed the return of her grievance and appealed or grieved the denial of her requests for salary increase and transfer to the hospital administration. The denial was upheld. During this review, Ms. Gunter claimed that Petitioner’s educational/professional certificates had been reviewed by the committee and claimed that the documents in Petitioner’s file were the actual documents reviewed and considered. However, the documents were the certificates that had been specially marked by Petitioner and later placed in her file. Ms. Gunter was unaware of the special demarcation of the documents. Claims of dishonesty were now mutual. Eventually, Petitioner did not wish to deal with Ms. Parker-Clark, unless her job duties required such. Petitioner complained to various administrators of the facility often about her treatment on the unit. Mr. Harris told her that the salary issue was dead and all options to have her salary increased had been explored. On November 22, 2004, Petitioner submitted a letter of resignation at a future date not expected to go past December 13, 2004. In that letter, Petitioner requested overtime hours with pay to complete her job assignments. The same date, Ms. Gunter denied the requested overtime and requested Petitioner to supply a date certain for her resignation. On November 23, 2004, she filed complaints that Ms. Gunter and Ms. Parker-Clark discriminated against her based on her race and age with the hospital’s equal employment office and similar complaints at PERC. On December 7, 2004, Petitioner forwarded an e-mail to the hospital attorney that stated she was leaving early and did not know when she would be back because she was tired of the harassment she was receiving on the unit. Sometime after that e-mail, Petitioner met with the hospital attorney. The hospital did not want to lose Petitioner as an employee and in an effort to help Petitioner, on December 9, 2004, the administration transferred Petitioner to another unit where she has performed well. Even though Petitioner had been requesting a transfer, it is this transfer that Petitioner alleged as a discriminatory action by the hospital. On this point Petitioner’s claim of discrimination has no merit and was clearly not demonstrated by the evidence. Petitioner has also been approved for a promotion at a higher salary, but the promotion has not yet taken effect. The promotion has been on hold because the hospital administrator retired and his replacement had recently taken over prior to the hearing. No evidence demonstrated that the delay was due to any unlawful employment practice. There was no evidence offered regarding a paycheck discrepancy around December 10, 2004. Ultimately, Petitioner’s case rests on assumption and speculation about others’ intentions and terms of employment that she claims she was entitled to. The problem is that there was no or insufficient evidence offered to demonstrate such unlawful intentions or entitlement. Indeed, assuming that Petitioner’s treatment was unjustified, it is more likely that Ms. Gunter and Ms. Parker-Clark engaged in such treatment because Petitioner was a new employee who questioned the old way of doing things and did not hesitate to go around them when she felt a need to do so. Assumptions and speculations are not enough. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005. COPIES FURNISHED: Viritti Jackson 2173 West 15th Street Jacksonville, Florida 32209 Scott D. Leemis, Esquire Northeast Florida State Hospital 7487 South State Road 121 Macclenny, Florida 32063 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 3239-9070 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
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 in- crease to at least the minimum salary of the higher level position will be made. However, 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 [he had] received in 1990 . . . and 10[percent]" of his 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 $1,148.35. 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 him that it was his responsibility to repay the amount he 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 [his] gross salary each pay period, unless [he] 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 administrative 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. After receiving this November 1, 1995, letter, from the District XI District Administrator, Petitioner spoke with Thomas Franklin, the Department employee referenced in the letter. Franklin told Petitioner that he could request both a modification in the repayment schedule and an administrative hearing. In a memorandum to Franklin dated December 3, 1995, Petitioner requested an administrative hearing "due to the fact that [he did] not agree that an overpayment [had] ever occurred." In another December 3, 1995, memorandum to Franklin, Petitioner requested that only "$10.00 biweekly [be deducted] from [his] paycheck" if it was ultimately determined that an overpayment had indeed been made.
