Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ----3_ day of J--+Ni 1_c..y....,....,_-..._.{_· , 2014, m Tallahassee, Florida. /\ /' f ' .' C \ ).;'-(/ '((l /r- ELIZABETH DUDEK, SECRETARY (Agency for Health Care Admforstration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. (OPPOSING COUNSEL) Peter A Lewis, Esquire 302 North Shannon Lakes Drive Suitel0l Tallahassee, Florida 32309 (Via U.S. Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Station 9 Tallahassee, Florida 32308 (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Chang, Bureau Chief Medicaid Program Analysis 2727 Mahan Drive Building 2, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration 2727 Mahan Drive, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Kristin M. Bigham Office of the Attorney General The Capitol PL - 01 Tallahassee, FL 32399-1050 (Via US Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the of -;,;;-D, 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
Conclusions AHCA No. 2009000180 RENDITION NO.: AHCA- \ 3 · ) 00 S -S-OLC THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: 1 . The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1 ). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the applic ation, it shall resume its review of the app lica tion. The Applicant shall pay the Agency an administrative fee of $4,000.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Dri ve , MS# 14 Tallahassee , Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. ORDERED in Ta ll ahassee , Florida, on this V/ day of _ l_i(_>_f-v----9=c-t"-1-,- , 2013. retary are Administration Filed October 31, 2013 3:07 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days ofrendition of the order to be reviewed. CERTIFICATE OF SERVICE 0::,6, , I HEREBY CERTIFY that a true and correct cop 1:J_11al Order was the below- named persons/entities by the method designated on thi of 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas M. Hoeler, Chief Facilities Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P. L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) 2
Conclusions This matter is before the Department of Administration for entry of a Final order. A Recommended Order was entered herein on December 30, 1988, by Arnold H. Pollock, Hearing Officer. The record in this case, including the exhibits received into evidence ang the transcript of the hearing, has been reviewed. The Findings of Fact in the Recommended Order (Exhibit "A", attached hereto) are supported by competent substantial evidence and are adopted by the Department of Administration. The Conclusions of Law in the Recommended Order (Exhibit "A", attached hereto) are adopted and incorporated as part of this order. Petitioner's Exceptions Petitioner through his attorney has filed exceptions to the Recommended Order which are responded to as follows: (1) Exception 1: There is no competent evidence in the > record to substantiate the Respondent's assertion. The Hearing Officer's findings are supported by the record. Exception No. 1 is rejected. (2) Exception 2: The record does not support this exception. The prior occasions when the Petitioner was not required to call in each day of his absence were for specific long-term periods. The Hearing Officer's findings are supported by the record. Exception No. 2 is rejected. (3) Exception 3: The Hearing Officer's findings are supported by the Record. Exception No. 3 is rejected. (4) Exception 4: The findings are supported by competent evidence in the record. Exception No. 4 is rejected. (5) Exception 5: The record evidence will support the Hearing Officer's Findings of Fact. Petitioner failed to properly notify his supervisors as required. Exception No. 5 is rejected. (6) Exceptions 6, 7, and 8: The Respondent's exceptions to the Hearing Officer's Conclusions of Law are directed toward the ultimate conclusion of the Hearing Officer and not to the Findings of Fact, which are supported by the competent, substantial evidence in the record. Exceptions No. 6, 7, and 8 are rejected. (9) Exception 9 and 10: The Respondent's exceptions are directed at the Hearing Officer's Conclusions of Law. The Conclusions of Law are supported by the Hearing Officer's findings. An employee who is absent without proper authorization pursuant to Rule 22A-7.010(2) (a), F.A.C. for three consecutive days shall be deemed to have abandoned his position. See Hadley >) “) Vv. Department of Administration, 411 So.2a 184, (Fla. 1982). The exceptions of the Respondent are premised upon a theory of estoppel. The Respondent argues the past conduct of the employer precludes an enforcement of the abandonment rule under the findings of this case and therefore Respondent was justified in not seeking authorization for his absence. The court has held that past conduct of an employer will not preclude an employer from enforcing Rule 22A-7.010(2) (a), F.A.C. Department of Transportation v. Clancy, 521 So.24 376, (Fla. 2nd DCA 1988). Exceptions No. 9 and 10 are rejected.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of race and by retaliating against her, in violation of the Florida Civil Rights Act of 1992, as amended, Sections 760.10 et seq., Florida Statutes (2006).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Outreach Center is an organization serving the homeless in Broward County, Florida. It is associated with the Miami Rescue Mission and operates two centers in Broward County, one in Pompano Beach, Florida, and one in Hollywood, Florida. It provides shelter, emergency services, and comprehensive services to its clients, and receives its funding from private donations, in-kind gifts, contracts with governmental entities, and partnerships with local communities. At the times pertinent to this proceeding, the staff of Outreach Center's Hollywood center was multi-ethnic; approximately 50 percent of its employees were African-American, including two supervisors, and the rest of the staff consisted of Hispanics, whites and persons of other ethnic origins. At the times material to this proceeding, Ronald Brummitt was the Executive Director of the Miami Rescue Mission/Broward Outreach Center; Scott Hall was the Director of the Hollywood center of the Outreach Center and reported to Mr. Brummitt; and Martha Ayerdis was the Director of Human Relations for the Outreach Center. Mr. Brummitt and Mr. Hall are both white men. Ms. Chester, who is an African-American woman, began working for the Outreach Center in early 2005 as a case manager in its Pompano Beach center. During part of the time she worked in the Pompano Beach center, Mr. Hall was the social services supervisor and supervised Ms. Chester. Mr. Hall and Ms. Chester had a very good working relationship when they worked together in Pompano Beach. Later in 2005, Ms. Chester transferred to the Hollywood, Florida, center of the Outreach Center. Prior to her transfer, Mr. Hall became the Director of the Outreach Center's Hollywood center. Francesca Fraser, an African-American woman whom Ms. Chester had known when they both worked as case managers in the Pompano Beach center, was the social services supervisor at the Hollywood center when Ms. Chester began working there. Ms. Fraser began working with the Outreach Center in Pompano Beach in 2004; she was offered the social services supervisor position in Hollywood about a year and a half later. As the social services supervisor, Ms. Fraser supervised Ms. Chester. Mr. Hall and Ms. Fraser both thought