The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
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
The Issue Whether Respondent, American Support, discriminated against Petitioner, Linda Dodge, in violation of the Florida Civil Rights Act of 1992 (the Act) sections 760.01–760.11 and 509.092, Florida Statutes, based upon her sex or in retaliation for participation in a protected activity.1/
Findings Of Fact American Support is a third-party telemarketing contractor for providers of cable and satellite service, with an office located in Daytona Beach, Florida. American Support is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a 61-year-old female who was hired on August 19, 2008, as a telemarketer for Evergreen, a predecessor company to American Support. Petitioner worked in telemarketing for approximately one year, was laid off by Evergreen, but was shortly thereafter reemployed by Evergreen as a receptionist/administrative assistant. Between October 2011 and December 2011, Petitioner solely performed receptionist duties. Petitioner was replaced as company receptionist by Debora Jenkins, whom Petitioner helped train. Ms. Jenkins was hired on a full-time temporary basis as the company was transitioning to new ownership. In December 2011, Petitioner was promoted to Human Resources Assistant by Nancy Cantero, Human Resources Director for American Support beginning in November 2011. Petitioner’s duties were to initiate and process criminal background checks and credit checks on applicants, validate I-9 information received for newly hired employees, create personnel files for new employees, and manage employee personnel files. Employee personnel files contain personal identifying information including dates of birth, social security numbers, driver’s licenses, and the results of criminal background and credit checks. Both parties agree that keeping applicants’ and employees’ personal information protected is a high priority for the Human Resources Department. Ms. Cantero left American Support in February 2012 and was replaced by Steven Schaible, first as a Human Resources Generalist under contract, then as corporate Human Resources Manager in March 2012. In his capacity as Manager, Mr. Schaible supervised Petitioner and two Human Resources Recruiters: Warren Hernandez and Elaine Zoe. Ms. Zoe was a virtual recruiter operating from her home in Phoenix, Arizona. Petitioner described Mr. Schaible as very friendly and outgoing when he first became Human Resources Manager. In mid-April 2012, Mr. Schaible hired a third recruiter, Anthony Sarelli, at a rate of $17 per hour. No evidence was introduced to establish the hourly rate of either Mr. Hernandez or Ms. Zoe, but Mr. Hernandez earned less than $17 per hour. Petitioner earned $13.50 per hour as Human Resources Assistant. On Thursday, April 19, 2012, Ms. Jenkins, the temporary receptionist, gave her notice and stated that she would be starting a new job Monday, April 23, 2012. Ms. Jenkins’ last day on the job was Friday, April 20, 2012. Mr. Schaible, together with Mary Celle, Vice President of Operations, made a decision to eliminate the position of receptionist. Mr. Schaible had been unable to keep Ms. Jenkins busy full-time with receptionist duties such as answering and routing phone calls, accepting parcel deliveries, handing out job applications, and directing individuals to appropriate offices. Mr. Schaible determined Petitioner was competent to perform these duties, in light of her previous service as company receptionist. Petitioner had the day off on Friday, April 20, 2012. When she returned to work on Monday, April 23, 2012, Mr. Schaible informed Petitioner that she would take over the receptionist duties while continuing to serve as Human Resources Assistant. Petitioner was physically moved from her desk to the receptionist desk at the front of the building.2/ Neither Petitioner’s title nor her salary changed when she was moved to the receptionist desk. Mr. Schaible made efforts to reduce Petitioner’s duties as Human Resources Assistant, reassigning responsibility of managing Kahuna, a software program through which new telemarketers were assigned log-in and password information, to a payroll employee, Maryanna Hilton. Additionally, Mr. Schaible instructed Petitioner to discontinue sending personal faxes for other employees. The company had taken some steps to streamline the receptionist function to make it more efficient and less time- consuming. For example, the company moved from paper applications to an online application system. The receptionist was to direct persons inquiring about job applications to computer terminals located at the building entrance in front of the receptionist desk. Similarly, the company telephone system was changed from a switchboard to automatic routing of calls to direct extensions by department. Petitioner was instructed to continue her regular Human Resources duties, but to place personnel files in a locked Human Resources file room located ten feet from the receptionist desk when she was away from her desk. On April 24, 2012, Mr. Schaible arrived at work early and noticed a stack of employee personnel files on the receptionist desk. Petitioner was not at the desk. Mr. Schaible concluded that the files had remained on the desk overnight. The files contained copies of social security cards, driver’s licenses, and the results of criminal background checks and credit checks for newly hired employees. Mr. Schaible secured the files and addressed Petitioner about the issue later that day. Mr. Schaible stressed with Petitioner the importance of keeping personnel files secure, and offered to get her a rolling file cabinet. The next day, April 25, 2012, Petitioner sent Mr. Schaible the following e-mail: “I apologize for the files when I left . . . it won’t happen again.” The following day, April 26, 2012, Mr. Schaible found a personnel file containing personal identifying information on Petitioner’s desk. Mr. Schaible removed the file and placed it in the locked file room. Later that same day, Petitioner sent the following e-mail to Mr. Schaible: “Will make sure forms are upside down on my desk before I take a break . . . my bad.” Mr. Schaible spoke to Petitioner that same day and explained that turning files upside down on the desk in her absence was not sufficient. He explained that personnel files must be secured in the locked file room when she was not at her desk. On Monday, April 30, 2012, Petitioner was on vacation, and Mr. Schaible sat at the front desk for at least some part of the day.3/ He discovered in one of the desk drawers over 50 completed W-4 forms for current employees. Mr. Schaible discussed with Ms. Celle the need to initiate the company’s progressive discipline policy and give Petitioner a verbal warning.4/ Mr. Schaible planned to meet with Petitioner late in the afternoon on May 1, 2012, and deliver the verbal warning. Petitioner was back in the office on May 1, 2012. While Petitioner was on a break and Ms. Hilton was manning the receptionist desk for Petitioner, Mr. Schaible discovered six personnel files on the desk. Mr. Schaible removed the files and decided to modify the verbal warning to a written warning, in essence moving to the second step of the company’s progressive discipline policy. Mr. Schaible did not have a meeting with Petitioner on May 1, 2012, as planned. On May 2, 2012, Mr. Schaible planned to meet with Petitioner at 