The Issue Whether Petitioner was discriminated against by Respondent, based upon her race, in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Respondent, the Okaloosa County Supervisor of Elections, is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended. It is an equal opportunity employer. During the time relevant to this matter, the Supervisor of Elections had 16 or 17 full-time employees, 5 of whom were black. The employees worked out of three separate locations that were approximately 25 miles apart. All employees were and continue to be at-will employees. The Supervisor of Elections is a constitutionally- elected office. The office’s primary functions are to conduct all county elections, to handle voter registration, process candidate qualification, and conduct voter education. At the time relevant to this proceeding, Patricia Hollarn was elected to serve as the Supervisor of Elections in Okaloosa County from January 1989 until January 2009. During her tenure, she had the authority to hire and fire her staff, pursuant to Section 129.202, Florida Statutes. Under that statute and the constitution, the Supervisor of Elections office is separate and independent from the County or the State and is not subject to County or State personnel rules. However, under Patricia Hollarn's tenure, the Respondent utilized some of the Human Resources of the Okaloosa County Board of County Commissioners for directions in some personnel policies for the termination of employees. Petitioner, Ida Lupino Cooper, is a black female. As such, she is a member of a protected class. Ms. Cooper was hired by Respondent on July 31, 2007, as an Elections Specialist I and was assigned to work out of the Fort Walton Beach office. Essential job functions included the computerized data entry of voter registration information and information related to applicants who registered for elected offices in Okaloosa County, as well as assisting with elections and primaries. Other essential job functions included responding to concerns over voter-related matters and performing administrative support, answering the telephone, sorting and dispersing the mail and any other assigned duties related to the Supervisor of Elections’ offices. Important to job performance was the ability to tactfully and effectively interact with the public and with co-workers. Although there are consistent day- to-day functions in preparing for each election, critical workload increases around the day elections are held. Workload was particularly heavy during the 2008 primary and general elections due to large increases in voter registration and turnout. The Fort Walton Beach office employed two Election Specialists. Kimberly Williams, who is white, was the other Election Specialist at the Fort Walton Beach office. Ms. Williams was the only employee Petitioner alleged was similarly situated to her. The Petitioner's and Ms. Williams’immediate supervisor was Louise McGirr. She held the position of Voter Registration Coordinator. Ms. McGirr supervised all employees who had data entry responsibilities. She worked one day a week at the Fort Walton Beach office. A goal of the Supervisor of Elections was to have and maintain a reputation of accuracy in the data collected by the Supervisor’s office. To achieve that goal, Ms. Hollarn created a position to oversee the accuracy of the data entry and editing process. Brenda Ball was the Quality Control Editor who oversaw the data entry and editing process for the Supervisor of Elections. Ms. Ball was sometimes assisted in her quality control responsibilities by Martha Hall from the warehouse. She was not a direct supervisor of Petitioner or any of the Elections Specialists. In order to oversee quality control, Ms. Ball received hard copies of data contained in Verification Reports that had been entered by the employees in the office with data entry responsibilities. The data primarily consisted of names, addresses and other information relevant to a voter’s right to vote. Each report also reflected the person who had entered the data. From the Verification Reports, Ms. Ball and sometimes Ms. Hall edited and corrected errors and omissions in the data that had been entered. She and Martha Hall generally reviewed and corrected all of the data entries made by the Election Specialists on a daily basis. The Verification Reports reflected that all of the Elections Specialists made repetitive mistakes in their data entry. The most commonly-found errors were capitalizations in the wrong place, misspelling the name of voters, incorrect and missing mailing addresses, missing apartment numbers and missing zip codes, as well as faulty formatting. Ms. Ball did not tally or keep a record of the errors, but would routinely advise all employees about consistent types of errors she was noticing and to be accurate. However, there was no definitive measurement or standard regarding the number of errors that were acceptable or unacceptable. In Petitioner’s Probationary Employee Performance Appraisal of January 9, 2008, Ms. Cooper received all 2s on a rating scale of 0 to 5. A score of 2 indicated that the employee “meets expectations.” One of the categories reviewed was for accuracy. In that category, Petitioner received a 2, reflecting the criteria that her work was “normally correct and timely.” Additionally, from the comments of Petitioner’s supervisors, including Ms. Hollarn, Petitioner clearly needed to learn more, but her employer was satisfied with her performance. Petitioner’s overall performance was scaled as 30 points out of a potential 60 points. The score made her eligible to receive a 3 percent performance pay increase which she received. The available options were no increase or a 3 percent performance pay increase. She signed the evaluation and testified that she was happy with it. Kimberly Williams received her Probationary Employee Performance Appraisal on March 17, 2008. Like Petitioner, she received all 2’s and a scaled score of 30 out of 60 points. It was noted in her evaluation that she normally arrived early to work. Like Petitioner, Ms. Williams’ supervisors, including Ms. Hollarn, were satisfied with her performance and she received a 3 percent performance pay increase. There was no evidence presented that Petitioner was treated less favorably or subjected to more scrutiny than Ms. Williams Over the next several months and in an attempt to address Petitioner’s job performance, Ms. Hollarn, met with Petitioner on several occasions providing verbal counseling to her regarding her job performance. These “meetings” were not formal and were more like friendly conversations geared towards helping an employee. This type of employee counseling was in line with Ms. Hollarn’s style of supervising. Additionally, Louise McGirr, Petitioner’s supervisor, sent written counseling to her staff reminding the Petitioner and other Election Specialists about consistent types of data entry errors and the need for accuracy. Contrary to the allegations contained in her FCHR complaint and Petition, Petitioner admitted that she had received such counseling from her supervisors. During these meetings with Petitioner, Ms. Hollarn noted that Petitioner often tried to compare her work to other employees instead of focusing on her work and how to improve her performance. Ms. Hollarn did like this trait of Petitioner and felt she should pay attention to improving her own work. Such an opinion is not uncommon among supervisors, and there was no evidence that demonstrated Ms. Hollarn’s opinion was based on race. On July 10, 2008, Petitioner received her Annual Employee Performance Appraisal. She again received all 2’s on a rating scale of 0 to 5, including the category of “accuracy.” Her overall performance again was 30 points out of a potential 60 points. Thirty points was the lowest-scaled score in the “meets expectations” category. The next category down was “needs improvement.” The scaled score made her eligible to receive a 1 percent performance pay increase, which she received. The Appraisal noted that she frequently detailed other employee’s flaws, rather than focus on her responsibilities. The Appraisal also noted that she had a lot to learn, but dealt with the public well. In short, the Appraisal reflects that Petitioner was perceived as an average employee after one year, especially since Petitioner did not volunteer for non-mandatory overtime and did not arrive or begin work early. Petitioner refused to sign her Employee Performance Appraisal because she thought it should be higher so that she could qualify for a higher pay increase. Contemporaneous to Petitioner’s Annual Employee Performance Appraisal, she was verbally counseled by her supervisor, Louise McGirr on July 10, 2008. Ms. McGirr warned Petitioner that her attention to detail and work performance were unsatisfactory and she needed to improve. Kimberly Williams received her Annual Employee Performance Appraisal on November 18, 2008. She received mostly 2’s and several 3’s on a rating scale from 0 to 5. She received a 2 in the category of “accuracy.” However, she received 3’s in reliability, attendance, productivity, follow through and initiative. Ms. Williams received a scaled score of 35 out of 60 points. The scaled score made her eligible to receive a 1 percent performance pay increase. For unknown reasons, Ms. Williams was not recommended for the pay increase by the Supervisor of Elections and, unlike Petitioner, did not receive the pay increase. However, the Appraisal indicated that her supervisors and Ms. Hollarn were impressed with Ms. Williams’ drive, self-starting ability and initiative which she demonstrated during the 2008 election which was record-setting in the number of voter registrations and turnout. The testimony revealed that Ms. Williams was perceived as more than an average employee, especially since she arrived and began work early and volunteered for overtime even though it was not required. Again there was no evidence that Petitioner received more scrutiny in her job performance than Ms. Williams Sometime in late summer of 2008, Ms. Hollarn was involved in an automobile accident that resulted in very serious injuries to her, and caused her to be hospitalized and homebound for several weeks. During the period of the first election primary in August, Ms. Hollarn conducted meetings from her hospital room and placed Shirley Young and Louise McGirr in charge during the election primary. The August 26, 2008, primary was an unusually busy time at all the Supervisors’ offices and was a period when tensions ran high and time was of the essence because election results were being counted. As indicated, Shirley Young was acting on behalf of the Supervisor of Elections at the time due to Patricia Hollarn’s continued incapacitation from her car accident. Ms. Young was trying to determine whether or not a specific precinct’s voting machine uploaded critical election results from the Fort Walton Beach office to the Crestview office. The difficulty with the machine was causing a delay in the election results which the media and public were waiting on and which the Chairman of the Canvassing Board, a county judge, was becoming impatient over the delay. Ms. Young called the Fort Walton Beach office to inquire about the delay and asked to speak to Pam McCelvey, who had knowledge about the information she was seeking. Petitioner answered the telephone and placed Ms. Young on hold after asking her "if she could wait a minute." Petitioner placed Shirley Young on hold, for a period of time, estimated to be from 10 seconds to 5 minutes. Petitioner or someone else hung up the phone on Ms. Young, requiring Ms. Young to call back a second time. Ms. Young believed it was Petitioner who hung up on her, but irrespective of who hung up, Ms. Young felt that she should not have been placed on hold and made to wait for critical election information. Ms. Young was “shocked” and embarrassed at Petitioner’s actions and felt very strongly that Petitioner did not show tact or effective interaction with her at a very critical time during the election. Ms. Young conveyed the above events of the election night to Patricia Hollarn. At the time, neither Ms. Hollarn nor Ms. Young discussed the telephone incident on election night with the Petitioner, and Petitioner was not disciplined for placing Ms. Young on hold or hanging up on her. From her demeanor at the hearing, Ms. Hollarn was very displeased and somewhat embarrassed about the telephone incident and felt Petitioner had acted very inappropriately, did not fit in the office and, more than anything else, precipitated Ms. Hollarn’s decision to terminate Petitioner. Even though the facts may be in dispute as to exactly what happened during the August primary, there was no evidence that Ms. Hollarn’s perception of the incident was illegitimate or related to Petitioner’s race. Shortly after the telephone incident and when she was physically able to address the matter, Ms. Hollarn began looking for a reason to terminate Petitioner. Ms. Hollarn asked Brenda Ball about Petitioner’s data entry accuracy. She did not ask Ms. Ball about any other employee’s data entry accuracy. However, at hearing, Ms. Ball’s impression was that Kimberly Williams made as many errors and similar errors as Petitioner. Although the evidence was not clear on what information was reviewed, Ms. Ball reviewed some information on Petitioner’s errors since her last evaluation on July 10, 2008. The information included the Verification Reports she received. In an email dated September 17, 2008, Ms. Ball responded to the Supervisor of Elections’ inquiry. Ms. Ball stated that there had been some improvement in Petitioner’s data entry performance since her last performance evaluation of July 10, 2008, but that Petitioner’s performance had slowly declined since then. She also described the type of consistent errors Petitioner made while entering data. Ms. Hollarn did not discuss the fact that she intended to terminate Petitioner with Ms. Ball. At the time of Ms. Hollarn’s inquiry, Ms. Ball did not know Petitioner would be terminated and she did not recommend her termination. During her testimony, Ms. Ball reviewed Verification Reports from the data that had been entered by Petitioner and by Kimberly Williams, her white comparator. The review during the trial covered data entered during August 2008 and part of September 2008 until the day of Petitioner's termination. The evidence did not demonstrate that these were the same reports that Ms. Ball had reviewed for her response to Ms. Hollarn’s earlier inquiry regarding Petitioner. A very rough tally of the errors that were counted during the hearing indicated that for 30 days in August 2008, Petitioner made 79 demonstrated errors while her white counterpart, Kimberly Williams, made 37 errors during a 10-day period in August. For ten days in September 2008, Williams had 92 demonstrated errors, while Petitioner made 88 errors for 11 days in September. Indeed, Ms. Ball's review of both Petitioner and Williams’ data entry during the hearing, while not scientific or precise, clearly indicated that they both made