Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. 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 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, Robert Jones (Jones or petitioner), that he was denied employment by respondent, Department of Labor and Employment Security (DLES), on account of his handicap. It is undisputed that Jones has diabetes, he is insulin-dependent, and he has had at least one toe amputated because of the disability. As such, he does not enjoy, in some measure, the full and normal use of his physical facilities, and he is accordingly deemed to be a handicapped person within the meaning of the law. The parties also agree that DLES is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. DLES denies it acted in a discriminatory manner and contends generally that (a) the handicap played no role in its employment decision since it was unaware that Jones was a disabled person when the employment decision was made, and (b) a more qualified person was hired for both positions sought by Jones. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred. Since October 3, 1982, petitioner has been employed as an investigator specialist II at the Commission. He also worked for DLES from May 1980 until October 1981, and at the Florida State Employment Service from October 1981 until April 1982. Prior to working with the state, Jones served in the U. S. Marine Corps from which he was honorably discharged with a medical disability in 1977. He is a graduate of Florida State University having received a degree in political science in December 1985. Between 1982 and 1991, respondent made application for employment at DLES on at least four or five occasions but was never hired. On July 16, 1991, he wrote a letter to the agency head, then Frank Scruggs, complaining about his inability to get a job, advising that he was a disabled veteran, and asking for a "fair shake" on his applications. Later that year, he applied for the positions of management review specialist and senior management analyst II. Although he was interviewed for one of the two positions, he was not selected for either job. In his application filed with DLES, Jones described his health as "excellent." Attached to his application papers was a certification from the Veterans Administration indicating he had a service-related disability rated at 30 percent or more. Also, he included a handwritten statement that he was a "veteran with a compensable service-connected disability." There was no indication, however, as to the nature of the disability. After receiving two rejection letters from DLES on February 10, 1992, regarding his job application, Jones filed a complaint of discrimination with the Commission on July 23, 1992, alleging he had "been discriminated against because of (his) Handicap, Diabetes." He later filed a petition for relief in which he charged that DLES' employment decision was based not only on his handicap, but also on account of his "gender, race, veteran status or any other unlawful reason." As to the grounds raised after the Commission had concluded its initial investigation, they have been disregarded as being untimely. Senior Management Analyst II Position On January 9, 1992, respondent published a job opportunity announcement for the position of senior management analyst II in the office of civil rights and minority affairs. The position had been created to assist the director of that office, Deidre Kyle, in her day-to-day responsibilities. Kyle was also the individual responsible for the hiring decision. The advertised position required as minimum qualifications that the applicant have "a bachelor's degree and four years of professional experience in systems administrative work, employment and training, employment security, grants management, education, vocational counseling, vocational placement, occupational analysis, employment selection and referral activities, program planning, program evaluation or program monitoring." Petitioner met the minimum qualifications. Besides Jones, approximately fifty persons applied for the position of senior management analyst II, including Carolyn W. Franklin, a non-handicapped African-American female then working under Kyle's supervision and filling an Other Personal Services (OPS) slot as a civil rights specialist III in Kyle's office since September 1991. Franklin had previously worked for over twelve years in the Governor's Office, principally as a governmental analyst in the Citizens Assistance Office, and mostly under the direct supervision of Shirley Gooding, who later served as inspector general, and then assistant secretary, and finally as secretary of DLES in July 1992. She had also served as the affirmative action officer for the Governor's Office for four years. Except for these latter duties, Franklin had no experience in equal employment or civil rights. Out of the fifty applicants, only four were selected for an interview with Kyle, and none was handicapped. Jones was not selected for an interview. In choosing the top candidates for an interview, Kyle relied upon the duties and responsibilities contained in the career service system position description as well as certain review criteria which she had prepared. The review criteria were: (a) extensive knowledge of equal employment and affirmative action rules and regulations, (b) thorough knowledge of Title VII of the Civil Rights Act, (c) knowledge of the Americans with Disabilities Act, (d) experience in conducting federal program compliance reviews, (e) familiarity with American Standards Institute standards, (f) effective oral and written communication skills, and (g) personal computer experience (Word Perfect and/or Lotus Preferred). The qualifications of the three individuals other than Franklin selected for the final interview are not of record. Also, the record does not show how Jones' qualifications compared with those of the final candidates (other than Franklin). Thus, there is no way to determine if Jones was more or less qualified than the others on the final list, or whether he ranked fifth or even fiftieth out of all of the candidates filing applications. Kyle made no effort to determine whether any of the applicants, including petitioner, had a handicap. Therefore, when she made the decision to reject Jones and the other forty-five candidates through the initial screening process, she was unaware of the fact that he had diabetes. Indeed, she did not learn of this fact until Jones filed his complaint. The position sought by Jones was ultimately filled by Franklin. In selecting Franklin, Kyle noted that Franklin had served in an OPS position with "similar" job responsibilities, she had worked under Kyle's direct supervision for the preceding four months, and she had working knowledge of the duties and responsibilities of the position "that would allow her to begin work immediately." Contrary to petitioner's assertion, Kyle was not told by her superiors to hire Franklin. She concedes, however, that there were "suggestions" by then inspector general Gooding to hire Franklin, a former colleague of Gooding at the Governor's Office. In considering DLES' assertion that the reason for hiring Franklin was that she was the most qualified person, it is noted that earlier that year Franklin had applied for a lower-graded career service position in Kyle's office but was rejected because Kyle was unimpressed with Franklin's "communicative skills." After her rejection, Gooding "suggested" that Kyle hire Franklin for the OPS slot, a suggestion which Kyle followed. Based on these facts, it may be reasonably inferred that Kyle's true motive in hiring Franklin was to satisfy, albeit reluctantly, the wishes of her superior, Gooding, who wanted to place her friend in the agency, rather than hiring the best qualified person for the job. While friendship or even cronyism was the decisive factor in Franklin getting the job, there is insufficient evidence, either direct or circumstantial, that would support an inference that petitioner's handicap was the reason why he was not selected. Indeed, there is no evidence to support a finding that Jones would even have made the short list had Franklin not applied for the job, or would have been considered if Kyle had rejected the suggestions of her superior. Therefore, while the final employment decision may not have been fair, it is found that there was no discriminatory animus in DLES' employment decision to reject Jones. Management Review Specialist Positions On October 17, 1991, respondent published a job opportunity announcement for two management review specialists (position numbers 1158 and 5420) in its office of inspector general, then run by inspector general Gooding. At that time, the office had two sections: management review and investigations. When the announcement was published, the office was unsure whether both positions would be used for management reviews or whether one would be management review and the other for investigations. The minimum qualifications for the positions were a bachelor's degree and 4 years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. Petitioner met the minimum qualification requirements. The management review slot required the successful applicant to be experienced in management reviews, which are very comprehensive and involve an evaluation of the following management functions: planning, organization, staffing, directing and controlling. The specialist is also required to prepare rather comprehensive reports. On the other hand, the specialist in the investigative section performs more traditional investigative duties with a much more