The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Two issues were involved in this case: Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race when it failed to promote him to the position of lead man in the Respondent's Public Works Department. Whether the Respondent unlawfully retaliated against the Petitioner by giving him written reprimands and unsatisfactory scores on job performance evaluations because of the fact that he filed an administrative charge of racial discrimination against the Respondent.
Findings Of Fact Petitioner is a black male approximately 35 years of age. Prior to returning to Florida, Nunn had worked all over the United States, to include Alaska, as a construction worker. Respondent is an incorporated city in Florida. The Petitioner was hired in 1988 as a temporary employee in the Respondent's Water and Sewer Department by Dennis Monroe, Director of Public Works. While he was a temporary employee, the Petitioner indicated to Mr. Monroe, that he wished to remain in the Respondent's employ. On October 1988 the Petitioner was hired in a full time position as a Laborer I, and began a 6 months probation period. At the conclusion of the Petitioner's initial six-month probationary period (in April 1989), he received a above satisfactory score on an Employee Performance Evaluation completed by Mr. Monroe (Respondent's Exhibit A). Mr. Monroe at that time promoted the Petitioner to the position of Laborer II. At about this time, the water department lost three of its senior employees, and Nunn was suddenly the most senior person in the water department. Nunn talked with Moore about a promotion, but Moore hired Mr. Edwin Krusemark, a while male, who had been a consultant on the city's system, to run the water and sewer department. Sometime after the completion of his probationary period in April 1989, the Petitioner asked Edwin Krusemark, Public Works Superintendent, for an additional helper to complete his job duties. Mr. Krusemark turned down this request, although two persons had been performing the duties now performed by Nunn. Mr. Krusemark stated it was his opinion that two men were not needed to do Nunn's job, although it had previously taken two men to do it. Nevertheless, both Monroe and Krusemark verbally complained to Nunn about his delays. Neither manager formally reprimanded the Petitioner or placed any documentation of the Petitioner's faults in the Petitioner's personnel file prior to September 27, 1989. Neither supervisor indicated to Nunn that his work was substandard and unacceptable prior to September 27, 1989. Nunn stayed in the water and sewer department, and learned a short time later that a new lead man position was free. He applied and was rejected again without an interview. The promotion went to a new employee, William Threet, who was a white male with no experience in public utilities. Mr. Krusemark recommended to Mr. Monroe not to promote Nunn because of his lack of supervisory experience. There was no evidence presented by Respondent that Mr. Krusemark knew anything about Nunn's experience, except at the City. Mr. Krusemark admitted his recommendation was based upon his observations of Nunn at Belleview. William Threet was hired as the lead man in September 1989, based in large part upon his 19 years of experience in construction and his experience in supervisory positions (Respondent's Exhibit C) outside of government. Nunn had to help Threet learn about the water and sewer functions after Threet was hired. Shortly before September 25, 1989, the Petitioner filed an administrative charge with the Florida Commission on Human Relations, alleging that he was refused the position of lead man because of his race. The Respondent learned of Nunn's charges on or about September 25, 1989, when the Petitioner gave a copy of the charge to the Respondent's Clerk. Nunn's file on or about September 25, 1989 contained no adverse personnel comments or actions. On September 27, 1989, Nunn received a letter of reprimand for not being available when he was "on call" for emergencies. When Nunn was rated in November 1989, an entire list of deficiencies had been retroactively placed in Nunn's file. These notes memorialized trivial complaints made earlier by Moore and Krusemark to Nunn about the cleanliness of Nunn's truck, and the quality and speed of Nunn's work. However, no appropriate warnings or corrective action had been taken contemporaneously with the incidents about which Monroe and Krusemark complained, except the letter of reprimand. On November 1989, the Petitioner received an unsatisfactory score on this evaluation which had been due in October. Nunn and was placed upon a 90- day probationary period for the purpose of notifying him of his performance deficiencies and allowing him time in which to remedy those deficiencies and improve his job performance (Respondent's Exhibits E and F). Subsequent to the November 1989 evaluation, several handwritten notes from Mr. Monroe and Mr. Krusemark regarding deficiencies in the Petitioner's job performance were placed in his personnel file (Respondent's Exhibits G, H, I, and J). There were no such handwritten documentation in Nunn's file to justify or substantiate the considerable list of "comments" attached to Nunn's November 1989 evaluation. The written reprimand and the November evaluation were in retaliation for Nunn filing the