Findings Of Fact Petitioner is a female who was born on September 6, 1930, and who resides in Tallahassee, Florida. Respondent publishes the Tallahassee Democrat (hereinafter "The Democrat") and maintains its principal place of business in Tallahassee, Leon County, Florida. Petitioner applied for employment by The Democrat as a bookkeeper and was hired on March 8, 1972. In March, 1975, she was promoted to the position of accounting supervisor. Even after that promotion, her duties consisted primarily of routine bookkeeping. Although varied, her work was not complicated and did not involve complex accounting principles or tax planning. Petitioner also supervised and trained the accounting clerks in The Democrat's accounting department. Normally, this involved supervising between eight and ten people. The only persons to whom she was subordinate in the department were the Assistant Controller and Controller. Petitioner has no formal education or training in accounting. She once enrolled in an accounting correspondence course from LaSalle Extension University but never completed the course. When Petitioner was hired, Bill McMasters was the Controller. Roger Hester became the Controller in February, 1974. The position of Assistant Controller was instituted at The Democrat in 1972. The first Assistant Controller was Gary Coates. Coates filled in as the Controller between the time McMasters left The Democrat and Hester arrived. The second Assistant Controller was Hewitt Dupont. Dupont had an accounting degree, had experience with a CPA firm, and was capable of filling in for the Controller. When Dupont was hired, his salary was $12,000 per year. When he left, his salary was $14,400 per year. The third Assistant Controller was Peggy Hively. She was qualified to fill in for the Controller. When Hively was hired, her salary was $12,500 per year. When she left, her salary was $16,400 per year. The fourth Assistant Controller was Evan Ray, who was hired in March, 1979, at a salary of $16,000 per year. All Assistant Controllers at The Democrat have had degrees in accounting and, in some cases, CPA experience as well. When Dupont was hired in 1974, Petitioner discussed with Hester the possibility of her being given the Assistant Controller position when it again became open. Petitioner asked if an accounting degree from Florida A & M university would help her secure that position. Hester advised her that he considered a degree in accounting from Florida A & M University to be of negligible benefit. However, he told Petitioner he would consider her the next time the job was vacant if she learned more about depreciation and end-of-the- month functions. Hester told Petitioner that she should take some accounting courses. However, Petitioner failed to do so. After Hively was hired as the Assistant Controller, Petitioner again discussed with Hester the possibility of her being given the Assistant Controller position the next time it became open. Hester promised her the position if she would continue to work on her depreciation skills. When an employee at The Democrat is seeking a promotion or a transfer to another department, it is not necessary for that employee to file a new application with the personnel department in order to be considered for the new position. During the time Hively held the position of Assistant Controller, she performed many clerical and bookkeeping tasks which could have been performed by the accounting clerks, such as inventories. These functions were performed by the Assistant Controller because there was a limited number of people in The Democrat's work force at that time. By the time Evan Ray was hired, many of these tasks had been reassigned to various accounting clerks. Mrs. Hively went on maternity leave in 1977. During her absence, her duties were assumed by several other persons, including Petitioner. However, Petitioner did not fill in completely for Hively. Philip Horne, Elke Allen and Mary Grabill also assisted with Hively's duties. The functions assumed by Petitioner and the accounting clerks were primarily bookkeeping functions. Hester assumed the more complicated Assistant Controller functions himself. Hively resigned from The Democrat in December, 1978, and her position was vacant for several months. During this time, the Assistant Controller duties were again assumed by several other people, including Petitioner. However, Petitioner did not fill in completely for Mrs. Hively. Philip Horne, Elke Allen and Mary Grabill took over some of Hively's functions. Hester assumed, once again, the more complicated functions of the Assistant Controller. During the years between the time Hively was hired as Assistant Controller and the time Ray was hired in that position, the operations at The Democrat expanded and became more complex. As a result, the position of Assistant Controller changed as new responsibilities were added. Hester found it necessary to rely more on the Assistant Controller for assistance with the more complicated accounting functions which he had previously done himself. Petitioner did not have the experience or technical knowledge of higher accounting to adequately perform the Assistant Controller functions as they were when Ray was hired. Hester considered Petitioner for the job of Assistant Controller when Hively left. However, he concluded she did not have the accounting skills to be able to fill the increased responsibilities of the Assistant Controller's position. He further concluded that it would have taken two to three years to train Petitioner to be able to adequately fill the position. One of the requirements for the Assistant Controller job at The Democrat was the ability to fill in for the Controller when required. Mr. Harwell, the publisher of The Democrat, told Hester that no one at The Democrat other than the person occupying the Assistant Controller position was capable of filling in for the Controller. Harwell instructed Hester that he must select someone for the Assistant Controller position who was capable of assuming the full duties of the Controller. A degree in accounting was not an absolute requirement for the position of Assistant Controller. The criteria for selection for that position were the ability to perform the complete job of the Assistant Controller and the ability to perform the complete job of the Controller when required. Petitioner was harsh when correcting employees under her supervision and displayed a weakness in her ability to effectively supervise people in her department. She corrected employees in a loud and abusive manner in front of other people often enough to cause a morale problem in the accounting department. Evan Ray, the current Controller of The Democrat, was hired as Assistant Controller on March 5, 1979. Ray holds a degree in accounting and business management information systems. He is enrolled in an MBA program. He has managerial experience and experience in computers. Ray, by virtue of his education and prior experience, was more qualified than Petitioner for the position of Assistant Controller. Assistant Controllers at The Democrat may fill in completely for the Controller and must be able to handle the Controller's duties. Coates filled in for the Controller after McMasters left The Democrat in December, 1973, until Hester arrived in February, 1974. Ray filled in for the Controller during the interim between Hester and Denise Brooks when she replaced Hester as the Controller of The Democrat. At the time when Hively left her position as Assistant Controller, Petitioner was not qualified to fill the Assistant Controller position either by experience or by education. She did not have a degree in accounting. She did not have any academic training in accounting. She had not held any position of employment wherein she dealt with any complex accounting procedures, either at The Democrat or at any other employment. In the preceding ten years, Petitioner had not taken any course work in accounting, had not engaged in any study of accounting at home, had not purchased a book in the accounting field and had not borrowed any book in the accounting field from any library. Petitioner left a prior place of employment, Mobile Home Industries, because her job had too much pressure to suit her. When she applied for employment at The Democrat, she specifically stated she did not want a job with a lot of pressure. She admits she does not want either the responsibility or the pressure of being the Controller at The Democrat. According to the 1970 Census, 19,450 of a total work force in Leon County of 43,271, or 44.9 percent, were female. According to the 1970 Census, 3,825 of a total professional work force in Leon County of 9,676, or 39.5 percent, were female. According to projections of the Florida Department of Labor and Employment Security for 1979, 16.4 percent of the managerial and administrative work force in Tallahassee was female, and 28.7 percent of the "other professional" work force in Tallahassee was female. Accountants fall within that agency's category of "other professional." Petitioner's Position at The Democrat is in the officials and management category. In March, 1980, 100 of 264 total employees of The Democrat, or 38 percent, were female; 20 of 48 professional employees, or 41.7 percent, were female; and 9 of 51 managerial and administrative employees, or 17.6 percent, were female. In the accounting department of The Democrat, more than 40 percent of the employees are female. In October, 1980, The Democrat was 2 to 3 percent below the percentage of females in the Tallahassee SMSA. In the professional and technical and in the officials and managers categories, The Democrat was several percent above the area female work force percentages. When The Democrat advertises for a position, it advertises in 13 counties in Florida and 3 in Georgia. It also notifies other papers in the Knight-Ridder newspapers chain of the opening. In 1974, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." There were 19 applicants for the position, 3 of whom, or 15.8 percent, were female. In 1975, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." Three of 5, or 60 percent, of the applicants for the position were female. In 1979, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Three of 14 applicants, or 21.4 percent, were female. In 1980, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Five of 20, or 25 percent, of the applicants were female. In the 4 times that the assistant Controller position at The Democrat has been advertised, 14 of 58 applicants, or 24.1 percent, have been female. When the advertisement for the Assistant Controller position specified "degree preferred," 8 of 24 applicants, or 25 percent, were female. When the advertisement specified "degree required," 8 of 34 applicants, or 23.5 percent, were female. Specification of "degree required" in the advertisement for the Assistant Controller position at The Democrat did not have an appreciable effect on the percentage of women who applied for the job or on the percentage of women who were selected. At the time Evan Ray was hired as Assistant Controller, when Petitioner alleges she was denied a promotion to that position because of her sex and age, there were four persons who had held the Assistant Controller position at The Democrat. These persons were Mr. Coates, Mr. Dupont, Mrs. Hively, and Mr. Ray. One of these 4 persons, or 25 percent, is a female. Prior to the time Evan Ray was Promoted to the position of Controller at The Democrat, there were three persons who had held the Controller position during Petitioner's employment at The Democrat. One of those persons, Denise