narrow focus than management review. The record shows that Jones was not fully qualified to fill a slot in the management section since his main experience had been investigating discrimination complaints for the Commission for the preceding ten years. Jones and some ninety other persons filed applications for these positions. A preliminary screening process of all applications was conducted by Kitty J. Convertino, who headed the management review section, and Gary Sanford, who headed the investigation section. Because of his investigative experience with the Commission, Jones was placed on the list of some fifteen to seventeen persons to be initially interviewed. It was contemplated that after these initial interviews were conducted, a short list of five candidates would be picked from those interviewed, and they would be invited back for a second interview. Although Convertino ostensibly had authority to make a hiring decision, the final say-so rested with her superior, inspector general Gooding. During the initial interview, each candidate was asked "interview questions" from a list prepared by Convertino. Among other subjects, the applicants were asked about their computer skills since specialists were required to prepare much of their own work. Although Jones says he uses a microcomputer in his present work, his computer skills did not meet Convertino's expectations. At the conclusion of the interview, Jones was asked to provide a writing sample, and he later funished a copy of an investigative report he had written for the Commission in 1986. This writing sample reinforced Convertino's opinion that Jones was more qualified for the investigation section than the management review section. During the selection process, a member of Convertino's management review team was transferred from her team to Sanford's investigation team. When this occurred, the management review specialist vacancy on Sanford's investigation team was eliminated leaving both vacancies in the management review section. The decision to transfer the position was made by inspector general Gooding. Because no position was open in the investigation section, and the qualifications of the chosen candidates for the management section exceeded those of petitioner, Jones was not invited back for a second interview. There is no evidence to support a finding that the transfer was made to prevent petitioner from being considered for the vacant position in the investigative section. Among the candidates for the two management review positions was Jane Steele, a former collegue of Gooding at the Governor's Office, who had performed administrative work for the City of Altamonte Springs for some eighteen months prior to seeking employment with DLES, and who had prior stints with the Department of Insurance, Department of Transportation, and Governor's Office of Planning and Budgeting. When Steele's qualifications did not initially comply with the job description for position 5920, the job description was rewritten midway through the evaluation process so that Steele could satisfy the qualifications. Whether this change was made at the behest of Gooding is not of record. In any event, there is no evidence to show that this manipulation in the qualification process was for an unlawful discriminatory purpose. Steele was ultimately selected to fill one of the two management review specialist positions. According to Convertino, Steele was selected because of her prior experience in performing compliance audits for a state agency and writing audit reports. In addition, she was computer literate, was a "good" writer, having published several articles, and had a masters degree in public administration. Although Steele once worked with Gooding at the Governor's Office, there is no evidence that Convertino consulted with Gooding prior to making her employment decision. Indeed, Convertino flatly denied that any conversations took place. Ronald J. Rigby, an African-American who also has diabetes and is hearing impaired, was selected for position 1158. He had previously performed compliance reviews for DLES in the Job Training Partnership Act program, which experience Convertino believed would be compatible with the work required of position 1158. Although Rigby was placed under investigation by the State Controller in mid-January 1992 for "wage claim discrepancies," and this prevented him from assuming the job for several months, the matter was resolved sometime after April 10, 1992, and he was then allowed to report to work. When the decision to hire Rigby was made, Convertino did not know that Rigby had diabetes, although she knew that he was hearing impaired. Jones says his medical condition was discussed during the interview process, and he advised the interviewers that the disability was controlled by medication. Neither Convertino nor Sanford recalled any such discussion, and Convertino says she was unware of Jones' condition until the complaint was filed. In any event, there is no evidence, either direct or circumstantial, that would support a finding that Jones' handicap played any part in the employment decision. While the investigative slot may have been filled through a transfer on account of friendship or cronyism, that decision was not predicated on a desire to keep a handicapped person from being considered for the job. Moreover, the evidence shows that both Steele and Rigby had more experience in performing compliance audits than did Jones, and thus they were the more qualified individuals to fill those positions. Miscellaneous Employment records received in evidence show that petitioner's annual pay was $22,000 at the time his application was filed in October 1991. His salary since that time is not of record. The position of management review specialist paid in the range of $2,407.49 to $4,056.63 per month while the position of senior management analyst II paid in the range of $2,740.51 to $4,653.39 per month. Respondent apparently did not document, nor could it produce, the written basis for its hiring decisions, as required by its own personnel manual. Even so, this lack of documentation is insufficient to raise an inference that an unlawful discriminatory animus motivated DLES in its employment decisions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 20th day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2754 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 19. 6. Rejected as being unnecessary. 7. Partially accepted in finding of fact 3. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 3. 10. Rejected as being unnecessary. 11. Rejected as being cumulative. 12. Rejected as being unnecessary. 13. Partially accepted in finding of fact 4. 14-16. Partially accepted in finding of fact 16. 17-19. Partially accepted in finding of fact 18. 20-21. Partially accepted in finding of fact 16. 22. Partially accepted in finding of fact 18. 23-24. Partially accepted in finding of fact 4. 25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 18. 27-28. Partially accepted in finding of fact 24. 29. Partially accepted in finding of fact 19. 30-34. Partially accepted in finding of fact 20. 35-39. Partially accepted in finding of fact 21. 40. Rejected as being unnecessary. 41-44. Partially accepted in finding of fact 21. 45. Partially accepted in finding of fact 22. 46. Partially accepted in finding of fact 23. 47. Rejected as being unnecessary. 48-55. Partially accepted in finding of fact 23. 56. Partially accepted in finding of fact 18. 57-59. Partially accepted in finding of fact 6. 60-61. Partially accepted in finding of fact 6. 62-63. Rejected as being unnecessary. 64-67. Partially accepted in finding of fact 9. 68. Partially accepted in finding of fact 7. 69. Rejected as being unnecessary. 70. Partially accepted in finding of fact 4. 71. Rejected as being unnecessary. 72-73. Partially accepted in finding of fact 8. 74-77. Partially accepted in finding of fact 14. 78. Partially accepted in finding of fact 13. 79-81. Partially accepted in finding of fact 9. 82. Partially accepted in finding of fact 13. 83-84. Partially accepted in finding of fact 12. 85-87. Partially accepted in finding of fact 8. 88. Partially accepted in finding of fact 14. 89-90. Partially accepted in finding of fact 5. 91-92. Covered in preliminary statement. Rejected as being unnecessary. Covered in preliminary statement. Rejected as being unnecessary. Rejected as being contrary to the evidence. 97-98. Partially accepted in finding of fact 26. Respondent: Partially accepted in finding of fact 16. Partially accepted in finding of fact 18. 3-4. Partially accepted in finding of fact 4. 5-7. Partially accepted in findings of fact 18 and 19. Partially accepted in finding of fact 19. Partially accepted in finding of fact 20. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 6. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. Partially accepted in finding of fact 12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 5. Rejected as being unnecessary. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Note - Where a proposed finding has been partially accepted, the unused part has been rejected as being unnecessary to reach a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Bruce A. Minnick, Esquire Pamela H. Page, Esquire Post Office Box 11127 Tallahassee, FL 32302-3127 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2152 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana A. Baird, Esquire Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
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 Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 3rd day of May, 2016.