discrimination complaint about Threet's hiring. These were pretexual. In January 1990, the Petitioner filed another administrative charge, alleging that the September 27, 1989 reprimand, the November 1989 evaluation, and the subsequent handwritten notes had been issued to him in retaliation for having filed the original charge of discrimination against the Respondent. In March 1990, the Petitioner received another Employee Performance Evaluation, this one being a collaborative effort among Mr. Monroe, Mr. Krusemark, and Mr. Threet. The Petitioner's score on this evaluation had improved over that of the November 1989 evaluation, but it was still unsatisfactory (Respondent's Exhibit K). Rather than discharge the Petitioner, which the Respondent could have done at that point, the Respondent placed the Petitioner on a six-month probationary status (Respondent's Exhibit L). Shortly thereafter, the Petitioner requested and was granted a leave of absence to be with his son who had to undergo a heart transplant. The terms of this leave were ill defined because it was leave without pay. After an absence of approximately two months, the Petitioner reported to work one morning in June 1990. Because of the Petitioner's extended absence from his job, the Respondent had employed another individual to perform the duties previously performed by the Petitioner. On the day that the Petitioner returned to work, this individual was sent out to perform Nunn's regular duties, while Mr. Threet contacted Mr. Monroe to inform him that the Petitioner had returned to work. Nunn was instructed to replace a faucet and then report to Mr. Monroe's office downtown. Nunn asked why he was being asked to go to Monroe's office. Nunn could not obtain a complete answer as to why. Nunn replaced the faucet, but declined to go downtown to Monroe's office because he felt he was being pushed out and Nunn was afraid he would be victimized if he went down town to Monroe's office. He rejected Mr. Monroe's request to report to Monroe's office when Mr. Monroe would not clarify the need for the visit. At that point, the Petitioner submitted his voluntary resignation from employment. After leaving Belleview's employment, the Petitioner was unemployed for four months and received no employment benefits. He was then employed by Marion County Country Club for $4.75/hour for six months. He then found his current job where he makes $6.00, the same salary he made with Belleview.
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 GRANTING in part the Petition for Relief, and awarding the Petitioner $5,380.00. DONE and ENTERED in Tallahassee, Leon County, Florida, this 7th day of November, 1991. STEPHEN F. DEAN 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 NOVEMBER, 1991. COPIES FURNISHED: Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Reginal Nunn 1010 100th 467 Belleview, Florida 32620 Kenneth A. Knox, Esquire Fisher & Phillips Suite 2310 One Financial Plaza Fort Lauderdale, Florida 33394
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of race, color, sex, religion, presumed handicap, national origin, age, and marital status; and whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Webster is a female, Caucasian, who prefers to be referred to as "a White Anglo," and a Quaker of German descent. She was born on September 7, 1943. At the time of the hearing, she was married. She is a member of the protected class as it relates to discrimination. At all times material hereto, the Clerk was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Ms. Webster has a Bachelor of Business Administration and a Master of Business Administration. She was a certified public accountant (CPA) but voluntarily relinquished her Florida CPA license to the Board of Accountancy in October 2003. Ms. Webster had been an employee with Metropolitan Dade County since February 21, 1978. She was employed with the Clerk as an Accountant II in the Comptroller's Division since 1982. Adolphus James was the supervisor of her accounting unit and to whom she reported. Mr. James' supervisor was Margaret Enciso, the Deputy Comptroller. Ms. Enciso reported to Martha Alcazar, the Comptroller. Ms. Alcazar reported to Ricky Schechtman, the Director of the Office of Administrative Services. Ms. Schechtman had the authority to terminate employees under her supervision. Ms. Webster's unit was comprised of employees who were majority Hispanic descent. In the unit, she saw herself as a "minority White Anglo American woman of Quaker religious customs." She saw the Hispanic workers as shutting her out by speaking Spanish. Dismissal On August 10, 2005, Ms. Webster was issued a Disciplinary Action Report (DAR) by her supervisor, Mr. James. Mr. James was recommending her dismissal from employment with the Clerk, as her performance was unacceptable and in direct violation of personnel rules. In the DAR, Ms. Webster was charged with "violating the County's Personnel Rules, Chapter VIII, Section 7: Paragraph: A, B, D and S," which were indicated as follows: That the employee is incompetent or inefficient in the performance of his [sic] duty. That the employee has been offensive in his [sic] conduct toward his [sic] fellow employees, wards of the County or public. (D) That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him/her by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public. (S) That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employee