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 $1,148.35; 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.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of national origin, in violation of the Florida Civil Rights Act of 1994, Section 760.10(1), Florida Statutes (2005).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and on the entire record of this proceeding, the following findings of fact are made: According to the Charter of the City of North Miami ("City Charter"), the City has a "council-manager" form of government. All powers of the City are vested in an elected City Council, including the power "to enact legislation, adopt budgets, and determine policies." The City Council also appoints the City Manager to administer the City's government.2 The City Council consists of four council members and a mayor. The mayor presides at the City Council meetings and is "recognized as the head of the city government for all ceremonial purposes . . . and shall have a voice and vote in the proceedings of the council, but shall have no regular administrative duties."3 The City Manager "shall be the chief administrative officer of the city, responsible to the council for the administration of all city affairs placed in the manager's charge by or under" the City Charter. Among those powers is the power to "[d]irect and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by the charter or by law."4 The City's Police Department is an administrative department of the City, and the Police Chief, as head of the Police Department, supervises and controls the department "subject to the city manager."5 The City Attorney is the head of the City's Department of Law and is appointed by the City Council. The City Attorney's salary is fixed by the council and included in the budget.6 The Department of Law is not an administrative department subject to the direction and supervision of the City Manager.7 The City Manager is responsible for proposing salary increases to the City Council for the department heads under his supervision, which includes the Police Chief. The heads of the various administrative departments are responsible for proposing salary increases to the City Manager for the employees under their supervision. The City Attorney is responsible for proposing salary increases to the City Council for the employees under his supervision, which includes the Deputy City Attorney. The salaries of all City officers and employees, including the City Manager and the City Attorney, must be within the ranges provided in the City's pay plan. If someone is hired at a salary outside the salary range for the position in the pay plan, or if someone is promoted or given a salary increase that is outside the salary range in the pay plan for the position, the pay plan must be amended by the City Council to re-classify the position or to increase the maximum salary for the position. Ms. Boyd was hired as the City's Police Chief in January 2002 at a pay grade of 39-9, the maximum salary for the position. Consequently, she had received only cost-of-living raises since January 2002. In October 2003, after the City Council appointed Ms. Boyd as Interim City Manager, John Dellagloria, then the City Attorney, prepared a Letter of Understanding at the direction of Mayor Celestin to address Ms. Boyd's salary and benefits while serving as Interim City Manager. Ms. Boyd spoke with Mr. Dellagloria as he was preparing the Letter of Understanding and told him that she wanted him to include a provision increasing her salary upon her return to her position as Police Chief. After talking with Mayor Celestin, Mr. Dellagloria included a provision specifying the salary that Ms. Boyd would receive when she left the position of Interim City Manager and returned to her position as Police Chief. Mayor Celestin and Ms. Boyd executed the Letter of Understanding on October 23, 2003. Mayor Celestin's signature on the Letter of Understanding signified his intention that Ms. Boyd would receive a salary increase when she returned to her position as Police Chief. Mayor Celestin understood, however, that he could prepare letters of understanding that implemented resolutions of the City Council that he did not have the power to bind the City by his signature on a document in the absence of a City Council resolution or other directive. The City Council action appointing Ms. Boyd Interim City Manager did not include anything related to her salary when she returned to her position as Police Chief. The salary increase included in the Letter of Understanding for Ms. Boyd when she returned to her position as Police Chief exceeded the maximum salary range specified in the City's pay plan for her pay grade of 39-9. Rebecca Jones, the City's Director of Personnel, noticed this when she prepared the Personnel Action Form to send to the City Manager for his approval of the salary agreement with Ms. Boyd when she became Interim City Manager. Ms. Jones advised Mayor Celestin that the raise could not be given without the City Council's approval of an amendment in the pay plan, but she did not discuss her conclusion with Ms. Boyd as Interim City Manager; Ms. Jones considered that improper because the matter concerned Ms. Boyd. After he executed the October 23, 2003, Letter of Understanding, Mayor Celestin was advised by someone in the Legal Department that he did not have the authority to increase the salary for the head of an administrative department such as the Police Chief. He was told that this authority was vested in the City Manager because the City Manager directly supervised the Police Chief. Clarence Patterson was appointed City Manager by the City Council in January 2004. He took office in late February 2004, and Ms. Boyd returned to her position as Police Chief at the salary she had received before she was appointed Interim City Manager. During the time she served as Interim City Manager, Ms. Boyd served on the screening committee for applicants for the position of City Manager. The committee was to review the qualifications of the applicants and determine those candidates who were minimally qualified for the position. Ms. Boyd presented the report of the committee at the January 27, 2004, meeting of the City Council, and reported that the committee had found only one highly-qualified candidate. Only two candidates attended the January 27, 2004, meeting, Nadine