The Issue The issue is whether Respondent discriminated against Petitioner in employment on the basis of age in violation of section 760.10(1)(a), Florida Statutes (2013).
Findings Of Fact Formed in 1976, Respondent is a small federally chartered savings bank, also known as a community bank, with its main office in Miami. At all material times, Respondent has maintained three or four branch offices in south Florida. Respondent has 73 fulltime and parttime employees in its main and branch offices and has, at all times, employed the jurisdictional minimum of employees to be covered by the Florida Civil Rights Act of 1992, as amended. Respondent is a minority-owned bank that specializes in service to the Hispanic community. Respondent's primary banking services are checking, savings, and mortgage lending for residential and commercial properties. Respondent suffered a decline in business during and after the 2008 recession. Even so, in one fiscal year ending between 2008 and 2012, Respondent had $1-$1.5 million in earnings. However, its revenues declined sharply in 2011 and 2012. For the fiscal year ending June 2012, Respondent reported $8.5 million in losses. In anticipation of future losses, Respondent transfered $6 million from capital to a loss-reserve fund. Due to Respondent's decline in business, as well as a decline in the value of Respondent's mortgage portfolio, the Office of the Comptroller of the Currency (OCC) conducted ongoing examinations from 2008 through 2012. Eventually, in September 2012, Respondent and OCC entered into a Consent Order, under which Respondent continues to operate. Among other things, the Consent Order has required Respondent to streamline its workforce in order to reduce expenses. Although the Consent Order had not been executed during the summer of 2012, Respondent's officers and directors were aware at that time that their bank would soon be under a consent order that would require significant restructuring of Respondent's workforce. Petitioner, who was born on January 27, 1941, started working at Respondent in the late 1980s. During the ensuing 26 years, she has always worked in the bookkeeping department, which is located in the main office. In 2012, Petitioner's primary duty was to process Automated Clearing House (ACH) returns on unsuccessful debit transactions. This job required an employee manually to enter a code for the reason for the return--e.g., insufficient funds or incorrect account number--and ensure that the proper account credit was entered. Although the components of this job have been progressively automated over the years, Petitioner testified that she was spending five to six hours daily on this work during mid-2012. In 2012, Petitioner also performed a couple of other jobs at the bank. She closed overdrawn customer accounts, which required four to five hours weekly. And she backed up for an employee who handled large checks--i.e., over $5000--to ensure that they were properly processed by the bank. Petitioner testified that no other employee was trained to perform the ACH returns. One or two other employees performed this assignment when Petitioner was not in the office, but Petitioner found their work to be substandard. In the first half of 2012, Petitioner's supervisor asked her to train another employee, Lisette Hadad, to handle the ACH returns. Petitioner did so, typically spending an hour or two at a time, over the course of three months. On July 12, 2012, when the training was substantially done, Respondent terminated Petitioner and turned her ACH duties over to Ms. Hadad. Ms. Hadad, who was 57 years old at the time, has been with the bank for 14 years. She started as a teller, but, after three years, was promoted to vault teller. After serving as vault teller, Ms. Hadad was promoted to assistant head teller. After two years in this position, Ms. Hadad was promoted to head teller. Ms. Hadad served as head teller until 2007 when Respondent created the wire transfer department and directed Ms. Hadad to handle all of the wire transfers for the bank. This is a position of high responsibility because the bank has many customers with multinational ties. As a result, Ms. Hadad daily handles wire transfers totalling millions of dollars and must ensure that each transfer complies with applicable federal laws. However, wire transfers did not fill Ms. Hadad's work day. She has assumed all of Petitioner's duties concerning ACH returns while continuing to perform the wire transfer duties. Several nondiscriminatory reasons explain Petitioner's termination. First, in the summer of 2012, the bookkeeping department consisted of three employees, and the other two employees had worked with the bank for about four years longer than Petitioner and performed work that Petitioner was not able to perform. At the same time, the bookkeeping department was slowly losing staff due to automation. Ms. Hadad did not transfer to the bookkeeping department after Petitioner was terminated. One of the other bookkeeping employees was transferred to an opening in customer services, so that, today, the bookkeeping department consists of a lone employee. Petitioner testified that the ACH return work resisted automation. However, over time, more parts of this job have been automated, according to Ms. Hadad. In the same vein, Petitioner's abilities were limited. While she was performing the ACH return work, external auditors routinely found the same errors, year after year. Since Ms. Hadad has assumed this responsibility, the external auditors