3:00 p.m. to present her with the written warning and discuss the confidentiality issues. He requested that Carrie Santana, Manager of Customer Care and Quality, attend the meeting as well. At 3:00 p.m., Mr. Schaible asked Petitioner to come to his office. She was busily working in the Kahuna program, adding two new employees at the request of a manager in the Jacksonville office. Petitioner requested Mr. Schaible to wait until she completed the log-in and password information for the new employees. Mr. Schaible became angry, told her that task would have to wait, and ordered her into his office immediately. Petitioner accompanied Mr. Schaible to his office, where Ms. Santana was waiting. Mr. Schaible confronted Petitioner with the W-4 forms he had found in the receptionist desk on April 30, 2012, as evidence of her failure to follow his directions to secure personal information of company employees. Before Mr. Schaible brought up the six personnel files he had removed from the desk the previous day, Petitioner stated, “I quit,” stood up and left Mr. Schaible’s office, then exited the building. Petitioner denies that she quit her job on May 2, 2012, instead testifying that she stated, “I quit this,” meaning she quit Mr. Schaible’s treatment toward her. However, Mr. Schaible’s testimony that Petitioner stated, “I quit” on May 2, 2012, was corroborated by Petitioner’s own e-mail dated May 3, 2012, to company President Matthew Zemon, as well as Ms. Santana’s written memorandum dated May 3, 2012, in which she memorialized the events of May 2, 2012. The evidence conflicted as to whether Petitioner returned to the office on May 2, 2012, following the disciplinary meeting. Mr. Schaible testified he did not see Petitioner after the meeting that day or the next day, May 3, 2012. Petitioner testified that she returned to the building within 30 minutes, stating first that she went into Mr. Schaible’s office to complain about his treatment of her, but later testifying that his office door was closed, so she did not go in to see him. Mr. Schaible’s testimony on this issue is credible and accepted by the undersigned. Mr. Schaible e-mailed Ms. Celle following the disciplinary meeting on May 2, 2012, informing Ms. Celle that Petitioner had resigned. Mr. Schaible then completed a Record of Termination for Petitioner showing a separation date of May 2, 2012. The evidence showed that American Support did not accept Petitioner’s resignation. In response to Petitioner’s email of May 3, 2012, Mr. Zemon e-mailed Mr. Schaible and asked him to contact Petitioner and offer her a position in inbound/outbound sales at the high end of the pay range. Mr. Schaible did so, but Petitioner did not accept the offer. Petitioner clearly considered her assignment to the receptionist desk to be demeaning. She was subjected to comments from other employees suggesting she had been demoted because she could not perform Human Resources duties. She felt that the Human Resources Assistant did not belong at the front desk. Petitioner was overwhelmed with performing Human Resources duties while assisting job applicants at the computers, answering telephone calls that were not automatically routed, accepting delivered parcels, and dealing with the myriad inquiries typically made of the receptionist at any business. Petitioner complained that it was impossible to secure applicants’ and employees’ personal information with other employees passing by the front desk on their way in and out of the building. She noted that running back and forth to the Human Resources file room every time she was required to get up from the desk -- even though it was only ten feet away -- rendered her work inefficient, if not impossible. In support of her argument that she was discriminated against based on her sex, Petitioner alleged that Mr. Schaible hired a second male recruiter out of a mixed pool of applicants, that Mr. Schaible made inappropriate comments about some applicants, and that he hired a male recruiter at a rate of $17 per hour -– higher than other Human Resources employees. Petitioner submitted no evidence to establish what comments were made about any applicant for the position of Human Resources recruiter. As to hourly rates of pay, Petitioner testified that the new recruiter was paid at a higher rate than Mr. Hernandez. Further, Petitioner did not produce any evidence as to the rates of pay for either Ms. Zoe or Mr. Hernandez. Petitioner also alleged that following her move to the receptionist desk on April 23, 2012, Mr. Schaible instructed her not to take breaks with Mr. Hernandez, not to check her work e- mails from home, and excluded her from meetings with other Human Resources employees. However, Petitioner was unable to testify with certainty that other employees were allowed to continue checking e-mails from home. Ms. Zoe, the female virtual recruiter on the team, continued to participate in Human Resources meetings. Petitioner likewise complained that she was denied a raise while Mr. Hernandez received one. On April 19, 2012, in response to Mr. Schaible’s request, Petitioner submitted a self- evaluation for Mr. Schaible’s consideration. Petitioner testified that Mr. Hernandez told her a week later that he received a raise. Petitioner then asked Mr. Schaible about the time period for a decision on her raise; Mr. Schaible responded, according to Petitioner, “Not sure about it yet.[5/]” Petitioner’s hearsay statement alone is insufficient to support a finding that Mr. Hernandez received a raise. No evidence was introduced as to the status of other employees’ evaluations or raises. Petitioner’s most-repeated claim is that Mr. Schaible treated her unprofessionally by speaking to her sharply in front of other employees, yelling when he ordered her into his office on May 2, 2012, and “slamming” the W-4 files on the desk during the disciplinary meeting. Petitioner felt his treatment of her was demeaning, harassing, and embarrassing. Petitioner presented no evidence, however, that Mr. Schaible’s treatment of her was related in any way to her status as a female. In fact, when Mr. Schaible hired a replacement Human Resources Assistant, he hired another female. Petitioner alleged that Mr. Schaible acted in retaliation, but could not articulate any event for which the retaliation was lodged. When questioned by the undersigned as to her retaliation claim, Petitioner testified, It just didn’t seem like the right thing for an office atmosphere, I should say, or speak to an employee in such a manner. So it’s just his mannerism and his attitude toward me that made me feel like it was a retaliation [sic] for something, and I couldn’t figure out what it was.[6/] Petitioner may very well have been put in an impossible work situation, treated unfairly, or forced to resign. However, there is no evidence that her treatment was related in any way to her status as a female. Petitioner did admit to improperly handling employee personnel files and applicant files on at least two occasions. She denies that leaving the six files on the desk when Ms. Hilton was covering for her break was improper because Ms. Hilton worked in the payroll department and had access to employee personal information. As to the W-4 forms in her desk, Petitioner admitted that even if the forms were left in the desk by Ms. Jenkins, Petitioner was ultimately responsible for securing those documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013.