the same type of repetitive errors. However, the Verification Reports presented at the hearing did not demonstrate whether the number of errors made by Petitioner and Ms. Williams were significantly comparable or different because the reports did not cover the same periods of time, account for variability in office duties and were not analyzed statistically in any scientific manner. No expert witness or independent objective analysis of the numbers was offered at the hearing. Petitioner offered the testimony of Tiffany Lovett, the Candidate Coordinator for the Supervisor of Elections Office, who was responsible for maintaining information on voter petitions and absentee ballots. She testified that she had previously had problems with data entry performed on her work by Kimberly Williams substantial enough that she complained to Louise McGirr and to Pat Hollarn about Williams’ inaccuracy. The evidence was not clear whether Petitioner entered data for Ms. Lovett or, if she did, the time period that Petitioner entered such data. However, Ms. Lovett also testified that all employees made errors in data entry and made such errors especially during the 2008 primary period. Patricia Hollarn formalized her decision to terminate Petitioner's employment on September 19, 2008. On that date, Ms. Hollarn came to the Fort Walton office in a wheel chair. She was still recovering from her automobile accident. She requested that Petitioner meet with her and Shirley Young. During the meeting, Ms. Hollarn gave Petitioner a letter of termination, effective that day. The letter specifically stated: On July 10, 2008, you were counseled by your supervisor, Louise McGirr, regarding your work performance and attention to detail in your office duties. Although a slight improvement did occur for a short amount of time, a consistent, significant improvement has not been seen. . . . therefore, as of today your current employment is terminated (per 129.202(2) FS and Okaloosa County Human Resources Policy Manual Chapter XX, Section B 4k “Incompetence and inefficiency in the performance of assigned duties”). . . . During the meeting, Ms. Hollarn also told Petitioner that she was not a good fit in the office which the evidence showed was more indicative of the real reason for Petitioner’s termination. Ms. Hollarn admitted that she had not personally reviewed Petitioner's work performance, work product or alleged work errors, but relied on information and input she received from Jimmie Giles, Brenda Ball, Louise McGirr and Shirley Young about Petitioner's job deficiencies. However, Jimmie Giles testified that she did not give any information to Ms. Hollarn about Petitioner's job performance. Ms. Giles made it clear that her job duties were data entry, she did not supervise any employees, and she certainly did not recommend that Petitioner be fired from her job. On the other hand, Ms. McGirr and Ms. Young both provided negative input about Petitioner’s job performance. In particular, Ms. McGirr reported that Petitioner did not volunteer to work overtime, despite the need created by the upcoming elections. Petitioner’s lack of focus on solving her performance issues and focus on other employee’s performance and her unwillingness to “volunteer” for overtime all contributed to Ms. Hollarn’s negative view of Petitioner. Added to this negative view was the telephone incident that was reported to her by Ms. Young and was embarrassing to her office. None of these reasons were based on Petitioner’s race. Given these facts, the fact that the termination letter did not state the real or all the reasons for Petitioner’s termination does not demonstrate that Respondent’s motives for terminating Petitioner were based on Petitioner’s race. Petitioner was terminated for her poor work performance, less than self-motivated conduct and the telephone incident. There was no evidence that Respondent’s reason for termination was a pretext to cover discrimination. Moreover, Petitioner’s termination was not solely based on data entry errors. Differences between the work of Petitioner and Ms. Williams, brought out at the hearing, pertained to their overall performance. Although Ms. Williams and Petitioner received identical scores of 30 on their Probationary Employee Performance appraisals, Ms. Williams received a higher score on her first Annual Employee Performance Appraisal. Despite the five-point higher score than Petitioner, Ms. Williams received no pay increase, while Petitioner received a 1 percent pay increase. Finally, Petitioner was replaced by Latoya Knox, who is black, had previously worked in the office and who Ms. Hollarn wanted to hire back. Given these facts, Petitioner did not establish by a preponderance of the evidence that she was treated differently than comparable non-minority co-workers, her termination was based on her race or that the reasons given for her termination were a pretext for discrimination. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with Prejudice. DONE AND ENTERED this 30th day of March, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2010. COPIES FURNISHED: Michael K. Grogan, Esquire Allen Norton & Blue 800 West Monroe Street, Suite 100 Jacksonville, Florida 32202 Carolyn Davis Cummings, Esquire Cummings & Hobbs, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether Respondents have committed an unlawful employment practice by retaliating against Petitioner for Petitioner's earlier complaint of handicap discrimination.
Findings Of Fact Petitioner has been disabled since 1981, when she suffered a stroke. Petitioner was employed by Respondent Palm Beach County on September 10, 1984, as a receptionist in its Public Safety Department. Richard Walesky is the director of Palm Beach County's Department of Environmental Resources Management. The County started that Department in October of 1987, and Walesky became the Department's first director and first employee. That Department has expanded substantially since its creation, having grown to approximately 30 employees after the first year and approximately 100 employees currently. In January of 1988, Walesky hired Petitioner as a fiscal clerk in the Department of Environmental Resources Management. Petitioner was in a wheelchair at the time, and Walesky was aware that the Petitioner was handicapped. He hired her because she was qualified by experience and because she had an "upbeat" personality. Her job description included receptionist duties and answering telephones, purchasing, general bookkeeping, and reconciliation of the Department's books and records. The only accommodation requested by Petitioner was to have a rolling file cabinet on the right-hand side of her work station. With her filing cabinet in that location and her electric wheelchair, she needed no other accommodation. Initially, Walesky supervised Petitioner but turned that responsibility over to the Department's office manager in approximately 1989. In that same year, Petitioner's title changed from fiscal clerk to fiscal specialist. Initially, Walesky was not knowledgeable about fiscal procedures and therefore could not assess Petitioner's performance level. In other words, he did not know if the problems he was experiencing were normal. He did know that Petitioner was not reconciling the books as required and, therefore, neither of them knew how much of their budget had been spent and how much was still available. Further, due to the slow processing of paperwork in his Department, the County was not able to take advantage of discounts for timely payment of bills. In one year, the slow processing of paperwork by Petitioner resulted in approximately $20,000 worth of bills not being paid during the fiscal year when the money for payment was budgeted but rather being paid during the following fiscal year when money had not been budgeted to pay for those items. Reconciling the Department's books and processing the paperwork for payment of invoices were included in Petitioner's assigned duties. In spite of the seriousness of those deficiencies, Walesky and the office manager who subsequently supervised Petitioner did not give Petitioner negative annual performance evaluations. Rather, on her 1988 performance evaluation Petitioner was rated as meeting or partially exceeding job requirements, and the same rating was given to Petitioner in 1989. Petitioner's 1990 annual performance evaluation resulted in her achieving a superior rating. As the Department continued to grow, Walesky hired more staff. In October of 1990, he hired Laura Thompson as a Financial Analyst II. Thompson, who had a master's degree in financial management, was given the responsibility of general oversight of the financial aspects of the Department. That responsibility included being Petitioner's supervisor. During Thompson's first year of employment, Petitioner retained her same responsibility for purchasing and processing of invoices, and Thompson was primarily responsible for other areas. During her first year, Thompson had limited knowledge of Petitioner's work and gave Petitioner a superior rating on Petitioner's 1990-1991 performance evaluation. Yet, Thompson was aware that there were problems in Petitioner's performance. Thompson requested during her second year of employment that Walesky put her directly in charge of purchasing so she could become more familiar with the purchasing system and better deal with the problems surrounding Petitioner's job duties. Walesky agreed with that request and did so. During that year, Thompson was better able to identify Petitioner's deficiencies. At the end of that fiscal year, in September of 1992, Thompson gave Petitioner the same superior rating but in the comments section of that evaluation, Thompson specified the areas in which Petitioner needed to show improvement. Thompson discussed with her Petitioner's annual performance evaluation, with specific attention to each item noted as needing improvement. She told Petitioner to organize Petitioner's work area by labeling file cabinets and file folders, by removing from her work area paperwork which was three or four years old and placing those documents in properly marked file folders, and by placing active paperwork on her desk rather than keeping active work in her desk drawers. As to the second area needing improvement, Thompson told Petitioner to eliminate duplicate records. It had been earlier discovered that Petitioner was keeping duplicate records, that is, she was keeping her own ledgers which duplicated the County's ledgers being done by the automated system. Not only were duplicate records not needed, they were not permitted since there was a County policy that for a Department to keep duplicate records, permission must be obtained from the Budget Office, and the Department did not have that permission. Further, Thompson believed that Petitioner keeping her own ledgers consumed approximately one half of Petitioner's work time. The third area of concern was that Petitioner had not received training in the County's automated accounting and purchasing system. Knowledge of that Local Government Financial System a/k/a LGFS was imperative for an employee in Petitioner's position. Training in LGFS was available to Petitioner during working hours at her job site at the County's expense, and Thompson specifically told Petitioner that it was. Thompson offered Petitioner assistance in meeting the outlined goals in those three areas needing improvement. However, Petitioner did not need any assistance according to Petitioner. Thereafter, there was no improvement in any of those specified areas. Petitioner did, however, request that her position as a fiscal specialist be upgraded. Walesky, who had been engaging in ongoing discussions with Thompson regarding Petitioner's performance problems and Petitioner's resistance to improvement in the specified areas, referred that request for re-classification to the County's Personnel Department. He and Thompson specifically did not give any recommendation to the Personnel Department as to whether Petitioner's request should be approved or denied. The Personnel Department conducted an independent audit and determined that although Petitioner's work load had increased, her job duties had remained the same and there was no basis for re- classifying her position. Petitioner's request was denied on November 6, 1992. Due to Petitioner's failure to make the required changes in the areas specified, Thompson gave Petitioner a memorandum in December of 1992 since the numerous discussions she had had with Petitioner along the way had not been effective. That memorandum directed Petitioner to follow the Policies and Procedures Memorandum regarding the price agreements. She attached to her memorandum a copy of the referenced Memorandum. Thompson discussed with Petitioner the memorandum she issued and offered her assistance, but Petitioner did not request any assistance in carrying out the instructions contained in Thompson's memorandum to her. Thereafter, Thompson noted no improvement and issued a memorandum dated January 26, 1993, specifying problems noted by Thompson and specifying assignments given to Petitioner which Petitioner had not accomplished. The memorandum requested that Petitioner advise Thompson if there were any reasons that Petitioner could not accomplish the tasks, offered assistance in helping Petitioner attain the goals, and advised Petitioner that if she continued to fail to respond to those areas of improvement required of her, she would be issued a formal notice of reprimand for failure to perform assigned duties and/or to follow directions. Thereafter, Petitioner did not demonstrate any particular effort to make improvements in the designated areas. Her work area remained cluttered, she continued maintaining duplicate books, and she failed to obtain the required LGFS training. Thompson continued to keep Walesky advised as to Petitioner's failure to demonstrate improvement and to comply with directives. Thompson also contacted the County's Personnel Department regarding Petitioner's performance to discuss her options and the appropriate procedures. In May of 1993, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that she had been discriminated against based upon her handicap by the County's failure to re-classify her position. A determination was made on that complaint that there was no reasonable cause to believe that an unlawful employment practice had occurred, and Petitioner did not contest that determination. When Petitioner filed her complaint in May of 1993, the Commission sent notice to the County that a complaint had been filed, although a copy of the complaint itself was not forwarded to the County until July of 1993. When the notice was received by the County in May, it was forwarded to the County's Personnel Department in accordance with County policy. Walesky was advised that the notice had been received, and he immediately went to Petitioner and asked her what the problem was and what he could do to solve it. Petitioner advised Walesky that the problem was the failure to re-classify her position months earlier. Laura Thompson, however, was