and impairs the efficiency of the County service. Mr. James attached to the DAR specific facts and instances. Some of the facts and instances included the following: Non-Performance: Ms. Webster failed to complete assigned reconciliations--after she returned from a medical leave of absence from February to mid-June, in a memo from Mr. James, dated June 19, 1995, Ms. Webster was given until July 14, 1995, to complete reconciliations of some general ledger accounts for May 1995; the reconciliations for May 1995 were not completed as directed; and two months of reconciliations were not completed as requested and they had to be assigned to other personnel. Insubordination--Ms. Webster "exhibited" gross insubordination toward Mr. James, on August 4, 1995, when she failed to meet with him after he repeatedly directed her to meet with him before she left for the day (the meeting was re- scheduled). Further, this instance was not the only instance where she failed to follow directives of Mr. James—“When he asks you [Ms. Webster] to refrain from certain behavior or when he explains your duties, you frequently directly ignore what he tells you and proceed to do only what you wish to do.” Disruptive Behavior--Ms. Webster exhibited disruptive behavior constantly. In particular, on August 7, 1995, she indicated to a co-worker, Julio Lucio-O'Farrill, who is Hispanic, that his constant working on his computer was disturbing her. Mr. Lucio-O'Farrill spoke with Mr. James who instructed Ms. Webster not to interfere with the co-worker doing his work. Later, Ms. Webster asked another co-worker, Devon Marrett, who is African-American, whether he knew anyone "like him [Mr. Marrett]" who could "take care of" Mr. Lucio-O'Farrill. Mr. Marrett inquired what Ms. Webster meant by her remarks, and she responded, "a big, black and ferocious man from Liberty City." On other occasions, Ms. Webster has requested information, which has nothing to with her duties and responsibilities, from workers outside her unit, and the workers felt that she was being disruptive in preventing them from doing what they were required to do. Further, on other occasions, Ms. Webster has approached workers, who were engaged in a conversation, and demanded to know what they were discussing and demanded to join in the conversation. Mr. James also attached to the DAR, the Metro-Dade Personnel Department Essential Job Functions Form; his memorandum to Ms. Webster, dated June 19, 1995, regarding "Work Assignments; the aforementioned reconciliations; and a memorandum from Mr. James to Ms. Webster, dated July 24, 1994, regarding "Work assignments and Performance." At hearing, as to the reconciliations, the evidence demonstrated that the expectation for Ms. Webster to complete the reconciliations was appropriate and warranted and that she failed to complete them. At hearing, as to insubordination, the evidence demonstrated that Mr. James gave reasonable directives, that the directives were lawful, and that Ms. Webster failed to comply with the directives. Further, at hearing, as to Ms. Webster's disruptive behavior, the evidence demonstrated that her attitude towards Mr. Lucio-O'Farrill was that he was a Hispanic who believed that women should be controlled by men but that she, being a "White Anglo" woman was not going to allow him to control her; and that he wanted her to be as a "wife" to him, but she was not going to do that. The evidence further demonstrates that her attitude towards him caused disruption in the workplace. As to Mr. Marrett, the evidence demonstrates that he was offended by Ms. Webster's remark to him, and that he believed that Ms. Webster was inquiring of him as to whether he knew of an African-American who would harm Mr. Lucio-O'Farrill. Both Messrs. Lucio-O'Farrill and Marrett were extremely concerned with Ms. Webster's behavior. Mr. Lucio- O'Farrill was so concerned that he called the police, and a police report was filed. At hearing, Mr. James testified that he was very concerned with Ms. Webster's behavior, that he had done what he could do for her, and that he had to consider the well-being of his staff and the office, as well as her behavior. The undersigned finds his testimony credible. On August 16, 1995, Ms. Schechtman met with Ms. Webster to provide Ms. Webster an opportunity to address the allegations set forth in the DAR. Ms. Webster was unable to verbally communicate her response and, therefore, Ms. Schechtman permitted Ms. Webster to submit her response in writing; which she did on or about August 18, 1995 and which consisted of several pages. Having considered the DAR and Ms. Webster's response, Ms. Schechtman decided to terminate Ms. Webster. By letter dated August 22, 1995, Ms. Schechtman notified Ms. Webster of her termination and, among other things, her rights to appeal. Suspension Prior to her termination, on February 13, 1995, Ms. Webster was suspended for six days (February 13 through 20, 1995) by the Clerk based upon a DAR dated February 3, 1995. On February 3, 1995, Mr. James issued a DAR against Ms. Webster. Mr. James was recommending her suspension from employment with the Clerk. In the DAR, Ms. Webster was charged with violating the "County's Personnel Rules, Chapter VIII, Section 7: Paragraph D" as follows: That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him/her