Findings Of Fact In response to a newspaper advertisement, in May of 1990, Petitioner Peter Ballance submitted to Respondent Town of Palm Beach his employment application, together with an extensive resume, seeking a position as a Mechanic III with the Town's Public Works Department. On May 31, 1990, Petitioner was interviewed for that position by an interview panel of four persons: David Kyzar, Lloyd McCoy, William Krouse, and Leonard Greene. At the beginning of his interview, Petitioner spoke in a whisper. He explained that he stuttered and speaking in a whisper made it easier for him to communicate without stuttering. Within the first few minutes of his interview Petitioner relaxed and began speaking in a normal tone. The members of the interview team had no difficulty communicating with Petitioner, and Petitioner had no difficulty communicating with them. No member of the interview team had any concern about Petitioner's stuttering since one employee with a severe stutter already worked in the Town's Public Works Department, and one employee with a stutter worked as one of the Town's police officers. Further, the members of the interview team understood that the position for which Petitioner was applying would not require much verbal communication. During the interview, Petitioner spoke of his extensive qualifications. The position of Mechanic III is the Town's highest level mechanic position. According to both the job description and the discussion during the interview, a Mechanic III is expected to work with little or no supervision, is able to handle any repair job, and can perform the highest level of preventive maintenance on the Town's vehicles. During the interview Petitioner represented himself to be able to work on all vehicles based upon his 30 years' experience working on all types of engines and vehicles. Essentially, Petitioner represented that he could repair anything. Petitioner specifically advised that he did not like working in a flat rate shop. A flat rate shop uses a book which rates each job as to time so that the shop can give a customer a quote as to how much that job will cost. The book gives the maximum and minimum time periods for that job. Since it does not take mechanics the length of time to do the job which the flat rate book indicates is the appropriate time, the mechanic is actually paid for more time than the job took. It is easy, therefore, for a mechanic to be paid for 70 hours of work, for example, when he actually only worked a regular 40 hour work week. Petitioner explained that he thought the use of flat rates was an unethical practice and that Petitioner liked to take his time in repairing engines because he liked doing quality work. Petitioner's dislike of flat rate shops posed no problem to the interview team since the Town does not operate a flat rate shop. The interview team discussed with Petitioner his experience with diagnostic equipment. Petitioner specifically represented during the interview, as well as on his resume, that he is proficient in operating the Sun Interrogator II, an engine analyzer. Petitioner's experience with that machine was important since the Town used the Sun Interrogator II in its shop. Petitioner was the most qualified applicant for the position. All members of the interview team were favorably impressed with Petitioner's extensive mechanical ability and with how he handled himself during the interview. He was hired as a Mechanic III in the Town's Public Works Department. Petitioner began his employment on June 14, 1990, a Thursday. On that Thursday and Friday and for the following full week, Petitioner worked under Mike Sharpe, the mechanic foreman responsible for overseeing the operation of the Town's vehicle maintenance shop. Sharpe was Petitioner's immediate supervisor, and Sharpe's own immediate supervisor was David Kyzar, the vehicle maintenance supervisor and a member of Petitioner's interview team. Kyzar's immediate supervisor was Lloyd McCoy, the division manager who served on Petitioner's interview team with Kyzar. McCoy's immediate supervisor was Al Dusey, the Director of the Public Works Department of the Town of Palm Beach. During that first partial week and first full week while Petitioner's immediate supervisor Mike Sharpe was supervising his work, Sharpe began to question Petitioner's ability to perform his duties. Sharpe found that Petitioner took an inordinate amount of time to perform any job assigned to him and specifically noted that Petitioner did not know how to hook up the Sun Interrogator II. Sharpe gave Petitioner the manual for the Interrogator and thereafter observed Petitioner using the manual, not as a reference book, but, rather, Petitioner was following the manual step-by-step as he worked. Sharpe assumed that Petitioner was nervous at his new job since Petitioner's demonstrated lack of skill was contrary to the extensive experience Petitioner had represented, both verbally and in writing, that he had. Yet, Sharpe was concerned enough about Petitioner's apparent lack of ability that Sharpe contacted Kyzar who was on vacation to explain to Kyzar his concerns about Petitioner's performance. Starting the following Monday, Petitioner's second full week of employment, it was Sharpe's turn to be on vacation, and Kyzar returned from his vacation to oversee the operation of the vehicle maintenance shop while Mike Sharpe was on vacation. Sharpe continued to be concerned enough about Petitioner's performance that he called Kyzar from North Carolina where he was vacationing to ask Kyzar how Petitioner was doing. Kyzar explained that he was sharing the same concerns that Sharpe had, that is, Petitioner's extreme slowness in performing any task and Petitioner's apparent lack of skill. Kyzar began making personal notations which he kept in his desk regarding Petitioner's work. For example, he made a notation when a job which would normally take 20 to 30 minutes took Petitioner, a supposedly highly skilled mechanic, 4 hours to complete. Kyzar wrote such a memo almost every day. When he did so, Kyzar would speak with Petitioner about Petitioner's extreme slowness and poor performance in a position demanding a high level of skills. Petitioner responded to Kyzar by accusing Kyzar of picking on Petitioner because of his stutter. Kyzar repeatedly told Petitioner that Petitioner's stutter was not a problem but Petitioner's performance was. It was important to Petitioner to discuss with people his stuttering. During Petitioner's first two days of employment before Kyzar went on his one- week vacation, Kyzar took Petitioner through the orientation procedures for new employees. He introduced him to other employees; he took him on a tour of the facilities and showed him where vehicles to be repaired would be located; he made sure that Petitioner filled out the new employee forms required by the Town, and he went over Petitioner's job duties. During those two days, Petitioner on several occasions wanted to discuss with Kyzar Petitioner's speech impediment, and Kyzar listened to Petitioner's explanation and discussed it with Petitioner. After Kyzar returned from vacation and began supervising the vehicle maintenance shop while Sharpe was on