The Issue Whether the Respondent’s Career Service Grievance Policy Statement #92/93-HR-2, is an invalid exercise of delegated legislative authority, based on an alleged conflict with Section 447.401, Florida Statutes.
Findings Of Fact The Agency for Health Care Administration (Respondent) is a state agency and a public employer. The Respondent has adopted a grievance policy providing for the resolution of employment disputes within the agency. The policy provides that an aggrieved employee may have the grievance heard by a neutral committee. The committee makes a recommendation, which is subject to review first by a designee of the agency head, and then directly by the agency head. According to the policy at issue in this case, the agency head’s decision is generally the final step in the grievance process. Under some circumstances not found in this case, decisions may be appealed to the Public Employees Relations Commission. Another procedure permits some career service employees represented by a collective bargaining agent to utilize a grievance process set forth under the master contract between the state and the bargaining agent. The union grievance provides that the agency head’s decision is appealable to the state labor relations director who has final authority over the dispute. On December 30, 1997, Diane Gossett (Petitioner), a career service employee of the Respondent, received a written reprimand from her supervisor who alleged Ms. Gossett’s conduct was inappropriate. The details of the alleged conduct were not offered at hearing. Ms. Gossett is an "excluded employee" under the State Master Contract, and therefore is not entitled to use the union grievance procedure. As provided in the Respondent’s grievance policy at issue in this case, Ms. Gossett filed a grievance challenging the written reprimand, and seeking to have it removed from her personnel file. A neutral grievance committee was appointed which reviewed her grievance. The committee recommended that the reprimand be removed from the Petitioner’s personnel file. The agency head’s designee reviewed and rejected the committee recommendation. The agency head ratified the designee’s decision. The Petitioner then challenged the agency’s compliance with personnel rules by filing a request for review with the Department of Management Services. The Department found no deviation from agency rules and refused the Petitioner’s request for additional review. The Petitioner then filed her Petition to Invalidate an Existing Agency Rule with the Division of Administrative Hearings.
The Issue Whether Respondent Wal-Mart Stores, Inc. (Wal-Mart) engaged in an unlawful employment practice with respect to Petitioner Roberta Trevarthen (Ms. Trevarthen).
Findings Of Fact Roberta Trevarthen is a female who worked for Wal-Mart for two and one-half years until she was terminated August 3, 1999. Ms. Trevarthen has had a long career as a loss prevention specialist and was functioning in that capacity for Wal-Mart during times pertinent to this case. A loss prevention specialist uses surreptitious observation techniques to stop theft that might be committed by customers or employees or both. Wal-Mart is a retail outlet having stores across the United States. One of the stores Wal-Mart owns and operates is located in Port Orange, Florida. The Florida Commission on Human Relations administers the Florida Civil Rights Act of 1992. Ms. Trevarthen was on duty as a loss prevention specialist in the Port Orange, Wal-Mart store on August 2, 1999. On that day she spotted a man whom she believed was acting suspicious and who might be planning to shoplift. He was a dirty white male who appeared to be a transient. Ms. Trevarthen observed the suspect go in and out of the store on three occasions and then observed him re-enter the store. She followed him to the electronics section and observed him pick up an item in a Blistex container. Thereafter James W. Barlow (Mr. Barlow), another loss prevention specialist working in the store joined her. Ms. Trevarthen suggested that they looked suspicious huddled together so she asked Mr. Barlow to move away. Ms. Trevarthen then observed the suspect enter the fitting room with the object in his hands concealed by a pair of men's trousers. When the suspect left the fitting room he put the trousers on a display stand. Ms. Trevarthen asked Mr. Barlow to check the fitting room and he found no merchandise there. Ms. Trevarthen watched the suspect walk toward the grocery section and believed that he had an unnatural bulge in his trousers. Then she observed him walk past the cash register section and observed him exit the front door. Ms. Trevarthen did not continuously observe the suspect from the time she first suspected he had lifted merchandise, until when he departed the store. Once