very highly of Ms. Chester, and they recommended to Mr. Brummitt that Ms. Chester be promoted to lead case manager. Mr. Brummitt, who, as the Executive Director of the Outreach Center, had the power to hire, fire, and promote employees, approved Ms. Chester's promotion. The social services supervisor was a key person at the Outreach Center because, in addition to managing the case managers, the social services supervisor was responsible for ensuring that the required data were input into the Outreach Center's client-tracking database system and for extracting this data and preparing the monthly reports that were sent to the Miami Rescue Mission, the Outreach Center's parent organization. The data in the monthly reports were relied on to prepare the quarterly reports and the annual reports. During the times pertinent to these proceedings, Mr. Hall prepared the quarterly and annual reports, which were provided to Broward County as a condition of the Outreach Center's receiving funding from the county. Ms. Fraser liked her work at the Hollywood center of the Outreach Center. She felt, however, that her interaction with management, specifically, with Mr. Hall, was stressful and uncomfortable and became increasingly so. For Mr. Hall's part, he felt that, any time he questioned Ms. Fraser or tried to instruct her, she became defensive and gave him the impression that she felt insulted. Mr. Hall considered Ms. Fraser a very capable person, but their working relationship began to deteriorate because of the lack of communication between them. After a time, Ms. Fraser decided that she had no alternative but to resign her position with the Outreach Center. She was experiencing a great deal of stress as a result of her dissatisfaction with her working relationship with Mr. Hall, and she became ill. Ms. Fraser missed a great deal of work because of her illness, and, during Ms. Fraser's absences, Ms. Chester stepped in and helped Mr. Hall complete Ms. Fraser's work. Ms. Chester was a tremendous help to Mr. Hall during this time. After Ms. Fraser resigned, Ms. Chester acted as the de facto social services supervisor, and Mr. Hall worked with Ms. Chester on the client-tracking database and worked with her to complete the monthly report due June 30, 2006. Ms. Chester was promoted to social services supervisor at the Hollywood center effective July 1, 2006. Mr. Hall assumed that, when Ms. Chester was promoted to lead case manager, Ms. Fraser taught her how to use the client-tracking database system and how to supervise the case managers and had requested her assistance in the preparation of reports. He, therefore, did not provide Ms. Chester with any formal training with regard to the duties of the social services supervisor. He was, however, available to answer questions and work with her whenever she needed assistance, and he met with her regularly regarding various matters. Ms. Fraser left behind a great deal of unfinished work when she resigned, and Ms. Chester had a lot to do to get the work current. At the same time that she was trying to learn the job of social services supervisor, Ms. Chester was also handling the cases that she had when she was the lead case manager, and she had also advised Mr. Hall of her intention to take college courses to further her education. Mr. Hall was concerned that Ms. Chester was overwhelmed, and he urged her to transfer her case files to one of the case managers and to concentrate on her administrative and supervisory responsibilities. In Ms. Chester's opinion, the case managers under her supervision had heavy caseloads, and Ms. Chester continued to work with clients. When Ms. Chester was promoted to social services supervisor on July 1, 2006, Barbara Law was an intake case manager and was under the supervision of Ms. Chester. Ms. Law was promoted to resident services supervisor in August 2006. Ms. Chester believed that Ms. Law was given preferential treatment by Mr. Hall. For example, Ms. Law brought her daughter into the office on occasion, when she had an emergency; on one occasion, the lead family case manager, who was under Ms. Chester's supervision, had to tell Ms. Law's daughter not to run around the building with the children of clients. Ms. Chester believed that Mr. Hall was showing favoritism to Ms. Law by permitting her to bring her child to the office, but this was not a privilege extended only to Ms. Law. Other employees were routinely allowed to bring their children to the office. Ms. Chester felt that Ms. Law's family concerns were accommodated by Mr. Hall by allowing Ms. Law to bring her daughter to the office during work hours, but that Mr. Hall did not accommodate her family concerns. Ms. Chester referred to an incident that occurred during the first week of December 2006. Ms. Chester telephoned Mr. Hall on Monday, December 3, 2006, to advise him that she had a family medical emergency and would not be at work that day. Ms. Chester told Mr. Hall that she would not take leave because she intended to make up the time by working on the following Saturday. Mr. Hall told Ms. Chester that this was fine. On Saturday, Mr. Hall received a call from one of the case managers asking for help with an emergency. Mr. Hall told the case manager to report the problem to Ms. Chester, but he was told that Ms. Chester was not at the Outreach Center. Mr. Hall telephoned Ms. Chester on Sunday to ask if she reported to work on Saturday, and she confirmed that she had not but gave no explanation. When she submitted her timesheet for the week, she reported that she had worked a 40- hour week. Mr. Hall wrote this incident up in a Disciplinary Action Report dated December 14, 2006, which was later amended on December 21, 2006. On another occasion, when Mr. Hall was out of the office on vacation, Ms. Law told the case managers, including those who were supervised by Ms. Chester, to report any problems to Ms. Law in Mr. Hall's absence. Because of this instruction, case managers who were under Ms. Chester's supervision reported to Ms. Law rather than to Ms. Chester. In the opinion of one case manager, Ms. Law did well while she was in charge. In addition to Ms. Chester's specific concerns related to Ms. Law, related above, Ms. Chester had ongoing concerns related to Ms. Law job performance. Before Ms. Law was promoted to residential services supervisor, Ms. Chester was her supervisor. Ms. Chester complained to Mr. Hall about what she perceived as Ms. Law's insubordination, but, in her opinion, Mr. Hall did not take her concerns seriously. Ms. Chester also felt that Ms. Law was given preferential treatment because Ms. Law received Mr. Hall's approval to place two families in one accommodation, while she was criticized by Mr. Hall for placing two families together. As a general rule, placing two families in the same accommodations was a serious breach of the Outreach Center's rules. Mr. Hall approved Ms. Law's placing a new mother and her infant in accommodations with a family that the new mother had grown close to, so the family could help the new mother with her infant. In an e-mail sent from Mr. Hall to Ms. Chester on August 30, 2006, Mr. Hall asked Ms. Chester to meet with him to discuss complaints he had received from clients that there were substantial delays in meeting their case managers. Mr. Hall considered this a very serious matter that was causing discontent among the Outreach Center's clients, and he approached Ms. Chester about the problem