Brooks, is a female. When Mrs. Brooks left her position as Controller, her salary was $30,000 per year. Evan Ray was promoted into that position at a salary of $25,000 per year. Petitioner does not believe that The Democrat discriminates against women in general or against women in the position of Assistant Controller. Prior to April, 1980, Denise Brooks, the Controller, and Evan Ray, the Assistant Controller, discussed with Harwell, the publisher, and Doris Dunlap, the Personnel Director, the reorganization of the accounting department at The Democrat. The reasons for the reorganization were to distribute the work load more evenly, provide cross-training within the department, relieve the lack of promotability in the department, ease the training burden on Petitioner and provide more effective training, and free Petitioner and two other long-term employees from some of their tasks so they would be able to assist in special projects. The actual reorganization took place in April, 1980, when Evan Ray was promoted to the position of Controller of The Democrat. As a result of the reorganization, the accounting department was divided into three divisions: advertising accounting, circulation accounting, and general accounting. Petitioner remained in charge of advertising accounting, and Mary Grabill and Marilyn Plaskett were promoted to Petitioner's level as supervisors of the other two divisions. Some of petitioner's previous responsibilities were assigned to Grabill and Plaskett, and Petitioner had fewer people to train and supervise after reorganization. Even after reorganization, Petitioner continued to have one of the most important positions at The Democrat in which she is responsible for recording approximately 80 to 85 percent of the company's revenue. When Grabill and Plaskett were promoted, they were given a salary increase. However, even with the increase, they continued to make less than Petitioner. Petitioner's salary was not reduced as a result of reorganization, and it remained higher than the salaries of the other supervisors on her same level. Petitioner continued to receive the third highest salary in the department with only the Assistant Controller and the Controller earning more than she. Grabill had always been in charge of the monthly payroll, which is confidential, and the quarterly payroll reports. With reorganization, she also assumed the time card payroll done by Petitioner so that one person would have the entire payroll. Petitioner was disappointed that her payroll function was taken from her, and she felt humiliated. She would like to have had certain areas of the accounting department under her responsibility after the reorganization rather than some of the areas she was assigned. Prior to reorganization, Petitioner was not able, because of time pressures, to do a good job of training new employees. Additionally, Petitioner was required to fill in for anyone who was absent in addition to performing her own duties. The reorganization of the department has helped the department to run more efficiently than before. For example, Petitioner has more time to spend with the people she is responsible for training and can do a better job of training them. The reorganization of the accounting department was not undertaken to retaliate against Petitioner in any way, but was done solely to improve the efficiency and the managerial accountability of the department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered by the Florida Commission on Human Relations finding that Petitioner, Louise S. Forrest, was not discriminated against on the basis of her sex or age, finding that Petitioner, Louise S. Forrest, was not retaliated against for charging Respondent with discrimination, and dismissing her Petition for Relief with prejudice. RECOMMENDED this 16th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson & Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32303 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Mr. Norman A. Jackson, Executive Director Florida Commission on Human Relations Montgomery Building, Suite 100 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioners were the victims of an unlawful employment practice by being denied promotions allegedly on account of their age.
Findings Of Fact Petitioner Little was employed by Monsanto, the Respondent, for 34-1/2 years until his retirement on January 1, 1990. Petitioner Akins is currently employed by Monsanto and commenced employment with that firm on December 13, 1955. The Monsanto Company operates a manufacturing facility in the vicinity of Pensacola, Florida, which converts certain chemical feed stocks to synthetic filaments and/or yarns for use in the textile and fiber industries. Petitioner Akins is currently a "Group 12 Maintenance and Instrument Mechanic", an hourly "manufacturing unit" position. Prior to his retirement, Petitioner Little was a "Group 11 Maintenance and Instrument Mechanic", also an hourly manufacturing unit position. Monsanto's Pensacola facility operates with a manufacturing unit employing hourly wage employees and a Technical Center which employs essentially all salaried employees. The two facilities within the plant are separate and distinct units. In December 1989, Monsanto posted two vacancies for a salaried "Operations Technician" position in the Technical Center. The procedure for a promotion or transfer from an hourly job to a salaried Technical Center job is contained in the Nonexempt Selection Procedure Manual, in evidence as Petitioners' Exhibit 1 and Respondent's Exhibit 1. When a vacancy is announced in a salaried position, interested employees submit a "Request for Salaried Job" and "Employee Placement Profile" to the plant employment office. Thereafter, a screening committee comprised of plant personnel determines whether the self- nominated candidates are qualified for the vacancy. That committee selects the qualified candidates and submits the list of those candidates to the Technical Center personnel superintendent. The department with the vacancy thereafter receives notification from the Technical Center personnel department of the candidates to be interviewed. The employees who nominated themselves for the vacant Operations Technician position were Petitioners Little and Akins, Terry Nettles, W. D. Tidwell, and Joni Troutman. All of the candidates who were self-nominated for that Operations Technician position were interviewed by a committee consisting of three technical employees; Charles Livingston, Lawrence Brantley, and Gary Green. All these individuals on the committee were over the age of 40. The committee interviewed each candidate in accordance with the evaluation criteria set forth in the Nonexempt Job Selection Procedure Manual. Some of the factors which the committee considered were the knowledge and skills of each candidate, applicable experience, past job performance, communication skills, attendance records, human-relation skills, and employee initiative. The committee's objective was to select the most qualified candidate for the position based upon the aforementioned factors. Seniority was considered by the committee, but only as one of many factors. Although seniority is a deciding factor in manufacturing unit professions, seniority is not the deciding factor in the selection process in the Technical Center. In accordance with Monsanto's equal employment opportunity policy, age was not a consideration in the selection process. The committee did not ask any candidate any questions about age, nor did the committee ask the candidate when he or she planned to retire from the company. Following the interview, the committee selected Richard T. Nettles, age 47, as the most qualified candidate for the Operations Technician position. Mr. Nettles had been employed by Monsanto from December 1963 until he was terminated by a reduction in force or layoff in June 1985. After leaving Monsanto, Mr. Nettles worked for the James River Corporation at a similar type of plant in an Operations Technician position, the type of position at issue in this proceeding. His job was very similar to the one he held at Monsanto. Mr. Nettles was subsequently rehired by Monsanto in September 1989 as an hourly Manufacturing Unit Employee. During his previous employment with Monsanto, Mr. Nettles had been in an Operations Technician position in the Technical Center for approximately 18 years. During that time, Mr. Nettles' performance evaluations were consistently above average or excellent. Additionally, Mr. Nettles had recently completed college level courses in computers, science and metallurgy, as well as a chemical operator training course at Pensacola Junior College. Mr. Nettles was the only applicant for the Operations Technician job who had ever performed the Operations Technician job in the past. Mr. Nettles was a probationary employee at the time he applied for the Operations Technician position. Monsanto has no policy which prohibits probationary employees from applying for promotions. Rather, the probationary period is simply a period in which a newly hired employee is being evaluated for purposes of retention and during which no job-related benefits accrue. Further, Mr. Nettles was not barred from applying for the Operations Technician position because he was required to spend any length of time in his prior job. Promotions or transfers from hourly to nonexempt salaried positions in the Technical Center are governed by the Nonexempt Selection Procedure Manual. The Nonexempt Selection Procedure Manual contains no restrictions on upward mobility. Monsanto has never followed a policy of restricting the upward mobility of its employees. Ultimately, Mr. Nettles was evaluated by the committee, the appropriate recommendations were made, he was found to be the most qualified candidate for the job and thus was offered the Operations Technician position, which he accepted. Petitioners Little and Akins were dissatisfied with the committee's selection and thereafter pursued the plant's appeal procedure to appeal the decision to hire Mr. Nettles for that position. In the final step in that appeal procedure, the Petitioners met with plant manager Leon Hebert. Mr. Hebert played no part in the selection of Mr. Nettles. Indeed he has no authority over the Technical Center hiring process at all. In their meeting, Mr. Hebert explained to Petitioners why Mr. Nettles was selected over them for their Operations Technician position, most notably, because of his past experience on the job. Mr. Hebert also explained the differences in the selection procedure in the manufacturing unit as compared to the Technical Center. Mr. Hebert made no comments about the Petitioners ages during this meeting, although Mr. Akins maintains he made a comment to the effect that the job in question was not to be a "swinging gate for retirees." Even if Mr. Hebert made such a comment, it is not probative of discrimination or discriminatory intent on the part of the employer for the reasons discussed in the conclusions of law below involving Mr. Hebert playing no part in the decision concerning who to hire for the position in question. Shortly after the vacancy for the Operations Technician position was filed, a similar vacancy was announced for a Spinneret Technician position in the Technical Center. The candidate selected for that position, Mr. Walter Williams, was the oldest candidate who applied for the job.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the Petitions of Bennie J. Little and Carlton E. Akins in their entirety. DONE and ENTERED this 2nd day of February, 1992, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1992.