by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public. Mr. James attached to the DAR specific facts and instances. Some of the facts and instances included the following: Recent Absences--Ms. Webster had unplanned absences over the past two months which resulted in inconveniences to management and co-workers in that they had to perform her work requirements which were her responsibility; and indicates with specific instances of absences, beginning with December 8, 1994 through January 27, 1995, for which a leave of absence was granted, with some of the leave being granted for her inability to "focus" on her work, "accomplish work objectives," lack of job performance, "unusual and disruptive behavior" in the office, and to prepare to attend the fitness for duty physical examination (FFDPE). Unusual and Disruptive Behavior--specific instances and dates were indicated, beginning December 5, 1994 through January 30, 1995, in which Ms. Webster, among other things, was attempting to train an employee who was not under her supervision and she (Ms. Webster) became upset when it was brought to her (Ms. Webster's) attention; was going through the office listening to conversations, including management conversations, and being uncooperative and critical of co- workers; continued to complain about not having sufficient work space and about the work environment even after she was advised by her supervisor to concentrate on her work; repeatedly mentioned that group problems existed at work, which were related to ethnic backgrounds; refused to follow her supervisor's directives and exhibited behavior which was disruptive to the work environment; was continually counseled to work on past-due work but walked around the office, talking about ham operators; caused an employee concern due to what he described as a glazed look in her eyes; and was making strange and nonsensical telephone calls to other employees. Lack of Job Performance and Inability to Met [sic] Work Objectives--failure to meet required job requirements and related work objectives, with specificity; failure to be responsive to counseling and to show improvement; and, on occasion, been insubordinate when queried regarding status of past due work. Mr. James also attached a "Facts" section in which he indicated, among other things, the following: that a meeting was held on January 17, 1995, with Martha Alcazar, Acting Comptroller, Ms. Webster, and himself regarding a FFDPE scheduled for January 19, 1995, as a result of Ms. Webster's recent absences, disruptive behavior and lack of performance on the job; that the FFDPE was re-scheduled at a later date, January 26, 1995, at Ms. Webster's request; that Ms. Alcazar requested Ms. Webster to come into her (Ms. Alcazar's) office on January 20, 1995, to complete the paperwork for the FFDPE but that Ms. Webster failed to do so; that Ms. Webster failed to attend the FFDPE on January 26, 1995; and that she (Ms. Webster) was previously informed that her failure to comply with the directive may result in disciplinary action up to and including dismissal. Furthermore, Mr. James recommended that Ms. Webster be suspended without pay until she complied with all the requirements of a FFDPE; that she be required to participate in the Employee Assistance Program (EAP), which had been beneficial to her in the past, before returning to and during work; that management be provided monthly status reports from Ms. Webster's doctor and/or professional counselor; and that her failure to comply with the recommendations result in disciplinary action up to and including dismissal. At hearing, Mr. James testified that Ms. Webster's behavior gave him more concern than anything else in that it was unusual for her and her work pattern and that he wanted to help her, as much as he could, with her behavior and retain her position. The undersigned finds his testimony credible. By letter dated February 13, 1995, the Clerk notified Ms. Webster that she was suspended without pay until she submitted to a FFDPE and complied with the recommendations associated therewith and that it was recommended that she participate in the EAP, with monthly status reports provided to management from her doctor or professional counselor. He further advised her that she had two weeks to comply, and, if she did not, disciplinary action would result up to and including dismissal. A letter dated February 3, 1995, was also sent to Ms. Webster by Martha Alcazar, the Acting Comptroller. Ms. Alcazar indicated, among other things, that a meeting was held on January 17, 1995, with Mr. James, Ms. Webster, and herself regarding a FFDPE scheduled for January 19, 1995, as a result of Ms. Webster's recent absences, disruptive behavior and lack of performance on the job; that Ms. Webster was informed at the meeting that failure to comply with the directive may result in disciplinary action; that Ms. Webster requested a re- scheduling of the FFDPE for January 26, 1995; that Ms. Webster failed to appear for the FFDPE; that, as a result of Ms. Webster's failure to appear, she failed to comply with a direct order; and that her disciplinary action session was scheduled for February 9, 1995, specifying the particular violation. By letter dated February 14, 1995, Ms. Webster was notified by the Clerk that, among other things, her examination was scheduled for February 21, 1995. He