Pierre Louis and Clarence Patterson; Mayor Celestin supported Ms. Louis, and Mr. Patterson was backed by another City Council member. When asked by the City Council if these two candidates were qualified for the position, Ms. Boyd reported that they were not: Ms. Louis did not have the required municipal job experience, and Mr. Patterson did not meet the educational requirements. Ms. Louis and Mr. Patterson were offered to the City Council for a vote; Mayor Celestin walked out of the council room and did not vote; Mr. Patterson was selected by vote of the City Council. Mr. Patterson was aware that Mayor Celestin did not support his candidacy. Shortly after Mr. Patterson began as City Manager, Ms. Jones brought the October 23, 2003, Letter of Understanding between Mayor Celestin and Ms. Boyd to his attention. He reviewed the city charter and advised Mayor Celestin that he did not have the authority to give Ms. Boyd a salary increase. Only the City Manager has that authority under the charger. Mr. Patterson also discussed the matter of the salary increase referenced in the third paragraph of the October 23, 2003, Letter of Understanding with Ms. Boyd. He told her that Mayor Celestin did not have the authority to effect such a salary increase, and he also told her that he was not going to recommend to the City Council that it increase her pay grade to accommodate the salary increase promised by Mayor Celestin. Having reviewed the pay grades of the administrative department heads, Mr. Patterson did not consider a raise for Ms. Boyd appropriate at the time. Because he had been advised that the Police Chief was directly supervised by the City Manager and that only the City Manager had the authority to recommend a salary increase for the Police Chief, Mayor Celestin did not propose to the City Council that it either increase Ms. Boyd's salary as Police Chief or amend the City's pay plan to increase the pay grade for the Police Chief so that Ms. Boyd could receive the salary increase included in the Letter of Understanding dated October 23, 2003. Mayor Celestin did, however, assure Ms. Boyd several times that he would "take care of it." At the last meeting of his tenure as mayor, Mayor Celestin proposed to the City Council that Ms. Saint Vil- Joseph receive a salary increase so that she could retain the same salary when she returned to her position as Deputy City Attorney that she received while serving as Interim City Attorney. Mr. Patterson did not oppose the proposal because the salary increase for Ms. Saint Vil-Joseph was not a "pay raise" as such, but, rather, implemented a prior decision of the City Council to achieve parity between the Deputy City Attorney and Deputy City Manager.8 An amendment in the pay plan to increase the pay grade for the Deputy City Attorney was passed by the City Council by a vote of 4 to 0, and the Personnel Action form dated May 2, 2005, reflecting a change of pay grade for the position of Deputy City Attorney was approved by Hans Ottinot, City Attorney; Ms. Jones, personnel directory; and Mr. Patterson, City Manager. Ms. Saint Vil-Joseph is a Haitian American. In October 2005, Ms. Boyd's pay grade was increased from 39 to 41, and she received a concomitant salary increase. Ms. Boyd presented the following testimony as evidence that the City's legitimate, non-discriminatory reason for failing to increase her pay grade and salary when she returned to her position as Police Chief in February 2004 was a pretext for discrimination on the basis of national origin:9 Q.[by Ms. Whitfield] And that's really your issue here, isn't it? You believe that he [Mayor Celestin] violated his letter of understanding with you, correct? He violated his letter of understanding and he's discriminated against me because of the clashes that we had pertaining to the hiring of Haitian African, the clash that we had over his referring to some of my directors are racist, and because I would not void a ticket that was given by another white officer, and the fact that I would not hire some of the people that he -- Q. Well, let me ask you this. When all of that happened, was that before he signed a letter of understanding with you or after? A. It was afterwards. Q. Was is [sic] before you went back to being police chief or after? A. It was during the period. Q. So it was during that period? A. It was before I returned to my position as police chief. Q. Okay. So when? When was it? A. There were several incidents. A couple of police applicants who he referred, one was a personal friend and I had to find out why they were turned down. Another incident pertaining to the -- he thought we weren't doing enough to hire Haitian applicants and wanted me to do away with the -- Q. Let me ask you this. You were both the interim city manager and the police chief at the same time? A. No. I was not. Q. Okay. Who was head of the police department then? A. I had my two assistant chiefs to alternate service as the acting police chief. Q. So as acting police chief, they would be responsible for making recommendations and hiring decision to take to the city manager? A. No. What they would do, if [sic] they would do the complete background process and they will [sic] decide on who was qualified and who was not, and because a couple of people did not get hired the mayor asked me about this and I had to meet with the assistant chief to find out why those individuals were disqualified. And they were for valid reasons, but the mayor did not want to believe me. He thought we were just not doing enough to hire Haitian Africans and made a suggestion -- or made the remark that he was going to bring Guy Eugene (phonetic_. who is a police lieutenant, Haitian police lieutenant with Miami, that maybe he would want my job as police chief. Q. Do you have any documentation or anything else to corroborate what you're telling use was said by Mayor Celestin about your hiring of Haitians or not hiring of Haitians? A. Only the testimony of my staff at the police department. Q. My question is, do you have any documentation here -- A. I didn't write that down. I didn’t -- discussions every day because I was trying to just get through the interim period and returning to be police chief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from Unlawful Employment Practice filed by Gwendolyn Boyd. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2008.