Findings Of Fact Jody A. Strain was recruited and hired in 1984 by Reflectone, Inc. as a computer systems engineer. At the time of her dismissal Petitioner was a Level 3 engineer. During the 5 1/2 years Petitioner was employed by Respondent her evaluations were above average (Exhibit 2) and she received several letters recognizing her contributions to the projects to which she was assigned. Respondent has never contended that Petitioner was dismissed because of her work performance. Reflectone, Inc. develops flight simulators which it sells primarily to the U.S. military and to commercial airlines. These contracts are generally awarded following a request for proposal submitted by the purchaser to several companies capable of accomplishing the proposed tasks; and these companies, including Reflectone, submit bid proposals which, when accepted, result in an $8-$10 million contract. Each contract will generally run from 24 months to 30 months before completion. Accordingly, the number of employees needed at any one time is largely reflected by the number and scope of on-going projects. Because of this variation in workload Respondent's project managers prepare an evaluation of staffing needs for the future at two month intervals. These are coordinated and as new contracts are accepted they are staffed by people with the necessary qualifications who are working on expiring contracts. On September 12, 1989, Petitioner was placed on emergency maternity leave with an expected duration of nine weeks (Exhibit 3). On November 13, 1989 Petitioner was called by Janis Batt, Engineering Manager, Computer Systems at Reflectone and told that she was selected for lay- off. At the time Petitioner commenced her maternity leave the project on which she was working had not been completed; however, that part of the project on which Petitioner was working had been completed. Finalizing the project, which had been delayed by non-receipt of data from the purchaser, was completed by John O'Reilly, the team leader on the acoustics portion of the project on which Petitioner had participated. At the time Petitioner was laid off there was no new project starting up which required an engineer of her qualifications. The general policy at Reflectone is not to replace an engineer working on a particular project with another engineer except in cases of emergency. Since a large part of the work done by engineers such as Petitioner is writing computer programs for the project, continuity on the project is deemed by Reflectone to be the most important factor. As a result seniority among engineers is given considerably less weight in this business than in most other businesses where one engineer can generally replace another engineer with equivalent qualifications. Petitioner had earlier been granted maternity leave and returned to work at Reflectone. No evidence was presented that other employees had been terminated at Reflectone involuntary while on maternity leave or as a result of their pregnancy. At the time of Petitioner's dismissal there were some six to eight engineers in the computer systems division headed by Janis Batt. One was a Level 5, three were Level 4, two were Level 3 and one position was filled by a USF student working as a co-op one semester and going to school the next semester. This position was arranged by an agreement between Reflectone and USF. The one other Level 3 engineer in the computer systems division was Chet Kwistowski who had been hired much later than Petitioner. However, in October 1989 Kwistowski was working on an on-going project. Due to the lack of work in late 1989 staffing studies showed not enough work at Reflectone for all systems engineers. In July 1989 another group at Reflectone experienced lay-offs. In total some 50 people out of a work force of 500 were laid off in 1989. By reduction in force recommendation dated November 9, 1989 Janis Batt recommended Petitioner be selected for lay-off by reason of lack of work for an engineer of her qualifications. This was approved by the vice-president of Human Resources for a separation date of November 15, 1989 (Exhibit 8). By request for department transfer dated August 25, 1989, Janis Batt proposed that Petitioner be assigned to computer systems as her work on her then present assignment (SH2/SH3) had been completed. Respondent's policy and procedure manual policy number 29 (Exhibit 7) provides that employees furloughed because of lack of work may have a one (1) year recall period afforded them at the concurrence of the employee's supervisor and the vice-president, Human Resources. Petitioner contends that she was not rehired pursuant to this policy as retaliation for having filed her initial complaint of discrimination. During the Petitioner's recall period no new Level 3 engineers were employed in the computer systems division. However, one Level 4 engineer and two Level 1 engineers were hired. The Level 4 engineer hired, John Pfost, had voluntarily left Reflectone some two years earlier as an Engineer 2. Although Petitioner contends that Pfost was hired as a Level 4 to offuscate the failure to rehire her, Respondent presented credible and unrebutted evidence that Pfost had special skills necessary for the project for which he was hired. Another engineer had been denied promotion from Level 3 to Level 4 because she "did not have enough time in Level 3" yet she had more time as a Level 3 than the interval between Pfost leaving as Level 2 and his rehiring as Level 4. However, she did not have the supervisory experience Pfost had gained during the two years he worked for a competitor of Respondent. Petitioner did not apply for the Level 1 positions that were filled during her one year recall period and she was not offered either of those positions because she was deemed to be overqualified for the position. Although Petitioner indicated at the hearing that she would have accepted a Level 1 position she did not specifically testify that she would have accepted that position if offered. In this regard, from all of the evidence presented it is clear that Reflectone staffs various jobs with personnel holding the skills required for that job. Jobs requiring entrance level skills were staffed with Engineers 1 and jobs requiring Engineering Level 2 skills were staffed with Engineers 2, etc. No Engineer 2 or 3 personnel were assigned to jobs requiring Engineer 1 or Engineer 4 skills. Accordingly, the failure of Respondent to offer Petitioner the position of Engineer 1 was due to this general policy and not because Petitioner had filed her discrimination claim.
Recommendation It is recommended that Jody A. Strain's Petition for Relief from an unlawful employment practice be dismissed. DONE and ENTERED this 5th day of November, 1992, at Tallahassee, Florida. K. N. AYERS 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 November, 1992. APPENDIX Petitioner's proposed findings are unnumbered. To attempt to rule on these proposed findings I have numbered them 1-23 attempting to keep one fact to each number. Treatment accorded these numbered findings is as follows: Accepted (number of engineers hired). Accepted except that Petitioner would have accepted a level 1 position if offered. No testimony was presented to support this fact. Rejected as argumentative. Accepted (re hiring Kwistowski). 5.-9. Accepted. Accepted as testimony by Petitioner. However, Batt repeated the evidence in Petitioner's finding of fact 9 at the hearing. Accepted. Accepted as the testimony of Batt (performance evaluation). Other sections of this proposed finding are rejected as argumentative. Statement accepted. Questions and balance of this proposed finding are rejected as argumentative. 14.-15. Rejected as argumentative. Accepted. Two questions are rejected as argument. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Respondent's proposed findings are accepted except as noted below. Those proposed findings not included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached: 2. Date of Petitioner's layoff on November 6, 1989 rejected as inconsistent with Exhibit 8. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Jody A. Strain 12404 Cardiff Drive Tampa, Florida 33625 John E. Phillips, Esquire 400 N. Ashley Tampa, Florida 33602
Findings Of Fact In response to a newspaper advertisement, in May of 1990, Petitioner Peter Ballance submitted to Respondent Town of Palm Beach his employment application, together with an extensive resume, seeking a position as a Mechanic III with the Town's Public Works Department. On May 31, 1990, Petitioner was interviewed for that position by an interview panel of four persons: David Kyzar, Lloyd McCoy, William Krouse, and Leonard Greene. At the beginning of his interview, Petitioner spoke in a whisper. He explained that he stuttered and speaking in a whisper made it easier for him to communicate without stuttering. Within the first few minutes of his interview Petitioner relaxed and began speaking in a normal tone. The members of the interview team had no difficulty communicating with Petitioner, and Petitioner had no difficulty communicating with them. No member of the interview team had any concern about Petitioner's stuttering since one employee with a severe stutter already worked in the Town's Public Works Department, and one employee with a stutter worked as one of the Town's police officers. Further, the members of the interview team understood that the position for which Petitioner was applying would not require much verbal communication. During the interview, Petitioner spoke of his extensive qualifications. The position of Mechanic III is the Town's highest level mechanic position. According to both the job description and the discussion during the interview, a Mechanic III is expected to work with little or no supervision, is able to handle any repair job, and can perform the highest level of preventive maintenance on the Town's vehicles. During the interview Petitioner represented himself to be able to work on all vehicles based upon his 30 years' experience working on all types of engines and vehicles. Essentially, Petitioner represented that he could repair anything. Petitioner specifically advised that he did not like working in a flat rate shop. A flat rate shop uses a book which rates each job as to time so that the shop can give a customer a quote as to how much that job will cost. The book gives the maximum and minimum time periods for that job. Since it does not take mechanics the length of time to do the job which the flat rate book indicates is the appropriate time, the mechanic is actually paid for more time than the job took. It is easy, therefore, for a mechanic to be paid for 70 hours of work, for example, when he actually only worked a regular 40 hour work week. Petitioner explained that he thought the use of flat rates was an unethical practice and that Petitioner liked to take his time in repairing engines because he liked doing quality work. Petitioner's dislike of flat rate shops posed no problem to the interview team since the Town does not operate a flat rate shop. The interview team discussed with Petitioner his experience with diagnostic equipment. Petitioner specifically represented during the interview, as well as on his resume, that he is proficient in operating the Sun Interrogator II, an engine analyzer. Petitioner's experience with that machine was important since the Town used the Sun Interrogator II in its shop. Petitioner was the most qualified applicant for the position. All members of the interview team were favorably impressed with Petitioner's extensive mechanical ability and with how he handled himself during the interview. He was hired as a Mechanic III in the Town's Public Works Department. Petitioner