vacation, Petitioner came to Kyzar's office several times to discuss Petitioner's stutter and also pulled Kyzar aside in the shop several times to discuss Petitioner's stutter. Kyzar eventually told Petitioner he did not have time to keep discussing Petitioner's stutter when Petitioner's stutter was not a problem. During Kyzar's supervision, Petitioner became critical and vocal regarding the fact that Petitioner did not like the brands of products being used by the Town to repair its vehicles and also did not like some of the procedures followed in the vehicle maintenance shop or followed by the Town. Kyzar's explanation to Petitioner, for example, as to why a governmental entity would have to purchase Goodyear tires rather than Michelin tires did not satisfy Petitioner. All persons are hired by the Town of Palm Beach as probationary employees. Petitioner's probationary period was six months. At the end of Petitioner's first month of employment, Kyzar, his supervisor, and his supervisor's supervisor met and discussed the sharp contrast between the representations made on Petitioner's resume and during Petitioner's interview and Petitioner's actual performance. It was clear to them that Petitioner did not possess the skills necessary to perform repairs at the level of a Mechanic III and, accordingly, did not possess the skills which Petitioner had represented, both verbally and in writing, that he possessed. Petitioner was terminated from his employment by the Town of Palm Beach on July 16, 1990. The sole reason for Petitioner's termination was his poor level of performance and apparent inability to perform the job for which he had been hired. Although the Town's vehicle maintenance shop was not a flat rate shop, the Town expected, and had a right to expect, that Petitioner would perform his duties within a reasonable time. Since Petitioner was either unable or unwilling to accomplish his repair jobs within a reasonable time, the Town had good cause for terminating Petitioner's employment if there had been a requirement for good cause in order to terminate a probationary employee. Petitioner's speech impediment did not cause or contribute to Petitioner's discharge. His speech impediment did not interfere with any of his communications relative to his employment with the Town of Palm Beach. Neither the Town of Palm Beach nor any of its employees discriminated in any way against Petitioner as a result of his stutter. Petitioner testified for a number of hours on two separate days during the final hearing in this cause. Even with the extra stress experienced by many people while testifying and otherwise participating in an evidentiary hearing, Petitioner's stutter did not interfere with his communication. In fact, Petitioner's stutter was barely noticeable and infrequent. Although Petitioner testified that he is able to work on any vehicle due to his extensive experience, he also testified that he should not have been expected to repair domestic vehicles as well as European vehicles since he had worked primarily on foreign vehicles both before and after he moved to the United States in 1983. Although there may be a difference between the nuts and bolts used in foreign cars and those used in domestic cars, there is no difference between foreign cars and domestic cars as far as the procedure for hooking up the Sun Interrogator II and no difference as to the mechanical work to be performed. Accordingly, Petitioner's testimony that he was a little slow because of his unfamiliarity with domestic cars is rejected since it is without factual basis and is contrary to the representations made by Petitioner to the Town in Petitioner's resume, during Petitioner's interview, and during the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Town of Palm Beach did not commit an unlawful employment practice by discharging Petitioner and dismissing the Petition for Relief filed in this cause. DONE and ENTERED this 7th day of December, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. COPIES FURNISHED: Jonathan R. Kaplan, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 John C. Randolph, Esquire Jones, Foster, Johnson, et al. 505 South Flagler Drive P.O. Drawer "E" West Palm Beach, Florida 33402 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149
The Issue Whether Respondent committed an unlawful employment practice?
Findings Of Fact Petitioner, Mr. Young, is a black male. From May 8, 1980 until September 20, 1985, Petitioner was employed by PCR, Inc., in Gainesville, Florida. PCR, Inc., is a chemical manufacturing company which mixes and manufactures some of the most toxic chemicals that exist at its Gainesville plant. In September, 1985, PCR, Inc. was owned by SCM Organic Chemicals. Petitioner was first employed by PCR, Inc., in May, 1980 as a maintenance helper and was subsequently promoted to maintenance mechanic. The maintenance department at the plant had seven employees, including Petitioner, who was the only black. Respondent followed a practice of documenting meetings between supervisors and employees concerning disciplinary matters and employee reprimands by memorandums written by the supervisors. Also, employees were counselled by supervisors in an informal manner where no memorandums were written. Prior to December, 1984, Petitioner had only been counselled or reprimanded regarding his work performance one time. The reprimand was for a one-day unexcused absence from work following four days of vacation. Sometime in October, 1984, Mr. Singletary became the supervisor of the maintenance department at PCR's plant in Gainesville. As such he was Petitioner's immediate supervisor. Mr. Singletary had worked for Respondent for over 20 years in Respondent's Jacksonville plant, where he had moved up through the ranks to become second in command in the maintenance department. In Jacksonville, Mr. Singletary had a reputation of being a tough, but fair supervisor who was concerned with "getting the job done," and who treated his coworkers and those he supervised equally, regardless of their race. One of Mr. Singletary's first duties upon becoming maintenance supervisor in the Gainesville plant was to review the personnel files and attendance records of the maintenance department employees. From this review, it appeared to Mr. Singletary that Petitioner had been abusing the sick leave privilege. After consulting with Mr. Pitrolo, the plant superintendent at the time, Mr. Singletary and Mr. Pitrolo met with Mr. Young on December 4, 1985. At the meeting, Mr. Singletary showed Mr. Young his attendance record and decided to extend the time for the yearly review of Mr. Young's performance. The substance of the meeting was memorialized in a memorandum dated December 4, 1988, written by Mr. Singletary, as follows: This is to document our meeting and its conclusion we had December 4, 1984. I went over your work record and you have thoroughly abused the time off with pay segment of our working agreement. You are hereby not awarded a yearly review but instead it will be extended until 15 months. You will also be placed on probation for a period of three (3) months starting 12/05/84 and ending 03/05/85. Any further violations as we discussed will end