have found the work to be much better--to the point that, last year, there was not a single repeated error. Nothing in the record supports an inference of age discrimination in the termination of Petitioner. Respondent had a pressing need to cut its workforce in response to reduced revenues in general and auditors' demands in particular. At the same time, Respondent maintains a remarkably mature workforce and does not appear to have used workforce reductions as a means to trim the age of its workforce. At the time of the hearing, four of Respondent's employees were in their 70s, 14 of its employees were in their 60s, and 23 of its employees were in their 50s-- with the average age of its employees being 50 years. Respondent added two employees in 2012; both were in their 70s. At the hearing, Petitioner admitted that her allegation of the termination of another employee of advanced years was a mistake. The former employee testified that she chose to retire less than three months after Petitioner had been terminated. At the time of her retirement, at 72 years of age, this employee rejected an offer from the bank to continue to work part time. Respondent also maintains an unusually cohesive, loyal workforce. As noted above, Petitioner's coworkers in the bookkeeping department had each worked with the bank for 30 years. The 72-year-old employee mentioned in the preceding paragraph had worked with the bank for 33 years at the time of her retirement. The Chief Financial Office, Victor Fernandez, who informed Petitioner that she was being terminated, has worked at the bank for 20 years and, earlier in his career, regularly had lunch with Petitioner. From this personal relationship with Petitioner, Mr. Fernandez knew that she owned or leased an apartment at Hallandale Beach, and she intended to live in the apartment after she retired. For this reason, at the meeting at which Mr. Fernandez terminated Petitioner, he tried to make Petitioner feel better by mentioning how she could now live in her apartment at the beach. This comment was not an unguarded disclosure of an unlawful focus on Petitioner's age; rather it reflected Mr. Fernandez's concern for the feelings of Petitioner and his knowledge that, at some point, she wanted to retire to the apartment. Given the above-cited evidence clearly establishing nondiscriminatory reasons for Petitioner's termination, it hardly seems necessary to add that, in any event, Mr. Fernandez was only communicating to Petitioner a decision that had been made by others. As part of its streamlining efforts, Respondent had retained outside consultants to study Respondent's workforce for inefficiencies and redundancies. The consultants recommended workforce reductions, which were then considered and implemented by department managers in conjunction with human resources staff. Mr. Fernandez took no part in this process as it applied to Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 14, 2014. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jay J. Lorenzo, Esquire Lorenzo and Rodriguez-Rams 9192 Coral Way, Suite 201 Miami, Florida 33165 Eddy O. Marban, Esquire Law Offices of Eddy O. Marban 1600 Ponce De Leon Boulevard, Suite 902 Miami, Florida 33134 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner because of his race or age when he was not selected as Lead Mechanic in Area I KA/Nitric.
Findings Of Fact Petitioner is a black male who was over 40 at the time he applied for the Area I (One) Lead Mechanic position. At the time Petitioner applied for the Area I Lead Mechanic position, he was a lead mechanic in the Central Maintenance Compressor and Gear Box shop, pay grade level 28 position. Pay grade level 28 is the highest nonexempt pay grade at Solutia, Inc. On January 25, 1999, Solutia posted a job opening for a lead mechanic position in Area I KA/Nitric, a pay grade level 28 position. Petitioner applied for the Area I Lead Mechanic position. Had Petitioner been selected for the Area I Lead Mechanic position, it would have been a lateral transfer and not a promotion because Petitioner was already at a level 28 pay grade. No evidence was received that the incumbent of the Area I Lead Mechanic position would have had more authority or promotion opportunities than the position previously held. Petitioner, along with three other mechanics, interviewed for the Area I Lead Mechanic position. The other three applicants were: William G. Cook (a white male); Joseph S. Mann (a white male); and David Wolfe (a white male). Petitioner admits that all the applicants were qualified for the Area I Lead Mechanic position. Respondent used a ranking procedure to evaluate the applicants for the Area I Lead Mechanic position. The applicants were ranked by subjectively grading their answers to questions in five areas: 1) problem-solving and decision-making ability; 2) teamwork and coaching ability; (3) communication ability; (4) honoring differences; and (5) results orientation and initiative. The applicants were given a score from one to five by each panel member based upon the panel members' subjective assessment of applicants’ answers on each of the five criteria. Five was the highest grade and one being the lowest. The points were totaled and converted into a percentage score. The applicant having the highest overall score was selected to fill the job. The applicants were interviewed by a panel composed of six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony Williams (a black male); Terry Wilcox (who was over 40 at the time of the interview); and