The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2004.
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position. Petitioner's supervisor in Marion County was Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing. In 1994, Petitioner learned that she was diabetic. From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job. Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11, 1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal. Ms. Bartsch wrote the following comment in the February 1994 performance appraisal: During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall." Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal. Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal. In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work. On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and signed by Ms. Bartsch and Petitioner contains the following comments: Strengths: being perfectionist; works in timely manner helps other people; always available lot of knowledge re HRS/investigations hard worker organized Areas Needing Improvement: (1) personality problems with co-workers The following changes will be made: isolate and stay from others letting Gloria speak in place On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows: Issues: court problems. calendar needs organization getting not enough support from attorneys doing better at getting along with people continue not allowing others to lean too much There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team. Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May 1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs. On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows: Issues: fantastic - no backlog work on trying to UPS or petition without removing kids if not in imminent danger interpersonal relations ignore other's comments say nothing to hurt people's feelings Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch "on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994. Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993. During some staff meetings, Petitioner felt that Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that Ms. Bartsch should have intervened on Petitioner's behalf during a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson. Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs. Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements. There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time. There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff. In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford. The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing. Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands. Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class. Regarding "failure to follow instructions," Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint. This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements. On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that from that time forward she was only willing to help one other PI who appreciated her work. On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file. Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part: Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit. The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers. Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child. Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns. There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works. Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you. You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue. * * * This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan. There are two "core" standards which must be met on the new RAPP form. They are: Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image. Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization. You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this. They strongly take this as lack of respect towards them on your part. Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also. You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues. Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct. Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help; In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours; (i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer. On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file. On January 19, 1995, Mr. Crawford complained to Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS. On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact, Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin. Anyway, it is too late now." In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions. Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations. On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose. On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida. At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson. On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her. On July 20, 1995, Ms. Bartsch wrote Petitioner a "Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP). On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel." When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred. On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996, Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996: Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work. At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter an order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 28th day of August, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cynthia Ausby 5 Hemlock Loop Lane Ocala, Florida 34472 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2020.