in termination. The problem is definitely not with your work, however, its being at work. In early 1985, Mr. Singletary implemented a four day work week, ten hours per day work schedule for the maintenance department employees. Mr. Singletary received reports that Mr. Young was telling other plant employees that he would receive overtime pay for the extra two hours of work per day. This became a concern to Mr. Singletary, since it was not true, and he did not want other employees to think that the maintenance department employees were receiving preferential treatment. On February 9, 1988, Mr. Singletary met with Petitioner and Petitioner denied he was making comments regarding the overtime pay. Mr. Singletary felt Petitioner was lying and instructed him to stop spreading rumors. Sometime in late February or early March, 1985, Petitioner was arrested for driving under the influence. After his arrest, Petitioner started telling people at the plant, including Mr. Pitrolo, that his intoxication had been caused by the chemicals present at the plant. Mr. Pitrolo told Petitioner that if he had a problem he should talk to his immediate supervisor, Mr. Singletary, and not make comments to other people in the plant. Instead of talking with Mr. Singletary, Petitioner continued to talk with others at the plant. Because Petitioner continued to talk about the intoxication to others, in violation of Mr. Pitrolo's instruction to talk with Mr. Singletary, another meeting was held between Petitioner, Mr. Singletary and Mr. Pitrolo, on March 5, 1988. Petitioner denied he was telling others that his intoxication was caused by the chemicals, but Mr. Singletary did not believe him. Petitioner was told to stop spreading rumors and to follow the chain of command if he had a problem. In early April, 1985, Petitioner was convicted of driving under the influence and sentenced to serve a 6-month jail term. Also, in April, 1985, Mr. Bailey became plant supervisor of the PCR, Inc., plant in Gainesville. He had previously been interim plant manager from May to September, 1984. After Petitioner's conviction, the Department of Corrections asked if Petitioner could return to his job at PCR, Inc., so he could be placed on a work release program instead of serving the 6-month sentence in jail. After consulting with Mr. Singletary, and reviewing Petitioner's personnel file, Mr. Bailey decided to allow Petitioner to work at the plant on the work release program. Petitioner started back at work on April 22, 1985. On that date, Mr. Singletary met with Petitioner to discuss the work release program and to let Petitioner know he was on "thin ice with the company." On April 26, 1985, Mr. Bailey and Mr. Singletary met with Petitioner. Mr. Bailey had reviewed Petitioner's personnel file and had seen all the memorandums in the file which had been written as a result of past counselling sessions. Mr. Bailey showed all the memorandums to Petitioner and asked him if he understood them and Petitioner said yes. Petitioner signed all the memorandums in the file. Mr. Bailey explained to Petitioner that if he had a problem, he should speak to Mr. Singletary. Also, Petitioner was told that being disruptive in the plant was bad and could cause operators to do something wrong. Petitioner was told that any further acts of a disciplinary nature would result in immediate termination. Approximately one month later, Mr. Bailey during his walks through the plant, began receiving reports that Petitioner was disgruntled, was complaining to other employees about the work he had to do, and was slow in completing work assignments. Reportedly, Petitioner would accuse the operators of breaking the machines on purpose. Mr. Bailey spoke with Petitioner informally during walks through the plant and told Petitioner to stop being disruptive. However, the number of people complaining about Petitioner's comments increased and things reached a point where operators told Mr. Bailey and Mr. Singletary that they did not want to turn in work orders because they were concerned about the comments Petitioner would make. Mr. Bailey, concerned with plant safety, consulted with Mr. Singletary and they decided that they had enough and would terminate Petitioner. On September 20, 1985, Mr. Singletary and Mr. Sauer, the personnel officer, met with Petitioner and explained to Petitioner that he was being terminated. The reasons given to Petitioner for his termination were poor performance, attitude and not being a team player.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief filed in this case. DONE and ENTERED this 7th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. Accepted. RO1. 2. Rejected as irrelevant. 3. Generally accepted. RO3. 4. Accepted, except events occurred in October. RO4. 5. Accepted. RO8. 6. Accepted. 7. Accepted. RO17. 8. First sentence accepted. RO19. Second sentence rejected. Mr. Singletary testified that he followed up and determined that the complaints were accurate. 9. Accepted, except for phrase "although no additional acts of a disciplinary nature had occurred", which is rejected as being contrary to the weight of the evidence. RO21. Respondent's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph First sentence accepted. RO2. Second sentence rejected; no evidence was presented about when PCR, Inc. was sold. Generally accepted. RO2. Supported by competent evidence but unnecessary to the decision reached. Accepted. RO1 and 3. First four sentences accepted. RO6. Last two sentences are supported by competent evidence but are unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO5. 8-12. Accepted generally. RO6. 13-20. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO4. Accepted, except last sentence which is rejected. RO5. Accepted, except second sentence. RO7. Second sentence rejected as not supported by competent evidence. 24-25. Accepted. RO9. Accepted. RO10,11. First sentence accepted. RO12. Rest of paragraph is supported by competent evidence but is unnecessary to the decision reached. Accepted generally. RO14,15. Accepted. RO16. Accepted. RO17. Generally accepted. RO18. Generally accepted. RO18. Generally accepted. RO20. Generally accepted. RO18. Generally accepted. RO19. Accepted. RO20. Accepted. RO21. Rejected as irrelevant. Rejected as not a finding of fact, but a recitation of testimony. Not a finding of fact. See conclusions of law portion of the RO. Supported by competent evidence. 42-43. Not a finding of fact. See conclusions of law portion of the RO. COPIES FURNISHED: Reese Marshall, Esquire 210 West Union Street Jacksonville, Florida 32202 T. Geoffrey Heekin, Esquire Commander, Legler, Werber, Dawes, Sadler & Howell Post Office Box 240 Jacksonville, Florida 32201-0240 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahasee, Florida 32399-1925 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Sherry B. Rice, Clerk Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issues in this matter are whether Respondent violated section 112.313(6), Florida Statutes (2013),1/ by obtaining funds from Orange County in the form of a severance payment while remaining employed as General Counsel for the Orange County Clerk of Courts; and, if so, the appropriate penalty.