began his employment on June 14, 1990, a Thursday. On that Thursday and Friday and for the following full week, Petitioner worked under Mike Sharpe, the mechanic foreman responsible for overseeing the operation of the Town's vehicle maintenance shop. Sharpe was Petitioner's immediate supervisor, and Sharpe's own immediate supervisor was David Kyzar, the vehicle maintenance supervisor and a member of Petitioner's interview team. Kyzar's immediate supervisor was Lloyd McCoy, the division manager who served on Petitioner's interview team with Kyzar. McCoy's immediate supervisor was Al Dusey, the Director of the Public Works Department of the Town of Palm Beach. During that first partial week and first full week while Petitioner's immediate supervisor Mike Sharpe was supervising his work, Sharpe began to question Petitioner's ability to perform his duties. Sharpe found that Petitioner took an inordinate amount of time to perform any job assigned to him and specifically noted that Petitioner did not know how to hook up the Sun Interrogator II. Sharpe gave Petitioner the manual for the Interrogator and thereafter observed Petitioner using the manual, not as a reference book, but, rather, Petitioner was following the manual step-by-step as he worked. Sharpe assumed that Petitioner was nervous at his new job since Petitioner's demonstrated lack of skill was contrary to the extensive experience Petitioner had represented, both verbally and in writing, that he had. Yet, Sharpe was concerned enough about Petitioner's apparent lack of ability that Sharpe contacted Kyzar who was on vacation to explain to Kyzar his concerns about Petitioner's performance. Starting the following Monday, Petitioner's second full week of employment, it was Sharpe's turn to be on vacation, and Kyzar returned from his vacation to oversee the operation of the vehicle maintenance shop while Mike Sharpe was on vacation. Sharpe continued to be concerned enough about Petitioner's performance that he called Kyzar from North Carolina where he was vacationing to ask Kyzar how Petitioner was doing. Kyzar explained that he was sharing the same concerns that Sharpe had, that is, Petitioner's extreme slowness in performing any task and Petitioner's apparent lack of skill. Kyzar began making personal notations which he kept in his desk regarding Petitioner's work. For example, he made a notation when a job which would normally take 20 to 30 minutes took Petitioner, a supposedly highly skilled mechanic, 4 hours to complete. Kyzar wrote such a memo almost every day. When he did so, Kyzar would speak with Petitioner about Petitioner's extreme slowness and poor performance in a position demanding a high level of skills. Petitioner responded to Kyzar by accusing Kyzar of picking on Petitioner because of his stutter. Kyzar repeatedly told Petitioner that Petitioner's stutter was not a problem but Petitioner's performance was. It was important to Petitioner to discuss with people his stuttering. During Petitioner's first two days of employment before Kyzar went on his one- week vacation, Kyzar took Petitioner through the orientation procedures for new employees. He introduced him to other employees; he took him on a tour of the facilities and showed him where vehicles to be repaired would be located; he made sure that Petitioner filled out the new employee forms required by the Town, and he went over Petitioner's job duties. During those two days, Petitioner on several occasions wanted to discuss with Kyzar Petitioner's speech impediment, and Kyzar listened to Petitioner's explanation and discussed it with Petitioner. After Kyzar returned from vacation and began supervising the vehicle maintenance shop while Sharpe was on vacation, Petitioner came to Kyzar's office several times to discuss Petitioner's stutter and also pulled Kyzar aside in the shop several times to discuss Petitioner's stutter. Kyzar eventually told Petitioner he did not have time to keep discussing Petitioner's stutter when Petitioner's stutter was not a problem. During Kyzar's supervision, Petitioner became critical and vocal regarding the fact that Petitioner did not like the brands of products being used by the Town to repair its vehicles and also did not like some of the procedures followed in the vehicle maintenance shop or followed by the Town. Kyzar's explanation to Petitioner, for example, as to why a governmental entity would have to purchase Goodyear tires rather than Michelin tires did not satisfy Petitioner. All persons are hired by the Town of Palm Beach as probationary employees. Petitioner's probationary period was six months. At the end of Petitioner's first month of employment, Kyzar, his supervisor, and his supervisor's supervisor met and discussed the sharp contrast between the representations made on Petitioner's resume and during Petitioner's interview and Petitioner's actual performance. It was clear to them that Petitioner did not possess the skills necessary to perform repairs at the level of a Mechanic III and, accordingly, did not possess the skills which Petitioner had represented, both verbally and in writing, that he possessed. Petitioner was terminated from his employment by the Town of Palm Beach on July 16, 1990. The sole reason for Petitioner's termination was his poor level of performance and apparent inability to perform the job for which he had been hired. Although the Town's vehicle maintenance shop was not a flat rate shop, the Town expected, and had a right to expect, that Petitioner would perform his duties within a reasonable time. Since Petitioner was either unable or unwilling to accomplish his repair jobs within a reasonable time, the Town had good cause for terminating Petitioner's employment if there had been a requirement for good cause in order to terminate a probationary employee. Petitioner's speech impediment did not cause or contribute to Petitioner's discharge. His speech impediment did not interfere with any of his communications relative to his employment with the Town of Palm Beach. Neither the Town of Palm Beach nor any of its employees discriminated in any way against Petitioner as a result of his stutter. Petitioner testified for a number of hours on two separate days during the final hearing in this cause. Even with the extra stress experienced by many people while testifying and otherwise participating in an evidentiary hearing, Petitioner's stutter did not interfere with his communication. In fact, Petitioner's stutter was barely noticeable and infrequent. Although Petitioner testified that he is able to work on any vehicle due to his extensive experience, he also testified that he should not have been expected to repair domestic vehicles as well as European vehicles since he had worked primarily on foreign vehicles both before and after he moved to the United States in 1983. Although there may be a difference between the nuts and bolts used in foreign cars and those used in domestic cars, there is no difference between foreign cars and domestic cars as far as the procedure for hooking up the Sun Interrogator II and no difference as to the mechanical work to be performed. Accordingly, Petitioner's testimony that he was a little slow because of his unfamiliarity with domestic cars is rejected since it is without factual basis and is contrary to the representations made by Petitioner to the Town in Petitioner's resume, during Petitioner's interview, and during the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Town of Palm Beach did not commit an unlawful employment practice by discharging Petitioner and dismissing the Petition for Relief filed in this cause. DONE and ENTERED this 7th day of December, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. COPIES FURNISHED: Jonathan R. Kaplan, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 John C. Randolph, Esquire Jones, Foster, Johnson, et al. 505 South Flagler Drive P.O. Drawer "E" West Palm Beach, Florida 33402 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149
The Issue 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
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Commission, was the state agency responsible for the certification of Minority Business Enterprises in Florida. Petitioner, Computer Service, was founded by Ronald E. Willett in January, 1987. It is a computer maintenance and repair company of which Brenda Willett is currently President and Chairman of the Board and owner of a 51 percent share of the capital stock issued on December 15, 1993. Ronald E. Willett is the Executive Vice-president, a Director, and owner of a 49 percent share of the capital stock. Mr. Willett was the sole owner and Chairman of the Board until May, 1994, at which time he gave 51 percent of the stock to his wife, Ms. Willett, and the Board elected her Chairman. Ms. Willett has been in the data processing field for 13 years. Before she began working with the Petitioner, she was a computer programmer for the State Attorney's office. She uses computer software to help with managing the affairs of the company, but she is neither a programmer nor a technician. She does not do any repair work for the company because she is not trained to do it. Most of the repair work is done by her husband and two computer engineers employed by the company. A fifth employee works in the warehouse and repairs printers. Of the non-family employees, Ms. Willett interviewed one and hired another. Now she is responsible for all interviewing and hiring. Because of the technical nature of the work, however, she does the initial screening interview after which either Mr. Willett or one of the engineers evaluates the candidates' technical qualifications. She completes the evaluations of her employees' performance by relying on her customers to evaluate the employees' technical performance. In addition, she notes when an employee orders an inordinate amount of parts for a job instead of doing repair work because that generally indicates the employee is not performing properly. Ms. Willett is paid $1,500 every two weeks. Her husband is paid $6,500 per month, and each of the engineers is paid $40,000 per year. Ms. Willett is primarily in charge of the business administration. The inventory of repair parts is maintained at the company warehouse and at the various work sites where the company has contracts to maintain the equipment. Each repairman notifies her of the parts needed. She gets prices and orders the needed parts. The company does not have a line of credit with suppliers. Ms. Willett has, in the past, personally signed for a line of credit which was used for the company. The company presently owes $18,000 to a power supply company under a contract which she negotiated. For the past year, she has been the only company official to sign to commit the company on loans. In addition, Ms. Willett negotiates the company's contracts with customers and she works as a team with the engineers on pricing. The company works on a basis of 35 - 50 percent off IBM prices for similar service. Though her husband helps her decide on what machines the company can buy and repair, she would not need to replace him if he should retire. He is currently working only 18 -20 hours per week. The company submitted its application for minority business enterprise certification on April 18, 1994. Ms. Willett indicated she did not know about the program until it was mentioned to her by an instructor in a course she was taking, and she felt it would help her secure business. As a woman, she was finding it difficult to be taken seriously by the male business officers and managers she dealt with in soliciting business, and she understood that the minority certification would help her qualify for state contracts. The initial review