further advised her that her failure to comply would result in disciplinary action up to and including dismissal. By letter dated February 22, 1995, the Clerk notified Ms. Webster that, among other things, her psychological evaluation was scheduled for February 28, 1995. Again, he further advised her that her failure to comply would result in disciplinary action up to and including dismissal. By letter dated March 10, 1995, the Clerk clarified his letter dated February 13, 1995, regarding the results of her disciplinary action hearing. He advised her, among other things, that the dates of her suspension were February 13 through 20, 1995, a six-day suspension, and that beginning February 21, 1995, she was placed on administrative leave, pending the results of the physical and psychological examinations. By letter dated March 23, 1995, Ms. Alcazar notified Ms. Webster, among other things, that her (Ms. Webster's) doctor indicated that she (Ms. Webster) should return to treatment with her (Ms. Webster's) physicians who should provide the Clerk with progress reports and her recommendations concerning ability to return to work and that, based on the progress reports, Ms. Webster would be contacted regarding the terms and conditions of her returning to work. In letters from a psychologist and a psychiatrist, dated April 12 and 19, 1995, respectively, both recommend that Ms. Webster be permitted to return to work. Neither the psychologist nor the psychiatrist was performing the FFDPE. By letter dated May 9, 1995, Mr. James notified Ms. Webster, among other things, that her FFDPE was scheduled for May 12, 1995. The physician who performed the FFDPE recommended on May 12, 1995, that Ms. Webster be returned to her previous duties. Appeal of Suspension and Dismissal Ms. Webster appealed her six-day suspension and dismissal. By agreement of the parties, the cases were heard by a Hearing Examiner of the American Arbitration Association in a two-day hearing. The Hearing Examiner rendered his decision on March 1, 1996, with findings of fact and conclusions, and recommended sustaining the six-day suspension and dismissal of Ms. Webster. The Hearing Examiner's findings included a finding that Ms. Webster's response to the six-day suspension and dismissal did not refute the contentions of the Clerk and "to a great degree" address issues that were either "not relevant to the personnel actions" or "unrelated" to them. The undersigned concurs in the Hearing Examiner's findings. The Hearing Examiner's further findings included a finding that Ms. Webster's conduct constituted insubordination and that the testimony supports the violations in the DAR relating to the termination. The evidence in the instant matter also demonstrates that Ms. Webster engaged in insubordination and committed the violations indicated in the DAR regarding her termination. As conclusions, the Hearing Examiner included, among other things, a conclusion that the Clerk, as Ms. Webster's employer, had a responsibility to and did assist Ms. Webster in resolving the behavior that she was exhibiting; that Ms. Webster was clearly and repeatedly provided with warnings by her supervisor as to the consequences of the failure of her non- compliance with work standards and assigned work, but she still failed to comply; that her failure to comply adversely affected the work of the other employees in her unit; that her conduct and verbal statements towards her African American and Hispanic co-workers conveyed an attitude of intolerance and prejudice; and that she was provided ample opportunity to change her behavior but she failed to do so. The evidence presented in the instant matter demonstrates and supports the conclusions expressed by the Hearing Examiner. On March 20, 1996, the County Manager, Armando Vidal, P.E., having reviewed the record of the Hearing Examiner, upheld the six-day suspension and dismissal of Ms. Webster. Retaliation Ms. Webster filed a discrimination complaint with the Clerk's Affirmative Action Office (AAO) alleging that the DAR of August 10, 1995, (the dismissal) was in retaliation for her having filed a formal discrimination complaint with the Clerk's AAO on July 13, 1995. The complaint was against "management in general for employment actions taken and not taken against her and the manner in which her co-workers interact with her." The complaint related to behaviors of co-workers as perceived by Ms. Webster and her reaction based on her perception; the exhibited pattern of dominance by men over women; differential treatment with her than men because upper management suggested that she be placed on two medical leave of absences and a FFDPE be performed; a violation of Title I of the ADA when a vacancy occurred for the Deputy Controller position in that she was not considered due to her not applying because she was on medical leave; women in lower positions than men and performing equal work but not receiving equal remuneration; and the DAR of August 10, 1995. The complaint was investigated by AAO's Senior Affirmative Action Specialist, Carmen Dieguez, for which a report, dated August 21, 1995, of the investigation was prepared. In the process of preparing the report, Ms. Dieguez attended the hearing on the DAR of August 10, 1995, as an observer. In essence, Ms. Dieguez found Ms. Webster's formal discrimination complaint with the AAO to be meritless