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact Based upon the pleadings (as supplemented by Petitioner's response to the August 2, 2002, Order to Show Cause and his representations at the August 23, 2002, telephonic hearing), the following findings are made: On August 16, 2001, Petitioner filed a charge of discrimination against Respondent with the Commission. The charge of discrimination alleged that Respondent committed an unlawful employment practice in September 2000 when it fired Petitioner based upon his race.1 The address for the Commission listed on the charge of discrimination form was 325 John Knox Road, Suite 240, Building F, Tallahassee, Florida 32399. The charge of discrimination was investigated by the Commission staff, and based upon the results of the investigation, the Executive Director of the Commission determined that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The date of the determination was May 8, 2002. On that same date, notice of the determination (Notice) was provided to Petitioner by U.S. Mail. The Notice stated: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied). Petitioner received the Notice four or five days after it was mailed, which would have been May 13, 2002, at the latest. The address for the Commission listed on the Notice was 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301. Included with the Notice was a blank petition for relief form. Petitioner filled out the form and mailed it to the Commission. Consistent with the charge of discrimination, the Petition alleges that Petitioner was fired by Respondent based upon his race and that the reasons asserted by Respondent for his firing were pretextual. The Petition was post-marked in Orlando on June 13, 2002 (36 days after the Notice, and at least 31 days after Petitioner's receipt of the Notice). Petitioner's delay in completing and mailing the Petition was due to his "inability to obtain counsel." Despite the Commission's new address being printed at the top of the Notice, Petitioner mailed the Petition to the Commission at its old address on John Knox Road. The Petition was not received by the Commission until July 9, 20022 (62 days after the Notice, and at least 57 days after Petitioner's receipt of the Notice). The envelope in which the Petition was received by the Commission includes a forwarding sticker affixed by the postal service. Thus, it appears that the 26 days that it took for the postal service to deliver the Petition from Orlando to Tallahassee is attributable to the postal service's mail forwarding process.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief as untimely. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002.
The Issue The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact Based on a letter dated November 4, AFSCME requested that the School Board of Orange County, Florida, voluntarily recognize it as the sole and exclusive collective bargaining agent for employees of the School Board in a proposed unit of "non-instructional" personnel. AFSCME also expressed its desire to engage "possible neutral third parties" to verify the authenticity of certain authorization cards it possessed. (Employer's Exhibit No. 1) On November 10, Messr. James E. Carroll, Assistant to the Superintendent for Employee Relations, advised AFSCME's Assistant Area Director, Messr. David McGhee, by letter dated November 10, that their formal request had been received and would be placed on the school board agenda on November 14, if, pursuant to board policy, written notification was received within 24 hours prior to preparation of the agenda for the school board's meeting. Employer's Exhibit No. 2) by Letter dated November 14, Messr. McGhee was advised by Dr. L. Linton Deck, Jr., Superintendent, that AFSCME desired to appear before the board at its next regularly scheduled meeting for November 22. (Employer's Exhibit No. 3). By letter dated November 22, the Intervenors by their international representative and international special organizer respectively, A. Gross and Charles Loughran, advised Assistant Superintendent Carroll that the Intervenors were engaging in organizational activities among the board's employees and "[would] be petitioning the board for voluntary recognition in the very near future for an election to be conducted by the Public Employees Relation Commission." Messr. Carroll did not respond to such meeting since, in his opinion, he was of the opinion that the impetus in triggering such request rests with the Intervenors and no further responses were received from the Intervenors' representatives until on or about January 3, as stated above. By letter dated December 29, Messr. Deck sent a memorandum noticing the instant hearing to all principals and work location supervisors to call this matter to the attention of all classified employees at their work locations and for posting in appropriate places. On that same date, Messr. Carroll advised the Intervenors representatives that the school board had requested a hearing under the Administrative Procedure Act for the purpose of determining the appropriate bargaining unit and whether AFSCME had been designated as the exclusive bargaining agent for all classified employees within the appropriate bargaining unit. Attached to such letter was a Notice of Hearing issued by the undersigned dated December 21. (Employer's Exhibit No. 6) On approximately two occasions, Messrs. McGhee and Carroll, representing AFSCME and the Public Employer respectively, met informally to determine whether or not the Public Employer would extend exclusive bargaining representative status to a petitioned for group of classified employees on a voluntary basis. These efforts were unavailing inasmuch as the parties were unable to come to terms on a unit description mutually satisfactory. Thereafter, counsel for the Public Employer advised the board that the more orderly procedure in reaching its decision would be to utilize the procedures set forth in Section 120.50(7)(1) (Employer's Composite Exhibit No. 7) Based on this recommendation from the board's counsel, the petition was forwarded to this Division requesting that a Hearing Officer be assigned to conduct a Section 120.57(1) hearing. At the hearing, AFSCME and the Public Employer jointly