The Issue Whether Petitioner is entitled to service credit in the Florida Retirement System (FRS) from June 1, 1995, through August 2001.
Findings Of Fact At all times material, Petitioner has been a school psychologist, certified by the Florida Department of Education. From June 1995 through August 2001, Petitioner performed duties as a psychologist under "purchase of services agreements" with SBAC to perform special needs assessments for gifted children. These formal contracts were executed between Petitioner and SBAC in and for each successive school year during that period. Although there was the expectation that a new contract would be negotiated/signed each year, there was no guarantee to that effect. The annual contracts for June 1995 through August 2001, between SBAC and Petitioner provided that Petitioner was to assume all risks, and that he was a "consultant." They further provided that he was to be paid at a rate of $150.00 for each assessment he completed. Either party to the contract could terminate it on 30 days' notice. In pertinent part, the annual contracts described Petitioner as an independent consultant and not an employee in the following terms: * * * The CONSULTANT is an Independent Consultant and will perform all services at the Consultant's risk, assuming full responsibility for completion of the services stipulated below: Psychoeducational evaluations of students referred for determination of eligibility to the Gifted Program as shall be requested by the Board through its Director of Exceptional Student Education or Lead School Psychologist. All psychoeducational evaluations shall be completed within 30 days of having been received by the CONSULTANT. All reports and billing for services rendered by the CONSULTANT shall be submitted in a timely manner. All reports are to be submitted in triplicate. * * * CONSULTANT also acknowledges that in rendering the services provided herein, the CONSULTANT will be acting as an Independent Consultant, and not as an employee of the School Board of Alachua County. (Emphasis added.) The contracts contained no specific provision for reimbursement of Petitioner's expenses. However, a calculated amount for travel expenses was built into the fee of $150.00 per child. SBAC did not consider Petitioner an "employee" during the period of his annual contracts, because he was not filling a regularly established position. Accordingly, SBAC did not report to FRS any retirement information/contributions on the amounts it paid Petitioner during this period. Likewise, during the specified period, Petitioner received no paid leave or other employee benefits from SBAC. Also, SBAC did not provide unemployment compensation coverage or workers' compensation coverage for Petitioner during the specified period. While under contract as an independent consultant, Petitioner did not report his time to SBAC via a timesheet or otherwise. Rather, he was paid for each completed assessment under the terms of his respective contracts. He was only required to file his test results within five business days of the date he assessed a student. Between 1995 and 2001, SBAC reported Petitioner's pay for federal income tax purposes by Form 1099, rather than by Form W-2. A 1099 form is traditionally used for occasional employees and for independent contractors. W-2 forms are used for regular employees. Petitioner reported his income from SBAC as "other income," i.e. self-employment income. In a similar vein, SBAC withheld no taxes, Social Security, or Medicare deductions for Petitioner during this period. SBAC made no matching contributions for Social Security or Medicare. During the specified period, Petitioner was hired solely for special needs assessments. The time frame for testing by SBAC was established by law. Other than special needs assessments, Petitioner had no duties for SBAC, but he was assigned cases by SBAC as necessary to meet its caseload and time frame. Petitioner was only called upon when SBAC's school psychologists, who filled regularly established positions, were not available or could not timely meet the demand for assessments in a school year of 10 months' duration. Petitioner was required to hold a professional license as a psychologist to perform his SBAC contracts, and he was expected to perform his services for SBAC within the standards of his profession. His contracts provided for him to render personal services, and he could not hire an assistant or subcontract out his duties to another psychologist. SBAC could not instruct Petitioner how to do his job as a professional psychologist or what decision or recommendation to reach on any child. However, SBAC told him which text to use, and he was initially trained by another school psychologist on the testing instrument required by SBAC. Petitioner also received initial training from SBAC on how to report his assessments, and SBAC provided him with test kits and word processing assistance for each child assessment. SBAC set the format for his reports and provided him with a template therefor. Petitioner was not regularly provided office space by SBAC. However, he was allotted a room on each school's premises for each test, as he traveled from school to school within the county, and he had to do his testing on a day the specified child was in school and that school was open. Each test had to be completed within 30 days of its assignment, per his contracts. Petitioner was free to schedule one or more of his assessments on the dates most efficient for him, provided he met his deadlines. Petitioner's efforts for SBAC during this period might be described as "frequently recurring, but not regular." Petitioner never worked for SBAC more than four consecutive months during the entire time period at issue. During that period, he was on his own for defending his test results. Petitioner was required to carry his own professional liability insurance during the time in question, whereas then and now, SBAC "covered" their employees' liability insurance. Between 1995 and 2001, Petitioner was free to offer his professional services to other clients besides SBAC, but he chose not to do so. There was no profit or loss involved for SBAC or Petitioner in Petitioner's 1995-2001 service. Petitioner had to invest none of his personal funds to do his assessments. In September 2001, Petitioner was hired by SBAC in a half-time, regularly established position with all benefits, including sick leave, personal leave, and FRS membership. Upon that event, his duties were altered to include rendering any psychological assistance required by any SBAC school in which he was working. He is now reimbursed for travel by submitting request forms. He has continued to meet that job description and has filled that regularly established position to date. SBAC requested, and in 2002, received a letter-opinion from the Internal Revenue Service (IRS) interpreting various federal statutes and regulations. That IRS letter-opinion concluded that during the period in question, the Petitioner was an "employee" of SBAC; that various federal forms might require filing or amending by SBAC; and that SBAC and Petitioner might need to pay yet-to-be determined amounts. That IRS opinion is based on facts submitted by SBAC and not necessarily in evidence; is based on federal laws which are not determinative of the Florida retirement issue before this forum, and was not necessarily final. Accordingly, it is not binding in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from June 1, 1995, through August 2001. DONE AND ENTERED this 10th day of February, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2005. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Leonard D. Jackson 2731-B Northwest 104th Court Gainesville, Florida 32606-7174 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Sunland Marianna is a facility which cares for the mentally retarded and is operated by the Department of Health and Rehabilitative Services. Because of the type care needed by Sunland clients and federal funding, it is very important and federal rules require that a minimum of three staff be on duty during the first and second shifts. When staff are out without authorization, other employees must be pulled from other cottages, creating a shortage in other areas, or employees are called from home causing overtime payments. At the time of the final hearing, Petitioner Michael Simmons was 38 years old. He was born and raised in Chipley, Florida, and is a graduate of Chipley High School. After services in the U.S. Marine Corps, he attended Washington County Vo-Tech School and received a certificate of completion for the nurse's assistant course. In 1987, he attended and completed a course of study entitled "Special Care Unit Staff Training," offered by the Northwest Florida Mental Health Center. In late May, 1988, Mr. Simmons applied for a position as a Human Services Worker I, at the Sunland facility operated near Marianna, Florida by Respondent, Department of Health and Rehabilitative Services ("HRS"). According to his employment file, at the time of his application, Mr. Simmons was married to Rose M. Simmons and had one son, Erick, born June 30, 1984. Mr. Simmons' employment application and other papers he filled out at that time listed a residence address in Chipley, Florida. Mr. Simmons had no phone at that address, and he listed the phone number (904) 638-0195 as his number. He testified that this was the unlisted number of his wife's grandmother, who later died in early August, 1989. Mr. Simmons was selected from among 62 applicants for the vacant position, and was hired as a Human Services Worker I on June 3, 1988, at a gross biweekly salary of $392.92. He successfully completed his probationary employment period and achieved permanent career service status. As of August 5, 1988, his gross biweekly salary was raised to $430.82. Initially, Mr. Simmons worked the evening shift, from 3:00 P.M. until 11:00 P.M., and was assigned to Hayes cottage. He was one of three persons assigned to that cottage as Human Services Worker, with first-line responsibility for care and supervision of 23 mentally retarded residents of that cottage. Mr. Simmons' first Employee Performance Appraisal, dated December 2, 1988, rated him overall as exceeding job performance standards and stated in general that he had an excellent attitude in his position. The only mention in the Appraisal of job attendance was the notation that Mr. Simmons had difficulty in correctly filling out his leave and attendance record. The Appraisal was signed by Dorothy S. Bryan as his immediate supervisor and by Clay S. Shirey as reviewer. Mrs. Rose Simmons gave birth to the couple's second child, a daughter, during Mr. Simmons' first year of employment with HRS. The daughter was about ten months old at the time of Mr. Simmons' termination from his position in September, 1989. Mr. Simmons worked at two other jobs during the first months of his employment with HRS. In early August, 1989, Mr. Simmons moved to Tallahassee, where Mrs. Simmons had obtained employment. Mrs. Simmons had moved earlier, and the couple resided together in Tallahassee after Mr. Simmons moved. At that time Mr. Simmons worked two jobs. His other job was at a nursing home in Bonifay. His hours in that job were from 6:00 A.M. until 1:00 P.M. He resigned from the Bonifay job before the events giving rise to his termination. Because of his difficult work schedule and an unreliable car, Mr. Simmons was late for work a number of times even before he moved to Tallahassee. His attendance records show that his superiors approved differing types of leave with pay on all of these occasions, except for the tardiness which occurred August 31, 1989, a few days before his termination. According to testimony of Mr. Simmons' superiors and documents in evidence as to official Sunland policy, leave with pay ordinarily was authorized only if the employee reported in advance that he or she would be tardy or absent. Sunland Operating Procedure 60-2 requires that employees who are late or absent inform their supervisor before the beginning of the shift, or failing that, telephone within seven minutes after the start of the shift. This Policy also requires supervisors to document patterns of unexcused absences and tardiness on certain forms, none of which appear in Mr. Simmons' employment file or otherwise in the record. Mr. Shirey testified that Mr. Simmons usually did not call in advance when he was late for work. In February or March, 1989, Ms. Angie Russ replaced Ms. Bryan as Mr. Simmons' immediate supervisor. She continued to approve leave on the occasions, when Mr. Simmons was late for work, usually once or twice each two-week pay period. On April 6, 1989, Clay Shirey and Angie Russ conferred with Mr. Simmons about his job performance. As reflected by a memorandum dated April 7, 1989, they told him his performance in accurately completing client training data sheets was not adequate. The memorandum also indicates discussion of the "failure of [Hayes Cottage] staff to work together as a cohesive unit," and the need for staff (and, inferentially, Mr. Simmons) to take a more active role in client interaction. Mr. Simmons did not agree with this assessment and refused to sign the memorandum. On May 5, 1989, Clay Shirey and Angie Ross conferred with Mr. Simmons about his being late for work. A memorandum dated May 12, 1989, reflects this conference. For pay periods after that date, Mr. Simmons' supervisors continued to approve leave with pay when he would be late for work, usually 15 or 30 minutes each time. Commencing with the May 12, 1989, pay period, Mr. Simmons' hours were changed so that instead of working from 3:00 until 11:00 P.M., he worked from 2:00 until 10:30 P.M. The record does not directly reveal the reason for this change. On June 15, 1989, Mr. Simmons' next Employee Performance Appraisal was completed. Mr. Autry Ferrell signed as supervisor, and Mr. Shirey signed as reviewer. The Appraisal expressed some dissatisfaction with Mr. Simmons' attitude, although it rated his performance as meeting or exceeding job requirements as to all specifically rated items. Item No. 1 in the Appraisal stated that Mr. Simmons exceeded requirements for completing client training data forms, which had been the specific complaint documented in the April 7, 1989, memorandum. The Appraisal made no mention of any problem with Mr. Simmons' being late for work. Mr. Simmons' overall performance was listed as meeting job requirements. In his comments on the form, Mr. Simmons disagreed with the assessment concerning his attitude. On August 28, 1989, Mr. Ferrell and Mr. Shirey signed a memorandum addressed to