not advised by anyone that Petitioner had filed a complaint with the Florida Commission on Human Relations. She did not become aware of that complaint until the actual complaint was received by the County from the Commission in July of 1993. Thompson found out about both the existence of the complaint and the contents of the complaint in July when the County's Personnel Department requested her to respond to it. On June 8, 1993, Thompson gave Petitioner a written reprimand. That reprimand was reviewed in advance by the Personnel Department and by Walesky, who signed it without any consideration that Petitioner had filed a discrimination complaint. At the meeting wherein Petitioner was given the reprimand, Richard Morelli, the Department's office manager and Petitioner's former supervisor, was present at Thompson's request. The reprimand was for failure to perform assigned duties and to follow instructions. Thompson discussed the reprimand with Petitioner and then requested that Petitioner sign it. Petitioner did so and left it on Thompson's desk. Thompson saw that Petitioner had written on the reprimand, "I believe this is retaliation". Thompson went to Petitioner and asked Petitioner what she meant by her comment. Petitioner's response to Thompson was that Petitioner did not have to tell her, and she did not tell her. Subsequent to the issuance of the reprimand, Petitioner exhibited no significant improvement in her performance. Petitioner's work area did become more organized because Thompson personally organized Petitioner's files for her and cleaned out approximately 50 percent of Petitioner's work area. Thompson continued to discuss with Petitioner her directive that Petitioner eliminate the duplicate records Petitioner was keeping. At one point, she asked Petitioner to describe to Thompson what books she was keeping and the purpose for each specific book. Petitioner advised Thompson that she did not have time to tell her that information. Thompson instructed Petitioner that for the remaining four hours of that work day and for the entire following work day Petitioner was to do nothing else during that 12-hour time slot except prepare a description of the books she was keeping. During that 12 hours Petitioner worked on other tasks and failed to do the one task she had been instructed to do to the exclusion of all others. In September of 1993, Petitioner received an annual performance evaluation with a rating of "needs improvement". The evaluation was discussed with Petitioner by Thompson, and Petitioner recognized the importance of reaching a satisfactory level of performance to keep her job. Petitioner was given a 90-day improvement plan, with meetings scheduled with Thompson and Walesky at the 30-, 60-, and 90-day intervals. During that time period, Petitioner accepted none of the offers for extra assistance. At the end of the 90-day improvement plan, Petitioner had not demonstrated sufficient progress to reach a satisfactory level of performance. For example, she still had not obtained the LGFS training she was directed to obtain. At the end of the 90-day period Petitioner was terminated from her employment with the concurrence of Walesky, Thompson, and the County's Personnel Department. Yet, Petitioner was given an additional 30-days of paid leave time in which to obtain another job. None of the other positions located for Petitioner by the County were satisfactory to her, including the position she had held before being hired by Walesky. The County's Personnel Department employs an equal employment opportunity and affirmative action specialist, who is responsible for handling all discrimination complaints and for training managers in equal opportunity and affirmative action requirements. Shauna Ihle was hired by the County for that position in March of 1990. She met Petitioner immediately after being employed when Petitioner came to see her regarding different available positions that Petitioner was applying for or to request assistance. She received the May 1993 notice that Petitioner had filed a complaint with the Commission on Human Relations. From the time that Petitioner's request for re-classification of her position was denied on November 6, 1992, until Petitioner filed her complaint on approximately May 3, 1993, Petitioner had never discussed with Ihle any dissatisfaction or perceived discrimination regarding the County's denial of that request for re-classification. When Petitioner received her "needs improvement" performance evaluation in September of 1993, Petitioner came to Ihle to discuss that evaluation. Although Petitioner stated that the evaluation was not appropriate, as to each specific item in the evaluation Petitioner admitted to Ihle that the complaint was legitimate. Petitioner even admitted that she agreed with the reprimand that had been given to her because she was not processing paperwork correctly or following the correct procedures. Petitioner also told Ihle that some of the things Thompson wanted her to do were stupid, and Ihle advised Petitioner that she should do those things anyway. Throughout the time that Ihle counseled with Petitioner, she inquired if Petitioner had any limitations preventing her from performing her duties or if she needed any help to perform her duties. Petitioner's position was that she did not need any help and had no limitations which interfered with her job performance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondents have not committed an unlawful employment practice and dismissing the Petition for Relief filed against them. DONE and ENTERED this 24th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 24th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3, 5, 10-12, and 16 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4, 6-9, 13-15, and 17- 21 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondents' proposed findings of fact numbered 1-30, and 32-41 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed finding of fact numbered 31 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Lynne P. D'Iorio, Esquire 5301 North Federal Highway, Suite 150 Boca Raton, Florida 33487 Maureen E. Cullen, Esquire County Attorney's Office of Palm Beach County 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be decided is whether Petitioner’s challenges to questions on the state officer certification examination should be sustained, resulting in additional points being added to his score.
Findings Of Fact Petitioner took the state officer certification examination on March 26, 2014. No evidence was placed in the record with respect to his score on the examination. However, his petition indicates that he failed the examination by two questions, an allegation that Respondent does not appear to dispute. The parties stipulated that the validity of four, as opposed to six, questions are at issue in this proceeding. Questions for the Exam are written by in-house exam development staff, based upon the official training curriculum. The questions are then shared with an advisory team comprising approximately 20 members, who are full-time law enforcement officers in the State of Florida. The team members, who are considered to be subject matter experts, are selected through nominations from their respective agencies and their experience in law enforcement. The subject matter experts review the questions for content to ensure that they are valid for the curriculum that is required for law enforcement officers. Staff then conducts an internal review to ensure that the questions meet their formatting guidelines, and if a question passes successfully through all of those requirements, then the question is placed into a pilot or field-test rotation. Pilot questions are placed on examinations but are not included in an examinee’s score, which allows the Department to collect statistical data on the question to ensure that it is not only valid in terms of content, but that it is also psychometrically and statistically sound. Test questions are examined in accordance with standards established by the American Psychological Association, and the National Council on Measurement in Education that outline the standards for test items. The questions used by Respondent comply with the applicable standards. To reduce the possibility for error with respect to the questions asked, an examination will include multiple questions concerning the same curriculum. The purpose of the law enforcement certification examination is to certify an examinee’s knowledge of the official training curriculum that has been established and approved by the Florida Criminal Justice and Training Commission. The Exam was linked directly to the curriculum. If there is a major change as a result of case law that would bring the validity of an item in the test bank into question, the question is removed. However, that rarely happens, because the examination is meant to cover basic principles as opposed to more advanced details related to law enforcement practices. In evaluating the validity of Petitioner’s challenged questions, the Department examined certain statistics related to each question. The first statistic deals with the mean difficulty value. The mean difficulty value reflects the percentage of examinees who have answered the question correctly for the life of the question to date. The focal difficulty value is the percentage of examinees who answered the question correctly during the administration of the examination that Petitioner is challenging. The mean point-biserial correlation is a quality control measure that correlates performance on a particular question to overall performance on the exam. A positive value indicates that the question is statistically sound. A negative value indicates that there may be a problem with the question. The next value examined is the focal point-biserial correlation, which is calculated using the examinees in the administration of the examination being challenged. Like the point-biserial correlation, the calculation should yield a positive number to indicate an acceptable question. Also examined is the number of students who have answered the question, and the number of students who chose the correct answer. The final value examined is the number of examinees who chose the same (incorrect) answer as the person challenging the examination. Petitioner challenged questions 59, 126, 179, and 185. With respect to question 59, the correct answer was “c.” Petitioner chose answer “b.” The question, which will not be repeated verbatim here, involved the use of force and the concept of objective reasonableness. The subject matter was adequately covered in the curriculum, which has not changed from 2012 to the present with respect to this issue. The mean difficulty value for question 59 was .83. The focal difficulty value was .79. Both the mean point-biserial correlation and the focal point-biserial correlation were .29. A total of 2,535 examinees had answered the question, and 2,109 answered it correctly. Question 59 is a statistically-valid question, and Petitioner presented no evidence to indicate that his answer should be considered the correct answer. Question 126 involved what kind of treatment should be considered for gunshot wounds to the torso. The correct answer was “c.” Petitioner chose answer “b.” The subject matter was adequately covered in the curriculum, which has not changed from 2012 to the present with respect to this issue. The mean difficulty value for question 126 was .56. The focal difficulty value was .60. The mean point-biserial correlation was .23 and the focal point-biserial correlation was .20. A total of 2,542 examinees had answered the question, and 1,411 answered it correctly. Question 126 is a statistically-valid question, and Petitioner presented no evidence to indicate that his answer should be considered the correct answer. Question 179 addressed field sobriety tests. The correct answer was “a.” Petitioner chose answer “b.” The subject matter was adequately covered in the curriculum, which has not changed from 2012 to the present with respect to this issue. The mean difficulty value for question 179 was .77. The focal difficulty value was also .77. The mean point-biserial correlation was .20 and the focal point-biserial correlation was .09. A total of 2,566 examinees had answered the question, and 1,967 answered it correctly. Question 179 is a statistically-valid question, and Petitioner presented no evidence to indicate that his answer should be considered the correct answer. Finally, question 185 addressed proper traffic stops. The correct answer was “a.” Petitioner chose answer “d.” The subject matter was adequately covered in the curriculum, which has not changed from 2012 to the present with respect to this issue. The mean difficulty value for question 185 was .90. The focal difficulty value was .84. The mean point-biserial correlation was .17 and the focal point-biserial correlation was .08. A total of 2,867 examinees had answered the question, and 2,574 answered it correctly. Question 185 is a statistically-valid question, and Petitioner presented no evidence to indicate that his answer should be considered the correct answer. Petitioner failed to demonstrate that any of the questions challenged were unclear, ambiguous, or in any respect unfair or unreasonable. Neither has he established that he answered any of the challenged questions correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement enter a Final Order rejecting Petitioner’s challenge to the scoring of questions 59, 126, 179, and 185, and dismiss the petition in this proceeding. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 8th day of July, 2015. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Greg Chapman 5870 Westmont Road Milton, Florida 32583 (eServed) Thomas Kirwin, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Richard L. Swearingen, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact Pertinent to this case, Petitioner, Harold Freeman, was employed by Troy Community Academy (Troy Academy) in April 1995.1 At the time, Troy Academy was not a contract provider of programs for youths for the Department of Juvenile Justice (DJJ) and, therefore, an employment screening pursuant to Chapter 435, Florida Statutes, was unnecessary.2 In early 1996, Troy Academy entered into a contractual arrangement with DJJ for the provision of programs for youths. Consequently, to be eligible for continued employment, Petitioner was required to submit information adequate to conduct a screening under Chapter 435, Florida Statutes. Apparently, at or about the same time, Troy Academy acquired a new fiscal agent, and Petitioner was required to submit a new employment application to be eligible for continued employment. That application was submitted on February 22, 1996.3 Among the information requested by the application was a response to the question "[h]ave you ever been convicted of any criminal offense other than traffic violations?" Petitioner responded by checking the box labeled "NO." Immediately above Petitioner's signature on the application was the statement "I certify that all statements made in this application are true and complete to the best of my knowledge. " To initiate DJJ's background screening process, Petitioner completed and submitted three documents: a Request for Preliminary FCIC/NCIC and HSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character form. Pertinent to this case, the Affidavit of Good Moral Character provided: As an applicant for employment as a caretaker with Troy Community Academy, I affirm that I meet the moral character requirements for employment as caretaker, as required by the Florida Statutes and rules, in that: * * * I have not been found guilty, regardless of whether adjudication was imposed or withheld, of any of the offenses listed below, or of any similar offense in another jurisdiction regardless of whether record is sealed or expunged; I have not entered a plea of guilty or nolo contendere (no contest), or had the court enter such a plea, to any of the offenses listed below, or to any similar offense in another jurisdiction regardless of whether the record is sealed or expunged. . . The offenses referenced above are the following sections and chapters of the Florida Statutes: * * * 25. 