of Petitioner's application was accomplished by Mr. DeLaO, who requested and received from Petitioner matters needed in clarification or amplification of the information contained in the application. Mr. DeLaO also conducted a telephone interview with Ms. Willett to determine how the business was operated and to reaffirm the accuracy of the documentation. Mr. DeLaO did not look elsewhere for information. Based on the information listed above, he recommended denial of the Petitioner's certification. Mr. DeLaO's recommendation was based on several factors, all of which are listed in the recommendation submitted in writing to his supervisor. The problems he found included: The risk of the minority owner, as weighed against the risk of the non-minority owner indicated Ms. Willett, who had received her shares as a gift, had no investment in the corporation to lose. Mr. DeLaO felt the risk of the minority owner should be greater than that of the non-minority owner. Risk was defined as the amount of investment capital put in to start the company or to purchase ownership. The minority owner's wages were not commen- surate with her percentage of ownership. Here, Mr. Willett, the non-minority owner, was making more than she was, as were both engineers. The Board of Governors of the corporation was not controlled by the minority owner. At the time of the review, only Mr. Willett was on the Board. Now that she is on the Board, she still does not control it because she one of only two Directors. Ms. Willett does not appear to have the technical expertise and capability to control the business of the company. She does not appear to have the technical education or experience to do the work of the company herself or to properly evaluate how her employees are performing it - computer repair. Her contribution appeared to be only administrative. Ms. Willett admits her ownership of the 51 percent of the shares of the company was a gift from her husband who felt she deserved it. She claims, however, that the initial cash infusion to the company, when it was first started, came from jointly owned funds utilized to purchase the necessary tools to start Mr. Willett in business. From that initial investment the corporation grew. It should be noted, however, that the actual transfer of stock ownership to Ms. Willett took place just four months prior to the filing of the application for certification, and Ms. Willett's election to the Board came in May, 1994, after the application was filed. The allegation regarding Ms. Willett's salary relative to that of her husband and two of the three other employees is correct. By the same token, the comments regarding her Board membership are also correct. In addition, it is clear her technical competence is insufficient to permit her to accomplish a majority of the computer repair functions completed by her employees. Whether she must be qualified to perform all tasks done by each employee is debatable. She must, however, have a general knowledge of the business which would make her supervision and management meaningful, and it is not at all clear she possesses either those skills or that knowledge. She is quite correct in her claim, however, that if she did not get the contracts, the workmen would have no work to do. Mr. DeLaO's supervisor, to whom his recommendation for denial of certification was addressed, on August 24, 1994 concurred with his recommendation and notified Ms. Willett, on behalf of the Petitioner, that the request for certification as an MBE was denied. The letter of denial contained the Commission's basis for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a Final Order in this case denying Computer Service Concepts, Inc.'s request for certification as a minority business enterprise. RECOMMENDED this 28th day of February, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of February, 1995. COPIES FURNISHED: Brenda J. Willett, pro se Computer Service Concepts, Inc. 7616 Industrial Avenue, Suite 3 New Port Richey, Florida 34668 Susan P. Stephens, Esquire Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development Knight Building 2727 Centerview Drive Tallahassee, Florida 32399-0950 General Counsel Commission on Minority Economic and Business Development Knight Building 2727 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issues presented are whether the unauthorized use of a school computer to view Yahoo personal websites violates Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a) and and (4)(c), and, if so, what penalty should be imposed against the teaching certificate of Respondent.1
Findings Of Fact Respondent holds Florida Educator's Certificate Number 719005 (teaching certificate). Respondent is certified to teach English, grades six through 12. The Seminole County School Board (the School Board) has employed Respondent as a teacher for approximately 13 years. The School Board employed Respondent as a teacher on the date of the hearing. For the 2003-2004 school year, Respondent taught honors English and drama at Oviedo High School (Oviedo). Oviedo provided a computer in Respondent's classroom. Oviedo limited acceptable use of the computer to educational and academic business use (the acceptable use policy). The acceptable use policy prohibited personal use of the computer such as viewing the news, weather, or sports. From the start of the school year through February 24, 2004, Respondent violated the acceptable use policy. Respondent used the computer for various personal purposes for as much as 20 to 30 minutes or as little as five minutes; as frequently as every day and as infrequently as one day a week. Respondent viewed various internet sites, including sites for Celtic music, cross-stitching, and Yahoo personal websites. The Yahoo personal websites included pictures of nude adult women, sometimes in sexually explicit scenes. The Complaint alleges that Respondent's use of the school computer to view Yahoo personal websites violates several statutes and rules. Counts 1 through 3 in the Complaint concern alleged violations of statutes. Counts 4 through 6 concern alleged violations of rules. Count 1 alleges that viewing Yahoo personal websites is an act that constitutes gross immorality or involves moral turpitude in violation of Subsection 1012.795(1)(c). Count 2 alleges that the unauthorized use of the computer seriously reduced Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Count 3 alleges that the use of the school computer to view Yahoo personal websites violates the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules in violation of Subsection 1012.795(1)(i). Counts 4-6 identify the specific rules of ethics that were allegedly violated when Respondent used the school computer to view Yahoo personal websites. Counts 4-6 allege that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a), (3)(e), and (4)(c), respectively, by: failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health; intentionally exposing a student to unnecessary embarrassment and disparagement; and using institutional privileges for personal gain or advantage. At the hearing, Petitioner dismissed Count 5 in the Complaint. That Count alleged that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Florida Administrative Code Rule 6B-1.006(3)(e). The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health. There is no evidence that a student at Oviedo viewed any inappropriate material on the computer. Respondent used the computer during his planning periods after he had graded papers, completed lesson plans, and concluded any other academic business. Students were not present during planning periods. When Respondent used the computer for inappropriate purposes, the classroom door was closed and locked. No students were present, and the computer faced a wall away from the classroom entrance. The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(4)(c) by using the school computer for personal gain or advantage. There is no evidence that Respondent did anything other view images on a computer. There is no evidence that Respondent copied the material, distributed it, pandered the material, or took any other action for personal profit or gain. The absence of a finding that Respondent violated any of the rules of ethics cited in the Complaint precludes a finding that Respondent violated Subsection 1012.795(1)(i) pertaining to ethical violations. Therefore, clear and convincing evidence does not support the charges in Count 3 of the Complaint. Nor is Count 2 supported by clear and convincing evidence. The act of viewing Yahoo personal websites on the school computer did not seriously reduce Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Respondent continued as an effective employee of the School Board. On February 25, 2007, the School Board removed Petitioner from the classroom for the duration of the school year without pay. However, the School Board continued to employ Respondent in non-teaching positions until October 2005 when Respondent returned to the classroom at Greenwood Lakes Middle School (Greenwood) and then at Millennium Middle School (Millennium).2 The principal at Greenwood and Millennium assessed Respondent as proficient and an asset to the schools.3 Respondent earned satisfactory evaluations.4 Clear and convincing evidence does not support the allegations in Count 1 of the Complaint, which alleges that Respondent is guilty of moral turpitude or gross immorality in violation of Subsection 1012.795(1)(c). Petitioner defines the term "moral turpitude" by rule. Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude, in relevant part, to be a "crime . . . evidenced by an act of baseness, vileness, or depravity. . . ." The use of the school computer to view Yahoo personal websites was not a crime. After an extensive criminal investigation, no criminal charges were filed against Respondent.5 The use of a school computer to view Yahoo personal websites was not an act of baseness, vileness, or depravity. There is no evidence that the Yahoo personal websites are pornographic sites. Oviedo blocks access to pornographic sites, and Oviedo does not block access to Yahoo personal websites. There is no evidence that any of the women depicted as nude or in sexually explicit scenes were underage. Yahoo prohibits persons under 18 from using the personal websites. Petitioner does not define the term "gross immorality" by rule, but Petitioner does define the term "immorality" by rule. Florida Administrative Code Rule 6B-4.009(2) defines immorality, in relevant part, to be conduct that is sufficiently notorious to bring Respondent or his profession into public disgrace and impair Respondent's service in the community. The act of viewing Yahoo personal websites did not satisfy the definitional elements of immorality. The act of viewing Yahoo personal websites did not impair Respondent's service in the community. After the events at issue in this proceeding, Respondent continued to teach at Valencia Community College (Valencia) and Seminole Community College (Seminole). At Valencia, Respondent teaches a dual enrollment class in Western Civilization. A dual enrollment class is one in which high school seniors receive both high school and college credit for the course. At Seminole, Respondent has taught courses in Fundamentals of Writing 1 and 2, both of which are college preparatory courses; Western Civilization; U.S. History; and Medieval Humanities. The act of viewing Yahoo personal websites on the school computer was not sufficiently notorious that it brought either Respondent or his profession into public disgrace or disrespect. Any notoriety that did occur resulted from the actions of the School Board and Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2007.