stipulated that the appropriate unit of classified employees of the School Board of Orange County, Florida, for purposes of collective bargaining is as follows: All active classified personnel who are pay- types 15 (teacher aides, permanent substitutes, library clerks, office clerks), 17 (school lunchroom assistants), 19 (teacher assistants, instructional clerks, and nurses), 22 (twelve month, eight hour employees), 30 (bus drivers), 40 (bus monitors), and 71 (daily teacher aides in non-public schools); and who are not pay grades 16A, 21A, 13B, 12B, 22D, 14F, 13D, 13C, 14J, 14K, 3D, 27A, 51A, 75A, and 14B; and who do not work at the following work locations: 7300 (Associate Superintendent for Instructional Services), 8200 (Assistant Superintendent for management Services), 8110 (Comptroller), 6600 (Associate Superintendent for Personnel Management), 8205 (Business Word Processing Center Number 4), 8206 (Personnel Word Processing Center Number 5), 8202 (Instructional Word Processing), 8203 (Administrative Word Processing Center Number 2) 8204 (Delaney Word Processing Canter Number 3), 8210 (data Center Operations), 6611 (Instructional Personnel), 6612 (Classified Personnel) 8132 (Payroll Accounting), 8130 (Director of Accounting), 9001 (District Superintendent), 8120 (Food Service Administration), 8131 (General Accounting), 8220 (Research), and 7555 (CETA Administration). All other positions are excluded. (Joint Exhibit No. 1) There is no history of collective bargaining for the subject employees. The evidence reveals that within the stipulated unit, there are approximately 3,054 employees. Excluded from the list of classified employees are approximately 106 cafeteria managers, 2 registered nurses, 29 confidential employees, and approximately 516 regular part-time employees. The evidence reveals that the parties (AFSCME and the Public Employer) stipulated and further agreed to exclude the cafeteria managers based on uncontradicted evidence that cafeteria managers, as part of the their job duties, are called upon to make individual employee assessments, independent decisions and routinely make effective recommendations respecting the hiring and discharge of cafeteria employees. AFSCME and the Public Employer also jointly agreed to exclude approximately 29 "confidential" employees who are assigned to word processing centers and who, during the course of their employment, are privy to confidential employment information respecting other employees. 2/ Also excluded from the stipulated unit were all employees who worked four hours or less daily. The classified employees form the residual group of employees who are non-instructional, administrative, or technical. These part- time employees are largely comprised of administrative secretarial employees who work for associate superintendents, deputy superintendents, assistant superintendents, and other confidential employees who, as stated above, have access to confidential information. PLACEMENT OF PART-TIME EMPLOYEES In resolving unit placement questions, employees' status and tenure are major considerations. The evidence herein reveals that the part-time employees here work within the same unit as those included employees on a regular basis. They therefore have a substantial and continuing interest in the wages, hours and working conditions of full-time unit employees. Farmers Insurance Group, et al, 143 NLRB 240, 244 - 245. In this regard, they like the included employees enjoy the same rate of pay and fringe benefits. Based on the regularity of their employment and the number of hours worked, they cannot seriously be considered part of a "temporary, part-time or casual work force". Fresno Auto Auction, Inc., 167 NLRB 878. And the mere fact that they are called part-time employees does not alter their status as a cohesive group of individuals with a strong mutual interest in their working conditions which, as here, are largely determined by those employees included within the unit. See e.g., Henry Lee Company, 194 NLRB 109. For all these reasons, including the regularity and continuity of employment, the similarity of duties and functions, wages, working conditions and supervision, there is no discernible basis in this record to exclude the part-time employees from the unit. I shall therefore recommend that they be included. AUTHENTICATION OF THE AUTHORIZATION CARDS A local private investigating firm, Brewer and Associates, was commissioned to assist a local attorney, Stephen Weinstein, to authenticate the authorization cards. Attorney Weinstein credibly testified that he was given the authorization cards from AFSCME on January 5, 1978, along with a list of employees which was cross-checked by a list supplied by the list entitled "Recommended Appropriate Bargaining Unit." (See Employer's Exhibit No. 9). Attorney Weinstein and Messrs. Jerry Brewer and Jerry Boltin, employees of Brewer and Associates, cross-checked the lists based on a random sampling of authorization cards from a total of 1,648 authorization cards supplied to attorney Weinstein by AFSCME. 3/ Attorney Weinstein and his associates noted no irregularities or discrepancies in the authorization cards given them by AFSCME which were checked against the employee signatures on file in the public employer's records. These records from which the signatures were taken included employment applications, insurance and payroll deduction forms. The evidence reveals that the expense connected with the authentication of the cards was paid independently by AFSCME. No evidence of any union bias or other interestedness was alleged to have existed on the part of the individuals engaged to authenticate the cards. A copy of the card was introduced which designates AFSCME as the executor's collective bargaining representative in all matters pertaining to rates of pay, hours, and other terms and conditions of employment. (AFSCME Exhibit #1). No evidence was introduced tending to show that any other cards were utilized by AFSCME in its organizational efforts.