and concluded, among other things, the following: After having discussed the complainant's actions with her and management which precipitated the DAR and which are specifically addressed in said document and having attended the DAR hearing on August 16, 1995 as an observer, I conclude that Webster's superiors have not retaliated against her as, [sic] she alleges. The incidents described in the DAR of non- performance, insubordination and disruptive behavior appear to have been of concern to management even before Webster filed her complaint of discrimination. And, it is management's responsibility to discipline employees for what appear to be job-related reasons. . . . It is, therefore, concluded that the DAR presented to Webster is not intended to retaliate or otherwise discriminate against her. On August 25, 1995, the Director of AAO, Marcia Saunders, issued a report to the Clerk on Ms. Webster's formal complaint of discrimination filed with the Clerk's AAO. The report included Ms. Dieguez's report. Ms. Saunders concurred with Ms. Dieguez that Ms. Webster's complaint was meritless. Ms. Saunders stated, among other things, in her report the following: I have reviewed her [Ms. Dieguez's] report and the conclusions drawn therein of the seven allegations which were made. You will find that none have been found to be substantiated. To the contrary, there has been corroboration that she [Ms. Webster] instead, whether consciously or unconsciously, harassed her fellow-workers about diversity issues i.e. their 'group behavior patterns and communication styles' to the point that some individuals found her behavior to be offensive and intrusive. Webster's preoccupation with making assumptions about race/ethnic/cultural and her own religious differences may be somewhat misguided. . . . Webster also alleged that an August 10th D.A.R. she received was in retaliation because of filing this formal discrimination complaint. Dieguez attended the D.A.R. hearing as an observer to ensure the issues presented were not in regard to, nor appeared to be precipitated by this complaint. She [Ms. Dieguez] affirms that the issues addressed in the hearing were not retaliatory but a progressive process related to Webster's performance, insubordination and disruptive behavior. Discrimination statutes do not preclude an employer from exercising its right and responsibility to discipline an employee in accordance with lawful personnel rules and procedures. The evidence in the instant matter demonstrates that the retaliation purported by Ms. Webster is meritless. The undersigned concurs in the conclusion reached by the Clerk's AAO. At the hearing in the instant matter, Ms. Webster insisted, among other things, that her being a White Anglo Quaker caused communication and attitude problems between her and the Clerk's employees. She testified that the majority of the Clerk's employees were Hispanic and wanted her to act as a Hispanic woman as it concerned relations with Hispanic men, i.e., to act as their "wife"; and that they failed to understand her behavior, such as her shyness, low tone in talking, and the lowering of her head when she spoke. But, the evidence demonstrated that Ms. Webster, among other things, tried to force her ways upon them and acted irrationally when the employees would not conform to what she wanted. Further, the evidence at the instant hearing demonstrates that Ms. Webster stereotyped her fellow employees and made prejudiced remarks about them. Ms. Webster is correct that ethnic differences can cause communication problems but one cannot force someone to conform to one's way in order to communicate. At hearing, no evidence was presented demonstrating that similarly situated employees were treated differently. Ms. Webster presented evidence as to her financial situation since her termination. Ms. Webster presented evidence as to costs that she incurred associated with the hearing in the instant matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Anne R. Webster against Metropolitan Dade County, Clerk of the County Court. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2006. COPIES FURNISHED: Anne R. Webster 12000 Northeast 16th Avenue, B-27 Miami, Florida 33161-6566 William X. Candela, Esquire Dade County Attorney's Office Stephen P. Clark Center 111 Northwest First Street, Suite 2810 Miami, Florida 33128 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992. Prior to his termination he had an unblemished disciplinary record. Petitioner was initially hired by the District as a Construction Representative. In January of 1989, he assumed the duties of a Regulatory Professional I. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities. Petitioner was assigned a District vehicle for official use during the workday. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered. Petitioner worked an eight-hour day. His normal work hours were 7:30 a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination. The Employee Handbook The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows: NORMAL WORK HOURS All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director. WORK BREAKS All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed 15 minutes. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty. All employees shall take a minimum of one half hour lunch break each workday. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:" Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution. The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . . The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are: Gifts- No public employee shall solicit or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991). Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec. 112.313(4), Fla. Stat. (1991). Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991). Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla. Stat. (1991). Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply. Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla. Stat. (1991). Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others. Sec. 112.313(8), Fla. Stat.(1991). More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority. The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows: The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the requirements inherent in the employment relationship. 1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her job. . . . 5. Absence Without Authorized Leave: Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval; Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day; Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division office. . . . Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . . 11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . . 24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety equipment. . . . Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of assigned duties and responsibilities. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D). In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows: This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables: The severity of the specific act of misconduct. The circumstances under which the violation occurred. The consequences of the employee's actions in regard to its affect on the District operation and on other employees. The guidelines on severity of corrective action outlined in Section H. of this policy. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803: 1. Unbecoming conduct: 1st occurrence- WR, S or D . . 5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . . Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . . 11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . . 24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . . Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . . Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D The Accident and Related Events In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat. After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch. The vehicle was damaged and it was towed to West Palm Beach for repairs. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred. Petitioner also prepared an accident report in which he made the same misrepresentation. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/ The Speeding Ticket and Related Events On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry. The Loan and Related Events Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit. Petitioner was actively involved in the investigation that led to the issuance of the NOV. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/ At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/ Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days. The loan was repaid in full within three weeks. Petitioner's Personal Circumstances During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101 The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders: Petitioner's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-7. Accepted and incorporated in substance. 8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 9-11. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 15-16. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 20-22. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of legal argument. Accepted and incorporated in substance. Rejected because it is not supported by persuasive competent substantial evidence. 25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance. 25c.-26a. Accepted and incorporated in substance. 26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance. 26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. 26d. Accepted and incorporated in substance. 26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 26f. Accepted and incorporated in substance. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence. 27a. Accepted and incorporated in substance. 27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence. 27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17, 1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony. 30-32d. Accepted and incorporated in substance. 32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 10/ Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/ 33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination. 33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Petitioner's Proposed Findings of Fact Accepted and incorporated in substance. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $216 in grant funds expended in a manner inconsistent with Department regulations. DONE and ENTERED this 22nd day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Agnes Miramontes 301 North Oklahoma Street Bonifay, Florida 32425
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