Findings Of Fact THE COMPETITORS Petitioner Elijah Williams and Petitioner Simin Harvin were both employed as systems project analysts (pay grade 24) by Respondent in June of 1993 when Respondent denied both a promotion. Respondent opted instead to hire Christopher Butler, a white male, for the position of systems project administrator (pay grade 25), also vied for by another white male by the name of Jerry Webster. Williams, a black male who holds a bachelor of science degree in business administration, received a masters degree in 1983 for a dual study of systems management and computer science. In the selection process, Williams was the only candidate with a master's degree. Williams' first job as a computer operator was in 1976. Later he worked his way up from operator to supervisor and programmer in the course of employment with a regional medical center and a savings and loan. He worked for contractors with the National Space Administration (NASA) and eventually joined state government. He worked for the Florida Department of Revenue and then as a systems project analyst with Respondent. His employment with Respondent began in May, 1991. Williams admits that no person in Respondent's employment has ever made a racial slur to him. Harvin is female. She was born in Iran. Upon completion of high school, she attended Florida State University, graduating in 1981 with a bachelor's degree in computer science. Following graduation, she began work with the State of Florida Department of Labor and Employment Security as a computer programmer. Later she worked with the Department of Transportation's data center. All of Harvin's past work experience comprising approximately a ten year period was in the area of computers. She was a lead analyst for most of this time period prior to going to work for Respondent in June of 1992. Chris Butler held an associate of arts degree at the time of his selection by Respondent for promotion. In terms of formal education, Butler ranked lower than either Harvin or Williams. Butler was hired initially by Respondent in February of 1990. He was also a systems project analyst at the time of his selection for promotion. PREVIOUS COMPETITION In December of 1992, Valerie Taylor, a black female was selected by Respondent to fill another systems project administrator position. Harvin and Butler also competed for that position. The interview panel for that selection consisted of Greg Giese, a white male; Tony Moten, a black male; and Richard Schmitt, a white male. Moten and Schmitt scored Harvin higher than Butler. Giese alone scored Butler higher than Harvin or Taylor in that selection, ranking Butler first with a total score of 123 to 120 for Taylor and 94 for Harvin. PRESENT SELECTION The June 1993 selection was made by a panel consisting of Giese, Moten and a new interviewer by the name of Jim Jones. Jones, a white male, replaced Schmitt. As established by Schmitt's scoring in the December selection and his testimony at final hearing, Schmitt did not believe Butler was "ready" for the position of systems administrator. Schmitt's testimony establishes that the selection criteria between the December 1992 selection and the repeat of that process in June of 1993 was changed to enhance Butler's chances of selection versus that of other competitors. Although Schmitt allowed at final hearing that the process was an "open competition" he acknowledged his belief that the "ground rules" were changed to "make sure--not make certain, but make it sway the odds" in favor of Butler for selection for the promotion. Schmitt stated that the system was basically color blind, but not personality blind. The selection criteria for the June 1993 process gave greater weight to interview performance and experience with what is known as the FLORIDA computer system. Although the system was not formerly turned over to Respondent until June of 1992, Butler, who had been in house as a Respondent employee since 1990, was permitted to claim additional experience with that computer system. All three candidates were in Respondent's employment in June of 1992 and possessed fairly equal experience with the system at the time of the June 1993 selection. Further, all applicants had been told that FLORIDA experience would be scored equally for in-house applicants employed since formal receipt of the system from the contractor in June of 1992. In reality, the panel scored FLORIDA experience as follows: Butler Williams Harvin Moten 20 12 18 Jones 20 18 12 Giese 10 10 8 Another change in the selection process from the December 1992 selection to the June 1993 selection involved the area of education. Education was reduced from 20 to 16 points. Nine points could be given to an applicant with an associate degree, i.e. Butler. If an applicant were an enrolled student, an additional point could be awarded. Williams, with bachelor and master degrees, could receive only 16 points. In the June 1993 selection, Giese gave Butler 10 points because he assumed Butler was in a degree seeking program and therefore awarded the additional point under the "enrolled" criteria. He gave Williams only 14 points on the assumption that Williams' formal education was not related to computers. Giese's assumption regarding Williams' education was incorrect. Williams' study for his master's degree in systems management was combined with computer science, an appropriate preparation for an administrator. Giese's assumption regarding Butler's enrollment is also not substantiated by direct admissible evidence. Butler, Williams, and Harvin were awarded points for education as follows: Butler Williams Harvin Moten 10 16 12 Jones 9 16 12 Giese 10 14 12 In the subjective "Interview/Presentation" part of the selection process, all three interviewers in June of 1993 rated the three applicants as follows: Interview/Presentation Butler Williams Harvin Moten 35 30 21 Jones 57 37 21 Giese 45 32 21 The raters gave confusingly different scores to the applicants with regard to experience. Williams was asked the number of years of application experience with particular types of computers. Although he gave one figure for each category, the interviewers wrote down different numbers. For large systems, Moten and Giese recorded 13 years, while Jones recorded six years. In the calculation of experience of the competing applicants, Williams' total experience in terms of years totaled a cumulative 73 years, but he received only four points for that from Moten. Yet Moten gave Butler eight points for only 50 cumulative years and Harvin eight points for 59 years. Giese gave Williams only four points for his calculated total of 62 cumulative years. Giese gave Butler seven points for 51 years and Harvin six points for 60 years. Petitioner Harvin was not informed prior to the interview that interview skills were an integral component of the selection. When she received only two hours notice of the impending interview, she was concerned about the amount of time within which she had to dress and prepare for the interview. Her supervisor, Giese, downplayed the matter and assured her that she was not dressed inappropriately. As a result, Harvin felt pressured to proceed with the interview, although she could have exercised her option to have the interview at a later time. At the final hearing, Giese maintained that Harvin was not rated as high as Butler because of her "aggressiveness, her style, how dynamic she was, did she sell herself to this panel as being the right and only person for this job." Essentially, Giese's position was that Harvin did not sell herself well to the panel. As a result, Giese consistently rated Harvin lower than Butler in all categories in the selection process. However, Harvin's annual evaluation received on April 30, 1993, was an "exceeds" standards. There were no significant deficiencies noted. In terms of total points, all three raters in the June 1993 selection rated Butler first in the process as follows: Total Points Butler Williams Harvin Moten 123 117 105 Jones 140 119 108 Giese 117 95 96 At least one coworker, Gregory Lee, did not apply for the position of system project administrator in the June 1993 selection because he believed Butler would get the position. Calvin Smith Jr., another employee, remembers that Butler went to Jim Jones' office on a daily, and sometime hourly, basis for direction. This conduct, coupled with Butler's weekly luncheons with Jones, leads Smith to believe that Butler was preselected for the administrator position. Valerie Taylor recalled at the final hearing witnessing an incident where Butler implied that he had the job prior to selection. Taylor observed Butler and Jones going to lunch. Tony Moten, the one black member of the interviewing panel, did not feel the selection process was slanted in favor of a white candidate over a black candidate or a female of Iranian origin. If he had detected such a bias, Moten maintained that he would have objected to the process. Moten thought Butler was the best candidate for the position. He also thought Williams and Harvin were good candidates. Giese admitted he had difficulty in working with Harvin. That, in his opinion, she did not always take the best concerns for the organization into consideration when getting a job done, and that he had explained his rationale to Harvin for the selection of Butler, including complementing Harvin for her professionalism. Butler was awarded the administrator position following the June 1993 selection with a 25 percent increase in his salary. In January of 1994, Butler quit Respondent's employment. Williams was hired as a interim administrator in May of 1994 and made permanent in the position in June of 1994. Williams, who made the same salary as Butler prior to Butler's promotion, seeks the same 25 percent increase as that awarded to Butler. Williams has received $1,259 biweekly following his promotion to Butler's vacancy as opposed to the $1,389 biweekly afforded to Butler upon promotion. The biweekly salaries paid present incumbents by Respondent for pay grade 25 ranges from $1,866.52 to Gerald Lourcey for 17 years of professional managerial experience to the $1,259 paid Elijah Williams with approximately 10 years of professional managerial experience. Butler, with approximately two years of professional managerial experience, received $1,430.61 upon promotion which is near the median in salary accorded incumbents in this class of positions. Realistically, Williams has suffered a loss in wages compared to the amount which would have been paid to Butler of approximately $8,669.62 plus interest. Similarly, Harvin seeks a 25 percent increase in salary to the amount which Butler was awarded and which Harvin contends she should have received in the event of her selection. While Respondent has admitted the hiring process was flawed, there has been no admission by Respondent that this hiring process discriminated against Harvin or Williams on the basis of gender, national origin, or race. No creditable direct evidence was presented that Respondent through its previous hiring practices or as a result of action by any of the three interviewers possessed or exhibited an inherent prejudice against African-Americans, persons of Iranian origin, or females.