the suspect exited the store, Ms. Trevarthen, Mr. Barlow, and a stocker named Eddie Gregory, stopped the suspect, and required him to accompany them to the Security Office. No merchandise was found on his person. The suspect said that he had left the merchandise he had picked up on a counter by the fitting room. The two loss prevention specialists went with him to that area and there found a comb and mirror set. Pursuant to Wal-Mart procedures, a loss prevention specialist must satisfy five elements before deciding to stop a shoplifting suspect. The specialist must see the person take merchandise from its resting place in the store; must observe the person conceal the merchandise; must maintain observation of the person at all times prior to the stop; must observe the person fail to pay for the merchandise; and must allow the person to exit the vestibule before effecting the stop. Ms. Trevarthen failed to comply with the element requiring constant observation of the suspect and thus, in loss prevention parlance, made a "bad stop," which means the stop failed to produce evidence sufficient to prosecute the suspect as a thief. Although Mr. Barlow is a co-equal loss prevention specialist, and he helped stop the suspect, it was Ms. Trevarthen who initiated the operation, made the decision to stop the suspect, and actually effected the stop. Therefore, in accordance with Wal-Mart policy, the responsibility for the bad stop rested entirely on her. The loss prevention specialist who makes a stop is responsible for making the report concerning it, whether it is a good stop or a bad stop. If a bad stop is made, the loss prevention specialist is required to notify the store manager and the district loss prevention supervisor. When these events occurred, Robert Mulak (Mr. Mulak) was the store manager and Peter Greer (Mr. Greer), was the district loss prevention supervisor. Ms. Trevarthen did not immediately tell Mr. Mulak or Mr. Greer about the bad stop. Mr. Greer learned of it the next day when Mr. Barlow informed him telephonically. Ms. Trevarthen was the recipient of acceptable performance reviews on May 8, 1998, and January 18, 1999. She was given a "Coaching for Improvement Form" on April 11, 1998, by Joe T. Moore, who is currently the store manager, and again on November 24, 1998, by Mr. Greer. These forms are given subsequent to counseling sessions. Bad stops precipitated these "Coaching for Improvement Forms." The first coaching was nothing more than a counseling session. The subsequent coaching was termed a "decision-making" session and was a serious event. During this session she was advised that another bad stop could result in her termination. A "decision-making" session, recorded on a "Coaching for Improvement Form," leaves an employee with no doubt that his or her job is in jeopardy. Generally speaking, Ms. Trevarthen's peers and superiors seemed to have a higher opinion of her performance than the performance and counseling reports indicate. She made 200 successful stops in one year, which was considered to be exceptional by her supervisor. Nevertheless, Ms. Trevarthen violated loss prevention doctrine when she stopped the suspect on August 2, 1999, because she did not observe the suspect from the time he was thought to have concealed merchandise until the time he was stopped. Moreover, she compounded the situation by failing to report it to the store manager and to Mr. Greer, the district loss prevention supervisor. This latter failing was an unforgivable breach and resulted in her termination by Mr. Greer on August 3, 1999. Providing guidance to Mr. Greer, with regard to his decision to terminate Ms. Trevarthen, was a Wal-Mart document addressing loss prevention that was titled, Reasons for Immediate Dismissal. One of the reasons permitting immediate dismissal is set forth as follows: "Any breach of Company policy where the In-Store Loss Prevention Associate is in direct violation of Company policy rules, procedures, directives, safety procedures, or regulations which relate to a breakdown of integrity, job performance or the ability to perform his/her duties will be cause for immediate termination from employment." Mr. Barlow did not experience any disciplinary action as a result of this stop because it was not his stop and it was not his duty to report it. Mr. Barlow explained to Mr. Greer that he delayed reporting the incident because he wanted to give Ms. Trevarthen the opportunity to decide on her own to report it. Mr. Barlow perceived that Ms. Trevarthen was afraid to report it because she feared disciplinary action. Ms. Trevarthen was told by Mr. Greer on one occasion, "You are a gal, whip these guys' butts." She also once heard someone say, "Hush up, there's a broad here." On one occasion she had, in her own words, "kiddingly" been