because she was the social services supervisor. In an undated response to Mr. Hall's e-mail, Ms. Chester stated that she was getting complaints that Ms. Law was not meeting the needs of her clients, apparently because Ms. Law had been involved in training other employees. She expressed confidence that, once Ms. Law resumed her regular case management duties, the situation would be resolved, but she alluded to divisions among the Outreach Center's staff. Ms. Chester was very concerned that Ms. Law was not serving her clients appropriately, and Ms. Chester felt obligated to work with Ms. Law's clients. Ms. Chester was, therefore, trying to manage a caseload at the same time she had administrative and supervisory responsibilities. This caused a great deal of stress for Ms. Chester, and she was seen crying in the office on several occasions by one of the case managers she supervised. On or about September 25, 2008, Mr. Hall, Ms. Chester, and Ms. Law met to discuss the problems that had been identified by Mr. Hall in the August 30, 2006, e-mail. The immediate problem between Ms. Chester and Ms. Law was resolved, and Ms. Law left the meeting. Mr. Hall asked Ms. Chester to remain behind because he wanted to discuss a complaint that he had received about her using profanity in the workplace. One of Ms. Chester's case managers went to another supervisor and complained because the case manager did not want to get in trouble. The supervisor reported the complaint to Mr. Hall. When Mr. Hall told Ms. Chester about the complaint, Ms. Chester denied using profanity. Mr. Hall assured her that this was not a disciplinary matter and that, if she did not use profanity, he should forget about the complaint. Ms. Chester insisted on an investigation and on confronting the person who had lodged the complaint. Eventually, the supervisor who had received the complaint in confidence and reported it to Mr. Hall, a woman named Lolita Suarez, came forward, and Ms. Suarez and Ms. Chester discussed the matter and came to a resolution. On September 26, 2006, however, the day after the meeting, Ms. Chester wrote an e-mail to Mr. Brummitt in which she stated that she considered the complaint a personal attack, made without justification, because she "had concerns with a certain employee," apparently referring to Ms. Law. Ms. Chester described the complaint as "'tit for tat'" behavior, and she described the work environment as one that interfered with her ability to carry out her responsibilities. Ms. Chester further stated that Mr. Hall refused to divulge the name of the person complaining about her use of profanity, and she requested Mr. Brummitt's intervention to "provide clarity with this situation."2 Ms. Chester sent a copy of the e-mail to Mr. Brummitt to Mr. Hall. In an e-mail dated October 16, 2006, Mr. Hall wrote to Ms. Chester that he had just discovered the e-mail to Mr. Brummitt. Mr. Hall stated that the e-mail to Mr. Brummitt was inappropriate because it broke the "chain of command" set out in Section 2.1 of the Employee Handbook and that, if Ms. Chester wanted a meeting with Mr. Brummitt, she was to request it through him, Mr. Hall. Mr. Hall emphasized that Ms. Chester had not been disciplined as a result of the complaint, nor had there been any other consequences. Mr. Hall further stated that Ms. Chester's circumvention of the chain of command created a problem for Ms. Chester and Mr. Hall and that it would be necessary for them to meet to resolve the matter and, possibly, to include Mr. Brummitt. Ms. Chester wanted to meet with Mr. Brummitt to discuss the manner in which Mr. Hall talked to and related to employees. She also wanted to speak with Mr. Brummitt because she had brought problems and issues to Mr. Hall's attention, but, in her opinion, Mr. Hall refused to address the problems or deal with them because, Ms. Chester surmised, he was uncomfortable with the matters she brought to his attention. Ms. Chester wanted Mr. Brummitt to intervene and resolve the growing tension between her and Mr. Hall. Ms. Chester made several requests to meet with Mr. Brummitt on her own. Although Mr. Brummitt did not respond directly to Ms. Chester's requests for a meeting, he talked with her at one point and told her to follow the procedures in the employees manual and go through the system if she had any complaints or concerns. According to the Employee's Manual, an employee was to go first to his or her immediate supervisor to resolve a problem; if the employee was not satisfied with the response of his or her immediate supervisor, the employee was to go to the Human Relations Director, Ms. Ayerdis, and she would discuss the problem and request a meeting with the Executive Director, Mr. Brummitt, if appropriate. By October 2006, Mr. Hall had observed a number of problems with the case management and the team supervised by Ms. Chester. He was also receiving verbal complaints about Ms. Chester from other supervisors. He became concerned and asked Ms. Chester to meet with him to discuss a number of issues. Among other things, Mr. Hall intended to ask Ms. Chester to transfer any cases she was managing at the time and spend her time doing the administrative duties required of the social services supervisor. He believed that Ms. Chester was overwhelmed and experiencing a lot of stress on the job, and he wanted to make it easier for her to perform her managerial and administrative responsibilities. Mr. Hall and Ms. Chester met on or about October 15, 2006. Mr. Hall felt that Ms. Chester had become increasingly defensive whenever he brought any issues to her attention, and, at the October 15, 2006, meeting she become noticeably upset and then somewhat belligerent. As the meeting progressed, Ms. Chester become increasingly belligerent, and Mr. Hall became angry and told Ms. Chester to leave his office. Mr. Hall did not give Ms. Chester any indication that her employment was terminated and took no action to terminate her. Nonetheless, when Mr. Hall told Ms. Chester to leave his office, she left the Outreach Center's office and filed an unemployment compensation claim effective October 15, 2006. Ms. Chester did not report for work on October 16, 2006, but she subsequently continued working, and Mr. Hall was not aware that she had filed an unemployment compensation claim until Ms. Ayerdis told him that she had received notice that the claim had been filed. The claim was denied on November 6, 2006, on the grounds that Ms. Chester was fully employed and not eligible for unemployment benefits. After Ms. Chester's promotion on July 1, 2006, Mr. Hall continued to prepare the quarterly reports, and he trained her to prepare these reports. Ms. Chester's only responsibility with regard to the quarterly reports was to ensure that the required data from client files and the persons- served worksheet was entered into the client-tracking database system so that Mr. Hall could pull this information to include in the quarterly reports. Ms. Chester submitted the July 2006, August 2006, and September 2006 monthly reports on time. Mr. Hall wrote e-mails complimenting her and thanking her for getting the September 2006 in early. Mr. Hall did not check the data and documentation backing-up the July and August reports, but, when he began to prepare the quarterly report that was due on October 15, 2006, he noticed that the data in the client- tracking database system did not match the information Ms. Chester had included in the monthly