Recommendation Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the Public Employer submit a list of names and addresses of all of its regular part-time employees which comprised the 516 employees which were excluded from the joint stipulated recommended appropriate bargaining unit and allow AFSCME fourteen(14) days after receipt of such list to demonstrate its majority status. It is recommended that such majority status be demonstrated in the same manner as was demonstrated in the instant proceeding and that AFSCME and the Public Employer jointly engage a neutral third party to authenticate AFSCME's assertion of majority status within the time frame allotted. Finally, upon proof of its majority status in the appropriate unit, as modified herein, it is recommended that the Public Employer voluntarily recognize AFSCME as the exclusive collective bargaining representative for such employees based on the foregoing findings, conclusions and recommendations. RECOMMENDED this 6th day of March, 19788, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether the Respondent committed unlawful employment practices as alleged in the Petition for Relief served by mail March 20, 1987. Ten subparagraphs of that Petition address individual allegations, each of which are discussed fully in the following conclusions of law.
Findings Of Fact Petitioner Brahim Derder is a citizen of Algeria with permanent resident status in the United States. At all times relevant, he was an adult male resident of the State of Florida, classified by his employer as "Black." Petitioner is a person within the meaning of Section 760.02(5), Florida Statutes. Petitioner graduated from the University of Miami with a Bachelor's Degree in Industrial Engineering in 1980. Prior to his employment with Respondent American Telephone and Telegraph Information Systems (ATTIS), he was employed from 1981 to 1983 by another subsidiary (Southern Bell) of Respondent's parent company, American Telephone and Telegraph (AT&T), as a marketing representative in Miami, Florida. Respondent ATTIS is in the business of selling and leasing data and voice terminal equipment. Petitioner became an employee of ATTIS in 1984. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner was terminated by Southern Bell as a result of his alleged failure to pass one of its required training courses. He was subsequently reinstated as a result of a complaint resolution pursuant to Southern Bell's own internal affirmative action program, also known as an equal employment opportunity (EEO) complaint resolution. Thereafter, Petitioner continued to be uneventfully employed by Southern Bell for about a year. Approximately August 1983, AT&T began preparation for court-ordered divestiture. Divestiture required the separation of the Bell operating companies from AT&T. Petitioner was assigned to a division within ATTIS in Miami due to the divestiture and its resulting reorganization. Once within ATTIS, Petitioner successfully protested through internal ATTIS-EEO channels a "limited contribution" performance rating given him upon his exit from Southern Bell, and obtained a change to "not rated," which rating, in turn, resulted in a modest pay increase. The subsidiaries of AT&T, like their parent company, had established formalized but voluntary internal EEO/Affirmative Action programs. At no time prior to Petitioner's termination by ATTIS in November 1985, did Petitioner file any charges of discrimination with any external governmental agency, including but not limited to the Federal Equal Employment Opportunity Commission or the State of Florida Commission on Human Relations. In 1984, ATTIS downsized its work force and Petitioner's position was "surplused." Petitioner was offered a position with ATTIS in Atlanta, Georgia but rejected it and located a job at ATTIS' Data Systems operation in Orlando, Florida. Once at ATTIS in Orlando, Petitioner worked under the supervision of four different managers in the course of approximately two years until his involuntary termination on November 18, 1985. This was a period of ongoing reorganization for the AT&T subsidiary and personnel changed frequently. Also, normal employee review and appraisal procedures were not always followed to the letter. Nonetheless, none of the four different ATTIS supervisors for whom Petitioner worked in that period of time found Petitioner's job performance to be satisfactory. Petitioner worked under Lowell Rogers' direct supervision from approximately April 1984 until the end of that year. Because Mr. Rogers accepted a position in New Jersey, he was not always available on ATTIS' Orlando jobsite even though he technically continued to have an office there until well into 1985. The written performance appraisal prepared for Rogers' signature reads in pertinent part: Based upon his exposure to training in the areas listed above, his performance has not been what would normally be expected within the given time frames. * * * Mr. Derder must devote both the time, motivation, and sincere desire to learn and adapt to both technical and development tasks which would allow him to be a more productive employee. It appears that other factors (relocation and job classification issues, etc.) consume far too much time and as a consequence, his training and productivity has suffered to date. (P-3, P-4) The appraisal was not, however, wholly negative. Steve Holmes, Petitioner's second supervisor, showed Rogers' appraisal to Petitioner approximately April 22, 1985 without Rogers' signature thereon (P- 3), and Petitioner made the cognitive leap without any valid foundation, that Holmes (not Rogers) had negatively rated Petitioner for discriminatory reasons only. Rogers did not physically sign this negative appraisal until May 16, 1985 (P-4). Petitioner's confusion concerning Rogers' negative appraisal is reasonable because the appraisal had been signed first by Rogers' supervisor, the District Manager, on January 22, 1985, before being returned for Rogers' signature