called a "girl." Her testimony indicated that she was in no way offended by the manner in which these words were used. The only evidence Ms. Trevarthen could produce which may have tended to prove that she was the victim of discrimination were the foregoing statements. The first statement appears to have been an attempt to motivate her to greater production. The second indicates that something was being said that was, in someone's opinion, inappropriate for a lady to hear. The references to her being a girl appear to have been made in jest. Mr. Barlow has known Ms. Trevarthen for several years, and had worked with her for more than a year, and he never heard her complain about gender discrimination until the inception of this case. Mr. Greer stated that he harbored no prejudice toward women employees and stated that, "He was only interested in people who got the job done." He further related that he wanted people working for him who made him look like a good manager. Wal-Mart has a policy against discrimination. This is explained to employees in the Associate Handbook which has a section titled, "Respect for the Individual." In this section are the words, "It is the policy of Wal-Mart to provide recruitment, hiring, training, promotion, and other conditions of employment without regard to race, color, age, gender, religion, disability, national origin, or veteran status." At the time of her discharge Ms. Trevarthen was being paid $10.47 per hour and was working 40 hours per week. Immediately subsequent to termination she was unemployed for as long as four months. She lost her investigative license because she was not working in the loss prevention field. After about a year she obtained a job working with abused children and was paid $9.20 per hour for 32 hours per week. After six months she began working 40 hours per week. After a year her wage was increased to $9.32 per hour. After a year and one-half her wage was increased to $9.52 per hour. In April of 2003, her wage was increased to $10.05 per hour. At Wal-Mart she had a 401(k) plan that Wal-Mart supplemented with $20 per week, and insurance benefits. Wal- Mart also provided health insurance. No 401(k) plan is offered at her current place of employment.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which dismisses Ms. Trevarthen's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 22nd day of September, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 22nd day of September, 2003. COPIES FURNISHED: Peter R. Corbin, Esquire Ford & Harrison, LLP 121 West Forsyth Street, Suite 1000 Post Office Box 41566 Jacksonville, Florida 32202 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to a passing grade on the Hose and Nozzle Operations part of the Minimum Standards Examination for firefighter certification.
Findings Of Fact Certification as a firefighter requires, among other things, that an applicant successfully complete a Minimum Standards Course and then pass the Minimum Standards Examination. The Minimum Standards Examination comprises a written test and a practice test, each of which an applicant must pass. The practical test comprises four parts, including Hose and Nozzle Operations. An applicant must pass each of the four parts, and a passing score is 70. On October 3, 2003, Petitioner first took the Minimum Standards Examination. She passed three parts, but failed the Hose and Nozzle Operations part. She was entitled to one retest, without having to retake the Minimum Standards Course, which she has already passed. On November 20, 2003, Petitioner retook the Hose and Nozzle Operations part of the Minimum Standards Examination. Petitioner received a score of 60 on the retest, and she challenges this score in the present case. Petitioner lost points for four reasons: she failed to have all of her protective gear donned and properly secured, she opened the hose nozzle too quickly, she closed the hose nozzle too quickly, and she ran with the hose. The Hose and Nozzle Operations part of the test is timed, and Petitioner previously had failed it because she had taken too long to complete the tasks within this part. Petitioner was a candid witness. At the end of the hearing, she essentially withdrew her challenge to the points that she had lost for operating the nozzle improperly. She instead focused on running with the hose and leaving her face shield up during part of the examination. In fact, the examiner testified without doubt that Petitioner had misoperated the nozzle during two tasks. Clearly, Petitioner failed to prove that the examiner's scoring of these two tasks was incorrect. As for running, Petitioner testified that she ran, but, consistent with the test rules, received a shouted warning from the examiner and did not run again. If so, she should not have lost points for