Greg Barker. All of these persons were from Area I. The majority of the panel worked regularly with the person ultimately selected. Petitioner admits that there was no overtly discriminatory questions or activity in the interview. There were no questions or discussions amongst the panel members about the applicants' race or age. The panel members scored each applicant separately without knowing how the other panel members scored the applicants. The panel members scored the applicants as follows: W. Cook S. Holly J. Mann D. Wolfe Nikki Owens 45% 77% 90% 67% Michael Conley 53.3% 63.3% 70% 63.6% Darren Dobson 40% 63% 70% 67% Greg Barker 40% 57% 73% 57% Tony Williams 57% 73% 67% 50% Terry Wilcox 33% 66.6% 76.6% 57.7% After the individual panel members totaled their respective scores, the applicants were ranked. Joseph Mann was ranked first by five of the six panel members, and one panel member, the black male, ranked Petitioner first. The panel discussed the results and reached a unanimous consensus to offer the Area I Lead Mechanic position to Joseph Mann. The panel prepared and provided feedback to all the applicants. Petitioner's shortcoming was that he failed to give specific examples to questions posted during his interview. When he was not selected, Petitioner complained about the outcome, believing he was the most qualified applicant and was rejected for racially motivated reasons. Rachel Gold (a black female) and Lerissa Rowe, who both worked in Respondent's Human Resources Department, investigated Petitioner's complaint. During their investigation, it came to their attention that a panel member, Terry Wilcox, stated to a co-employee, "I don't think that there would ever be two black people in charge of a group of white mechanics in a shop." After learning of Terry Wilcox' comment, Respondent took the following action: (a) Respondent recalculated the panel's score leaving out Terry Wilcox' score; and (b) Respondent disciplined Terry Wilcox by suspending him for two days without pay. After recalculating the scores, Joseph Mann still had the highest overall score. Petitioner's overall score remained the same. Petitioner remained with Respondent until he voluntarily retired effective November 1, 1999. No one forced Petitioner to retire. The decision was Petitioner's alone, prompted in part by a change in Respondent's retirement plan. Petitioner admits that none of the panel members had ever discriminated against him because of his race or age prior to the complained of selection. Since retiring, Petitioner has not sought employment elsewhere. He is basically enjoying retirement.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the instant petition. DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of November, 2001. COPIES FURNISHED: Sylvester A. Holly, Jr. Post Office Box 301 Cantonment, Florida 32533 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
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 adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1995.
The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is David L. Lucas. He was employed by Respondent, Marc Downs, Inc., a clothing store chain, from August of 1989 until January 28, 1990. Approximately two months before the conclusion of his employment with Respondent, Petitioner and other employees employed in the Marc Downs Store located in the Wal-Mart Shopping Center on East Apalachee Parkway in Tallahassee, Florida, began working under the supervision of a new store manager. The new store manager was Desiree DeVelder, a white female. In addition to DeVelder, there was one other white female employee on the store's sales staff. The remainder of the ten person sales force in the clothing store was black. Petitioner was the only black male member of that sales force. Petitioner and other employees became increasing aware of DeVelder's discomfort at working with a predominantly black sales force. She kept to herself when at all possible. She confided to Petitioner that she did not like the way that the black people acted and on one occasion she stated that there were too many blacks working in the store. On January 28, 1991, DeVelder called a meeting of the store employees after the store had closed for the day. She presented each of the black employees, but not the solitary white employee, with a form entitled "Employee Disciplinary Notice". The form had been filled out for each black employee recipient and documented that the employee was the subject of disciplinary action for "poor attitude and not following Marc Down's Employee Policy Manual". The form further documented that the corrective action was to be a 30 day probationary period for the employee and that unemployment compensation would not be paid if the employee quit or was dismissed from employment during the probationary period. Each form for each employee was signed by DeVelder. DeVelder asked each of the black employees to sign their individual forms. Petitioner asked for an explanation of the form. DeVelder refused to provide an answer and Petitioner said he would think about it and provide DeVelder with a decision the next day. As he turned to leave, DeVelder struck him in the back and began screaming at him that he was fired.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the Petition for Relief and directing the payment to Petitioner by Respondent of back pay at the rate of $400 per month from January 28, 1990. DONE AND ENTERED this 13th day of May, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1992.