Mr. Simmons, which stated: This is written to confirm that you received on this date an oral reprimand for failure to follow your established work schedule. This is considered the first occurrence for this offense. Any further violation of similar Standards of Conduct may result in more severe disciplinary action. Mr. Simmons refused to sign this memorandum, according to Mr. Shirey's note on the document. The Handbook provision referred to in the memorandum defines tardiness as "failure to follow established work schedules," and establishes a "standard" that the first occurrence will result in an oral reprimand; the second occurrence in a written reprimand; the third occurrence in a suspension of up to ten days, and the fourth occurrence in dismissal. Mr. Simmons' attendance records indicate that during August, 1989, preceding this reprimand, he had been 30 minutes late for work four times and 15 minutes late one time. On each such occasion, Mr. Ferrell had approved leave with pay for the time he was tardy. On Thursday, August 31, 1989, Mr. Simmons was ill. He did not telephone until 8:15 P.M. Mr. Shirey authorized sick leave with pay from 8:15 until 10:30, but did not approve leave with pay for the time before Mr. Simmons telephoned. This is the first instance of Mr. Simmons' not being allowed leave with pay for any absence or tardiness, even though Sunland Policy 60-2 clearly authorized leave without pay for previous occurrences. On Friday, September 1, 1989, at approximately 1:00 A.M., Mr. Simmons took Mrs. Simmons to Tallahassee Regional Memorial Medical Center. She was in labor with the couple's third child. She was admitted through the emergency room at 4:10 A.M. the same night, and gave birth at 5:02 P.M. the following day. (still September 1st). The next day, September 2, 1989, Mrs. Simmons had routine surgery involving an incision through the abdomen. She and the new baby were discharged from the hospital on Monday, September 3, 1989. Mr. Simmons did not report to work on September 1 through 4, 1989. He was caring for his other two children, ages 5 years and 10 months. They had day care arrangements during normal business hours when Mrs. Simmons worked, but no such arrangements were available to Mr. Simmons to his knowledge in the evening hours when he was to work at Sunland. His care of the children was necessary since Mrs. Simmons was not physically capable of caring for their children due to her operation. On Friday, September 1st, Mr. Simmons telephone Sunland and eventually spoke to Mr. Shirey. He told Mr. Shirey that his wife was in the hospital giving birth and that he had no one to care for his children at night. Mr. Shirey demanded that he come to work, and Mr. Simmons said he would come to work the next day if he possibly could. Mr. Shirey testified that Mr. Simmons stated unequivocally that he would report for work the next day, a statement Mr. Simmons denies. Mr. Simmons did not telephone Sunland on September 2nd through 4th. He testified that he had no money to use at a pay phone to make the long- distance call (he had missed payday during his absence) and lost his only change on one unsuccessful attempt to call. His last payday had been August 17th. Mr. Shirey testified that he attempted to reach Mr. Simmons on Monday, September 3, 1989 (Labor Day holiday), using two telephone numbers in Mr. Simmons' personnel file. Mr. Simmons had moved from Chipley to Tallahassee and had no telephone, so these efforts were unsuccessful. Respondent was aware that Mr. Simmons had moved to Tallahassee. However, since Mr. Simmons did not have telephone service during this time, his supervisors had no ready means to contract Mr. Simmons. No one from Mr. Simmons employment thought to check or contact him at either of the two Tallahassee hospitals. Tuesday, September 5th and Wednesday, September 6th, were Mr. Simmons' usual days off. On Thursday, September 7, 1989, he reported to work at Sunland. When summoned by Mr. Shirey, he showed Mr. Shirey a handwritten, signed note from Mrs. Simmons' attending physician, stating that Mrs. Simmons had delivered a baby and had surgery, and asking that Mr. Simmons be excused from work September 1st through 4th. Neither the original nor a copy of this note was placed in Mr. Simmons' file, although both Mr. Shirey and Mr. Parramore acknowledged during their testimony that Mr. Simmons had showed it to them on September 7th. Mr. Simmons was informed that he was being terminated. On Tuesday, September 5th, prior to Mr. Simmons' return on the 7th, Mr. Parramore had already prepared a memorandum recommending that Mr. Simmons be terminated for abandonment of position. The memorandum referred to the earlier reprimand for tardiness and to Mr. Simmons' late call-in on August 31st, when he was sick. The memorandum, also referenced Mr. Simmons' reasons for his absence on September 1, 1989. The memorandum stated that Mr. Shirey had informed Mr. Simmons that he needed to obtain medical certification of his wife's illness and the need for his presence, and that Mr. Shirey had informed Mr. Simmons that "he needed to get to work as soon as possible." Notably, it does not mention any absolute commitment by Mr. Simmons, during his phone conversation with Mr. Shirey, to report the next day. Even with all these facts listed in the memorandum, it was clear from the evidence that the main reasons for Mr. Simmons' employer's action was the fact that Mr. Simmons could not be located, that he did not call in on the 2d, 3rd, or the 4th and that Mr. Simmons was not believed to be telling the truth regarding the reasons for this absence and the reason no one called in. On September 7, 1989, a letter was mailed to Mr. Simmons confirming what he had been told verbally that day: that he was terminated for abandonment of position. The evidence demonstrates that Mr. Simmons did not intend to abandon or resign from his position at Sunland, when he was absent from work on September 2 through 4, 1989. He obtained a written medical certification and excuse, complying with Mr. Shirey's instructions as he understood them. He reported to work promptly on his next regular work day. Though he may not have been as diligent as he could have been in contacting his superiors, he had sufficient reason in his own mind to be absent from work, and the evidence shows he fully intended at all times to return to work.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner did not abandon his position and that Petitioner be restored to his position as a Human Services Worker I at the Marianna Sunland facility. DONE and ORDERED this 5th day of September, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 5th day of September, 1990. APPENDIX TO CASE NO. 89-5623 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 28 of Petitioner Findings of Fact are adopted in substance, insofar as material The facts contained in paragraphs 27 and 29 of Petitioner Proposed Findings of Fact are subordinate. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-0700 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 H. Michael Madsen, Esquire Messer Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concern whether the Petitioner, Gregory B. Taylor, violated the attendance policy of the St. Johns River Water Management District, the Respondent (District) thereby subjecting himself to a one day suspension.