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief filed by Harvin and Williams, respectively. DONE and ENTERED in Tallahassee, Florida, this 17th day of March, 1995. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner Harvin's Proposed Findings 1.-5 Adopted, but not verbatim. 6.-7. Adopted by reference. 8.-18. Adopted, but not verbatim. Rejected, the only evidence of Butler's enrollment was the submission of an unauthenticated document. Accepted. Rejected, subordinate. 22.-23. Adopted, but not verbatim. Rejected, unnecessary. Rejected, hearsay. Accepted. Rejected, unnecessary. Adopted. Rejected, argumentative and hearsay. Rejected, subordinate. Petitioner Williams' Proposed Findings 1.-16. Adopted, but not verbatim. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Adopted by reference. 21.-22. Adopted, not verbatim. 23.-24. Rejected, relevance. (There were two #25's) Adopted, not verbatim. Rejected, relevance. Adopted by reference. Respondent's Proposed Findings 1.-15. Adopted, not verbatim. 16.-18. Adopted by reference. 19.-21. Adopted, not verbatim. Rejected, nonsensical. Rejected, weight of the evidence. 24.-44. Adopted, but not verbatim. Rejected, relevance. Rejected, argumentative. 47.-50. Adopted by reference. 51.-55. Rejected, relevance. 56.-57. Adopted. 58.-67. Rejected, subordinate. 68. Adopted by reference. 69.-79. Adopted, not verbatim. 80.-89. Rejected, unnecessary. 90.-99. Adopted, not verbatim. 100.-103. Rejected, unnecessary. 104.-111. Adopted, not verbatim. COPIES FURNISHED: Marie A. Mattox Co-Counsel for Harvin 1333 North Adams St. Tallahassee, FL 32303 Ann Curtis Terry Co-Counsel for Harvin P. O. Box 7024 Tallahassee, FL 32314 Linda G. Miklowitz Attorney for Williams P. O. Box 14922 Tallahassee, FL 32317-4922 Peter Fleitman Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, FL 32399-1050 Dana Baird, General Counsel 325 John Knox Rd., Bldg. F., Ste. 240 Tallahassee, FL 32303-4149 Robert Powell, Clerk H R S 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sharon Moultry, Clerk Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
Findings Of Fact Respondent at times relevant to the inquiry employed 15 or more employees in each working day in each of 20 or more calendar weeks in the year. Petitioner worked for the Respondent from May 7, 1984 through December 19, 1991. Petitioner had tendered his resignation on December 6, 1991 from his position as Engineering Technician IV. His intention was that his resignation become effective December 20, 1991. On December 6, 1991, Jerry G. Smith, District Land Surveyor for District II, State of Florida, Department of Transportation, accepted Petitioner's resignation effective December 20, 1991. This action by Mr. Smith was by virtue of his responsibility for the Mapping and Surveying Section of which Petitioner was a part. Respondent did not solicit Petitioner's resignation. In the chain of command Mr. Smith was 2 or 3 times removed from Petitioner. Respondent's Exhibit No. 1 describes the duties of Engineering Technician IV incumbent upon Petitioner until November 12, 1991. Those duties were as follows: Plots and inks the final right of way and assists other Department Personnel in the preparation of maps. These maps must meet D.O.T. and Federal Highway Administration Standards. Works with the Document Preparation Section in locating property lines and determining what information is needed on maps in order to prepare legal descriptions. Assists in the verification of final right of way requirements with Road Design Personnel. Assists in the review of right of way maps prepared by Consultants. Assists in making the computations that are needed for map and deed preparation. Provides other Department Personnel and the General Public with right of way information as required. Performs related work as required. Percentages of time will vary due to work load. Respondent's Exhibit No. 2 describes the job description for Engineering Technician IV related to the Petitioner from the period November 12, 1991 through December 19, 1991. Those duties were as follows: 30 percent Prepares very complicated legal descriptions of real property to be acquired by the Department of Transportation. These are written by hand and also by using "Legal Holiday", Computer Software. 30 percent Plots Title Search (Abstract) on Right of Way Maps and determines owners and encumbrances. 15 percent Reviews legal descriptions of real property and related documents prepared by other employees or/and Consultants. 15 percent Compute areas of parcels needed for right of way. Also, computes areas, distances, and bearings on property remainders. 5 percent Determines the types of instruments of conveyance to be prepared. 5 percent Performs related work as required. Percentages of time will vary, due to work load. Some unspecified person within the architectural and engineering firm, Reynolds, Smith and Hills, Inc. made contact with Petitioner concerning the possibility that he might serve as an office engineer in the firm's Lake City, Florida office. This contact was made in October, 1991. On December 3, 1991, Ed Griffin and Eric Rosenstein called Petitioner about the availability of the office engineer position. They wanted Petitioner to come to their Longwood, Florida office and interview about the position. On December 6, 1991, Petitioner went to the firm's Longwood office and was interviewed by Eric Rosenstein and Ed Griffin. They took a photocopy of his social security card and his resume to support his application for employment. Petitioner testified that Mr. Griffin and Mr. Rosenstein during the December 6, 1991 interview specifically stated that they wanted to hire him. These hearsay comments attributable to Mr. Griffin and Mr. Rosenstein were not otherwise proven. Therefore, it has not been established that Petitioner was offered a job with the Reynolds firm on December 6, 1991. Based upon the interview with Griffin and Rosenstein, Petitioner called Jerry Smith's office on December 6, 1991, and spoke to Carol Streer, secretary to Jerry Smith. He told her to prepare a letter of resignation for Petitioner and he told her to tell Jerry Smith that Petitioner would be leaving his position with Respondent in two weeks and wanted to give the Respondent two weeks' notice. This led to the resignation and acceptance of that resignation that has been addressed above. On November 1, 1991, the Reynolds firm had entered into an agreement with Respondent to serve as a consultant for purposes of construction engineering and inspection. This was in association with the resurfacing with bridge widening of Interstate 75. It is inferred that Petitioner had been interviewed by the Reynolds firm to serve as an office engineer to the Reynolds firm on the resurfacing project. In accordance with the agreement between the Reynolds firm and Respondent, related to the Interstate 75 resurfacing project, a definition is given concerning minimum training and experience standards for consultant personnel. Specifically, the training and experience anticipated for an office engineer is described in that agreement to this effect: OFFICE ENGINEER - High school graduate plus three (3) years experience in responsible charge of a construction office. Should exercise independent judgment in planning work details and making technical decisions related to office engineering aspects of the project. Accepts general supervision and verbal instructions from the Resident Engineer. Serve as the Resident Compliance Officer in surveillance of the Contractor's compliance with contract requirements. Within the agreement under Section 2.0 entitled: SCOPE, it states: . . . The Consultant shall provide technical and administrative personnel meeting the requirements set forth Section 9.0 of this Scope of Services in appropriate numbers at the proper times to ensure that the responsibilities under this Agree- ment are effectively carried out. All services shall be performed in accordance with the estab- lished standard procedures and practices of The Department. . . . Section 9.0C. entitled Staffing, within the agreement, states: . . . no personnel shall be assigned to this project by the Consultant until the qualifications of each person proposed have been reviewed and approved in writing by the Program Manager. The Consultant's personnel approval requests shall be submitted at least two weeks prior to the date an individual is to report to work. The Program Manager, according to the agreement, is: "the District employee designated to be in responsible charge and direct control of the projects covered by this agreement." On December 9, 1991, in accordance with the agreement, the Reynolds firm submitted Petitioner's name as proposed office engineer on the Interstate 75 project. This submission was made through a form seeking approval from the program manager. In support of the request to have the program manager approve the Petitioner to serve as an office manager to the consultant, the Reynolds firm submitted a resume which Petitioner had provided that firm. The resume which Petitioner gave to the Reynolds firm and the firm in turn gave to the Respondent's program manager stated as follows: R E S U M E Richard C. Bishop HOME 1605 N. E. 7th Terrace Gainesville, Florida 32609 Telephone (904) 373-6510 538-5225 OFFICE Surveying & Mapping Dept. Post Office Box 1089 Lake City, FL 32056-1089 Telephone (904) 752-3300 EXT. 3662 PERSONAL: Male, Caucasian, U. S. Citizen, Good Health, 5' 10", 195 lbs. EDUCATION: Univ. of Florida Business Administration San Jose City College Associates Degree, Electronic Engineering Univ. of North Florida Communications and Electronics US Air Force EXPERIENCE: Atlantic Ballistic Missile Range with Radio Corporation of America as Electronic-Equipment-Man working with HF and VHF Receivers and Transmitters, a 200+ station North Electric all system, Emergency Networks (radio and telephone), Radar Boresight Cameras, Optical Trackers, Control Room Plotting Boards and Captain of Disaster Control Team. West Virginia Department of Highways: Completed Engineer-In-Training program covering all phases of Construction Maintenance, Soil Mechanics and Testing including Marshall Stability Tests, Los Angeles Abrasion Tests as well as standard sieve analysis, flow plasticity, density, specific gravity, extractions, gradations and concrete and asphalt mix designs. Set up and managed a Complaint Department while continuing duties as an Area Maintenance Assistant over several counties. Certified Portland Cement Concrete Technician with sampling and testing experience in both field and laboratory testing methods. Licensed Nuclear Densitometer Operator with considerable experience using the Troxler Nuclear Densitometer measuring densities on fills, sub- grades and asphaltic concrete bases and overlays. Management and/or supervision in several privately owned asphalt paving and construction companies. Construction Inspection School for 10 weeks at St. Petersburg Junior College. Construction inspection on I-75, Alligator Alley and Toll Plaza, Marco Island Road and other projects in the Naples area, then SR 21, Orange Park to Middleburg, SR 121 at Raiford, Rocky Creek Bridge, 53rd Ave and Waldo Road intersection and others in the North Florida area. Presently working in Right of Way Engineering ordering, receiving and plotting title searches on maps and producing corresponding accurate maps and all the necessary legal documents required for the actual acquisition of real property with a right of way. In December, 1991, the program manager for Respondent on the Interstate 75 resurfacing with bridge widening project was Thomas E. Brenner. Mr. Brenner has never been acquainted with the Petitioner other than responding to the Reynolds firm's request to have the Petitioner approved to be the office engineer on the project. No proof was shown that Mr. Brenner has ever made derogatory statements about the Petitioner. Mr. Brenner in carrying out his function as program manager wrote to the Reynolds firm on December 11, 1991, disapproving the request to have the Petitioner approved as the office engineer for the consultant. In disapproving that request he made the following remarks: "Needs some EEO [sic] experience and three (3) years in responsible charge of a construction office." The experience which Petitioner had prior to December 9, 1991, when the Reynolds firm requested that he be approved as office engineer did not meet the training and experience standards within the agreement which were incumbent upon a person serving as an office engineer for the consultant. Thus, the reason for disapproving the request to have Petitioner serve as office engineer is borne out. The record is not clear concerning what is meant by the need for EEOC experience and what experience the Petitioner may have had with the EEOC process. However, it was not shown that Mr. Brenner placed the requirement for EEOC experience as a means to discriminate against the Petitioner in the firm's attempt to have him approved as office engineer. Following the disapproval of the request to have Petitioner approved as the office engineer for the consultant, Mr. Rosenstein called the Petitioner around December 17, 1991. He told the Petitioner that the Reynolds firm was having a problem getting the Petitioner approved to do work with the Respondent. This refers to the work on the Interstate 75 project as office engineer. Specifically, Mr. Rosenstein told the Petitioner that the difficulty had to do with not enough EEOC experience. Petitioner explained in response that he did not consider that this was a significant problem. Two or three days after December 17, 1991, Mr. Rosenstein called the Petitioner again and told him that the problem about EEOC had settled down and that the Respondent was opposing recognition of approval of the Petitioner for work as an office engineer based upon the Petitioner's lack of experience in the computer field related to LOTUS 1-2-3. Petitioner acknowledged that he did not have experience with that form of computer. The record does not bear out how those requirements with LOTUS 1-2-3 coincided with Mr. Brenner's reasons for disapproving the request to have Petitioner serve as office engineer to the consultant, if at all. Some time in January, 1992, Petitioner went to the Reynolds' Longwood, Florida office to give Ed Griffin further information in support of his application for employment. At that time Petitioner learned that the Reynolds firm did not intend to follow up their discussions held with Petitioner concerning his employment and that he would not be hired by the Reynolds firm. In addition to failing to prove that Mr. Brenner had made derogatory statements about him which might have interfered with Petitioner's opportunity to gain employment with the Reynolds firm, Petitioner failed to prove that any of Respondent's employees or managers had made derogatory statements which interfered with his opportunity to gain employment with the Reynolds' firm. The only suggestion that anyone working for the Respondent had made derogatory remarks about the Petitioner were promoted by the Petitioner himself. He told others who worked for Respondent that Jerry Smith wanted to get rid of or fire Petitioner and that Jerry Smith had said that Petitioner would never work a day for the Reynolds firm. Jerry Smith had not made these remarks. Jerry Smith had no contact with the Reynolds firm concerning the Petitioner. Moreover, Jerry Smith has had limited contact with Mr. Brenner and none of it was designed to influence Mr. Brenner in his decision to disapprove the request by the Reynolds firm to have Petitioner serve as office engineer for the consultant. Mr. Smith works in the production side of the District II operation. Mr. Brenner worked in the construction side of the District II operation while he was employed there. Unrelated to the attempt by Petitioner to gain employment with the Reynolds firm, Jerry Smith has had involvement with the Petitioner concerning personnel matters. On several occasions discussions were held between the Petitioner and Smith in which Petitioner was attempting to gain a promotion. On those occasions Smith told the Petitioner that he did not think that the Petitioner was operating at a level that warranted discussing promotion. Smith held the opinion of the Petitioner that the Petitioner could not perform the job duties incumbent upon him in his position as Engineering Technician IV. In particular, Mr. Smith did not believe that Petitioner would finish a task assigned and always had to have someone else finish the work for the Petitioner. Mr. Smith tried to have the Petitioner focus on the perceived shortcomings, but this did not lead to a satisfactory result from the point of view which Mr. Smith felt. When the Petitioner left his employment with the Respondent Mr. Smith made a notation that he would not recommend rehiring the Petitioner at some future date. There is no indication that Mr. Smith or anyone in a supervisory position with the Respondent ever took disciplinary action against the Petitioner for matters related to the Petitioner's performance as Engineering Technician IV. Robert Stewart who is a project manager for Respondent, a friend of Jerry Smith, was not involved in making the decision on December 9, 1991, to disapprove the request to have Petitioner serve as office engineer for the consultant. As stated before Robert Stewart had no contact with the Reynolds firm concerning the Petitioner and the Petitioner's possible employment with the Reynolds firm. The job description and resume information do not support the Petitioner in his claim that his experience gained while employed by the Respondent equates to the necessary experience to perform the duties as office engineer for the consultant in the Interstate 75 project. Nor does the record indicate that Mr. Brenner was aware of any experience outside the position description and resume when disapproving the request to have Petitioner serve as office engineer. Finally, the numerous requests which Petitioner made to gain additional training while employed by Respondent, which requests were not granted, were not matters which Petitioner has shown that he was entitled to be granted. Moreover, those requests have not been shown to be matters which coincide with the requirements for the position of office engineer to the consultant in the Interstate 75 project. On September 2, 1994, in the prehearing conference held by telephone, Petitioner indicated to Hearing Officer Davis that he accepted the "no charge" determination of the Florida Commission on Human Relations as to the untimeliness of his age discrimination allegation and waived his right to proceed on that claim. Petitioner's position by the Petitioner was memorialized in the order by Ms. Davis entered September 15, 1994. At the hearing held on October 20, 1994, Petitioner proceeded on the basis that the age discrimination claim was no longer viable.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the petition for relief based upon a claim of an unlawful employment practice by the Respondent as defined in Section 760.10(7), Florida Statutes. DONE and ENTERED this 22nd day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 22nd day of December, 1994. APPENDIX The following discussion is given concerning the proposed facts found in Respondent's proposed recommended order: Paragraphs 1 through 4 are subordinate to facts. Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 20 are subordinate to facts found. Paragraphs 21 and 22 are not necessary to the resolution of the dispute. COPIES FURNISHED: Richard C. Bishop 1606 Northeast Seventh Terrace Gainesville, FL 32609 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