The Issue Whether Respondent, American Support, discriminated against Petitioner, Linda Dodge, in violation of the Florida Civil Rights Act of 1992 (the Act) sections 760.01–760.11 and 509.092, Florida Statutes, based upon her sex or in retaliation for participation in a protected activity.1/
Findings Of Fact American Support is a third-party telemarketing contractor for providers of cable and satellite service, with an office located in Daytona Beach, Florida. American Support is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a 61-year-old female who was hired on August 19, 2008, as a telemarketer for Evergreen, a predecessor company to American Support. Petitioner worked in telemarketing for approximately one year, was laid off by Evergreen, but was shortly thereafter reemployed by Evergreen as a receptionist/administrative assistant. Between October 2011 and December 2011, Petitioner solely performed receptionist duties. Petitioner was replaced as company receptionist by Debora Jenkins, whom Petitioner helped train. Ms. Jenkins was hired on a full-time temporary basis as the company was transitioning to new ownership. In December 2011, Petitioner was promoted to Human Resources Assistant by Nancy Cantero, Human Resources Director for American Support beginning in November 2011. Petitioner’s duties were to initiate and process criminal background checks and credit checks on applicants, validate I-9 information received for newly hired employees, create personnel files for new employees, and manage employee personnel files. Employee personnel files contain personal identifying information including dates of birth, social security numbers, driver’s licenses, and the results of criminal background and credit checks. Both parties agree that keeping applicants’ and employees’ personal information protected is a high priority for the Human Resources Department. Ms. Cantero left American Support in February 2012 and was replaced by Steven Schaible, first as a Human Resources Generalist under contract, then as corporate Human Resources Manager in March 2012. In his capacity as Manager, Mr. Schaible supervised Petitioner and two Human Resources Recruiters: Warren Hernandez and Elaine Zoe. Ms. Zoe was a virtual recruiter operating from her home in Phoenix, Arizona. Petitioner described Mr. Schaible as very friendly and outgoing when he first became Human Resources Manager. In mid-April 2012, Mr. Schaible hired a third recruiter, Anthony Sarelli, at a rate of $17 per hour. No evidence was introduced to establish the hourly rate of either Mr. Hernandez or Ms. Zoe, but Mr. Hernandez earned less than $17 per hour. Petitioner earned $13.50 per hour as Human Resources Assistant. On Thursday, April 19, 2012, Ms. Jenkins, the temporary receptionist, gave her notice and stated that she would be starting a new job Monday, April 23, 2012. Ms. Jenkins’ last day on the job was Friday, April 20, 2012. Mr. Schaible, together with Mary Celle, Vice President of Operations, made a decision to eliminate the position of receptionist. Mr. Schaible had been unable to keep Ms. Jenkins busy full-time with receptionist duties such as answering and routing phone calls, accepting parcel deliveries, handing out job applications, and directing individuals to appropriate offices. Mr. Schaible determined Petitioner was competent to perform these duties, in light of her previous service as company receptionist. Petitioner had the day off on Friday, April 20, 2012. When she returned to work on Monday, April 23, 2012, Mr. Schaible informed Petitioner that she would take over the receptionist duties while continuing to serve as Human Resources Assistant. Petitioner was physically moved from her desk to the receptionist desk at the front of the building.2/ Neither Petitioner’s title nor her salary changed when she was moved to the receptionist desk. Mr. Schaible made efforts to reduce Petitioner’s duties as Human Resources Assistant, reassigning responsibility of managing Kahuna, a software program through which new telemarketers were assigned log-in and password information, to a payroll employee, Maryanna Hilton. Additionally, Mr. Schaible instructed Petitioner to discontinue sending personal faxes for other employees. The company had taken some steps to streamline the receptionist function to make it more efficient and less time- consuming. For example, the company moved from paper applications to an online application system. The receptionist was to direct persons inquiring about job applications to computer terminals located at the building entrance in front of the receptionist desk. Similarly, the company telephone system was changed from a switchboard to automatic routing of calls to direct extensions by department. Petitioner was instructed to continue her regular Human Resources duties, but to place personnel files in a locked Human Resources file room located ten feet from the receptionist desk when she was away from her desk. On April 24, 2012, Mr. Schaible arrived at work early and noticed a stack of employee personnel files on the receptionist desk. Petitioner was not at the desk. Mr. Schaible concluded that the files had remained on the desk overnight. The files contained copies of social security cards, driver’s licenses, and the results of criminal background checks and credit checks for newly hired employees. Mr. Schaible secured the files and addressed Petitioner about the issue later that day. Mr. Schaible stressed with Petitioner the importance of keeping personnel files secure, and offered to get her a rolling file cabinet. The next day, April 25, 2012, Petitioner sent Mr. Schaible the following e-mail: “I apologize for the files when I left . . . it won’t happen again.” The following day, April 26, 2012, Mr. Schaible found a personnel file containing personal identifying information on Petitioner’s desk. Mr. Schaible removed the