Findings Of Fact The Petitioner was employed by the District as a customer service technician II. He has worked for the District for seven years and is assigned to the Division of CIS. He is supervised by Robert Green, and Robert Green's supervisor, the Division Director, Martin Barnes. The District has policies that govern work place conduct including attendance and leave. The District routinely informs employees of these policies that govern their workplace conduct through orientation meetings and discussions with supervisors. The policies are posted on the District's internet website and the Petitioner is aware of where to find these policies, by his own admission. The attendance policy provides that employees must be present on their job for the scheduled hours and the established workday and workweek unless absence from duty has been approved by the appropriate supervisor. Mr. Green testified that he has reviewed the District's attendance policies with the Petitioner. Concerning annual leave, the attendance policy provides that "except in emergencies, annual leave must have supervisory approval before being taken." District policy as to sick leave provides that sick leave shall only be used with prior supervisory approval. The District classifies absences as either planned or unplanned. Planned absences are those that are approved in advance, and unplanned are those for which prior approval has not been obtained. Each District work unit, including CIS, establishes practices to implement the means of obtaining prior approval for planned absences and reporting of unplanned absences. The policy for CIS employees for reporting unplanned absences is to contact the supervisor. If the employee cannot contact that supervisor then the employee is to contact the Division Director, Assistant Department Director, or Department Director, in that order of priority. Each District work unit may impose specific requirements with regard to the reporting of unplanned absences for the purposes of correcting behavior. The District written attendance policy provides that: If a department/office director determines that an employee is excessively absent based on a pattern of absences, such as regular absence on the day proceeding or following the employee's regular days off; . . . [or] continual use of sick leave as it is accrued . . .; the department/office director may take action to control such excessive absences. Such action may be taken only after the absences have been discussed with the employee and the plan to control the absences has been reviewed by the office of human resources. In December 2004, after several discussions and meetings with the Petitioner and after consulting with the District's office of Human Resources, Robert Green gave the Petitioner a memorandum regarding his attendance. The memorandum restated the attendance policy and, in order to control the Petitioner's excessive absences and failure to contact his supervisors regarding unplanned absences, the memorandum instructed the Petitioner to notify Mr. Green, or if Mr. Green was not available, the three other staff members at progressively higher supervisory levels, mentioned above. The memorandum explicitly instructed the Petitioner to contact the supervisors by phone. A little more than a month later, at the end of January 2005, Mr. Green conducted the Petitioner's annual performance evaluation. The "additional comments" section of that evaluation, before the space for the supervisor's and employee's signatures includes the following statement: hroughout this evaluation period I have counseled [Petitioner] on his tardiness during his scheduled working hours. Mr. Green testified that, in addition to the statement above, he counseled the Petitioner during the evaluation regarding the Petitioner's tardiness and failure to notify his supervisors when he was out and reiterated that the notification was to be made by phone. In February 2005, less than two weeks after the evaluation, and after additional unplanned absences and tardiness following the December 2004 memorandum, Mr. Green provided the Petitioner with a memorandum related to the Petitioner's tardiness and unplanned absences. This memorandum noted that an excessive number of unplanned absences and tardiness had become apparent and set forth 22 unplanned absences--the majority of which immediately preceded or followed regular scheduled days off. In addition, the memorandum reiterated that the Petitioner's habitual tardiness was unacceptable and provided examples. The memo concluded with the following paragraph, which re-stated the plan to control the Petitioner's excessive absences: You are expected to adhere to your regular work schedule. If you cannot, effective February 14th, at the beginning of your workday, you will notify me or Martin Barnes, Division Director of Computer Information Systems by phone when you will be absent or more than seven minutes late to work. Voice mail or e-mail is not an appropriate notification. Continued tardiness and unplanned absences will lead to disciplinary action. The Petitioner testified that he received the instruction, both in writing and orally, to call Mr. Green or Mr. Barnes. On November 4 and 7, 2005, a Friday and a Monday, the Petitioner was sick. On both days he failed to contact either Mr. Green or Mr. Barnes by phone. The Petitioner testified that upon his return to work, Mr. Green told him that he, Green, "appreciated" the fact that the Petitioner called the help desk when he was sick, and the Petitioner asserts that meant that Mr. Green approved of calling the help desk rather than Mr. Green. Mr. Green testified that he did say that he appreciated that the Petitioner had at least called in and then added that he made that statement after he stated that it was inappropriate to call someone other than him, and before telling the Petitioner (again) that notification should be made to Mr. Green directly. Mr. Green never communicated to the Petitioner, in a memo or otherwise, that the requirement that the Petitioner called his supervisors to report or request unplanned absences no longer applied to the Petitioner. Mr. Green established that the requirement that the Petitioner call in is consistently interpreted and applied throughout the CIS management. The Petitioner testified that he called in sick on November 4 and November 7 at 7:00 a.m. so that he could immediately return to resting. There was no testimony that the Petitioner called in later on either day and Mr. Green testified that neither he nor any other supervisor was contacted by the Petitioner. The Petitioner testified that he had, previous to November 4, 2005, attempted to call Mr. Green early in the morning and had been unsuccessful, implying that he did not call either Mr. Green or Mr. Barnes because they are not available by phone at 7:00 a.m. in the morning. Mr. Green attempted to call the Petitioner back when the Petitioner had been unable to reach him by phone in the early morning hours. Mr. Green is required to always have his cell phone on. He told the Petitioner that he was available by cell phone. Martin Barnes, Mr. Green's supervisor, confirmed that he requires Mr. Green to keep his cell phone on and with him at all times. At 7:00 a.m. Mr. Green is on his way to work and available at that time. The Petitioner admitted that he had never called Mr. Barnes's cell phone. Mr. Barnes testified that his office phone is forwarded to his cell phone so that he is available almost 24 hours a day. The Petitioner's normal work day concludes at 4:00 p.m. On November 22, 2005, the Petitioner sent an e-mail to a group of recipients, "IR Management," that included Martin Barnes, the CIS Division Director, and Kevin Brown, Mr. Barnes supervisor, requesting authorization to leave work early. The Petitioner made his request at 2:17 p.m. and left work at 3:15 p.m. In between the time that the Petitioner made his request and the time he left, the Petitioner was away from his desk and unavailable by e-mail. Robert Green was not working at the District that day. Accordingly, the next person to whom the Petitioner was directed to seek approval for leave was Martin Barnes. Shortly after the Petitioner sent the e-mail, Kevin Brown replied by e-mail. Rather than grant permission, the body of the message stated: "Please address this with Martin." Mr. Brown's instruction to contact Mr. Barnes was given even though the e-mail Brown received was also clearly addressed to other members of "IR Management," including Mr. Barnes. The Petitioner did not call Mr. Barnes by phone. Rather, the Petitioner stated, "I knew in my mind that I had already contacted Martin Barnes concerning this and that I had not been notified by anyone in management saying this would be unacceptable." The Petitioner's unilateral use of a negative notice procedure directly conflicts with specific instruction he received to contact supervisors by phone. It also is not in compliance with the instruction, provided after the Petitioner had already e-mailed Mr. Barnes, that he address leaving work early with Mr. Barnes. Although the Petitioner referred to other e-mails that purportedly evidenced use of this procedure by the Petitioner and other employees, he failed to produce any such e-mails or any corroborating evidence. The testimony of Ms. Hudson and Mr. Green was that phoning was the only acceptable method of communicating for the Petitioner. Further, the phone requirement was the result of a plan to control the Petitioner's tardiness and excessive absences, not directed toward the issue of other employees' attendance. The District's disciplinary action policy describes "absence without authorized leave" as: Failure to obtain prior approval for absence from work, except in the case of an emergency; failure to notify the proper supervisor in a timely or appropriate manner of intended absence from work; or obtaining leave based on a misrepresentation. On December 8, 2005, the Petitioner was provided with a letter from the District's executive director that informed him that the District intended to suspend him for one day without pay for being absent without leave. The letter, dated December 7, 2005, indicated that the intended suspension was based on the District's findings that: (1) the Petitioner failed to properly report his absence from work on two consecutive work days (November 4 and November 7) and that (2) the Petitioner failed to properly secure authorization to leave work early (on November 22). The District's director of human resources established that either of these two bases would serve independently as a basis for the disciplinary action taken. The Petitioner was notified in the letter that he could request a pre-determination conference for the purpose of presenting information to the executive office that would support a decision not to