893 relating to drug abuse prevention and control if the offense was a felony or if any other person involved in the offense was a minor (this includes convictions for possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) Under the penalty of perjury, I attest that I have read the foregoing carefully and state that my attestation here is true and correct. (signed by Harold Freeman) SIGNATURE OF AFFIANT (Emphasis in original.) The affidavit was sworn to and subscribed before a Notary Public, State of Florida, on July 11, 1996.4 On August 14, 1996, DJJ completed its background screening and concluded that Petitioner was disqualified from working in a position of trust because he had, on May 30, 1990, pled guilty to, and was adjudicated guilty of, possession of cocaine, a third degree felony proscribed by Section 893.13(1)(f), Florida Statutes. As to the circumstances surrounding the criminal incident, the proof demonstrated that on June 13, 1987, Petitioner was observed by a Town of Palm Beach police officer seated in the driver's seat of a car with an expired tag. The officer approached the vehicle and requested Petitioner's driver's license. Petitioner initially denied having his license with him, and identified himself as Harold Foreman.5 He did so at the time because there were several warrants outstanding for driving while his license was suspended, and he did not want to be arrested. Eventually, Petitioner produced a paycheck stub with his name on it, and the police officer requested the desk to run both names in the computer. The officer was subsequently advised that a Palm Beach County warrant for a Harold Freeman was outstanding for violation of parole. While the party named in the warrant would subsequently prove not to be Petitioner, he was placed under arrest. Search of the vehicle incident to the arrest revealed a small plastic baggie containing a white powder residue in the console of the vehicle. Upon analysis at the station, the trace powder tested positive for cocaine. Petitioner remained in jail until July 4, 1987, when he made his first appearance in the County Court, Palm Beach County, Florida. At the time, the presiding judge advised Petitioner that formal charges had not been filed, and he was discharged. Petitioner was, however, advised that the State Attorney's Office might file charges at a later date. The State Attorney's Office did subsequently elect to file charges, and they were docketed in the Circuit Court, Palm Beach County, Florida, under Case No. 87-6302. Notice was mailed to Petitioner at his last known address, but returned undelivered. Indeed, Petitioner no longer resided at the address, and he did not learn that the charges had been filed until May 22, 1990. On May 22, 1990, during a "directive patrol" in Marathon, Florida, a Monroe County Sheriff's deputy ran a computer check on the Petitioner which revealed an outstanding warrant for his arrest based on the charges pending under Case No. 87-6302. Petitioner was arrested, returned to Palm Beach County, and jailed. Petitioner remained in jail until May 30, 1990, when he entered a plea of guilty to violating Section 893.13(1)(f), Florida Statutes, possession of cocaine, a third degree felony. Petitioner was adjudicated guilty, sentenced to a term of 26 days, accorded 26 days' credit for the period he had been incarcerated prior to imposition of sentence, and discharged. Following disqualification, Petitioner filed a request for exemption pursuant to Section 435.07, Florida Statutes, and was accorded an opportunity to submit information relevant to that request to an Exemption Committee of the Department of Juvenile Justice, Office of the Inspector General, on March 28, 1997. Among the information Petitioner chose to submit was a copy of his resume. (Respondent's Exhibit 6.) That resume purported to reflect Petitioner's professional experience and dates of employment; his education, which, according to the resume, included an Associate Degree in Business Administration from Miami Dade Community College; and, his military service in the United States Navy, which, according to the resume, spanned the period from July 1964 to July 1968, and culminated in an honorable discharge with the rank of Radioman First Class (E-6). Following review, the committee recommended to the Inspector General that DJJ approve Petitioner's request for exemption. The Inspector General, Perry Turner, was suspicious of Petitioner's claim to have attained the rank of Radioman First Class within four years of military service and requested a copy of Petitioner's DD214. Petitioner's DD214 confirmed the Inspector General's suspicions, and revealed that upon discharge Petitioner had not attained the rank of Radioman Fist Class (E-6). Rather, Petitioner had only attained the rank of Seaman Second Class (E-2). The DD214 further revealed that Petitioner's military service had only extended from July 7, 1964, to December 4, 1964, a period of less than five months, as opposed to the four years he claimed on his resume. Upon consideration of the matter, and most particularly the false representation regarding criminal convictions on Petitioner's employment application, the false representations on Petitioner's Affidavit of Good Moral Character, and the false representation on Petitioner's resume, the Inspector General was of the opinion that Petitioner had failed to convincingly demonstrate his entitlement to the requested exemption. Consequently, by May 1, 1997, the DJJ notified Petitioner that his request for exemption from employment disqualification had been denied. The notice further advised Petitioner that if he desired to challenge the denial he could request an administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner requested such a hearing, and these proceedings duly ensued. Consistent with the Inspector General's conclusion, the proof at hearing demonstrated that Petitioner had falsely represented his criminal history on his employment application of February 22, 1996 (Respondent's Exhibit 4), that Petitioner had falsely represented his criminal history on his Affidavit of Good Moral Character (Respondent's Exhibit 5), and that Petitioner had falsely represented his military service on the resume he submitted to DJJ. (Respondent's Exhibit 6.) Additionally, the proof further demonstrated that Petitioner had not completed the coursework required for an Associate Degree in Business Administration, as represented on his resume. Finally, the proof demonstrated that the dates of employment reflected for Petitioner's professional experience are false, having been adjusted by Petitioner to eliminate large and unexplained gaps between employment. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that following his conviction in 1990, Petitioner completed a drug rehabilitation program, including aftercare, at Camillus House (a homeless shelter), and has been continuously employed since that time at either Camillus House or Troy Academy. Petitioner has also been remarried for 4 years, and his wife is also involved in counseling as an employee of the Switchboard of Miami crisis line. While there are certain accomplishments in Petitioner's life since his conviction which weigh favorably, it must be concluded that the evidence of record demonstrating his recent deception of, and false representations to, his employer and DJJ provide a clearer insight into his character, and provide the more reliable evidence of whether rehabilitation has been shown. Given such proof, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that he should not be disqualified from employment or, stated differently, that he is currently rehabilitated and will not pose a danger or risk to the social, emotional, and intellectual development of the juveniles in his charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 5th day of November, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1997.
Findings Of Fact In 1955, the Department of Health and Rehabilitative Services (HRS) entered into a contract with the federal Social Security Administration under which HRS agreed to evaluate applications for social security disability benefits and to allow or disallow claims, accordingly. At the time of the hearing, respondent employed 343 persons who were involved in adjudicating some 2,500 cases every week. On the average, every claim allowed has a value of ninety thousand dollars ($90,000.00). From 1955 through 1972, every determination was reviewed in a central office in Baltimore, Maryland. Since then, as an economy measure required by federal legislation, review has been limited to more or less random samples and most determinations have gone unreviewed by anybody outside of the office making the determination. The original means of choosing samples for review involved the selection of a one or two digit number, which was changed periodically. When applicants' social security numbers ended in the chosen numerals, their cases were sent to another office for review, after the initial determinations had been made. Under this system, the primary evaluators learned which cases would be reviewed, if they found out what digits were being used. This created possibilities for non-random samples. While the first sampling method was in effect, one of respondent's district supervisors, Robert Melcher, limited his review of determinations that had been made in HRS' Orlando office, which he headed, to the cases of applicants whose social security numbers ended in digits designated as calling for inclusion in samples to be mailed elsewhere for review. If one of these determinations struck him as problematic, he might direct that additional work be done with a view toward the matter's eventually being reconsidered. This sometimes had the incidental effect of delaying final processing in Orlando until a time when different digits had been announced for review samples purposes, so that the case escaped any review outside the Orlando office. Petitioner is one of two unit supervisors who answer directly to Mr. Melcher. The other is Creighton Hoyt. Each unit supervisor supervises a team of medical disability examiners. Detailed statistics are kept with respect to the job performance of each medical disability examiner, each unit and each branch office in Florida. As one result, a definite rivalry between Unit I and Unit II has grown up in the Orlando office. James Drake, who has succeeded to the position vacated by petitioner's demotion, was formerly a medical disability examiner in Unit II, headed by Mr. Hoyt. Ms. Johnnie M. Sherrod worked as a medical disability examiner in Unit I, headed by petitioner. Harry Jackson Speir, Jr., also worked as a medical disability examiner in HRS' Orlando office, starting in June of 1973. From 1975 until the time of the hearing, a second method of selecting samples for review purposes obtained in HRS' Orlando office, in accordance with national guidelines. Becky Bowman, a clerk IV or "coder," divided the files she received from the medical disability examiners and their supervisors into two piles. In one pile were files involving claims arising exclusively under Title II of the Social Security Act and in the other pile were files involving all other claims. Mrs. Bowman, who is technically directly answerable to Leon Simkins, in Tallahassee, was supervised on a day to day basis by petitioner and Mr. Melcher. She was told to pick every tenth, then, in February of 1977, every fourteenth case from the first pile for mailing to Tallahassee for quality assurance review; every thirtieth case in the first pile she was told to mail to Atlanta; and every fortieth case in the second pile Mrs. Bowman was told to mail to Baltimore. Although the procedures have stayed more or less constant since 1975, the intervals at which cases were to be selected changed in February of 1977 and again in December of 1977. Originally, Mrs. Bowman only sorted, while Ms. Margaret Dingfelder prepared the files for mailing. From time to time, Mr. Speir took cases he was working on to Mr. Melcher to ask for advice on difficult points. In three separate instances, Mr. Melcher said to Mr. Speir, referring to the case they were discussing, "This is one we don't want to go to Q.A. [the quality assurance section]," or words to that effect. In each instance, Mr. Speir attached a note to the case file before delivering it to Mrs. Bowman. The notes read something like "Not for Q.A." On one occasion, Mrs. Bowman asked Mr. Speir who had authorized bypassing quality assurance review and Mr. Speir told her that Mr. Melcher had authorized it. Ms. Elaine Keir, who worked as Mr. Melcher's secretary from June of 1973 until October of 1976, remembers occasions when Mr. Melcher told medical disability examiners that more evidence should be gathered for a particular case. She remembers other occasions when Mr. Melcher told medical disability examiners to see that a particular case was not included in the quality assurance review sample. She had the impression that Mr. Melcher, who was concerned that his office's processing time statistics compare favorably with other branch offices' statistics, asked for further evidence in cases that relatively little time had been spent on, while suggesting bypassing review procedures in cases in which considerable time had already been expended but in which problems persisted nonetheless. From time to time, petitioner Lee, who began work with respondent as a medical disability examiner supervisor in May of 1973, received instructions from Mr. Melcher, his immediate supervisor, to see that a particular file was not sent for quality assurance review. Aware of the impropriety of interfering with sampling procedures intended to ensure randomness, petitioner began, on March 18, 1976, to keep a record of Mr. Melcher's requests. He received 22 such requests through September of 1977. Initially, petitioner attached a note to any file designated by Mr. Melcher as one to be diverted. The notes read "No Q.A." and were intended as directives to Mrs. Bowman. Mrs. Bowman, also aware of the impropriety of sabotaging the sampling procedures, suggested to petitioner that he dispense with the notes. At her suggestion, petitioner began laying files sideways in a tray on Mrs. Bowman's desk, whenever he had been told by Mr. Melcher that a file should not be sent elsewhere for review. Petitioner never indicated to Mrs. Bowman in any way that a case should be diverted from a quality assurance review sample, unless Mr. Melcher had first directed him to do so. On three occasions, Ms. Sherrod heard Mr. Melcher tell petitioner to see that Mrs. Bowman did not include cases in quality assurance review samples. In August or September of 1977, James Drake noticed a file turned sideways in a tray on Mrs. Bowman's desk. When he started to move it, she stopped him, saying that petitioner wanted the case routed around quality assurance review. Mr. Drake reported this incident to Mr. Hoyt, upon the latter's return from vacation. Mr. Hoyt, who had earlier heard a similar story from his secretary, summoned Mrs. Bowman to his office and listened to her confirm the reports that had preceded her. On September 21, 1977, Mr. Hoyt wrote Mr. Melcher a memorandum entitled "Inequities existing between Unit I & Unit II, in which he set out, inter alia, what he had been told by Mrs. Bowman. Mr. Hoyt sent a copy of this memorandum to James C. Russ, which resulted in Mr. Russ' investigating the charges. Inasmuch as petitioner admitted what he had done, Mr. Russ' investigation was short and straightforward. Petitioner did not accuse Mr. Melcher when he was originally interrogated on these matters, and Mr. Melcher denied complicity. Petitioner's superiors greeted petitioner's accusation with skepticism when it did come. They nonetheless conducted a somewhat perfunctory second investigation, which apparently failed to uncover sufficient evidence to satisfy them that Mr. Melcher had indeed directed petitioner to divert certain cases, so that they would not be included in quality assurance review samples. Even so, Mr. Melcher's superiors did reprimand Mr. Melcher, orally and in writing, for the part they perceived him to have played in these events.