file and placed it in the locked file room. Later that same day, Petitioner sent the following e-mail to Mr. Schaible: “Will make sure forms are upside down on my desk before I take a break . . . my bad.” Mr. Schaible spoke to Petitioner that same day and explained that turning files upside down on the desk in her absence was not sufficient. He explained that personnel files must be secured in the locked file room when she was not at her desk. On Monday, April 30, 2012, Petitioner was on vacation, and Mr. Schaible sat at the front desk for at least some part of the day.3/ He discovered in one of the desk drawers over 50 completed W-4 forms for current employees. Mr. Schaible discussed with Ms. Celle the need to initiate the company’s progressive discipline policy and give Petitioner a verbal warning.4/ Mr. Schaible planned to meet with Petitioner late in the afternoon on May 1, 2012, and deliver the verbal warning. Petitioner was back in the office on May 1, 2012. While Petitioner was on a break and Ms. Hilton was manning the receptionist desk for Petitioner, Mr. Schaible discovered six personnel files on the desk. Mr. Schaible removed the files and decided to modify the verbal warning to a written warning, in essence moving to the second step of the company’s progressive discipline policy. Mr. Schaible did not have a meeting with Petitioner on May 1, 2012, as planned. On May 2, 2012, Mr. Schaible planned to meet with Petitioner at 3:00 p.m. to present her with the written warning and discuss the confidentiality issues. He requested that Carrie Santana, Manager of Customer Care and Quality, attend the meeting as well. At 3:00 p.m., Mr. Schaible asked Petitioner to come to his office. She was busily working in the Kahuna program, adding two new employees at the request of a manager in the Jacksonville office. Petitioner requested Mr. Schaible to wait until she completed the log-in and password information for the new employees. Mr. Schaible became angry, told her that task would have to wait, and ordered her into his office immediately. Petitioner accompanied Mr. Schaible to his office, where Ms. Santana was waiting. Mr. Schaible confronted Petitioner with the W-4 forms he had found in the receptionist desk on April 30, 2012, as evidence of her failure to follow his directions to secure personal information of company employees. Before Mr. Schaible brought up the six personnel files he had removed from the desk the previous day, Petitioner stated, “I quit,” stood up and left Mr. Schaible’s office, then exited the building. Petitioner denies that she quit her job on May 2, 2012, instead testifying that she stated, “I quit this,” meaning she quit Mr. Schaible’s treatment toward her. However, Mr. Schaible’s testimony that Petitioner stated, “I quit” on May 2, 2012, was corroborated by Petitioner’s own e-mail dated May 3, 2012, to company President Matthew Zemon, as well as Ms. Santana’s written memorandum dated May 3, 2012, in which she memorialized the events of May 2, 2012. The evidence conflicted as to whether Petitioner returned to the office on May 2, 2012, following the disciplinary meeting. Mr. Schaible testified he did not see Petitioner after the meeting that day or the next day, May 3, 2012. Petitioner testified that she returned to the building within 30 minutes, stating first that she went into Mr. Schaible’s office to complain about his treatment of her, but later testifying that his office door was closed, so she did not go in to see him. Mr. Schaible’s testimony on this issue is credible and accepted by the undersigned. Mr. Schaible e-mailed Ms. Celle following the disciplinary meeting on May 2, 2012, informing Ms. Celle that Petitioner had resigned. Mr. Schaible then completed a Record of Termination for Petitioner showing a separation date of May 2, 2012. The evidence showed that American Support did not accept Petitioner’s resignation. In response to Petitioner’s email of May 3, 2012, Mr. Zemon e-mailed Mr. Schaible and asked him to contact Petitioner and offer her a position in inbound/outbound sales at the high end of the pay range. Mr. Schaible did so, but Petitioner did not accept the offer. Petitioner clearly considered her assignment to the receptionist desk to be demeaning. She was subjected to comments from other employees suggesting she had been demoted because she could not perform Human Resources duties. She felt that the Human Resources Assistant did not belong at the front desk. Petitioner was overwhelmed with performing Human Resources duties while assisting job applicants at the computers, answering telephone calls that were not automatically routed, accepting delivered parcels, and dealing with the myriad inquiries typically made of the receptionist at any business. Petitioner complained that it was impossible to secure applicants’ and employees’ personal information with other employees passing by the front desk on their way in and out of the building. She noted that running back and forth to the Human Resources file room every time she was required to get up from the desk -- even though it was only ten feet away -- rendered her work inefficient, if not impossible. In support of her argument that she was discriminated against based on her sex, Petitioner alleged that Mr. Schaible hired a second male recruiter out of a mixed pool of applicants, that Mr. Schaible made inappropriate comments about some applicants, and that he hired a male recruiter at a rate of $17 per hour -– higher than other Human Resources employees. Petitioner submitted no evidence to establish what comments were made about any applicant for the position of Human Resources recruiter. As to hourly rates of pay, Petitioner testified that the new recruiter was paid at a higher rate than Mr. Hernandez. Further, Petitioner did not produce any evidence as to the rates of pay for either Ms. Zoe or Mr. Hernandez. Petitioner