suspend the Petitioner, before a final decision was made regarding the intended disciplinary action. The Petitioner did not request a pre-determination conference. On December 27, 2005, the Petitioner was provided with the second letter from the District's executive director informing the Petitioner that, given the facts recited in the December 7, letter and given that the Petitioner had not taken the opportunity to be heard as to those facts, that he would be suspended for one day. That letter also stated that the Petitioner had the right to appeal the executive director's decision through the administrative hearing process pursuant to Chapter 120, Florida Statutes. Under the District's disciplinary action policy, the failure to properly notify the appropriate supervisor of an intended absence, in this case either because the employee is sick or seeks approval for leaving his work station early, constitutes an absence without authorized leave. The appropriate discipline level for being absent without leave ranges from reprimand to dismissal. The District has terminated employees for repeated occurrences of absence without leave. The District tends to take the least severe disciplinary action needed to correct behavior. However, when an employee's behavior does not respond, the severity of the discipline is progressively increased. Under District practice, violations of District policies are considered cumulative. All previous disciplinary actions, whether for the same or a different violation, are considered in determining which disciplinary action to impose. The Petitioner has a previous reprimand in his personnel file for insubordination. The Petitioner has also been counseled by memo, evaluation, and meetings before November 2005, regarding his lack of adherence to District attendance policy. Both the history of counseling and informal corrective action for the particular behavior, absence without authorized leave, and the previous formal reprimand for an unrelated violation were considered in determining the appropriate level of disciplinary action in the case at bar. When asked what remedy he sought the Petitioner at the hearing stated: "I only ask that the disciplinary action be removed from my personnel file." The Petitioner did not identify an applicable exemption from Florida's broad public records laws or document retention schedules that would support the removal of an agency's final action from the agency's files.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the St. Johns River Water Management District enter a final order suspending the Petitioner from work for one day without pay. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006. COPIES FURNISHED: Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529 Gregory B. Taylor Post Office Box 1514 Palatka, Florida 32178-1514 William Abrams, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1983.
Findings Of Fact Ms. Otto began her employment with the Council on April 8, 1975, when she was hired as an Assistant Director. At that time she was one of two assistant directors and was immediately below the Executive Director in responsibility. After Monroe County was declared am area of Critical State Concern under Chapter 380, Florida Statutes, Ms. Otto was directed to provide staff assistance to Monroe County to assist them in complying with that designation. After Mr. Barry Peterson, Executive Director, Ms. Otto was the lead staffer of the Regional Planning Council who had responsibility in this area. Mr. Peterson in his testimony related that towards the end of June of 1975 Ms. Otto was directed to attend a meeting of the Monroe County Commission to discuss aspects of complying with the designation of Monroe County as an area of Critical State Concern. Ms. Otto did attend this meeting and reported back to Mr. Peterson that the meeting had gone well. Subsequently, Mr. Peterson testified that he learned that the meeting had not gone well and furnished a news clipping which dealt with the meeting of the County Commission which article indicates that Ms. Otto had made several statements which offended the County Commissioners. Apparently, on the basis of the report, Mr. Peterson received concerning Ms. Otto's statements at the County Commissioners' meeting, her responsibilities were changed in the Regional Planning Council to give her less contact with the public. With regard to Ms. Otto's alleged behavior at the Monroe County Commissioners' meeting, it must be noted that no direct evidence was presented at this hearing which would substantiate a finding that she acted improperly before the Commissioners. No testimony was presented from any person who was at that meeting and this Hearing Officer cannot make any finding of fact based on pure hearsay alone [Sec.120.58(1)(a), F.S.]. Furthermore, it must be assumed Ms. Otto was authorized to speak as she thought proper at this meeting and should some County Commissioners have taken offense at her statements does not indicate that such statements were automatically improper. In any case, no evidence was presented regarding this meeting which substantiates a finding of fact relating to the specific acts of misconduct charged against Ms. Otto. Another incident which presumably reflected upon Ms. Otto's ability and personality involved an incident where she expressed displeasure with certain comments made by a chairman of a volunteer citizens group. Ms. Otto stated she was in favor of confronting that person and challenging him on what she considered to be "sexist" remarks; however, it was decided by others in the Council that this should not be done. Ms. Otto did not confront this individual on her own. This Hearing Officer is uncertain as to whether any conclusion can be drawn regarding this incident. It certainly does not lend credence to any of the specific charges or reasons stated by the Council for firing of the Petitioner. All that appears to have happened is that Ms. Otto expressed her opinion and others disagreed with her. She did not act on her own nor cause any unpleasantness between the individual who made these remarks and the South Florida Regional Planning Council. In any case, Ms. Otto was given new duties and titled "Program Director for Management Services". She was given a list of responsibilities by Mr. Peterson, the Executive Director. These responsibilities included writing grant applications, preparing drafts of a cash flow sheet, and various other incidental duties. According to Mr. Peterson, Ms. Otto in these new responsibilities required specific instructions from him for much of what she did. He stated she did not do grant applications until he told her to and the one cash flow sheet she prepared was incomplete. Much of the above testimony was vague in that it was uncertain as to whether Ms. Otto had sufficient information at her immediate disposal to prepare a complete cash flow sheet and nothing appears to be inherently wrong with an employee waiting to be told what to do. Certainly, Ms. Otto displayed a lack of initiative, but this could be due to a lack of training in these new areas of responsibility. The most empirical testimony presented regarding Ms. Otto was that of her attendance at the Regional Planning Council. A scheduled breakdown of her absences, both with permission, without permission and unexplained was presented at this hearing. A chart, plus leave records were admitted as Counsel's Exhibit No. 5, which broke down Ms. Otto's attendance between April 5 and May 14, 1976. This exhibit was prepared by compiling the leave records and other notes kept by the staff of the Council with regard to Ms. Otto's attendance at the Council office. A compilation of approved and unapporved leave slips was taken from the records of that Council which was noted on the first page of Exhibit No. 5. Also, records kept by the receptionist as to Ms. Otto's. attendance were used to determine her "hours out of office." The remainder of the time unaccounted for by approved or unapproved leave slips completed the category captioned "No leave slip" which appears on the first page of this exhibit. The policy of the Regional Planning Council was that employees were requested to advise the receptionist where they were going upon leaving the office during working hours or where they would be if they would be coming in late. In this fashion, employees' whereabouts could be accounted for. This policy was not in any written form, but was an "understanding among the employees." It was apparently a practice that was generally followed by all Council employees. Actually, therefore, the hours captioned "No leave slip" indicates more accurately time Ms. Otto spent out of the office which was not specifically accounted for. It is entirely conceivable for all of the 36 1/2 hours listed for her in this category that she was out of the office on official business and merely did not advise the receptionist where she was going. No affirmative evidence was presented that Ms. Otto actually did not spend any of this time in an official capacity. Furthermore, there was no question that Ms. Otto was a professional employee of the Council and it would be unrealistic to expect a professional employee of the Council to work a time clock type schedule, particularly in view of the evidence that Ms. Otto spent considerable amounts of time at home and after hours and on weekends devoted to Council work. It is true that Ms. Otto apparently took 17 1/2 hours leave which was not approved by Mr. Peterson, her supervisor. However, with regard to the practice of Mr. Peterson in approving and not approving leave, testimony was clear that he routinely approved requests by all employees. What the evidence against Ms. Otto in this regard boils down to is that she neglected to get advance approval for leave during this period of time, which approval would customarily had been given. Had the Council thought this to be a serious infraction at the time, it appears certain that Ms. Otto would have been confronted with questions about her attendance and leave and been advised that she must more strictly account for her time and follow customary procedures in taking leave. However, this was not done and apparently the first Ms. Otto heard that there were questions about her attendance was when he was given a statement from the Council advising her of the reasons she was fired. On Ms. Otto's behalf several former employees of the Council testified that they found her performance at the Regional Planning Council to be an inspiration and a model of efficiency and administration. Ms. Otto on several occasions worked long hours, weekends and evenings on particular projects she was assigned and apparently did an extremely satisfactory job. Several employees stated that she was extremely helpful to them, displayed initiative and a very cooperative attitude.