and Petitioner had received a merit increase on his year's employment anniversary in April 1985 based on his 1984 service, but no discriminatory motivation or act was proven with regard to Rogers' evaluation. Steve Holmes was Petitioner's supervisor at ATTIS in Orlando from January 1985 until May 16, 1985. His exit evaluation of Petitioner was also negative as follows: Brahim has been substantially distracted from the performance of his job by an almost obsessive belief that he has been unfairly treated with regard to his transfer into AT&T-IS ... Brahim needs to treat deadlines with more urgency. He needs to plan his work more effectively so as to identify possible problem areas and develop remedies before they become overwhelming. He needs to double check his work for errors in data (typo's) and information ... (P-12) Petitioner's work for Holmes was to gather data for a report on the Integrated Services Digital Network (ISDN) project. The project involved conversion of several small lines and switches to bigger ones at many locations nationwide. The information gathered was generated from numerous sources geographically scattered throughout the United States. Although component information changed daily as the actual switchovers progressed, the overall intent behind the report was to assemble data, collate it into meaningful graphic tables and verbal explanations, and present it as a finished printed report which could be published monthly and presented to higher levels of management so that the past month's progress could be assessed and future planning decisions could be wisely made. Petitioner's view was that a computer/word processor was necessary to complete his task, whereas management felt Petitioner's input prior to typing of the report could be done with paper and pencil or possibly with paper and pencil and a calculator. Petitioner was nonetheless permitted to use an IBM-PC computer assigned to a peer employee. Petitioner felt his ISDN report had to be rewritten entirely each time there were any data changes whatsoever because the different sections within the report were interdependent. Management had contemplated that because the report would be published monthly, at some point each month Petitioner would reconcile all available data for that month and publish the report. Although Petitioner submitted many draft versions of the ISDN report, which was intended to be published monthly, a final version of the report was never completed by Petitioner to Holmes' satisfaction over at least four months of report drafts. Mr. Holmes felt that the Petitioner was not properly assessing the interdependent sections and relating them to one another so as to give an accurate overview for any single month. Early in their association, Holmes called these problems to Petitioner's attention. Holmes had contemporaneously provided Petitioner with an analysis of his May 1985 ISDN submission, pointing out over 300 alleged errors by Petitioner. At formal hearing, Holmes expressed his concerns with regard to several months' submissions by showing one mathematical error of $300,000 on one of Petitioner's submissions, and by indicating that such an error was one example of several similar significant errors made repeatedly by Petitioner. Holmes indicated that the $300,000 error illustrated how the interdependence of rapidly changing data had not been accounted for by Petitioner, who apparently changed data entries piecemeal, as the data became available, without reconciling data as of one single given date each month. Holmes made distinctions between Petitioner's errors of omission, which Holmes had called to Petitioner's attention and which Petitioner often could rectify, and Petitioner's errors of internal contradiction within the reports which Petitioner seemed unable to comprehend. Simply stated, Petitioner always had some part of the report "out of sync" with another or other parts. Petitioner incorrectly attributes Holmes' criticisms of this and all of his ISDN report submissions to mere cosmetic or stylistic opinions or to Holmes' unawareness of the most up-to-date data. Holmes eventually would not accept Petitioner's relying on ISDN project delays (field implementation delays not attributable to Petitioner) as excuses to cover up ISDN report delays which clearly were attributable to Petitioner. Holmes described Petitioner's problem with the entire project as one of Petitioner's inability to conceptualize the project as opposed to Petitioner's unwillingness to do the project. In assessing the two witnesses' respective approaches to the report, Mr. Holmes' explanations are less emotional, more reasonable, more detailed, and more credible than are Petitioner's. Petitioner used ATTIS' internal EEO procedures to protest his performance appraisals by Rogers and Holmes and to object to the paygrade assigned to him when he came to work with Orlando ATTIS. Once in Orlando, Petitioner had discovered that the maximum of his paygrade range at Orlando ATTIS was lower than the maximum of his paygrade range at Miami ATTIS had been. Petitioner showed no reason management should correct Petitioner's inadvertent error but claimed Holmes blocked attempts which otherwise would have been successful to upgrade Petitioner's paygrade. Holmes denies it, stating he had no such authority. Concerning Petitioner's paygrade adjustment request, there is no space on the form requiring anyone in Holmes' position to approve it. Apparently, a higher superior named Ron Phillips signed the request for a concurrence by David L. Oertle and then signed "R.E. Phillips for David L. Oertle" [emphasis supplied] in the space wherein Mr. A Oertle's concurring signature was required (P-10). Why the paygrade adjustment did not go through under these peculiar circumstances or if there were other management considerations why it was not consummated is anybody's guess, but discrimination or interference by Mr. Holmes with regard to the paygrade adjustment request was not proven. Holmes