also alleged that following her move to the receptionist desk on April 23, 2012, Mr. Schaible instructed her not to take breaks with Mr. Hernandez, not to check her work e- mails from home, and excluded her from meetings with other Human Resources employees. However, Petitioner was unable to testify with certainty that other employees were allowed to continue checking e-mails from home. Ms. Zoe, the female virtual recruiter on the team, continued to participate in Human Resources meetings. Petitioner likewise complained that she was denied a raise while Mr. Hernandez received one. On April 19, 2012, in response to Mr. Schaible’s request, Petitioner submitted a self- evaluation for Mr. Schaible’s consideration. Petitioner testified that Mr. Hernandez told her a week later that he received a raise. Petitioner then asked Mr. Schaible about the time period for a decision on her raise; Mr. Schaible responded, according to Petitioner, “Not sure about it yet.[5/]” Petitioner’s hearsay statement alone is insufficient to support a finding that Mr. Hernandez received a raise. No evidence was introduced as to the status of other employees’ evaluations or raises. Petitioner’s most-repeated claim is that Mr. Schaible treated her unprofessionally by speaking to her sharply in front of other employees, yelling when he ordered her into his office on May 2, 2012, and “slamming” the W-4 files on the desk during the disciplinary meeting. Petitioner felt his treatment of her was demeaning, harassing, and embarrassing. Petitioner presented no evidence, however, that Mr. Schaible’s treatment of her was related in any way to her status as a female. In fact, when Mr. Schaible hired a replacement Human Resources Assistant, he hired another female. Petitioner alleged that Mr. Schaible acted in retaliation, but could not articulate any event for which the retaliation was lodged. When questioned by the undersigned as to her retaliation claim, Petitioner testified, It just didn’t seem like the right thing for an office atmosphere, I should say, or speak to an employee in such a manner. So it’s just his mannerism and his attitude toward me that made me feel like it was a retaliation [sic] for something, and I couldn’t figure out what it was.[6/] Petitioner may very well have been put in an impossible work situation, treated unfairly, or forced to resign. However, there is no evidence that her treatment was related in any way to her status as a female. Petitioner did admit to improperly handling employee personnel files and applicant files on at least two occasions. She denies that leaving the six files on the desk when Ms. Hilton was covering for her break was improper because Ms. Hilton worked in the payroll department and had access to employee personal information. As to the W-4 forms in her desk, Petitioner admitted that even if the forms were left in the desk by Ms. Jenkins, Petitioner was ultimately responsible for securing those documents.
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 Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 6th day of June, 2013.
The Issue The issue in this case is whether Respondent committed an unlawful employment practice by discriminating against Petitioner on the basis of his race and his gender.
Findings Of Fact Mr. Riley is a 25-year-old African-American male, who used to be employed as a correctional officer at LCI. His employment was terminated on December 9, 2011. Mr. Riley was hired on April 3, 2009. When he was hired, Mr. Riley was provided a number of Department rules and policies, such as the Department's personnel rules in Florida Administrative Code Chapter 33-208, the employee driver's license requirement, the Department's anti-harassment and equal employment opportunity statements, and a sexual harassment brochure. Mr. Riley signed a receipt acknowledging that he had been given this material and that he was responsible for reading and complying with the requirements specified in the material. Before Mr. Riley actually began working as a correctional officer at LCI, he completed three months of training at a site identified as "the Academy." Mr. Riley was trained in such matters as the Department's rules and defensive tactics to use with inmates when appropriate. After completing his training, on November 9, 2009, Petitioner was certified as a correctional officer. Following the initial three-month training program required to attain certification, Petitioner was also required to participate in annual on-site in-service training to brush up on the skills and knowledge learned in the initial training course. Mr. Riley's employment was subject to an initial one-year probationary term, which was standard and automatic for all employees. Mr. Riley's employment file reflects a sizeable number of counseling and disciplinary actions taken against him during his two years and eight months employed by Respondent, which will be summarized below. Records of these prior actions were introduced in evidence without objection; Mr. Riley did not dispute the accuracy of his employment records in this regard. Prior to the termination of his employment in December 2011, the next most recent disciplinary action against Petitioner was based on an incident occurring in January 2011. As a result of that incident, the Department initially decided to terminate Mr. Riley's employment. Petitioner, represented by counsel, exercised his right to appeal that decision to the Public Employees Relations Commission (PERC). Right before the PERC evidentiary hearing, Petitioner and the Department settled their dispute in a written settlement agreement signed by Petitioner and Petitioner's counsel. Pursuant to the settlement agreement, the Department agreed to rescind its dismissal letter and replace it with a suspension letter, by which Petitioner was suspended without pay for 44 workdays, from March 11, 2011, through