reports. The monthly report was basically spreadsheet containing the accumulated data that had been entered into the client-tracking database system throughout the month, and the information in the database should have been reflected in each monthly report. The missing data related to intakes, discharges, and referrals to transitional housing, and the discrepancies between the data in the database and the data included in the monthly reports prepared by Ms. Chester were significant. It was very important that the reports submitted to Broward County were accurate because the Outreach Center's funding was dependent on the information included in the reports. Mr. Hall sent Ms. Chester several e-mails on October 16 and 18, 2006, advising Ms. Chester of the missing data and asking that she provide the backup documentation for her monthly reports and account for the discrepancies. Mr. Hall suspected that Ms. Chester was pulling the data for the monthly reports from the client files themselves and that she was not inputting the data into the client-tracking database system. All of the information included in the monthly reports had to go into the database so that reports could be generated from the database, and Ms. Chester had been trained by Mr. Hall on inputting the data into the database. Ms. Chester never responded to the e-mails Mr. Hall sent on October 16 and 18, 2006, and she did not provide him with the backup documentation that he had requested. Ms. Chester's 90-day review of her performance was due on or about October 1, 2006. Because of what he perceived as problems with Ms. Chester's job performance, especially after the September 25, 2006, meeting when he brought up the complaint about her use of profanity, Mr. Hall decided to delay the review for 30 days to allow Ms. Chester additional time to improve her performance. Mr. Hall completed the review, and it was not favorable to Ms. Chester. Mr. Hall rated Ms. Chester below average in a number of categories, including quality of work, quantity of work, dependability, and customer contact. He rated Ms. Chester both below average and average on cooperation, noting that this had improved slightly. Mr. Hall rated Ms. Chester above average in attitude and average in ability to learn new duties. In the narrative portion of the review, Mr. Hall noted Ms. Chester's strengths as building strong and trusting relationships with the case managers she supervises, strong communication skills, and genuine compassion toward the homeless and dedication to helping them. Mr. Hall also observed that Ms. Chester was well-like by some of her coworkers and fellow supervisors. Mr. Hall made the following assessments of the weak points in Ms. Chester's job performance: In the areas of performance and follow-through, Mr. Hall stated that Ms. Chester had difficulties getting along with supervisors of other departments; was "visibly and emotionally very defensive" when concerns were brought to her attention and when she was given constructive criticism and correction of her performance; did not follow through with instructions or respond to e-mails; failed to respond to e-mails sent in October 2006 asking about missing data; failed to provide requested back-up documentation for data included in her monthly reports; despite having been reminded several times, failed to devise a work schedule for case managers so that all shifts during the week were covered; and failed to conduct regular crisis assessment team meetings. In the area of program outcomes, Mr. Hall stated that the data missing from the client-tracking database caused the Outreach Center to fall short of the outcomes required by its contract with the county; that the quarterly satisfaction survey of the Outreach Center's clients reflected the lowest percentage of satisfaction with case management services since the Outreach Center had been open; that, when Ms. Chester was told of the low survey results and asked how it could be improved, she stated that nothing could be done that had not been done already; and that Ms. Chester did not work out solutions for transfer of clients in emergency shelter to transitional shelter or independent living arrangements but offered extension of time to the clients, which had a negative effect on the outcomes required by the county. In the area of interviews, Mr. Hall stated that Ms. Chester was not able to build a solid and professional staff of case managers because she was unable to assess the strengths and weaknesses of persons interviewing for jobs. In Mr. Hall's view, Ms. Chester made decisions based on her emotions rather than on the candidate's qualifications and experience. In the area of decision-making and judgment calls, Mr. Hall stated that some of Ms. Chester's decisions put the Outreach Center and its clients at risk. He specifically noted that Ms. Chester had agreed to allow a single woman client to take another family's children to a medical appointment; had placed two families in one family unit; and had placed a single father with two sons, 16 and 13 years of age, in the women and children's center. Mr. Hall stated that Ms. Chester went outside the chain of command by sending an e-mail to Mr. Brummitt without Mr. Hall's approval and without notifying him, as required by the employee handbook; that she enabled poor performance by the case managers under her supervision; and that her excessive absences had placed the Outreach Center and the case management team in a difficult position. Finally, Mr. Hall stated that he had attempted to help Ms. Chester improve her job performance by meeting with her weekly and sometimes daily to provide instruction on the particulars of her job. He stated, however, that communication between him and Ms. Chester had broken down "on her end" shortly after the meeting in which he had spoken with her about the complaint that she had used profanity in the workplace.3 Mr. Hall arranged to meet with Ms. Chester on November 3, 2006, to discuss the 90-day review. Prior to the meeting, Mr. Hall gave Ms. Chester the review and told her to read it over. He knew she would have problems with the review because of the negative assessment of her performance, and he anticipated that their meeting would be lengthy because there were a great many concerns to discuss. In addition to discussing Ms. Chester's weaknesses, Mr. Hall also expected to discuss the adjustments that could be made to improve her performance and help her move into her administrative role. Ms. Chester did not show up for the meeting with Mr. Hall. Instead, she refused to discuss the review with Mr. Hall and requested a meeting with Mr. Brummitt. The meeting was scheduled for November 7, 2006. In spite of the negative 90-day review he had given Ms. Chester, Mr. Hall considered her an excellent candidate for a supervisor's position even though they no longer had the close working relationship they once shared. Mr. Hall was concerned, however, about Ms. Chester's ability to transition from being a case manager to being a supervisor because she seemed unable to supervise the members of the case management team. In addition, from Mr. Hall's perspective, Ms. Chester was communicating with him less and less frequently, and he found that she was becoming more and more resistant to instruction. Mr. Hall did not doubt Ms. Chester's ability to do the job of social services supervisor, but he took into consideration the fact that Ms. Chester was handling