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent rescind petitioner's demotion, and issue a written reprimand to petitioner instead. DONE and ENTERED this 19th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carlton L. Welch, Esquire 331 Laurina Street, No. 547 Jacksonville, Florida 32216 Douglas E. Whitney, Esquire 1350 North Orange Avenue Winter Park, Florida 32789 Mrs. Dorothy B. Roberts Appeals Coordinator 530 Carlton Building Tallahassee, Florida 32304 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER (AGAINST SUSPENSION) ================================================================= STATE OF FLORIDA CAREER SERVICE COMMISSION IN THE APPEAL OF RICHARD LEE, AGAINST SUSPENSION Petitioner, vs. CASE NO. 77-2211 BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF DISABILITY DETERMINATIONS, Respondent. /
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Charge of Discrimination.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, Petitioner, Sandra Jackson, who is an African-American, has alleged that on April 8, 1996, she was unlawfully terminated from employment with Respondent, Halifax Medical Center, on account of her race. Although the record does not specifically address the issue of whether Respondent is an "employer," it can be reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current calendar year, and is thus subject to the jurisdiction of the Florida Commission on Human Relations (Commission). Halifax Medical Center, located in Daytona Beach, is a part of the Halifax Community Health Systems network serving East and Central Florida. Petitioner was first hired by Halifax Medical Center on February 13, 1989, as a pharmacy technician. She remained in that position until April 16, 1990, when she transferred to a position of Social Worker I at the Hospice of Volusia/Flagler (Hospice), which performs hospice services for the Halifax network in Volusia and Flagler Counties. In that position, Petitioner's duties included assisting the various supervisors, taking care of patient requests, and filling out financial assistance forms for Medicaid or Medicare patients. She was also required to fill out memorial fund requests. Because of a change in the federal law in 1992, which required that all Hospice social workers have a master's degree, Petitioner was no longer qualified to work as a social worker since she held only a bachelor's degree. In order to allow Petitioner (and several other affected social workers) to remain with the organization, the Hospice created the position of Resource Specialist. Petitioner transferred to that position on November 1, 1992. Petitioner's contention that her transfer was actually a demotion and confirms that she was treated differently from other employees has been rejected. This is because the evidence clearly shows that her transfer, and that of several similarly situated employees, was caused by a change in the federal law, and not by discriminatory animus on the part of her employer. Although the duties of a Resource Specialist were similar to that of a Social Worker I, and included providing assistance to other Social Workers, a Resource Specialist was not allowed to perform patient assessments or give supportive counseling. However, Petitioner's paperwork duties remained the same. From 1992 until 1994, Karen Grimm was Petitioner's supervisor. Grimm served as the Hospice's Psychosocial Bereavement Coordinator. When Grimm's position was split in two on January 17, 1994, Kathleen Moore became Petitioner's new supervisor. Both Grimm and Moore were required to prepare performance evaluations for all employees under their supervision, including Petitioner. Grimm's first evaluation of Petitioner was made on April 16, 1993. On that evaluation, Petitioner scored a 7.2 out of a possible 10 points, or an average evaluation. However, the evaluation noted that Petitioner needed to improve in following through on assignments and having an increased awareness of resources. These criticisms were based on complaints Grimm had received from other employees that Petitioner would not finish jobs she was required to do. Grimm discussed these criticisms with Petitioner after the evaluation was prepared. In August 1993, Pamela Toal, a nurse at Halifax Medical Hospital, met with Petitioner and Grimm regarding Petitioner's care of certain patients. In one case, Petitioner had taken two weeks to get a patient a pill box, which would have assisted the patient in ensuring that he took his prescribed medicine on time. In another case, Petitioner had been asked to assist a patient in signing up for Community Medicaid. However, she signed him up for Hospice Medicaid twice, a program in which he was already enrolled. These events were documented by Grimm. In January 1994, or shortly before her position was split, and she would no longer be Petitioner's supervisor, Grimm met with Petitioner to discuss complaints Grimm had received from a patient care coordinator (Cherrie Chester) regarding how difficult it was to find Petitioner when she was needed. Petitioner was instructed to meet with Chester to resolve the difficulty. On April 7, 1994, Kathleen Moore, Petitioner's new supervisor, met with Petitioner regarding Petitioner's work performance. At that time, Petitioner agreed to a number of performance-related changes in her work habits, which are formalized in Respondent's Exhibit 8. That document notes that "[i]f there is no improvement by the time for review [mid-May 1994], you will then be placed on a probationary period for an additional month." On her next evaluation prepared by Moore on May 22, 1994, Petitioner scored a 7.6 out of 10 points, which is considered an average evaluation. In the job responsibility category, however, she received a score of 5, which is below average. The next evaluation was prepared by Moore on April 22, 1995. Petitioner's average score was only 6.35, and her job responsibility score dropped from a 5 to a 4, indicating that she was performing her job below expectations. During this period, a number of complaints were made about Petitioner's job performance by co-workers, supervisors, families, and patients. Based on this continuing pattern of poor performance, Petitioner was placed on written notice by the Hospice Executive Director that she needed to make "immediate improvement in some areas of her work." Moore and Petitioner discussed a performance improvement plan, and Moore requested another review of Petitioner in three months to see if she had improved. In June 1995, a social worker who worked with Petitioner documented a number of incidents in which Petitioner failed to perform necessary responsibilities for patients. This required the social worker to follow up and perform the tasks that should have been completed by Petitioner. Moore conducted a follow-up evaluation of Petitioner on September 4, 1995. Her score dropped to 5.725, and her job responsibility rating dropped to a 3, which is unsatisfactory. This latter decline in rating was caused primarily because Petitioner had not been meeting in person with other social workers and counselors with whom she worked, as required by her job position. The evaluation noted that Petitioner was not improving in other areas and was still having problems filling out financial forms. In response to Petitioner's poor performance, Moore drafted a "Corrective Action Counseling Memo" on September 5, 1995. The memorandum addressed each of Petitioner's deficiencies and required certain corrective action. In addition, it warned her that any "future complaints or violations will result in termination." On September 12, 1995, Moore and Petitioner met concerning Petitioner's inability to meet the job standards. Petitioner was also put on notice that she must start looking for a different position in the Halifax Community Health Systems network as her employment as a Resource Specialist at the Hospice would end in three months. Two days later, Petitioner told Moore that it was Moore's responsibility to find her a new job. In an effort to assist Petitioner, Moore advised her to contact all of the entities under the Halifax umbrella. On September 1995, Petitioner continued to have performance problems, including a failure to report to work until noon one day, filling out incomplete and incorrect billing status forms, and failing to provide documentation to Moore in a timely manner. She also failed to timely meet with other Hospice social workers, as instructed by Moore on September 12. Although Petitioner was told in September that she had three months to find another position, she was allowed to remain in her Hospice job for several additional months because of her lack of success in finding a new job. Finally, on January 8, 1996, Petitioner was told her last day would be April 8, 1996. A Termination Voucher prepared on April 8 lists unsatisfactory ratings in the areas of job knowledge, quantity of work, and quality of work. It also relies upon "extensive notes in Personnel files" as a basis for discharge. There was no discriminatory animus on the part of Respondent in the termination decision, and it was based wholly on Petitioner's poor job performance. Notwithstanding the above, Petitioner points out that she received overall "satisfactory" job evaluations in the October 1990, April 1991, April 1992, and June 1993. While this may be true, beginning at least in April 1993, Petitioner's evaluations contained deficiencies, which persisted for several years until her termination. Petitioner also contends that beginning in 1994, when Moore became her supervisor, she suffered racial abuse in the workplace through comments made by other workers, and that she was assigned "dirty jobs" that other white employees were not required to do. Aside from the lack of corroborating evidence from any other witness to support these contentions, Petitioner never complained about the comments until the hearing. Moreover, none of the alleged statements were made by supervisors or managers who were decisionmakers at the Hospice. Petitioner also asserted that she was treated differently from other Resource Specialists when she was terminated. Besides Petitioner, Moore supervised only one other Resource Specialist, Carole Pope, a white employee, at the time of termination. During Moore's tenure as supervisor, Pope and Petitioner had the same responsibilities, and their assignments were divided by geographic area, not racial lines. Both Resource Specialist positions were apparently eliminated through a corporate "restructuring" in the spring of 1996, with Pope being transferred to a financial position in the psychosocial department and Petitioner being terminated for cause. However, there was no evidence that Pope suffered from the same job deficiencies as did Petitioner, or that Pope was given preferential treatment over Petitioner. A contention that other unnamed "white employees received favorable evaluations" during this same time period so that they would be placed in "related job openings" lacks credible evidentiary support. Another assertion that Petitioner's poor evaluations were attributable solely to Moore is not accurate. The record shows that even when Grimm was supervisor, Petitioner's performance was criticized by Grimm in several respects. The date on which the original complaint was filed is a source of confusion. In an amended letter of transmittal of the case to the Division of Administrative Hearings (DOAH) dated April 26, 2000, the then Commission Agency Clerk indicated that "[o]n April 14, 1996, Petitioner filed a Charged [sic] of Discrimination with the Commission[,]" and that the complaint had been assigned a 1997 case number (97- 0063). However, the Charge of Discrimination referred to DOAH was executed by Petitioner on February 26, 1998, or almost two years after she was discharged from employment, and Petitioner testified that this was the only paper she filed with the Commission. She also acknowledges this fact in her Proposed Recommended Order. Whether Petitioner filed a similar charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 365 days after the alleged discriminatory act, and if so, intended that filing to be a "dual filing" with the Commission, is not of record. It is also unknown whether the Commission and EEOC had a work- sharing agreement in 1996 and 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination, with prejudice. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 October, 2001. COPIES FURNISHED: Azizi Dixon, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sandra F. Jackson 828 White Court Daytona Beach, Florida 32114 John W. Bencivenga, Esquire Thompson, Sizemore & Gonzales, P.A. Post Office Box 639 Tampa, Florida 33601-0639
The Issue Whether petitioner should pass the Level III Behavior Management Certification examination given by the Department of Health and Rehabilitative Services (HRS) on June 28, 1985.