May 12, 2011. Petitioner agreed to accept the suspension. In addition, the Department imposed a new one-year term of probationary employment status, starting May 13, 2011, and Petitioner accepted the one- year probationary term. Petitioner acknowledged that during the term of his probationary status, he would have no appellate rights before PERC for discipline, including for dismissal. The suspension letter summarized the incident that initially provoked a termination letter. According to the letter, Mr. Riley was observed by another correctional officer in several inappropriate encounters with an inmate: first, Mr. Riley was seen walking up to stand behind the inmate, and then, the inmate was lying on the floor; a short while later, Mr. Riley was observed dragging the same inmate by both of his feet down an aisle. After the inmate was returned to the dorm, the correctional officer informed Mr. Riley that dragging the inmate down the aisle was inappropriate and against policy and procedure. The officer asked Mr. Riley whether he was horse-playing or using force, and Mr. Riley replied that he was horse-playing. The correctional officer reiterated that this was inappropriate behavior with the inmate. At the final hearing, Mr. Riley admitted to the horse-playing incident. Petitioner accepted a substantial disciplinary consequence for his inappropriate conduct. Before the horse-playing incident, Petitioner's employment history was peppered with incidents for which Petitioner was counseled or disciplined for violating rules, policies, and procedures. Mr. Riley received three supervisory counseling memoranda: on March 31, 2010, for attendance issues; on September 7, 2010, for refusing an overtime shift when it was his turn; and on November 3, 2010, for miscounting inmates. Mr. Riley received a written reprimand on September 17, 2010, for negligence and failure to follow instructions. The reason for the reprimand was that in a forced cell extraction, Mr. Riley used a leg restraint chain in an unauthorized manner to physically transport an inmate from his cell. And on May 20, 2010, Mr. Riley was suspended for ten days, without pay, for failure to maintain proper security, negligence, and failure to follow instructions. The suspension was based on Mr. Riley's failure to conduct a 30-minute security check on the wing to which he was assigned and Mr. Riley's departure from his assigned wing to visit a different wing, without being relieved from his assigned post or authorized to enter the other wing. The horse-playing incident occurred on January 22, 2011. Following Mr. Riley's March 12, 2011, through May 12, 2011, suspension for that incident, Mr. Riley returned to work on May 13, 2011, as a probationary employee. Mr. Riley's probationary employment status would have lasted until May 12, 2012; however, he did not remain employed for the full year of his probationary status. His employment was terminated by letter dated December 9, 2011. The December 9, 2011, letter did not specify reasons for Mr. Riley's "probationary dismissal." Instead, the letter simply indicated that Mr. Riley was dismissed in accordance with Florida Administrative Code Rule 60L-33.002(5) (providing that a Department employee who is not permanent in a position, serves at the pleasure of the Department and is subject to any personnel action, including dismissal, at the Department's discretion). Although not required, LCI Warden Jennifer Folsom met with Petitioner and told him that she had decided to terminate his employment, for two reasons: first, because of his failure to report several traffic citations imposing fines in excess of $200, as he was required to do by Department rule; and second, because of the attendance problems he continued to have since returning from suspension. The evidence established that Petitioner received at least two traffic citations for which fines in excess of $200 per citation were imposed, which he did not report to the Department, as required. Petitioner's traffic citations were discovered during a driver's license records check, as part of an OIG investigation into an inmate complaint against Petitioner. The complaint was ultimately determined to be unsubstantiated, but the information regarding Petitioner's unreported traffic citations was passed on for action. The correctional officer chief, Major Victor Barber, instructed Petitioner to immediately submit the required report of his citations to his shift supervisor, then-Lieutenant (now Captain) Etta Wright. Petitioner did not follow those instructions. Petitioner was given several reminders; he finally submitted the report of his traffic citations six days after Major Barber told him to do so. Based not only on Petitioner's failure to submit the required report of his traffic citations, but also, on Petitioner's failure to follow the instructions of his superiors, an incident report was written up and brought to the attention of the warden. At the final hearing, Mr. Riley admitted that he had at least two citations with fines exceeding $200. He said that he had paid off the fines, and, although, he knew about the reporting requirement, at the time, he was under the misimpression that by paying off the fines, he did not have to report the citations. The competent, credible evidence of record also established that between May 13, 2011, and December 9, 2011, Mr. Riley had the same kind of attendance problems for which he had been previously counseled, only more so. In March 2010, Petitioner was counseled for having five unscheduled absences in one year. In less than seven months in 2011, Petitioner had five unscheduled absences due to sickness or family sickness. In addition, Mr. Riley was late twice, both classified as unscheduled absences. These unscheduled absences were in addition to one absence for sickness, which was not considered unscheduled; one personal