a client caseload and taking classes to further her education at the same time that she was learning to be a social services supervisor. Mr. Hall believed that Ms. Chester was overwhelmed in the position of social services supervisor, and she appeared to be stressed all of the time. Mr. Hall became convinced that Ms. Chester needed to work closely with a supervisor before she could successfully function as a supervisor, and he intended to remove her from the supervisory position for her own benefit and phase her back into that position. Prior to the November 7, 2006, meeting, Mr. Brummitt, Mr. Hall, and Ms. Ayerdis discussed the situation with Ms. Chester. After receiving input from Mr. Hall, Mr. Brummitt concluded that Ms. Chester was a valuable employee that he wanted to retain, and he decided to offer Ms. Chester the choice of remaining in the social services supervisor position or of returning to her former position as lead case manager, but at the same salary she was receiving as social services supervisor. At the meeting held on November 7, 2006, which was attended by Mr. Brummitt, Mr. Hall, and Ms. Ayerdis, Mr. Brummitt made his offer to Ms. Chester. Ms. Chester became upset because she considered the offer to return to her former position of lead case manager to be a demotion and to be disrespectful to her. Ms. Chester also took the offer to return to her former position at the same salary to be an indication that she was being underpaid as a supervisor. Ms. Chester attributed the poor 90-day performance review to retaliation by Mr. Hall for her e-mail and request to meet with Mr. Brummitt in September 2006. In Ms. Chester's view, her performance had been satisfactory and any problems she had were the result of lack of support from Mr. Hall and lack of training. Ms. Chester believed that black supervisors were not given the same level of support, training, and assistance that was given to white supervisors. Ms. Chester rejected Mr. Brummitt's offer to return to her former position as lead case manager, and she chose to remain in the position of social services supervisor and gave Mr. Brummitt and Mr. Hall assurances that she could do the job. Mr. Brummitt warned Ms. Chester that the offer to return to her former position was a one-time offer and that her performance as social services supervisor must improve or she would be terminated from her employment with the Outreach Center. Ms. Chester indicated that she understood. Communication between Mr. Hall and Ms. Chester improved for a few weeks after the November 7, 2006, meeting, but Ms. Chester's job performance did not improve, in Mr. Hall's estimation: Ms. Chester failed to register the case managers under her supervision for a scheduled training session. She nonetheless took them to the training location, where they were turned away and had to return to the Outreach Center. When Ms. Chester turned over her client case files after the November 7, 2006, meeting, Mr. Hall found that there was a great deal of information missing from the files, especially care plans for the clients, which Mr. Hall considered an extremely serious offense that impacted the Outreach Center's ability to serve its clients. On November 14, 2006, Mr. Hall asked Ms. Chester to attend a mandatory meeting regarding referrals to a Broward County agency that assisted the chronically homeless to obtain permanent housing. This was a very important meeting, but Ms. Chester forgot about the meeting and did not attend, with the result that the Outreach Center did not have a representative at the meeting. On November 24, 2006, Mr. Hall wrote an e-mail to Ms. Chester discussing the failure of one of the case managers under her supervision to write case notes and place them in clients' files. This case manager had not prepared any case notes for approximately a year, and Mr. Hall considered this a very serious offense that jeopardized the Outreach Center's county funding. Mr. Hall told Ms. Chester to write a Disciplinary Action Report on this case manager, but she resisted doing so. On December 7, 2006, Mr. Hall wrote an e- mail to Ms. Chester directing her to prepare the report, and she did so on December 8. 2006. She noted, however, that Mr. Hall had not allowed her to write a Disciplinary Action Report on Ms. Law. Ms. Chester was absent on Monday, December 3, 2006, because of a family emergency. As noted above, she advised Mr. Hall that she would work the following Saturday, but she did not do so. At a Crisis Assessment Team meeting led by Ms. Chester on or about December 6, 2006, Roberta Geist, the Outreach Center's lead therapist/counselor, was discussing the repeated failure of the case management team, which was multi-ethnic, to follow procedures with regard to clients who had relapsed. Ms. Geist was frustrated at the lack of compliance with procedures and, intending to address the entire case management team, she referred to "you people." Paulette Williams Shepherd, a case manager who had been hired by Ms. Chester in mid- November 2006, took offense, construing the comment as referring to the African-Americans who were attending the meeting, and she immediately left the meeting. Persons who attended the meeting reported to Mr. Hall that Ms. Chester became irate and also left the meeting, although she returned a few minutes later, acting as though nothing had happened. Ms. Chester contacted the Human Relations Department about the incident, and she also told Mr. Hall that she intended to file a formal complaint against Ms. Geist with her supervisor. In a Disciplinary Action Report dated December 14, 2006, Mr. Hall charged Ms. Chester with violations related to attendance, carelessness, and work quality. In the body of the report, he discussed three specific offenses: Ms. Chester's failure to include the proper documentation in the case files she had handled prior to November 7, 2006; her failure to attend the November 27, 2006, meeting; and her failure to report for work on Saturday, December 8, 2006, as promised, and to complete documentation for staff files for an audit conducted Monday, December 10, 2006.4 Mr. Hall wrote the Disciplinary Action Report in lieu of writing a review of Ms. Chester's performance subsequent to the her 90-day performance review, and he recommended that Ms. Chester be demoted to case manager effective December 18, 2006, or that she be terminated if she rejected the demotion. A meeting was arranged for December 18, 2006, with Mr. Hall, Ms. Ayerdis, and Ms. Chester. Mr. Hall anticipated that they would discuss the contents of the Disciplinary Action Report, including performance issues; Ms. Chester's falsification of her timesheet for the week of December 2, 2006; and Ms. Geist's remark at the December 6, 2006, Crisis Assessment Team meeting, as well as Ms. Chester's response to the remark. The meeting lasted less than five minutes, however. Mr. Hall began the meeting by asking Ms. Chester about the December 2, 2006, timesheet; Ms. Chester immediately accused Mr. Hall of being a racist and demanded an investigation into his discriminatory conduct towards her. Ms. Ayerdis agreed that she would conduct an investigation into Ms. Chester's allegation of discrimination against Mr. Hall. She told Ms. Chester to take a leave of absence with pay during the investigation. Ms. Ayerdis then closed the meeting. Ms. Ayerdis scheduled a meeting with Ms. Chester on December 21, 2006. She had completed the investigation into