admits he became aware of an internal EEO investigation of himself requested by Petitioner with regard to the failed pay adjustment request as set out infra. The paygrade adjustment was never a "promotion" as characterized by Petitioner. Mr. Holmes does not deny that he was aware in December 1984 that Petitioner had filed two previous internal EEO complaints at Southern Bell and at Miami ATTIS. He discussed these with Petitioner when Petitioner first joined his workforce because one complaint was ongoing and Holmes was afraid it would detract from some of Petitioner's work time. Early in 1985, Holmes noted these concerns in a personal journal he used to record many different kinds of events at his office. Petitioner acknowledged that he threatened Holmes with an EEO complaint at Orlando ATTIS if Holmes would not sign off on the paygrade adjustment request (TR 91). Holmes, already leery of Petitioner, and increasingly dissatisfied with Petitioner's job performance, gradually began to record in his personal journal reminders relating to Petitioner's job performance. In approximately April, 1985, upon suggestions from internal EEO personnel, Holmes began to more carefully document in his journal his confrontations with, and performance-related concerns about, Petitioner. When Petitioner discovered that portions of Holmes' journal relating to him had been circulated by Holmes to upper management, Petitioner perceived Holmes' actions as purely retaliatory for his EEO involvement and prepared by Holmes solely to get Petitioner fired for discriminatory reasons attributable to racial, ethnic, and national bias. I find that although Holmes' journal includes references to Petitioner and Petitioner's EEO involvement, the entries taken as a whole are reasonable under the circumstances and anticipatory of future need to document employee problems rather than evidence of discrimination against an employee for that employee's exercise of EEO involvement. Petitioner's allegations that Steve Holmes was improperly and unlawfully motivated for this journal are not adequately substantiated. Holmes declined Petitioner's request to sign his AB-36 form (P-19) so as to permit Petitioner to transfer divisions within ATTIS because Holmes felt Petitioner's past job performance for him did not merit the transfer to another job in the international or out-of-state geographic areas and in the substantive areas Petitioner had requested and because Petitioner presented the form to him simultaneously with Petitioner's move to another workforce within the same district. Also, the jobs listed were not necessarily open. In that new workforce, Petitioner was supervised by his third supervisor, Gus Schulties, for what was admittedly a very short period of time, approximately three months, one month of which Petitioner was on vacation. The credible evidence as a whole does not establish that Petitioner was transferred due to any belief in the truth of Petitioner's charges against Rogers or Holmes, but that it was in the nature of diffusing a bad situation created by Petitioner and giving Petitioner an opportunity to perform better. Around August 20, 1985, Schulties was reassigned and replaced by Barbara Wayne. Schulties' evaluation of Petitioner includes the following commentary: I think he should have been able to do more on his own effort. I do not believe he has the initiative to get deeply involved. * * * This employee needs development in many aspects of the data communications environment. (P-32) Schulties' written evaluation was signed by Petitioner's next supervisor, Barbara Wayne, because Schulties had been relocated on the date it was due. Later, Schulties concurred in the decision to terminate Petitioner. Mr. Schulties was present when Ms. Wayne fired Petitioner on November 18, 1985. Petitioner had worked for Wayne for approximately three months. While working for Ms. Wayne, Petitioner was orally counselled several times concerning his inability to conceptualize job assignments so as to achieve results, and these sessions were contemporaneously documented by Wayne, whose testimony at hearing was consistent and credible. Petitioner never achieved the objectives which directly applied to his job and which were set for him by Ms. Wayne. While working under Holmes, Schulties, and Wayne, Petitioner produced a number of what might be termed "self-assigned projects" of cosmetic or internal employee relations value, but these projects were not always directly related to the Petitioner's job or his employer's project objectives. While Petitioner established that ATTIS management would not approve all of the company training he wanted, his requests for such training were not always reasonable in relation to the subject matter of projects to which he was assigned, nor were his requests always reasonable in relation to management standards of cost-effectiveness and the employer's need for Petitioner's presence on the job. All of management's denials or non-approvals of training were reasonable in the context of balancing of costs against expected productivity to be gained from the training. Petitioner was, in fact, approved for, and attended, several training courses, and was paid overtime when he taught himself computer programs on nights and weekends, even though the use of the computer was nonessential to his job duties from management's perspective. Petitioner never established by direct credible evidence that other employees in similar circumstances at ATTIS Orlando were given the training he was denied or that his job truly required the training which he was denied. Petitioner speculated that certain employees resented him because he had a Bachelor's Degree which they did not have, but "college graduate" is not a statutorily protected classification. Several employee witnesses had at least some college courses. A college degree was not necessary for employment or promotion at ATTIS. Employee resentment that Petitioner did not meet deadlines and avoided necessary