Findings Of Fact Respondent, Stephan Carter, served as General Counsel for the Orange County Clerk of Courts (the “Clerk’s Office”) from June 2003 through April 1, 2014. Respondent was a public employee at all times material to this action. Respondent was personally hired by Lydia Gardner, the Orange County Clerk of Courts. In January 2005, Respondent and Ms. Gardner executed an employment contract (the “Employment Agreement”). The Employment Agreement was signed by Respondent and Ms. Gardner, in her capacity as the Clerk of Courts, on January 10, 2005, and January 13, 2005, respectively. The Employment Agreement, paragraph 6, entitled “Termination of Employment,” established that the Clerk would pay Respondent a fee should the Clerk terminate the Employment Agreement prior to its expiration date (the “Severance Payment”). Paragraph 6 specifically provided: The Clerk may declare this agreement terminated at any time. . . . The Clerk shall promptly pay to the General Counsel a sum equal to i) the salary and deferred compensation that is accrued but unpaid as of the date of the termination, plus ii) an amount equal to the pro rata portion of his salary for all accrued but unused leave time, plus, iii) an amount equal to the salary and deferred compensation that the General Counsel would have received during the 180 days immediately following the date such termination takes effect, as if this agreement had not been terminated. At the final hearing, Respondent explained that when he accepted the position of General Counsel (then titled “Legal Counsel”) with the Clerk’s Office in June 2003, he informed Ms. Gardner that he would only agree to work for the Clerk’s Office if he could be protected from losing his position. Therefore, Respondent sought and obtained the Severance Payment provision should he be terminated for any reason other than his voluntary resignation. The Employment Agreement provided that Respondent’s term of employment continued until January 6, 2009. On January 7, 2009, Respondent and Ms. Gardner entered a signed agreement wherein the Employment Agreement was “extended indefinitely.” On February 5, 2013, Respondent and Ms. Gardner signed a second amendment to the Employment Agreement.2/ This “clarification of terms” stated: [A]s to the definition of termination in paragraph 6, for the purposes of the contract, termination by the Clerk includes the ending of the employment relationship for any reason other than General Counsel’s voluntary resignation. The amendment also provided that an $11,000 annual payment into Respondent’s deferred compensation plan contained in the original Employment Agreement be considered compensation under Florida Administrative Code Rule 60S-6.001(15)(relating to pensions) and not a fringe benefit. In February 2013, Ms. Gardner became gravely ill. Ms. Gardner’s illness caused her to be absent from the Clerk’s Office. In Ms. Gardner’s absence, Colleen Reilly, the Chief Administrative Officer for the Clerk’s Office, assumed Ms. Gardner’s responsibilities. Ms. Reilly was hired in 2009. At that time, Respondent prepared an employment contract for Ms. Reilly modelled on his own Employment Agreement. In April 2013, Ms. Reilly approached Respondent to talk about their future employment with the Clerk’s Office. Ms. Gardner’s health was deteriorating. Respondent and Ms. Reilly discussed the impact of Ms. Gardner’s death on their positions. Ms. Reilly was also concerned whether the new Clerk of Courts would honor their Employment Agreements. Respondent and Ms. Reilly’s conversation led to a discussion regarding how they could protect the Severance Payments under their respective Employment Agreements. Respondent and Ms. Reilly considered several possibilities. One position was that their Employment Agreements would remain in effect upon Ms. Gardner's death, and they could ask the new Clerk of Courts to honor the payout terms. Respondent, however, determined that the Employment Agreements were not clear on whether he and Ms. Reilly were entitled to the Severance Payments following a change of administration. Therefore, they became concerned whether the new Clerk of Courts would be legally bound to honor the Severance Payments should he or she decide not to retain their services. Respondent, without seeking legal guidance or consulting with outside counsel for the Clerk’s Office, concluded that the Employment Agreements would terminate upon Ms. Gardner’s death. At the final hearing, Respondent explained that he considered his employment to be tied specifically to Ms. Gardner and not the Clerk's Office. Therefore, Respondent reasoned that because both he and Ms. Reilly were hired by and worked directly for Ms. Gardner, her death would terminate their contracts. This termination, of course, would also entitle Respondent (and Ms. Reilly) to the Severance Payment because his employment would have ended for a reason other than his voluntary resignation. Respondent and Ms. Reilly also discussed their plans once their Employment Agreements were terminated. Respondent informed Ms. Reilly that he believed that after the Employment Agreement was terminated, they could continue to work for the Clerk’s Office as “at-will” employees without employment contracts. Respondent encouraged Ms. Reilly to take her Severance Payment then stay in her position with the Clerk’s Office. He intended to do the same. Late in April 2013, Ms. Reilly informed Respondent that she was planning to visit Ms. Gardner, who was on convalescent leave at her home, to ask her to formally terminate the Employment Agreements and make them at-will employees of the Clerk’s Office. Respondent encouraged Ms. Reilly’s endeavor. Respondent then drafted two versions of a memorandum Ms. Gardner could sign to effectuate the termination of their contracts. Ms. Gardner, however, did not agree to terminate the Employment Agreements or sign the paperwork Respondent had prepared. Consequently, the Employment Agreements remained in effect. When Ms. Reilly was not able to obtain Ms. Gardner’s consent to terminate the Employment Agreements, Respondent began to consider Ms. Reilly’s authority to terminate his Employment Agreement. Respondent determined that Ms. Reilly could terminate his contract under section 28.09, Florida Statutes, and they could still receive the Severance Payments. Section 28.09 describes the appointment of a clerk ad interim in the case of a vacancy occurring in the office of a clerk by death. Section 28.09 states that the clerk ad interim “shall assume all the responsibilities [and] perform all the duties” of the clerk. Therefore, because Ms. Reilly would assume all the powers of Ms. Gardner, she would be authorized the terminate his Employment Agreement. Ms. Gardner passed away on May 8, 2013. On May 9, 2013, Ms. Reilly was officially appointed as Clerk Ad Interim for the Clerk’s Office. Also on May 9, 2013, Respondent and Ms. Reilly immediately took steps to obtain their respective Severance Payments. To effectuate their