Ms. Chester's allegation of racism and found no evidence that Mr. Hall had discriminated against Ms. Chester on the basis of her race. A revised Disciplinary Action Report was prepared and dated December 21, 2006, in which Mr. Hall recommended that Ms. Chester's employment be terminated effective December 21, 2006. Mr. Hall based his recommendation that Ms. Chester be terminated on her failure to perform up to expectations and her failure to correct the performance deficiencies identified in the 90-day performance review. Mr. Brummitt, who had the ultimate authority to terminate employees at the Outreach Center, and Ms. Ayerdis concurred with Mr. Hall's recommendation, and, at the December 21, 2006, meeting, Ms. Ayerdis advised Ms. Chester that the investigation of Ms. Chester's discrimination claims against Mr. Hall turned up no evidence to support her allegation that he was a racist. Finally, Ms. Ayerdis notified Ms. Chester that her employment with the Outreach Center was terminated, effective immediately. Mr. Brummitt was aware that Ms. Chester and Ms. Ayerdis were meeting on December 21, 2006, and that Ms. Ayerdis would advise Ms. Chester of her termination at the meeting. It was close to Christmas, when the Outreach Center's employees received their bonuses, and Mr. Brummitt was concerned about Ms. Chester's not receiving her bonus. Mr. Brummitt decided that it was not fair to deny Ms. Chester the bonus, and he telephoned Ms. Ayerdis several times during her meeting with Ms. Chester to tell Ms. Ayerdis that Ms. Chester would receive the bonus and to confirm the amount of the bonus. Summary of factual findings The evidence presented by Ms. Chester is not sufficient to establish that she was the subject of unlawful discrimination or that she was terminated in retaliation for protected conduct. It is uncontroverted that Ms. Chester is a member of a protected class of persons, but she did not present sufficient persuasive evidence to establish that any similarly- situated employee of the Outreach Center was treated more favorably in any respect than Ms. Chester was treated. Ms. Chester failed to produce any evidence establishing that Ms. Law received more training or support from Mr. Hall than he provided Ms. Chester, nor does the evidence establish that Mr. Hall failed to discipline Ms. Law for the same or similar conduct for which Ms. Chester was disciplined. Rather, the evidence affirmatively establishes that Ms. Chester was terminated because of her unsatisfactory performance of the responsibilities of a social services supervisor. Ms. Chester likewise failed to present sufficient evidence to establish that she was discriminated against in the form of a hostile work environment. Although she alleged that she was subjected to constant harassment because of her race, that she was intimidated by the work environment at the Outreach Center, and that she was ridiculed for problems that she did not create, Ms. Chester failed to present any persuasive evidence to support these allegations. In addition, Ms. Chester did not present sufficient persuasive evidence to establish that she was terminated in retaliation for engaging in protected conduct. Ms. Chester did not present any evidence that she filed a discrimination complaint on account of Ms. Geist's reference to "you people," either with the Human Relations Department or with Ms. Geist's supervisor. Furthermore, the evidence affirmatively establishes that Mr. Brummitt warned Ms. Chester on November 7, 2006, when she refused to accept his offer to return to her position as lead case management, that she would be terminated if her job performance did not improve, and the proximity in time of her discrimination complaint against Mr. Hall and her termination is not sufficient to establish that her termination was in retaliation for the complaint. Ms. Chester likewise failed to present any evidence beyond her conclusory statements to support her allegations that her difficulties with Mr. Hall arose as a result of her attempts to meet with Mr. Brummitt and that she was ultimately terminated in retaliation for telling the truth about what she considered bad working conditions and "things that were not right."5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Peggy Chester against the Broward Outreach Center/Miami Rescue Mission be dismissed. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 31st day of March, 2009.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner John A. Kutski applied for vocational rehabilitation (V.R.) services in February of 1977. On or about March 4, 1977, petitioner was certified for eligibility under the disabilities of degeneration of the acromiocalvicular joint following surgery and a history of right menisectomy. A disability of passive/aggressive personality was subsequently added to the disabilities. On March 18, 1977, a client services program was entered into between petitioner and respondent consisting of a two-year training program at Valencia Community College to teach petitioner to be a lawyer's assistant. The program also provided for ten psychotherapy sessions with Robert Edelman, Ph.D. Petitioner commenced his vocational training at Valencia Community College in the legal assistant program and also was employed as an assistant at the Youth Hall in Orlando. He did not attend any psychotherapy sessions with Dr. Edelman. During the latter part of 1977, petitioner became ill and it was found that he was suffering from hypertension. He was treated for this condition by Dr. Tew and Dr. Samano. According to respondent, the medication he was taking interfered with his school work. Consequently, petitioner voluntarily dropped out of school in the early part of 1978. Thereafter, petitioner attempted to have respondent sponsor him in his own business of wood techniques and macrame. After various discussions between respondent's counselors and the petitioner, respondent rejected this proposal. During this initial period of time, petitioner's counselor was Albert Tester. Mr. Tester testified that in the beginning phases of the program, the petitioner was energetic and motivated. Then, when the program did not go the way petitioner wanted with regard to establishing his own business, petitioner became verbally abusive and threatening. On one occasion in January or February of 1978, petitioner came to Tester's home while Tester was on sick leave, demanded to see him and left him a threatening note. After this incident, Mr. Tester did not feel that he could successfully serve as petitioner's V.R. counselor and petitioner's file was transferred to James Ryder to March of 1978. In May of 1978, shortly after petitioner was advised that respondent would not sponsor a program for the establishment of his own small business, petitioner became verbally abusive to his counselor and threw a file across the room in a supervisor's office. Mr. Ryder recommended that petitioner's file be closed at that time, but this recommendation was not followed. On June 9, 1978, a supplemental client services program was entered into between the parties. This program listed petitioner's vocational handicap as hypertension and passive/aggressive personality. It provided for treatment for his hypertension and for 15 trial sessions in psychotherapy by Dr. Edelman. Dr. Edelman had previously recommended a course of biofeedback rather than psychotherapy. However, the psychotherapy treatment had been inserted on the program