tasks he felt were below him did exist. Petitioner's initial internal (P-15, P-16) and external (P-40, P-41) complaints did not raise an issue of verbal slurs of national or racial tone, but his Petition for Relief does. At hearing, Petitioner initially accused supervisors Wayne and Holmes, and a coworker, Shipp, of making ethnic jokes and derogatory comments about Petitioner's race and national origin. However, Petitioner conceded that neither Schulties nor Rogers were ever out of line and that Wayne had very little conversation with Petitioner about his ethnic background or race. Petitioner testified that his relationship with Mr. Shipp was satisfactory except that Mr. Shipp repeatedly made comments and jokes concerning Petitioner's light skin and not being as black as a typical African; wanted to know about Petitioner's wife when Petitioner told Mr. Shipp that he had married a black woman; made some discriminatory comments concerning Petitioner's education and schooling in Africa; referred to Petitioner's family as "zebras" and "camel drivers," and suggested Petitioner had bought his University degree. As might be expected, all ATTIS personnel denied making any racial or ethnic slurs. Giving Petitioner every benefit of the doubt that some hurtful, biased comments may have been made by Shipp and Holmes, Shipp was only Petitioner's team leader for a short period of time when Petitioner was assigned to Barbara Wayne, and he was essentially Petitioner's peer. Shipp, like other employees, had input to Wayne's final evaluation, but he was not the sole source of Wayne's displeasure with Petitioner's performance, and Shipp never evaluated Petitioner. Petitioner was transferred away from Holmes' supervision in response to Petitioner's internal EEO complaints against Holmes, which complaints apparently were never verified by EEO and which complaints apparently never alleged any record of ethnic or racial slurs by Holmes. Petitioner concedes that he did not wish to make much of the comments and jokes around him and also took offense at most of his coworkers declining his invitations to coffee and lunch. Shipp did occasionally eat and take breaks with him. There apparently was little socializing in this workforce and Petitioner seemed to misunderstand that. It was also clearly established that the Respondent employer has in place an aggressive internal anti-discrimination grievance and affirmative action policy and procedures which Petitioner had free access to and which repeatedly gave him the benefit of the doubt. It was also affirmatively put forth by Petitioner that he made a point of confronting Mr. Schulties, Ms. Wayne, and Mr. Shipp and of telling each of them that he had had successful internal EEO actions, and/or that he had complained about Holmes before any one of them had any significant contact with him. (TR 176-177, 242, 251-252). Petitioner also affirmatively put forth that he "begged" Schulties and Wayne not to be prejudiced against him almost upon first meeting with each. I conclude that this overly aggressive and hypersensitive behavior on Petitioner's part resulted in his misconstruing some conversations and constituted a non- pretextual reason for Wayne to carefully document each meeting with Petitioner. Petitioner showed that one employee (Karnes) was negatively rated by Ms. Wayne for the first time but was permitted additional time to improve his performance without immediate termination, but Karnes' single negative evaluation does not correlate to Petitioner's negative ratings from four successive supervisors so as to demonstrate unequal treatment of Petitioner. Petitioner perceives all criticisms of, or negative comments about, his job performance as incorrect and without merit but the accuracy of his perception has not been adequately substantiated in this proceeding, and I find that his poor job performance was his employer's and supervisors' primary motivation in terminating Petitioner's employment. Petitioner's charges of discriminatory treatment are based largely on his perception or conjecture that there could be no nondiscriminatory reason for management's actions since he had the academic qualifications to do the job and the willingness to do it. However, his repeated failure to timely complete projects to his employer's specifications is sufficiently documented in the record. Petitioner's education and ability notwithstanding, Petitioner's performance was unacceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Human Relations Commission enter a Final Order dismissing Petitioner's Petition for Relief. DONE and RECOMMENDED this 25th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1258 The following constitute rulings pursuant to section 120.59(2), Florida Statutes, upon Petitioner's and Respondent's respective proposed findings of fact (PFOF). Petitioner's PFOF 1-2. Except as subordinate or unnecessary covered in FOF 1. 3-4. Irrelevant. Except as irrelevant, covered in FOF 1. Rejected as not supported by the greater weight of the credible competent evidence but see FOF 22. 7-18. The only relevant and material history of Petitioner's relationship with Southern Bell is set forth in FOF 3. To the extent these proposals are not covered there, they are irrelevant or immaterial to any dispositive issue in this cause. 19. Covered in FOF 6. 20-23. Except as covered in FOF 6-7, rejected as immaterial. Covered in FOF 8. Not supported by the greater weight of the credible competent evidence as set forth in FOF 8. Job descriptions are not dispositive of any material issue in this cause. Petitioner received oral and written job descriptions at appropriate times. Covered in FOF 9. Covered in FOF 9-10. 28-29. Rejected as not supported by the greater weight of the credible competent evidence which resulted in the FOF 12-13. Had uppermost management approved the change, it would have gone through and there is insufficient proof it was justified just because Petitioner inadvertently accepted a lower pay grade and meant to accept a higher pay grade or that Petitioner interpreted a lateral transfer as being lateral in all respects including salary, when it was not. Peripherally, see the conclusions of law (COL). 