Findings Of Fact The Developmental Services Program Office in HRS is the office responsible for the Behavior Management Certification examination. The concept of a certification exam arose out of a commitment to improve and to increase the capabilities of the people who were providing behavioral programs to developmentally disabled people in Florida. In December of 1982 or January of 1983, HRS contracted with Instructional System Design, Inc., to design an examination that would ensure that the persons who passed the examination were persons who possessed proficiency and competency in the field of behavioral management or behavior analysis. Instructional System Design, Inc., also was to design and prepare a curriculum guide that would aid individuals in becoming proficient in behavior management. However, the examination was designed first and then the curriculum guide was prepared to cover the major content areas which were reflected in the examination. The Behavior Analysis Curriculum Guide had not been completed before petitioner took the examination, which was the first time the examination was offered. At that time, the curriculum guide was still in draft form. PREPARATION OF THE TEST The model used for constructing this examination was a domain referenced test model. Items are included which assess every competency. Ms. Goodson, the president of Instructional System Design, Inc., and designer of the examination, assembled an interdisciplinary team which included representatives of HRS and experts in the field of behavioral psychology. Specific competency areas, or content domains, were determined and arranged in competency clusters on the examination. For example, Competency Cluster #1 has to do with making legal and ethical decisions about when to intervene. Competency Cluster #3 relates to observing and recording behavior, and Competency Cluster #6 involves the application of behavioral procedures. The number of questions in each cluster relates to the number of tasks, or subtopics, within the particular competency area. The purpose of designing a test in this manner is to make sure that a question is included in the test that will evaluate proficiency in each defined competency and task within the competency. The content standard was established by the interdisciplinary committee. It was agreed that the minimum standard would be that the content would have to be included in two widely used textbooks and not successfully refuted in any other textbook. This minimum standard was designed to overcome any biases that may exist in any one particular form of training. Two forms of the examination were prepared, Form A and Form B. However, each form was prepared to assess the same competencies. For example, question 2-1 on Form A was designed to assess the same competency and task as question 2-1 on Form B. HRS requested that two forms of the examination be prepared. After the first draft of the examination had been prepared, and content experts reviewed and made revisions to the questions, a field review of the examination was conducted. Thirteen different reviewers were asked 28 questions about each test item. One of the 28 questions was the correct answer, and the other 27 questions asked other information about the particular question. The other 27 questions were asked to ensure that each test question was valid, that the question was clear, and that it was representative of the competency area that it was attempting to assess. None of the field reviewers reviewed all 156 questions, but all questions were reviewed. The examination was not field- tested by actually giving the entire exam to a small group of people because it was felt that it would be impractical to get 15 to 20 people to voluntarily submit to this rigorous an examination for the purpose of field-testing without getting certification. Field review appeared to be more practical and provided more information about the validity of each item. Since there appeared to be no reason to weigh any particular item, so that some items would count more than others, it was agreed that each item would count as one point. It also was determined that more than one person would score the examination to provide a double-check on the scoring process. Since some of the examination questions were essay questions, it was determined that the scorers would be experts in the field with the capabilities to assess the answer given using the standards set forth in the answer key as a guideline. If the two scorers disagreed on the correctness of an answer, the scorers would confer with each other to resolve the difference. TEST ANALYSIS After the first administration of the examination in June of 1985, Dr. Beard, a professor at Florida State University and an expert in testing, conducted a test analysis. Dr. Beard took the data, the indication of whether the items were right or wrong, coded them onto computer records, and computed a large number of statistical items. He computed the P-value of each item, the proportion that answered each item correctly. He computed the points by serial correlation between each item and the total scores. He also computed the frequency distribution of scores, means, standard deviations, and other descriptive statistics of the scores. After this was done, Dr. Beard determined that the two forms of the test differed in difficulty. He therefore applied an equating or calibrating procedure to adjust the difficulty of one form to that of the other. In other words, although each exam form was designed to test the same knowledge and skills, unintended differences in test difficulty from form to form gave an advantage to people taking the easier form. Therefore, it was necessary to convert the scores obtained on one form to the units on the other form, a process called test equating. Form A was the easier form; and therefore, the raw scores on Form A were equated to the scores on Form B. The test analysis also revealed that certain of the test items did not have desirable measurement properties. In any test, some items discriminate better between those who have a large amount of the knowledge being tested and those who do not have. An item that does not discriminate well will show a negative discrimination index. An item showing a negative discrimination index detracts from the measurement properties of the test. Therefore items that have negative discrimination indices should not be included in scoring an examination unless the elimination of the items would destroy the content validity of the examination. Out of the 156 questions on this examination, 31 of the items had a negative discrimination index. Because the elimination of these items did not affect the content validity of the exam, the 31 questions were eliminated. The elimination of these negative indicators did not affect the validity of the exam, and the inclusion of any negative indicator in an examination detracts from the reliability of the exam. CUT-OFF SCORE COMMITTEE The passing score on the examination was determined by a cut-off score committee. The committee was composed of a group of individuals representing practitioners, clients, and persons involved in the administration of the examination. The committee was given statistical information concerning the exam. The committee discussed the consequences of setting too high a passing score and the consequences of setting too low a score. Establishing a passing score by a committee that is aware of both the content of the examination and the impact of choosing a particular score is an acceptable method for determining a passing grade on an examination. After a complete review of the examination and consideration of the statistical information, each member of the committee wrote down a recommended passing score. There was a wide variation in the recommended passing scores. However, after further discussion a consensus was reached, and the ultimate cut- off score voted upon was approved unanimously. The cut-off score was set at 86 out of 125 items, or 68.8 percent. Thirty-three percent of the people taking the examination passed it. PETITIONER'S EXAMINATION Out of the original 156 questions on the examination, petitioner was scored with having answered 105 questions correctly. Of the 31 items eliminated, petitioner answered 21 correctly and missed 10. Of the 125 items which HRS counted on the examination, petitioner answered 84 correctly. However, petitioner took Form A of the exam, and petitioner's raw score of 84 on Form A was the equivalent to a score of 80 on Form B. Therefore, petitioner's equated score was 80. To pass the examination, petitioner would have to have received at least six more points. The deletion of the 31 items from the test served to make the test more reliable. However, had the 31 items not been deleted from the test, petitioner would have gotten the identical percentage of correct answers as he did after the elimination of these items. Therefore, the deletion of the items did not adversely affect the petitioner. The equating of scores is an acceptable testing procedure and adds to the fairness of the test. However, even if petitioner's score had not been equated, he would not have passed the exam. Further, if petitioner's score had not been equated, the scores of the other 49 individuals who took Form A also would not have been equated. This would have raised all of those raw scores and could have resulted in a higher cut-off score being chosen. Because the elimination of negative indicators and the equating of scores on two different forms of an exam are both acceptable-testing procedures, petitioner's contention that he should pass the exam must be based upon a showing that he answered correctly at least six of the questions that he was scored as missing. PETITIONER'S EXAMINATION ANSWERS Petitioner's exam was graded by Dr. James Johnston and Dr. Standler. Dr. Standler and Dr. Johnston initially disagreed on only four of the answers given by petitioner on the essay questions. However, there was no evidence presented concerning whether the disagreement on the four questions was resolved adversely to petitioner. Although petitioner did not designate in his petition the specific questions he was challenging, at the hearing the following question numbers were mentioned: 2-6, 3-3, 3-7, 4-1, 4-11, 5-4, 5-10, 5-11, 6-6, 6-7, 6-46, 6-48, 9- 2, and 10-8. Dr. James Johnston was the only expert in behavior analysis to testify, and he was called as a witness by both petitioner and respondent. Question 2-6 Question 2-6 requested that the examinee write a functional response definition for the given situation. A functional response definition considers only the effect of the behavior. Petitioner's answer was incorrect because he included in his answer where the behavior occurred, when it occurred, and how it occurred. Therefore, petitioner did not write the functional response definition. Question 3-3 The only evidence presented as to this question was that petitioner's response, C, was incorrect and that the correct answer was answer A. Question 3-7 Dr. Johnston agreed with the petitioner that if one defined "interval recording" as meaning "whole interval recording" there would not be a proper answer to question 3-7. However, the question did not use the term "whole interval recording." Therefore a correct answer was provided in the choices. On his exam petitioner wrote the following note: Our instructor used the term "interval" in time sampling synonymously with the term whole interval only. None of the answers provided are thus appropriate, since none apply to whole intervals. Alternative C is given as answer because it applies to momen- tary time sampling whereas A + B are partial time sampling. . . . Dr. Johnston explained that the use of "whole interval time sampling" as a term is improper since it is the mixture of two different procedures. Time sampling is one procedure, often in the form of momentary time sampling. An interval recording, partial or whole, is a totally different procedure. The question asked the best method for obtaining interval recording data. Petitioner did not correctly answer the question. Question 4-1 Question 4-1 may have been a question that was deleted; however, the only competent evidence presented was that petitioner's answer was incorrect. Question 4-11 There was no competent evidence presented to establish that petitioner answered question 4-11 correctly. Petitioner argued that he correctly displayed the data on the graph provided because he assumed that one of the days was a "no chance" day. When "no chance" day occurs, the data points on either side should not be connected by a line. However, the question did not indicate that the day was a no chance day. Question 5-4 Question 5-4 asked which inference was the most reasonable to be made based on the graph that was provided. Petitioner chose the answer, "The data indicate it would be appropriate to begin the treatment phase on the fifth-day." The correct answer was, "Baseline data should continue to be collected until more representative data are obtained." This answer was the correct choice because there were only four observations reflected on the graph. Four observations are too few, even if the fluctuation in the behavior recorded is not a large fluctuation. Question 5-10 Petitioner simply read the graph incorrectly on this question. The question referred to the duration of the behavior. On a six-cycle chart, a standard behavior chart, duration is plotted on the right-hand axis, not the left-hand axis. On the left side the values get larger going up the scale, but on the right side the values get larger going down the scale. When measuring duration of behavior, if the data points on the chart go in a downward direction it would show that the duration is increasing. The correct answer was not given by the petitioner because he thought the duration was decreasing. Question 5-11 Although petitioner did not give the best answer to question 5-11, the answer recognized in the answer key as the correct answer is also incorrect. Although this question was a flawed question, and therefore should have been deleted prior to scoring, petitioner cannot be credited with a correct answer on the question, since his answer was not the best of the three answers given. In other words, although the answer on the answer key was wrong, petitioner's answer was also wrong. This question simply should not be considered in determining the scoring. Question 6-4 Question 6-4 provided a situation and then asked the question, "What is happening according to the social learning model? The key feature of the social learning theory is "cognitive mediation." Because cognitive mediation is the centerpiece of the social learning theory, petitioner's failure to mention it showed that he did not explain the situation in terms of the social learning theory. Question 6-7 Question 6-7 presented a situation and required that the examinee write "at least two prerequisites that should be established so that the client can maximally benefit from behavioral intervention." Petitioner gave one prerequisite that was correct. However, petitioner did not answer correctly the second prerequisite. The second prerequisite given by petitioner, that the client "will perform simple tasks when instructed to do so," does not address specifically the situation provided. The situation refers to the client being so restless that she runs around the room and rarely stays in her seat long enough to be taught. A prerequisite that must be established so that the client can maximally benefit from the behavior intervention is that the client hold still long enough so the training can proceed. Since this is an important and obvious prerequisite for training, petitioner's answer is incorrect. Question 6-46 Question 6-46 provides the following situation: The teacher wants to keep Sybil on task during class, but Sybil is so restless in the classroom setting on that spring afternoon she is not getting much work done. The question asks, "How could you use negative reinforcement to increase the client's behavior?" Petitioner answered the question by stating; "Nag Sybil until she terminates the aversive stimulus by doing her work (staying on task)." Negative reinforcement occurs when you have an aversive stimulus present and the response terminates the aversive stimulus. From the information given in this question, which information is to be used in answering the question, one should know that an aversive stimulus is present. Since the aversive stimulus is present, the teacher does