because biofeedback was not, at that time, an approved form of treatment. The program also provided for a training course at Mid-Florida Tech in photography. The petitioner commenced his schooling in photography at Mid-Florida Tech. According to his photography instructor, petitioner was very energetic and performed above average during the beginning months of the program. His attitude as a student then began to worsen. He was disruptive in class, insubordinate to the instructor and guilty of excessive absenteeism. Mr. Ryder testified that he did not make an appointment for petitioner with Dr. Edelman. Because petitioner was having transportation and scheduling problems, Mr. Ryder told petitioner to make his own appointment. Petitioner never did see Dr. Edelman. Due to Mr. Ryder`s change in employment, petitioner's file was transferred to counselor Joanne Linville in October or November of 1978. In late December of 1978 or early January of 1979, petitioner experienced a urinary problem. His physician, Dr. Samano, recommended that he see a urologist. Petitioner contacted his counselor, Joanne Linville, in early January and requested her to make arrangements for him to see a urologist. The testimony is not clear as to the reason for the delay between the time petitioner originally requested the services of a urologist and the time when he had an office visit with Dr. Riveron on January 15, 1979. However, it is clear from the testimony of Charles May, the program supervisor, that attempts were made to find a urologist acceptable to petitioner and Dr. Samano who was on the respondent's panel of physicians. Petitioner felt that his urinary problem was of an emergency nature and he placed phone calls to Ms. Linville on a daily basis regarding this matter. Due to petitioner's harassing and abusive behavior toward her, Ms. Linville felt that she could no longer work with the petitioner and that his case should be closed. A psychiatric consultant for respondent, Dr. Roger E. Phillips, reviewed the petitioner's file at Ms. Linville's request on or about January 11, 1979. Dr. Phillips was asked for his opinion on whether the petitioner's file should be transferred to the mental health unit of V.R. It was his opinion that because of petitioner's harassing behavior and refusal to accept treatment, his file should be closed. Dr. Phillips felt that it would be a waste of V.R. funds to send a client to the mental health unit if the client did not wish to visit a psychiatrist or psychologist. Although various counselors, supervisors and Dr. Phillips had recommended that petitioner's file be closed, unusual attempts were being made to maintain the file. The proposals and discussions regarding transferring petitioner's case to the mental health unit occurred during the last two weeks of January, 1979. Petitioner saw Dr. Riveron for his urological problems on January 15th and again on February 13, 1979. On the latter date, Dr. Riveron recommended that petitioner be hospitalized for a short period of 24 to 48 hours for various urological examinations to be administered under general anesthesia. Dr. Riveron requested authorization from respondent to have petitioner seen by a cardiologist prior to anesthesia due to petitioner's history of hypertension. Petitioner was advised that his program was being reevaluated for a possible transfer to the mental health unit. He opposed such a transfer, feeling that his problems were of a medical, rather that a psychological, nature. Through his attorney, petitioner requested a staffing and one was scheduled for February 19, 1979. Petitioner requested that the staffing be continued until his medical problems with the urinary tract were resolved. He also indicated that he had a test on the scheduled date of the staffing. After checking with the petitioner's school and learning that no test was scheduled on February 19, 1979, respondent refused to adjourn the staffing. Petitioner did not attend the meeting, but his attorney did. By letter dated February 19, 1979, petitioner was advised that his case file was being transferred to Anna Sayre, who was a counselor in the mental health unit. He was asked to contact Ms. Sayre and confirm his appointment of February 26, 1979. Petitioner was advised that his plan of services would include an internal medicine evaluation and a current psychological or psychiatric evaluation with a V.R. panel doctor. Petitioner was further advised by said letter that his current services would be continued pending receipt of the two evaluations and that other services would be considered upon reevaluation of his program. Finally, petitioner was advised that should he not desire to pursue the program outlined, respondent had no alternative program to offer and the services of V.R. would be terminated. Following the February 19, 1979, letter, Ms. Sayre had a personal conference with petitioner. An appointment was made by Ms. Sayre for petitioner to see Dr. Guttman, a psychiatrist. Thereafter, petitioner's attorney called Ms. Sayre and informed her that petitioner desired a list of three psychiatrists' names to choose from. Ms. Sayre also provided petitioner with the names of three cardiologists from which to choose. It was Ms. Sayre's testimony that while petitioner's entire services were conditioned upon him seeing a psychiatrist, she did not make that condition a contingency for the receipt or pursuit of medical care. Petitioner informed Ms. Sayre that he was declining to see any psychiatrist. Ms. Sayre told him that if he did so, V.R. services would be terminated. By letter dated March 2, 1979, Ms. Sayre advised petitioner that his case with V.R. was being closed due to the fact that he had declined to see a psychiatrist. Petitioner then petitioned for a hearing. By stipulation between the parties, petitioner's services were reinstated pending a final determination of this Proceeding.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for reinstatement of services and additional relief be DENIED and DISMISSED, and that the decision to terminate vocational rehabilitation services to petitioner be AFFIRMED. Respectfully submitted and entered this 21st day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: William R. Barker Greater Orlando Area Legal Services, Inc. 128 West Central Boulevard Post Office Box 1790 Orlando, Florida 32802 Douglas E. Whitney HRS District VII Counsel 400 West Robinson Street Suite 912 Orlando, Florida 32801 Secretary David H. Pingree Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact In March 1987 DHRS published a Request for Proposal (RFP) for a Comprehensive Manpower Employment Service Programs for Refugees and Entrants (Exhibit 5) which established a time frame for bidders to submit proposals to provide services for the year beginning July 1; 1987 and ending June 30, 1988; established criteria for the services to be provided; and contained all information necessary for a bidder to submit an acceptable bid. Pursuant to this RFP, Hillsborough County, Lutheran Ministries of Florida, Inc., and Catholic Social Services submitted proposals to provide the services authorized by federal statute to be provided to refugees and entrants predominantly from Cuba/Haiti and Indochina. Pursuant to this RFP; bidders are required to submit a plan which identifies the services to be provided and a line item budget of anticipated allowable costs that will be incurred in the delivery of the services. Each bid is to