plan, Ms. Reilly promptly terminated both their Employment Agreements using her newfound authority as the interim Clerk. Respondent hoped that this step would remove any questions of their entitlement to the Severance Payment that might be raised by the new Clerk of Courts. Respondent then went directly to the Clerk’s Payroll office. There, he approached Tracy Gasinski, the payroll administrator for the Clerk’s Office. Respondent informed her that Ms. Reilly had approved him to receive a payout. Respondent declared that his payout was authorized because his Employment Agreement was terminated. Respondent also instructed Ms. Gasinski to pay Ms. Reilly’s payout under her Employment Agreement. Respondent stressed that he wanted both payouts processed immediately. Finally, Respondent advised Ms. Gasinski that nobody needed to know about the payout. Ms. Gasinski felt pressured by Respondent. However, based on his representation that Ms. Reilly had approved the payout, she immediately processed a final paycheck for Respondent (and Ms. Reilly), which included the Severance Payment provided in his Employment Agreement. Ms. Gasinski calculated a payout for Respondent in the gross amount of $110,290.61. This figure included a Severance Payment of $76,844.00. In addition, per his request, Respondent was also paid $27,822.10 for all his unused vacation leave (405.57 hours times a rate of $68.60), as well as $5,624.51 for his unused sick leave (327.96 hours times a rate of $17.15). Ms. Gasinski paid 25 percent of Respondent’s sick leave per Clerk’s Office policy. The next day, on May 10, 2013, Ms. Gasinski issued Respondent a check in the amount of $58,400.00 which was deposited directly into Respondent's personal bank account. Ms. Gasinski also deposited a final paycheck into Ms. Reilly's bank account. On or about May 20, 2013, however, Respondent returned to see Ms. Gasinski. He was not happy with his payout. Respondent told Ms. Gasinski that the amount she deposited was incorrect, and he was due more money. Respondent demanded several adjustments which would maximize his Severance Payment. First, referencing the February 5, 2013, amendment to his Employment Agreement, Respondent wanted the $11,000 he received as deferred compensation to be incorporated into his base salary thereby increasing his rate of pay. Second, Ms. Gasinski, in calculating Respondent’s Severance Payment, computed the final payout based on six month’s salary in accordance with the standard practice of the Clerk's Office. Respondent, however, insisted that his Severance Payment be calculated based on “180 days” as specifically stated in his Employment Agreement at paragraph 6. This mathematical adjustment increased Respondent's payout by including payment for all Saturdays and Sundays.3/ Third, Respondent demanded that he receive 100 percent payout for his remaining sick leave instead of just 25 percent as was the Clerk’s Office policy. Fourth, Respondent requested that 56 hours (7 days) be reserved in his vacation leave account and not paid out.4/ Following their meeting, Ms. Gasinski voided the initial payout check. However, she was not comfortable with Respondent’s request based on her understanding of employment contracts. Respondent's and Ms. Reilly's transactions were out of the ordinary course of business for the Clerk's Office. In her experience, final paychecks to Clerk’s Office employees were always accompanied by paperwork from the Clerk’s Office’s Talent Management division. This paperwork came in the form of an Employee Change Notice (“ECN”). However, Respondent did not produce, nor had Ms. Gasinski received, an ECN supporting Respondent’s payout. In Clerk’s Office accounting practices, Talent Management and the Payroll office act as a check and balance for each other. Typically, Talent Management initiates the paperwork, and then Payroll issues the checks. The normal process for a payout when a Clerk's Office employee leaves employment is for Talent Management to notify Ms. Gasinski who then processes the final payout. Respondent did not have the authority to direct Ms. Gasinski to issue the checks. Similarly, Ms. Gasinski did not have the authority to write checks to either Respondent or Ms. Reilly. Furthermore, a final payout upon termination is always via a paper check. Direct deposit to a personal bank account is never an option. The terminated employee picks up the paper check from Talent Management who verifies that the employee's garage pass and badge have been returned. Because of her discomfort with issuing Respondent’s payout check, Ms. Gasinski sought advice from her supervisor, Mike Murphy, the Chief Financial Officer for the Clerk’s Office. Mr. Murphy suggested that Ms. Gasinski contact Talent Management. On May 21, 2013, Ms. Gasinski spoke to Joann Gammichia, the Director of Talent Management, about Respondent’s request for a payout. When Ms. Gammichia learned of the situation, she had immediate concerns. First, Ms. Gammichia wondered why Payroll was issuing a check without any documentation from Talent Management such as an ECN. Ms. Gammichia testified that each employment activity requires completion of an ECN which acts as a recordkeeping system for the Clerk's Office. Because Respondent approached Ms. Gasinski in the Payroll office directly, no ECN or other written record was generated explaining why the Clerk’s Office was issuing the payout to Respondent. Ms. Gammichia explained that the policy of the Clerk’s Office is that payouts, severance checks, termination, or any kind of position change should only occur with an ECN in order to maintain and track the complete history of an employee's tenure with the Clerk's office. Ms. Gammichia also wondered why Respondent went directly to Ms. Gasinski with his demands. The normal starting point for employee changes begins with Talent Management, and the end of the line is financial services and Payroll. The fact that Respondent was attempting to verbally change his employment status in the Payroll office was “highly irregular.” Ms. Gammichia was also puzzled why the Clerk’s Office was issuing a severance payout on an employment contract when the employment was not ending. Consequently, Ms. Gammichia told Ms. Gasinski not to issue the adjusted payout check. Ms. Gasinski then notified Respondent via e-mail dated May 21, 2013, that she could not process the final payout until she received the proper documentation from Ms. Gammichia in Talent Management. Shortly thereafter, Respondent visited Ms. Gammichia’s office to inquire why she was involved in his payout matter. According to Ms. Gammichia, Respondent became “pretty aggressive.” Respondent told Ms. Gammichia that she had no authority or business being involved. It was a personal matter. Respondent warned Ms. Gammichia that she was directly violating an order from Ms. Reilly to make the Severance Payments. Ms. Gammichia informed Respondent that not only was she involved, but she was not authorizing the payout check to go