30-32. Subordinate and unnecessary but it is noted that Petitioner's PFOF 31-32 admits receipt of a job description in this position and workforce. See peripherally FOF 11. Covered in FOF 11. Immaterial. 35-40. The proposals are mostly mere recitations of part of Petitioner's testimony as opposed to statements of ultimate or even material fact. Additionally, as stated, these proposals are not supported by the greater weight of the credible evidence as a whole. See FOF 11. 41-42 and 44. Immaterial and not dispositive of any issue at bar. 43 and 45. Covered in FOF 10-11, and 22. Rejected as not supported by the greater weight of the credible evidence as a whole. Moreover, Petitioner admits elsewhere in the record that if being told why and how his job performance needed improvement was counselling, the counselling occurred. The Hearing Officer recognizes that "counselling," "criticism," and "harassment" are all subjective words and has considered both the credibility and perspective of all witnesses' testimony and has considered all the documentary evidence in making these findings of fact. Covered in FOF 11. 49. Rejected as not supported by the greater weight of the credible evidence and as related in FOF 11. 48, 50-52. Except as subordinate and unnecessary, covered in FOF 8- 10. Except as subordinate and unnecessary, covered in FOF 19. Covered in FOF 12-13. Covered in FOF 10. There was some overlapping of supervisory- authority as found in FOF 7-12. However, the minimum inconsistencies in testimony and documentation recited by Petitioner's proposal are accounted for due to early failure to document, the on-again, off-again supervision of Mr. Rogers, and Petitioner's mid-year transfer to Mr. Schulties' supervision. Petitioner's proposal is therefore not consistent with the record as a whole, is immaterial, and is not dispositive of any material issue at bar. 56-72. FOF 13-14 cover relevant facts as supported by the greater weight of the credible competent evidence as a whole. Petitioner's proposals are not consistent among themselves and are mostly recitations of Petitioner's testimony concerning his own internal but unsubstantiated perceptions of events, and are rejected for those reasons and in certain respects, as demonstrated by the facts as found in FOF 13-14 and FOF 22, are not supported by the record as a whole. Other rejected material is rejected as subordinate or unnecessary as is also demonstrated by the ultimate facts as found in the recommended order. Rejected as not supported by the greater weight of the credible evidence as a whole. See FOF 11. Most of this proposal is rejected as subordinate and unnecessary. The remainder is rejected as not supported by the record as a whole. See facts as found in FOF 12- 15, and 20. Covered in FOF 20. 76 and 78. Subordinate and unnecessary and not dispositive of any issue at bar. 77. Rejected as not supported by the greater weight of the evidence as a whole except as covered in FOF 18. 79. Covered In FOF 17. 80-81. To the extent supported by the greater weight of-the credible competent, substantial evidence of record, these PFOF are covered in FOF 15-16; otherwise rejected as not so supported. 82, 86, 87. Rejected as not supported by the greater weight of the credible evidence as a whole and as not dispositive of any issue at bar; Petitioner received a job description under a different title plus considerable oral explanation. If Wayne did not reply in writing to every memorandum, it is immaterial. 83-85. Rejected as-covered in FOF 18. Petitioner did not establish that employees in similar circumstances were given more or different training than he was denied. 88-99. Again these are largely recitations of Petitioner's testimony rather than statements of ultimate fact. None are necessary or dispositive of a material issue at bar. The requests for additional work are immaterial since Petitioner was consistently being told he was not satisfactorily completing his basic assignments. See FOF 16, 20, and 22. Petitioner's PFOF 97 and 98 are also immaterial in that Petitioner appropriated all team credit to himself and passed off all personal inadequacies onto the team. See FOF 17 and 22. Except as set out supra, the PFOF 88-99 are subordinate and unnecessary. 100. Subordinate and unnecessary, but see FOF 16 and 17. 101-104. Except as subordinate and unnecessary or as not supported by the greater weight of the credible evidence, covered in FOF 19-20. 105-107. Rejected as stated because they are misleading of the record as a whole. Subject matter covered in FOF 15-16 and 20. 108-114. Except as subordinate or unnecessary or as not supported by the greater weight of the evidence, covered in FOF 15-16. 115. Unnecessary. Respondent's PFOF 1,3. Covered in FOF 1. 2. Covered in FOF 2-6. Covered in FOF 7, 15-16. Covered in FOF 1-6. 6-8. These proposals are generally rejected because they consist of many paragraphs, sentences, footnotes, and quotations which are not appropriately divided out and numbered pursuant to Chapter 120, Florida Statutes, and Rules 22I-6.24 and 22I-6.31, Florida Administrative Code, and instructions contained in the post-hearing order and authority cited therein, and which contain lengthy and burdensome recitations from documentary exhibits and of testimony rather than statements of ultimate facts to be found. Further, they contain large quantities of subordinate and unnecessary material interspersed with mere argument of counsel. Where they could be accepted, they are covered in FOF 7- 22. COPIES FURNISHED: Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Vidal Marino Velis, Esquire 2100 Coral Way, Number 300 Miami, Florida 33145 Sherryll Martens Dunaj, Esquire 501 City National Bank Building 25 West Flagler Street Miami, Florida 33130
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