be reviewed by at least three HRS employees familiar with the objectives and requirements of this social services program using the rating sheet as shown in an appendix to the RFP. The raters grades are totalled, and the contract is to be awarded to the bidder whose proposal is determined, through the evaluation process, to be most advantageous to the State, taking into consideration program and organizational capability, previous experience and understanding of the project (Exhibit 5 p. 25) Five qualified raters evaluated the proposals submitted by the bidders. The totals of the grades given by these raters, four of whom testified in these proceedings, was 603 for Petitioner and 1360 for Lutheran Ministries, thereby indicating the bid by Lutheran Ministries to be far superior to the bid by Hillsborough County. For the past three years, Lutheran Ministries has held the contract to provide services to refugees and entrants while Hillsborough has held the contract, also from HRS, to operate a program intended to mitigate the impact on counties affected by the large influx of Cubans and Haitians entering this country at the time of the Mariel boat lift and after. The former funds are social services funds and the latter are designated Targeted Funds. Although both funds are operated out of the same DHRS office, they are distinct and separate appropriated funds. The 1986 Legislature failed to provide Targeted Funds for the year beginning January 1, 1988. Accordingly, there will be no Targeted Funds awarded to Hillsborough County to use after December 31, 1987. Apparently to preserve the jobs to carry out assistance to various aliens, Hillsborough County submitted its bid to provide services to refugees similar to the services it has been providing to immigrees. Petitioner's bid provided for payment of salaries totaling $40,197 for six months, travel costs for six months and specialized transportation costs for six months. Petitioner apparently intended to use the anticipated funds, if its bid was accepted, to continue the staff employed in carrying out the mission to be accomplished with Targeted Funds for the six months between January 1, 1988 and June 30, 1988, with their salaries for the first six months (July - December 1987) paid from Targeted Funds. Having submitted a bid which clearly shows only six month funding for personnel and certain travel costs, Petitioner's contention that the raters misinterpreted the proposed program year is without merit. Although the bid proposal showed it was for the period July 1 1987 to June 30, 1988, the cost for one year's operation was not shown and Petitioner's bid was properly downgraded for this reason. That Petitioner's proposal was intended as a substitution and/or continuation of the Refugees/Entrants Employment Services (REES) program which it had administered for the past three years is shown in their proposal (Exhibit 2 p. 7) that "Effective July 1; 1987; the REES program will increase its level of services by adding 0JT and day care to its comprehensive employment." It shows targeted assistance dollars funding comprehensive employment and transportation for the first six months of the program year through December 31, 1987. Such language rightfully led the raters to question what type services would be provided to the refugees under Petitioner's proposal. Petitioner's contention that bid proposals were not rated on their individual merit, but rather were compared to each other, not only is unsupported by any evidence but also every rater who testified stated that no comparison of bids was made. The remarks on the rating sheets which were relied upon by Petitioner to support this contention disclose another failure by Petitioner to comply with the RFP. The RFP (Exhibit 5) provided under Part IV General Information (p. 13) that specific questions regarding the RFP and its provisions should be addressed to Millie Coten and that an original and nine copies of the proposal are required. The Hillsborough County audit which was required as a part of the proposal comprised some 80 or 90 pages, which was nearly half of the proposal submitted. In order to eliminate the cost of reproducing 10 copies of this audit, Jimmy Keel, director, Department of Public Assistance for Hillsborough County, called Michael Simmons, district budget officer for HRS Tampa office to see if they had to include audits in all of these copies. Simmons told Keel that since there would be only five raters, if the audit was included in five copies of the bid, that would be acceptable. Simmons was not the contact officer in the RFP to answer questions regarding the RFP and no evidence was presented that he had such authority. This discrepancy in complying with the RFP came to light during a meeting of the raters when it was discovered that at least two of them did not have a complete bid from Petitioner. Petitioner's contention that it was rated on criteria not contained in the RFP is allegedly supported by raters' comment on the rating sheets that the salaries for those running the program proposed by Petitioner are too high. For the four positions proposed by Petitioner to run the program, the annualized salary is in excess of $80,000. The cost of providing the proposed services for one year is expected to be less than $80,000. In looking at proposed salaries in such bids, the raters use salaries paid HRS employees for similar duties and responsibilities as well as common sense. The fact that some such standard is used to determine the appropriateness of salaries in bids received should surprise no one. It is well understood by people bidding on HRS service projects that such a salary comparison is made to determine the appropriateness of salaries to be paid by contractors providing the contracted for service. The contention by Petitioner that it was rated on criteria not contained in the RFP is without merit. Petitioner's next contention that raters were not familiar with all of the definitions and requirements of the RFP was supported by no credible evidence. The four raters who testified all stated unequivocally that they fully understood the definitions and requirements of the RFP. The second allegation to support this position involved the fact that as a governmental agency Hillsborough County does not have a board of directors and articles of incorporation and because of this did not receive maximum points on their rating item. This position is not supported by the evidence. The grades of less than maximum on those items were changed to give Petitioner the maximum grade score before the totals were added. Finally, Petitioner's contention that the raters were confused by, and misunderstood the contents of, Petitioner's proposal yet failed to contact Petitioner for clarification not only is not supported by any credible evidence, but also ignores the RFP requirement (Part V p. 20) that: It is the responsibility of the applicant to develop the proposal as clearly and succinctly as possible in order to avoid misinterpretation of the information presented. Proposals will be reviewed and evaluated solely on the basis of the information contained therein. No evidence was submitted by Petitioner to show that even if Petitioner had been incorrectly rated on some of the rating sheets, a change in those ratings would have brought Petitioner's total score, and hence rating, up to that attained by Lutheran Ministries so as to make Petitioner the successful bidder.