Recommendation It is the finding of this Hearing Officer that the Respondent, South Florida Regional Planning Council, has failed to present by clear and convincing evidence that the Petitioner, Joan Otto, was fired for good cause. It is therefore RECOMMENDED that she be reinstated to her former position with back pay. DONE and ORDERED this 30th day of August, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Myron Gold, Esquire 4651 Ponce de Leon Boulevard Coral Gables, Florida 33146 Allan Milledge, Esquire Milledge, Horn & Hermelee 2699 South Bayshore Drive Miami, Florida 33133 ================================================================= AGENCY FINAL ORDER ================================================================= SOUTH FLORIDA REGIONAL PLANNING COUNCIL IN RE: DISMISSAL OF JOAN OTTO, CASE NO. 76-1337 /
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent is a Public Employer within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representation election petition under Florida Statutes, Chapter 447. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission. HEARING OFFICER'S REPORT The five issues were discussed at the hearing with the following results: It was agreed that the City of Rockledge is a public employer. It was agreed that the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. It was agreed that there is a sufficient showing of interest as required for the filing of a presentation election petition under Florida Statutes, Chapter 147. It was agreed that the employee Organization is a properly registered organization with the public Employees Relations Commission. The appropriate unit of public employees in the cause was in dispute. The Petitioner stated that the Association wanted to represent the dispatchers, patrolmen, sergeants, lieutenants and the detectives. The Public Employer requested that only patrolmen and detectives should make up the unit.
Findings Of Fact The Petition, styled Brevard County P.B.A, Petitioner, and City of Rockledge, Public Employer, seeks a certificate of representation as the exclusive bargaining agent for Officers of the City of Rockledge, Florida, including patrolmen, sergeants, dispatchers lieutenants and detectives. Excluded are captains and the chief of police. The city Counsel of the city of Rockledge, Florida, in the minutes dated April 2, 1975, agreed to follow guidelines under "Section 300" (8H300) of the Florida Administrative Code. See "Exhibit (1)". An envelope furnished by PERC containing authorization cards for the Brevard County P.B.A., alphabetized list of employees provided by the employers, notice of appearance forms for the attorneys, request to appear forms by the public, registration file (original) for the Brevard County P.B.A, original petition file including Petition, affidavit of registration, affidavit for 30 per cent showing interest, was circulated and without objection entered into evidence. See "Exhibit (2)". There are eighteen (18) men in the proposed bargaining unit: nine (9) patrolmen, two (2) detectives, three (3) dispatchers, three (3) lieutenants and one sergeant. A copy of the official job description of the City of Rockledge Police Department effective prior to the instigation of these proceedings was requested to be examined by both parties and submitted to the Hearing Officer and was submitted and marked as Supplement to the Record" and is made a part of this file. The major functions of personnel as delineated in the job descriptions submitted are as follows: Lieutenant: This is supervisory work in coordinating police activities on an assigned shift or specialized division of the department. The employee is responsible for the overall supervision of the subordinate personnel (patrolmen, dispatchers, etc.) engaged in police activities on an assigned shift or a specialized division. Part of the duties are to assign, direct and supervise the work of subordinate personnel engaged in routine police activities or criminal investigations. This employee reviews and makes recommendations for disciplinary action of subordinate personnel of the department. Sergeants: This is supervisory and specialized police work in the field and in police headquarters. An employee in this classification may also assume the total responsibilities as assigned to a regular shift commander. An employee in this classification may also be assigned the duty of coordinating the communication operators (dispatchers). When working as a shift commander the duties are the sane as listed for a lieutenant's duties. Patrolmen: This is general duty police work in enforcing laws and ordinances of the federal, state and local governments. Specific assignments are received from superior officers and carried out in accordance with the established rules and procedures. Personnel must be able to act without direct supervision in emergencies. Primary duties are to enforce the laws and ordinances and investigate and see whether these laws and ordinances are being violated. Detectives: The major functions of the detective is specialized police work but also includes enforcing the laws and ordinances of the federal, state and local governments. Major duties include the conducting of surveillance assignments to help detect crime and general investigative work. Communication operator or dispatcher: This is specialized work receiving, screening and dispatching messages of police communication systems. His duty largely is the operation of the radio transmitter for the purpose of dispatching patrol and detective units and receiving messages. In accordance with Chapter 447, Florida Statutes, no recommendations are submitted. August 8, 1975. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James D. Williams, Vice President Brevard County P.B.A. 978 Beacon Road Rockledge, Florida 32955 Vernon Weekly, Past President Brevard County P.B.A. 700 Sandgate Street Merritt Island, Florida 32952 Dale Dixon, President Brevard County P.B.A. 2460 North Coutenay parkway Suite 216 Merritt Island, Florida 32952 John A. Hipp, City Manager City of Rockledge Post office Box 488 Rockledge, Florida 32955 Jim Gilliard 993 Pinson Boulevard Rockledge, Florida Ronald F. Ray Post office Box 206 Rockledge, Florida Chairman Public Employees Relations Commission Suite 105 2005 Apalachee parkway Tallahassee, Florida