through. Ms. Gammichia further advised Respondent not to contact Ms. Gasinski regarding the payout. Later that day, Ms. Gammichia contacted her supervisor, Cathi Balboa, the Director of Administrative Services for the Clerk’s Office, to discuss Respondent’s payout request. Ms. Gammichia relayed to Ms. Balboa that Ms. Gasinski was upset because she was being asked to prepare a large payout based only on verbal instructions without any supporting paperwork. At the final hearing, Ms. Balboa recalled that Respondent’s urgent request for a payout was highly irregular. Ms. Balboa relayed that the Clerk’s Office should not issue a final payout unless an employee was truly terminated from his or her position. Based on their concerns, Ms. Gammichia and Ms. Balboa called Ms. Reilly, who was sick at home, to confirm whether Ms. Reilly was aware of the payouts that Respondent said she had authorized. Ms. Gammichia also wanted to report the fact that Ms. Gasinski felt that she was being coerced and harassed by Respondent. Ms. Gammichia described Ms. Reilly’s reaction as hostile and negative. Ms. Reilly did not seem happy that others were involved. Ms. Reilly asked Ms. Balboa, “How did you get involved in this?" The next morning, on May 22, 2013, Ms. Reilly returned to the Clerk’s Office and called a meeting with Mr. Murphy, Ms. Balboa, and Respondent. Ms. Reilly opened the meeting by asking Mr. Murphy and Ms. Balboa "what do you think your role is in this organization," and "where do your loyalties lay?" Ms. Reilly then announced that “it was a private matter, it was their personal business, [and] to stay out of it." Ms. Balboa testified at the final hearing that Ms. Reilly intimidated her in their meeting. Mr. Murphy conveyed that he understood that they were not to get involved in the severance payout matter. After the meeting, Ms. Gasinski was told to proceed with the payouts for Respondent and Ms. Reilly. On May 23, 2013, Ms. Gasinski processed a second severance payout check for Respondent and Ms. Reilly. Ms. Gasinski prepared for Respondent a revised final paycheck in the total amount of $156,443.11. This amount included a Severance Payment of $106,387.20. Respondent was also paid $25,826.23 for his vacation leave (349.57 hours times a rate of $73.88), as well as $24,229.68 for all his unused sick leave (327.96 hours times a rate of $73.88). A check in the net amount of $99,125.45 was deposited in Respondent’s personal bank account. On May 23, 2013, Respondent repaid the initial payout of $58,400.00 to the Clerk’s Office by personal check. After Ms. Reilly terminated his Employment Agreement on May 9, 2013, Respondent never left his position with the Clerk’s Office. Respondent considered himself an at-will employee and continued to report to work as General Counsel. There was never any break in his employment. At no time did Respondent (or the Clerk’s Office) initiate or complete any paperwork to rehire Respondent after either Ms. Gardner’s death or Ms. Reilly terminated his Employment Agreement. No documentation was prepared transitioning Respondent from a contract employee to an at-will employee. Respondent continued to perform the same duties under the same terms, conditions, and compensation contained in the Employment Agreement as if he never left office.5/ At the final hearing, Respondent testified why his interpretation of his Employment Agreement justified his actions and motives. Respondent first remarked that his Employment Agreement was not typical for a Clerk’s Office employee. It contained certain provisions which were not to be “exposed generally,” such as the termination clause and the contact termination fee. Therefore, he desired to keep his employment terms quiet. Respondent further disclosed that he did not initiate an ECN because his Severance Payment was not a human resources issue, it was a matter of contract. Respondent also explained that at the end of 2008, when his Employment Agreement was nearing its initial termination date, Respondent became concerned with his future at the Clerk’s Office. He began to wonder what would happen if Ms. Gardner left her position as Clerk. Therefore, he prepared, then executed, the 2009 amendment to the Employment Agreement extending it “indefinitely.” In 2013, Respondent prepared, then executed, the second amendment clarifying the term “termination.” Regarding collecting his Severance Payment without leaving his position with the Clerk’s Office, Respondent contended that just because his Employment Agreement was terminated (thus, entitling him to the Severance Payment) did not mean he had to leave employment with the Clerk’s Office. Respondent characterized the payment as a “contract termination fee.” Therefore, he asserted that the Clerk could terminate his Employment Agreement without actually terminating him from his position as General Counsel. Consequently, nothing prevented him from becoming an at-will employee. Accordingly, when Ms. Reilly terminated the Employment Agreements on May 9, 2013, by exercising her prerogative as the interim Clerk, she also decided that both Respondent and she would stay on with the Clerk’s Office as at-will employees until the new Clerk of Courts determined what to do with them. In February 2014, the new Clerk of Courts, Eddie Fernandez, determined to initiate an investigation to review the propriety of the 2013 Severance Payments to Respondent and Ms. Reilly. On March 28, 2014, Respondent was placed on administrative leave with pay. On April 1, 2014, after the investigation recommended that Respondent’s employment be terminated, Respondent resigned from his position with the Clerk’s Office. As a condition of his resignation, Respondent was not eligible for rehire by the Clerk’s Office. Respondent reimbursed the full amount of the money that he received as the Severance Payment from the Clerk’s Office. Commenting on the circumstances of his resignation and restitution, at the final hearing, Respondent urged that he did not act dishonestly, but, maybe he exercised bad judgment. Respondent also proclaimed that he received his Severance Payment because the interim Clerk ordered it, not by reason of his actions or conduct. Therefore, he personally never violated any duty of his office. Based on the evidence and testimony presented during the final hearing, the competent substantial evidence in the record establishes, by clear and convincing evidence, that Respondent acted corruptly, with a wrongful intent, in seeking and obtaining the Severance Payment when he never intended to leave his public employment with the Clerk’s Office. Accordingly, the Advocate proved that Respondent violated section 112.313(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Steven Carter, violated section 112.313(6), Florida Statutes; and that Respondent be subject to public censure and reprimand. DONE AND ENTERED this 3rd day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2017.
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of April, 2001.