not have to arrange an aversive stimulus. From the information given, the appropriate negative reinforcement procedure is to tell Sybil that she can leave class, the aversive stimulus, when she does her work. Petitioner's answer requires the teacher to add an aversive stimulus to the situation. Further, petitioner's response pairs the aversive stimulus with the teacher, which should be avoided. Petitioner argues in his proposed recommended order that it might be considered irresponsible and dangerous to let a child leave the classroom where she would be unsupervised. As a practical matter, this may be true. However, there is nothing in the situation given indicating that if Sybil left the classroom she would be unsupervised. Further, petitioner's answer on the exam did not reflect this concern. From petitioner's answer, it is not apparent that petitioner was aware that an aversive stimulus was already present. Therefore, petitioner's response was not a correct answer. Question 6-48 Question 6-48 asks, "How can target behavior be strengthened?" Petitioner chose the alternative, "By making all reinforcing activities for the client contingent on the performance of the target behavior." This answer is unwise and incorrect because it refers to all the reinforcing activities for a client. All the reinforcing activities include a variety of different activities and stimuli that are reinforcing for any particular individual. To try to bring all these together, or make them contingent on the particular behavior, would probably be impossible. Although "increasing the frequency of reinforcement short of satiation" does not mention a contingency, the definition of reinforcement means that there is a contingency between a behavior and some following consequence. Therefore, the latter alternative is the best answer, and petitioner's answer is incorrect. Question 9-2 Question 9-2 provided a situation and asked, "How can you use the AB design to evaluate the behavioral treatment." The examinee was informed that his answer must explain what to do and how to do it. One of the hallmark requirements of an AB design is that behavior is measured until it is stable and a representative picture of what is happening in that phase is obtained. Petitioner's answer did not reflect that data be collected until a stable and representative picture is obtained, and therefore his answer was incorrect. Question 10-8 Question 10-8 set forth a situation involving the staff at a facility. The situation explained that staff members were dissatisfied with the working conditions and complained that raises, work schedules and special privileges were made on the basis of whom the supervisor liked rather than on staff performance. The question asked how the supervision and management system could be changed to make it more effective. The question stated that the answer should explain how the examinee would determine the effectiveness of staff performance and what types of consequences might be provided for performance. Although respondent's answer reflected certain positive reinforcers to use for appropriate performance, petitioner mentioned no negative consequences for a poor performance. Although petitioner mentioned evaluations, by stating "if the measuring instrument to evaluate performance is sufficiently detailed there are likely to be far less disputes regarding evaluations," petitioner does not mention having regular evaluations of the staff. Because petitioner did not include any negative consequences for poor performance, and did not mention regular evaluations as a means of determining the effectiveness of staff performance, petitioner's answer is incorrect. TRAINING PROVIDED BY HRS Prior to taking the examination, petitioner attended training classes conducted by Mr. Stelios Chimonides, an employee of HRS. The training classes were provided by HRS as a means by which practitioners could prepare for the certification examination. However, the training provided by HRS did not cover all the competency areas covered on the exam. Further, Mr. Chimonides used certain terms in training that were not identical to the terms used on the exam. However, the examination was not designed to test the information learned in the HRS training session. The examination was designed to test the practitioner's competency in the field of behavior management. Thus, the quality and thoroughness of the training provided by HRS through Mr. Chimonides is not relevant in determining whether petitioner should pass the exam and be certified by HRS. Further, petitioner did not establish that any of the correct answers on the examination were in conflict with the information provided during training.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding that petitioner did not pass the Behavior Management Certification Examination given on June 28, 1985, and that petitioner's request to be certified be denied. DONE and ORDERED this 29th day of May 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May 1987. APPENDIX The following constitute my rulings, by paragraph, of the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact 1-2. Accepted to the degree relevant in paragraph 12. Accepted to the degree relevant in paragraph 7. Accepted, in that the items were deleted as explained in paragraph 8, the remainder is rejected in that petitioner's statement does not correctly explain a negative discrimination index. Accepted that Dr. Beard's analysis was a statistical one in paragraph 7 and 8. Accepted as stated in paragraph 5. Accepted in paragraph 7. Rejected as irrelevant. 9-10. Accepted to the degree set forth in paragraph 5. Rejected in that all of HRS's witnesses were petitioner's witnesses. Accepted generally in paragraph 1. 13-14. Accepted as stated in paragraphs 2 and 9. 15-23. Rejected as irrelevant or not appropriate findings of fact; however, accept that test was not based on Chimonides' training in paragraph 34. 24-25. Accepted generally in paragraphs 15 and 17. 26-29. Accepted in part and rejected in part in paragraph 20. Witness Shepherd did state that "interval recording" was not used as a synonym for "partial interval time sampling." This is consistent with Dr. Johnston's testimony which indicated time sampling is a totally different procedure from an interval recording, either partial or whole. 30-34. Accepted in part and rejected in part as stated in paragraph 23. Rejected as irrelevant. Rejected by contrary findings. 37-40. Accepted in part and rejected in part as stated in paragraph 25. 45. Accepted in part and rejected in part in paragraph 26. 46-48. Accepted in part and rejected in part in paragraph 27. 49-54. Accepted in part and rejected in part in paragraphs 28-30. 55-56. Accepted in part and rejected in part in paragraph 31. 57-62. Accepted in part and rejected in part in paragraph 33. 63. Rejected by contrary finding in paragraph 35. Respondent's Proposed Findings of Fact Accepted as stated in paragraph 16. Accepted in paragraph 15 and 35. Accepted generally in paragraphs 12-14. Rejected as specific finding as unnecessary, but accepted as true. Rejected as cumulative. 6-8. Accepted to the degree relevant in paragraphs 1 and 2. Accepted in paragraphs 2 and 5. Rejected as irrelevant and not supported by competent substantial evidence. 11-12. Accepted generally in paragraphs 8 and 9. Rejected as cumulative. Rejected as specific finding of fact as unnecessary, but accepted as true. Accepted in paragraph 11. 16-17. Accepted as stated in paragraph 12. Accepted as stated in paragraph 17. Rejected as cumulative. 20-21. Rejected as not findings of fact. COPIES FURNISHED: George Tsismanakis, pro se 403 N.W. 2nd Avenue Okeechobee, Florida 33472 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Paul V. Smith, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
The Issue Whether Respondent violated section 760.10, Florida Statutes, by discriminating against Petitioner based on his race (black) and age (over 40 years old) and retaliating against him for engaging in protected activity.1
Findings Of Fact Petitioner is a male African-American who was 46 years old at the time of the formal hearing. At all times relevant to this proceeding, Petitioner was over the age of 40. Petitioner graduated from Tuskegee University with a degree in mechanical engineering. He has 17 years of experience in manufacturing and 10 years of working in management. On May 14, 2004, WDW hired Petitioner as a host and ride attendant at WDW's Animal Kingdom Dinoland Attraction. Petitioner was an hourly employee. On November 3, 2004, WDW promoted Petitioner to a position titled "Material Control Supervisor," which is a salaried position. Petitioner's promotion included a substantial pay increase from his prior hourly position. Although there was no change in his actual duties, Petitioner's job title changed from Supervisor to Superintendent. In January 2008, his job title changed to Service Manager. Material Control is one of several departments within WDW's in-house manufacturing unit, which is referred to as "Central Shops." Until September 2007, Petitioner's direct supervisor was either Laura Greico or Bill Pace.2 In September of 2007, Donald W. Drasheff, Jr., became the manufacturing manager of Central Shops and became Petitioner's direct supervisor. Mr. Drasheff, a Caucasian male, was 37 years of age at the time of the formal hearing. In addition to Petitioner, Mr. Drasheff had direct supervision over Robert Castillo (Hispanic male under 40 years of age), Anthony Roberts (black male over 40 years of age), and Betty Forrest (black female over 40 years of age). For ease of reference, these employees will be referred to as Mr. Drasheff's direct reports. All of Mr. Drasheff's direct reports were salaried superintendents or supervisors (later titled service managers). When the title of the direct reports was changed to service manager, Petitioner's pay grade was changed from a 27 to a 30. The pay grades overlap, and Petitioner received no additional compensation when his pay grade was changed. The reclassification for Petitioner and the other direct reports was in title only. No one received any additional compensation. Mr. Drasheff informed his direct reports that he expected each of them to be present at the time their subordinates clocked-in around 6:30 a.m. and clocked-out in the afternoon; absent emergency circumstance, each was to obtain advance approval of vacation and personal appointments; each had to arrange coverage from another Drasheff direct report when absent; and each had to inform him if he or she was going to be late. Mr. Drasheff informed his direct reports that he expected them to be available 24 hours per day, 7 days per week. Mr. Drasheff regularly met with all his direct reports, including Petitioner, on a one-on-one basis to discuss his expectations as a manager, the status of pending projects, and to follow up on any outstanding issues. Mr. Drasheff provided his direct reports performance critiques when he thought it necessary. Mr. Drasheff kept notes of those meetings to document his discussions with his direct reports. There was insufficient evidence to establish that Mr. Drasheff treated Petitioner any differently than he treated his other direct reports. Between September 2007 and September 2008, Petitioner's job performance was inconsistent, and he failed to meet reasonable expectations. Petitioner repeatedly complained about his work assignments and his level of pay. Mr. Drasheff repeatedly met with Petitioner and counseled him as to his performance and to areas of performance that required improvement. On March 11, 2008, Robert Castillo was hired as a service manager over the paint shop, which is a department within the Central Shop. Petitioner applied for the position for which Mr. Castillo was hired because the pay grade was higher than Petitioner's pay grade. While Mr. Castillo had little or no training as a painter, he had management skills WDW wanted. Mr. Castillo was an external hire, i.e., he was not promoted from within WDW. As an external hire, Mr. Castillo could and did command a higher salary than an employee such as Petitioner, who had been promoted from within the company. At the time he was hired, Mr. Castillo was paid $60,000.00 per year while Petitioner was earning $57,000.00. Neither the decision to hire Mr. Castillo nor the disparity in pay was based on Petitioner's race or age.3 On September 5, 2008, Mr. Drasheff again discussed with Petitioner some of the issues they had been discussing throughout the year. Those issues included Petitioner's failure to follow up on job assignments, failure to communicate non- emergency absences, failure to obtain coverage in the event of absence, failure to get to work on time, and lack of dependability. Mr. Drasheff advised Petitioner that he would evaluate Petitioner's job performance in the category of "falling behind," which is an unsatisfactory rating, and that he would place Petitioner on a 60-day performance plan (PDO), once the PDO had been constructed with the assistance of WDW's human relations department (HR). On September 7, 2008, Petitioner lodged a complaint against Mr. Drasheff by a telephone call to WDW's hotline, which is the company's complaint line. Petitioner asserted that Mr. Drasheff was harassing him, that he was being discriminated against, and that his pay was inequitable. For the evaluation period October 1, 2007 to September 30, 2008, Petitioner received an annual performance rating of "falling behind." On November 6, 2008, Petitioner began the PDO that had been developed by Mr. Drasheff and HR. The PDO outlined the performance concerns that Mr. Drasheff had been discussing with Petitioner throughout the previous year. When he issued the PDO, Mr. Drasheff advised Petitioner that there would be weekly review sessions during which he and Petitioner would discuss Petitioner's performance and any concerns Mr. Drasheff had with that performance. These weekly sessions replaced the less formal one-on-one sessions Mr. Drasheff had utilized during the previous year. The PDO included a 30-day review and a 60-day review with a representative from HR present to monitor Petitioner's progress. In January 2009, while still on the PDO, Petitioner caused damage to a company vehicle that Mr. Drasheff attributed to Petitioner's lack of attention. Mr. Drasheff, with the assistance of HR, issued Petitioner a counseling memorandum in connection with the accident. At the conclusion of the PDO, Mr. Drasheff concluded that Petitioner's performance while on the PDO had been inconsistent and that he should be placed on an "At Risk Plan," which was a 30-day plan to provide Petitioner a final opportunity to improve his performance. A representative of HR assisted in developing and monitoring the At Risk Plan. The development of the PDO and the subsequent development of the At Risk Plan were consistent with established WDW policies. Petitioner disputed that his performance had not satisfied the PDO and asserted that he should not have been placed on the At Risk Plan. Mr. Drasheff, in consultation with HR, determined that Petitioner's performance remained inconsistent during the At Risk Plan period. Petitioner had periods during which he performed well, but he was unable to sustain satisfactory performance. Petitioner continued to lack dependability, failed to adequately communicate with Mr. Drasheff, and did not follow through with projects as expected. There was no evidence that Petitioner's race or age was a factor in Mr. Drasheff's evaluation of Petitioner's performance. Towards the end of the At Risk Plan, Petitioner was told during a meeting with Mr. Drasheff and a representative from HR that he was not meeting expectations and that he was in danger of losing his job. Mr. Drasheff therefore recommended to his immediate supervisor and to the HR director that Petitioner's employment be terminated. While that recommendation was pending, Petitioner went on family medical leave for one or two weeks. After Mr. Drasheff had submitted his recommendation of termination to his immediate supervisor and to HR, Petitioner filed with FCHR the Charge of Discrimination dated April 1, 2009.4 Petitioner's employment with WDW was terminated when he returned from family medical leave. Mr. Drasheff followed WDW policies and procedures in supervising Petitioner. There was insufficient evidence to establish that Mr. Drasheff or any other WDW employee discriminated against Petitioner based on Petitioner's race or age. There was no evidence that Mr. Drasheff or any other WDW employee retaliated against Petitioner based on any complaint made by Petitioner regarding pay inequity or discriminatory treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order that dismisses Petitioner's claims of discrimination. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of March, 2011.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, a career service employee of the Department working in the economic services unit of the Department's District 9 (hereinafter referred to as the "District"). His employment with the Department began on September 30, 1987, when he was hired to fill a Public Assistance Specialist (hereinafter referred to as "PAS") position. On May 6, 1994, Petitioner was promoted to a Senior PAS position. The Senior PAS classification was relatively new. It was established in August of 1993. Along with his promotion, Petitioner received a 10 percent salary increase. It was then, and it has remained, an accepted general, Department-wide practice (but not a requirement) to give salary increases of 10 percent, if possible, to Department employees upon promotion. Whether such a 10 percent promotional increase should be given in a particular instance to a promoted employee working in a district office is a matter that is within the discretion of that district's district administrator. By letter dated January 6, 1995, the Department requested the Department of Management Services (hereinafter referred to as "DMS") to grant upward pay grade adjustments for the PAS and Senior PAS classifications. 1/ The letter read as follows: As you are aware, Florida's error rates for public assistance programs have been well over the national average and the federal government has imposed penalties in both our food stamp program and . . . Aid to Families with Dependent Children. The department has worked very hard to develop strategies to reduce error rates and subsequent penalties by decreasing fraudulent practices, improving communications between workers and clients, improving the FLORIDA system and providing better training staff. A major effort is being made to attract and retain good employees and to reward and retrain current staff and decrease turnover rates. In order to ensure the success of these efforts, we are requesting upward pay adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist with an effective date of December 30, 1994. We wish to adjust the pay for the Public Assistance Specialist from pay grade 015 to 016 and give employees assigned to the class the difference in the minimum salaries for these pay grades. This increase will be in the amount of $40.91 biweekly per employee. We also wish to adjust the pay for Senior Public Assistance Specialists from 016 to 017. Because these employes were recently promoted and received a promotional increase at that time, we are requesting approval to only increase the salary of those employees assigned to the class who are below the new minimum. These employees will receive an increase to the minimum of the new range. Employees who are above the minimum salary of the adjusted pay grade will receive a one- time lump-sum bonus payment using productivity enhancement monies in lieu of a salary increase in order to provide some equity in the class. There is sufficient rate and budget to support this request. If you have any questions, please let me know. We will be happy to meet with you or your staff to discuss this request. PASs and Senior PASs are included in a collective bargaining unit represented by AFSCME Council 79 (hereinafter referred to as the "Union"). In accordance with the provisions of the collective bargaining agreement covering this bargaining unit, DMS, by letter dated March 15, 1995, notified the Union of the Department's proposed pay grade adjustments and invited the Union to comment on the proposal. On March 20, 1995, the Union gave DMS written notice that it "approved" of the proposed pay grade adjustments. By letter dated March 23, 1995, DMS informed the Department of its decision to make the requested adjustments (hereinafter referred to as the "1995 pay grade adjustments"). The letter read as follows: This is in response to your January 6 letter requesting pay grade adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist. Based on the information provided and that funding is available, we concur with your request and have adjusted the pay grades for the classes of Public Assistance Specialist, Class Code 6057, from Pay Grade 15 to 16, and Senior Public Assistance Specialist, Class Code 6050, from Pay Grade 16 to 17. All other designations remain the same. The pay grade adjustment for the class of Public Assistance Specialist will be accomp- lished by increasing the employees' base rate of pay by the difference between the minimum of the pay grades, provided it does not place their salary above the maximum of the range. The class of Senior Public Assistance Specia- list was established effective August 4, 1993. Based on your statement that employees were promoted over a year ago into this class and received a promotional increase at that time, we concur with your request to increase the salary of those employees assigned to the class who are below the new minimum to the minimum of Pay Grade 17. As requested in your letter and our conver- sation with the Office of Planning and Budgeting, these actions are effective December 30, 1994. If you have any questions concerning this matter, please call me or Ms. Mary Dinkins at . . . . Petitioner was among the Senior PASs employed by the Department whose salary was below the minimum salary for Pay Grade 17. Accordingly, as a result of DMS having reassigned the Senior PAS classification from Pay Grade 16 to Pay Grade 17, Petitioner's salary was increased (by $1.47 biweekly, retroactive to December 30, 1994) to $813.96, the minimum salary for the newly assigned pay grade. The salaries of all other similarly situated Senior PASs in the state were likewise increased to the minimum salary for Pay Grade 17. 2/ There are employees in the District presently filling Senior PAS positions who have fewer years of service with the Department than Petitioner, but whose salaries (for reasons that have no apparent connection to their job performance, qualifications or duties) are nonetheless greater than his. 3/ (These are employees who were promoted to their Senior PAS positions after the pay grade for the Senior PAS classification was upgraded to a Pay Grade 17 and who, in addition to their promotions, received a 10 percent increase in salary upon their promotions, as Petitioner had when he was promoted to his Senior PAS position.) On May 24, 1995, Petitioner filed an employee grievance with the Department requesting that the Department "make [his] salary equitable with those Senior P[ASs] whose promotions were granted after 12/31/94 and . . . restore to [him] all pertinent back pay, since 1/1/95." Petitioner's grievance was presented to a grievance committee, which issued the following written "summary/recommendation:" It is the findings of this Committee that while the public assistance upgrades caused some variations with how individual PAS[s] and Senior PAS[s] ended up on the pay scale in comparison to each other, based on when promoted to a Senior PAS, all staff in like positions were treated in the same manner statewide. The variations resulted in trying to create a career ladder as well as upgrade entry level positions. Mr. Chernaik is correct in that he- and also other Senior PAS[s]- might be paid less and have more experience than a PAS who now gets promoted to Senior PAS. This issue may be resolved on a statewide basis. However, if the statewide resolution does not occur, this Committee recommends that every effort should be made to correct this inequity by like compensation for all Senior PAS[s] at the local level. As stated in the grievance filed by Mr. Chernaik, this inequity began 12/31/94 and compensation should begin retroactive to this date if salary and rate would be available. Although difficult to establish a definite time frame for action, this Committee will suggest that the State of Florida act upon this matter by December 31, 1995. At that time, if no resolution can be found at the State level, this Committee recommends that District 9 pursue all options to correct this inequity by 6/30/96 retroactive to 12/31/94. After reviewing the grievance committee's written report, the District Administrator denied Petitioner's grievance on September 7, 1995. On September 21, 1995, Petitioner requested "Secretarial review" of the District Administrator's decision to deny his grievance. By letter dated December 18, 1995, the Department's Human and Labor Relations Administrator, David Wilson, responded to Petitioner's request. Wilson's letter read as follows: This is in response to your request for a Secretarial Review of your Career Service grievance dated May 2[4], 1995. I have been designated by the Secretary to review the concerns expressed in your grievance. Our examination of the relevant data finds that the Grievance Review Committee did a thorough job in its investigation. The committee found that subsequent to the public assistance specialist pay grade adjustments, some newly promoted senior public assistance specialists may have received a higher salary than existing senior public assistance specialists with more experience. The committee recommended that if this situation could not be resolved as a statewide issue, means should be found to address it within District 9. Finally, the committee recommended that any compen- sation adjustments should be retroactive to December 31, 1994. The threshold issue in this grievance is whether or not there have been any violations of the state's pay rules. In its letter of March 23, 1995, the Department of Management Services (DMS) approved the Department of Health and Rehabilitative Services' (HRS) request to adjust only the salaries of those Senior Public Assistance Specialists " . . . assigned to the class who are below the new minimum of Pay Grade 17." This method of implementation was requested by HRS due to the limitation of available funds at the time the pay grades for the classes in ques- tion were adjusted. Personnel Rule, Section 60K-2.006(2), Florida Administrative Code, Upward Pay Adjustments, states in relevant part, "When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted. This procedure for granting pay adjustments shall apply unless a different method of implement- ation is required by the department." Based on the fact that DMS approved this method of implementation as provided for in the above cited rule, there is no violation of the Rules of the Career Service System. As it relates to the recommendation that there should be retroactive salary increases, there is no provision in the Personnel Rules of the Career Service System for retroactive pay. In fact, it is specifically prohibited. Section 60K-2.022(3) states in relevant part: "An agency shall not establish a retroactive effective date for any salary action." In the September 7, 1995 response to your grievance, District Administrator Suzanne Turner correctly stated that pay grade adjust- ments and pay adjustments related to the minimums of classes are statewide issues, as noted above. Subsequent to her response, it was determined that this issue was to be handled at the district level after conside- ration of available budget and rate. Based on the foregoing, I find no violation of the Rules of the Career Service System. Petitioner thereafter requested the Department to "grant [him] a Section 120.57 hearing on the matter." The Department granted the request and referred the matter to the Division. In addition, on or about January 11, 1996, Petitioner brought his grievance to the attention of DMS. DMS responded by sending Petitioner a letter, dated February 7, 1996, which read as follows: We received the documents you submitted regarding your career service grievance on which a final decision was issued by Mr. David Wilson of the Department of Health and Rehabilitative Services on December 18, 1995. Rule 60K-9.004(7), states that the agency head's decision on a grievance is final except as provided in Section 60K-9.004(6), which states: "That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or designee's decision." We have reviewed Mr. Wilson's answer and concur that there has been no violation of any Career Service rules and regulations. Inasmuch as your grievance does not cite additional violations of Career Service rules and regulations, we consider the agency head's decision final on the matter. On February 23, 1996, DMS sent the following letter to Petitioner: 4/ This is in reference to your February 20 tele- phone call to Ms. Mary Dinkins regarding my February 7 letter to you. We have again reviewed your grievance and do not find any violations by the Department of Management Services (DMS) in approving the pay grade adjustment for the Senior Public Assistance Specialist class. Section 60K-2.006(2), Florida Administrative Code, indicates "This procedure for granting pay adjustments shall apply unless a different method of implementation is required by the department." The Department of Health and Rehabilitative Services requested the method of implementation and DMS has the authority to approve it. On April 30, 1996, DMS sent a third letter to Petitioner, which read as follows: 5/ This replies to your career service grievance of January 11, 1996, asserting that the Department of Management Services violated section 110.209(1), Florida Statutes, by creating an inequitable pay plan when it approved, by letter of March 23, 1995, the request of the Department of Health and Rehabilitative Services to adjust the pay grade of the classification of Public Assistance Specialist, class code 6057, from pay grade 15 to pay grade 16 and the class- ification of Senior Public Assistance Specia- list, Class Code 6058, from pay grade 16 to pay grade 17. We understand the basis of your assertion that DMS created an inequitable pay plan to be that when the upgrade was put into effect you received a pay raise only to the minimum pay for the classification and that thereafter employees who were promoted from PAS to Senior PAS were promoted with pay raises that gave them higher salaries than yours although you had more seniority. The HRS letter of January 6, 1995, requested approval to increase the salaries of only those in Senior PAS positions who were below the new minimum, and to increase them to the new minimum, because those employees had been recently promoted and received a promotional increase at that time. The DMS approval of that request was authorized by Rule 60K-2.006(2). On March 15, 1995, DMS wrote to the President of AFSCME pursuant to Article 1, Section 3 of the collective bargaining agreement, explaining the proposed action. AFSCME approved it in writing on March 20. Under Section 110.209, DMS provides a broad salary range for each class, and each employing agency determines the specific salaries. DMS was not involved in the pro- motions and salary decisions that were made after the pay upgrade. HRS did not submit those proposed actions to DMS for approval, and DMS does not exercise approval authority over such actions. The later promotions with higher pay were not contemplated in the March 23 approval. It is our position that our approval did not create an inequitable situation and that DMS did not have any responsibility for the subsequent pay decisions. Your letter of March 4 requests a hearing on the grievance. Rule 60K-9.004(5) provides for a 14-day deadline to file a grievance; that is, 14 calendar days after the event that give[s] rise to the grievance. Your grievance against DMS is untimely. There is no statute or rule providing for a hearing on a career service grievance, even if the grievance had been timely. The DMS decision on a career service grievance is the final action. Your request for a hearing is denied. The Public Employees Relations Commission has ruled that it does not have jurisdiction of career service grievances. Copies of two PERC orders to that effect are enclosed (Goll and Sullivan cases).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department (1) find that Petitioner did not receive an "underpayment," as defined in Rule 60L-8.003(1), Florida Administrative Code, and is not entitled to the backpay he has requested; and (2) exercise its discretion, pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code, to increase Petitioner's rate of pay (prospectively) so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1996.