holiday; plus 13 days of annual leave. Respondent's witnesses credibly testified that unscheduled absences are a particular problem because Petitioner was employed in a work environment where staffing shortages cannot be tolerated, and it is very difficult to cover for absences with little advance warning. Moreover, filling an unscheduled gap in required coverage of correctional officers assigned to guard inmates usually comes at great costs. These costs come in the form of strain on the officers who might have to work back-to-back shifts to cover for an unscheduled absence and, also, in the form of overtime expense that could be avoided with more advance notice. Mr. Riley was on notice that the magnitude of his unscheduled absences was considered excessive, when he was counseled in March 2010 for fewer unscheduled absences than he had between May and December 2011. A supervisory counseling memorandum dated March 31, 2010, was issued to Mr. Riley because he had used five days of unscheduled sick leave between April 3, 2009, and March 31, 2010. The memorandum noted that Mr. Riley had been previously counseled regarding attendance-related issues and explained the problems caused by Mr. Riley's absences: While it is understood that from time to time, an employee suffers personal illnesses and other associated problems including family illnesses, that make it impractical for him to report for duty, you should make every effort to report for your scheduled shift and to maintain an acceptable attendance record. Your presence on the job is vital to the effective operation of the institution. When you fail to report for duty as scheduled, your absence places a burden upon your supervisor, who must then find someone to cover your post, and your fellow employees, who must cover your shift. Management has a right to expect that its employees report to work as scheduled. Future behavior of a similar nature may result in formal disciplinary action. Mr. Riley failed to credibly explain his record of a significant number of unscheduled absences between May and December 2011, while he was on probation. Petitioner acknowledged that he left work at least once while on probation because he was not feeling well. He also acknowledged that "there were times" when he would call in sick, but said that he would follow protocol by calling in an hour or two before his shift. Petitioner's testimony regarding his attendance issues was vague. For example, he was equivocal regarding whether he ever failed to call in sick; he could only say that he did not recall doing so. In the face of documentary evidence of Mr. Riley's attendance record, showing specific dates on which Mr. Riley was credited with "unscheduled absence[s]-sick" and "unscheduled absence[s]-family sick," Mr. Riley's vague, generalized testimony attempting to discount his absentee record lacked credibility.2/ Mr. Riley knew from his prior counseling that correctional officers guarding inmates are held to strict standards for attendance because of their work environment, with critical staffing needs 24 hours per day, every day of every week. Mr. Riley should have known that his absences, totaling workdays between May and December 2011, five days of which were unscheduled absences, would be considered excessive. Petitioner attempted to prove that other employees who were not members of his race class and/or gender class were treated more favorably than he was. However, Petitioner offered only his understanding of the conduct of other employees and the consequences for such conduct. Petitioner offered no competent non-hearsay evidence to supplement or corroborate his understanding. Petitioner testified to his understanding that one white male officer was caught on camera horse-playing with an inmate, for which that officer received no reprimand. Petitioner also testified to his understanding of cell phone issues involving a second white male officer: a cell phone was found in the possession of an inmate, and the white male officer's phone number was in the inmate's cell phone; Petitioner heard that the only consequence was that the white officer was told not to have contact with inmates. Later, the officer's cell phone was found in his car, where it was not allowed. This time, Petitioner's understanding was that the officer was allowed to resign. Petitioner testified to his understanding that a white female employee "had attendance issues" and was allowed to resign. Petitioner did not offer his understanding about what kind of "attendance issues" resulted in her being asked to resign, what position she had been employed in, whether she had been previously counseled for attendance issues, or whether she had a prior record of discipline. Petitioner testified to his understanding that another white female employee also "had attendance issues." Petitioner's testimony about the second white female employee with attendance issues suffered from the same lack of information as did his testimony about the first white female employee with attendance issues. In addition, Petitioner failed to explain what consequences befell the second white female employee for the unspecified attendance issues. Petitioner admitted that as far as he knows, the four employees discussed in the four preceding paragraphs were not on probationary employment status. Petitioner knew of no employee who failed to report traffic citations and who was not terminated.3/
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 Phillip Riley's Petition for Relief. DONE AND ENTERED this 25th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 25th day of February, 2013.
Findings Of Fact Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause. DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Kenneth H. Hart, Jr., Esquire 401 Collins Building Tallahassee, Florida 32304 Brian Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