running. However, the examiner again is clear that Petitioner ran after the warning. Aware that she had failed the same test previously for not completing this part of the test within the allotted time, Petitioner probably felt a sense of urgency to complete this part of the test. Petitioner's testimony about running is vague at times and even contradictory. Much of Petitioner's early testimony on this point disputes the clarity of the shouted warning not to run, suggesting that she may have run through a large portion of this part of the test. Later, though, Petitioner concedes that the shout was probably a warning not to run. On balance, Petitioner has failed to prove that the examiner improperly deducted points for running. The last issue in dispute is whether Petitioner performed part of the test with her face shield improperly raised. Petitioner testified that her face shield was always in the proper position, and, on this issue, Petitioner produced a fellow student who testified that he saw Petitioner's face shield in the proper position. However, the other student did not see the whole test and presumably was not observing Petitioner as closely as was the examiner. The examiner was most definite in his testimony on the issue of the face shield. He saw Petitioner engage in the awkward task of unloading the heavy hose, and he saw that a section of hose bumped the face shield from its down position into a partial up position. The examiner watched to see if Petitioner would immediately lower the face shield, but she did not. At that point, the examiner properly deducted points for failing to keep the gear properly secured.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Petitioner's challenge to the scoring of the Hose and Nozzle Operations part of the Minimum Standards Examination that took place on November 20, 2003. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of June, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ruth Gutierrez 1585 Northeast 110th Terrace Miami, Florida 33161 Casio R. Sinco Assistant General Counsel Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue The issue in this case is whether just cause exists for the action taken by Petitioner, Volusia County School Board (the “Board”), to terminate the employment of Respondent, Susan L. Joy.
Findings Of Fact The Board is responsible for hiring, retaining, and/or terminating employment of all teachers in Volusia County. The recommendation for direct hiring or firing of teachers is made by individual schools, but the Board has ultimate authority over those decisions. Ms. Joy has been a teacher for 17 years. She holds certifications in several areas, including: Health, grades K through 12; Physical Education, grades 6 through 12; Exceptional Student Education (“ESE”), grades K through 12; and Math, grades 5 through 9; as well as endorsements in autism, English as a second language, gifted students, and elementary education. Prior to the 2016-2017 school year, Ms. Joy applied for a teaching position at the School. She was interviewed by assistant principal Baxter and math coach Lastowski, who recommended to Principal Carbonell that Ms. Joy be hired as a math and ESE teacher. When Principal Carbonell reviewed Ms. Joy’s employment history and references, she had some reservations about hiring Ms. Joy. There were too many “red flags” and Principal Carbonell decided it would not be in the School’s best interest to have Ms. Joy on staff. However, Principal Carbonell began to have second thoughts and decided to interview Ms. Joy personally. After the interview, Principal Carbonell decided to offer Ms. Joy a position as a teacher for ESE in parallel classrooms, Algebra I and Geometry. Principal Carbonell, however, imposed certain caveats to the hire, including immediate monitoring of Ms. Joy’s performance upon commencing her employment at the School. Principal Carbonell also advised Ms. Joy to forego coaching cross country (one of Ms. Joy’s passions) and to concentrate on academic matters. Ms. Joy accepted her hiring on those conditions. At the commencement of the 2016-2017 school year, assistant principal Baxter was assigned to supervise Ms. Joy and make sure her teaching methods and processes were sufficient. Ms. Joy was also advised that the math coach, Ms. Lastowski, was available for consultation as needed. Ms. Joy agreed to utilize the math coach and to rely on her guidance and expertise. With that support in place, Ms. Joy began teaching at the School. However, even though Ms. Lastowski made recommendations that specific strategies be employed, Ms. Joy did not cooperate. Instead, Ms. Joy would reject the strategies, saying they did not work for her class or that “her brain did not work that way.” Ms. Lastowski’s efforts were essentially futile. As it became evident that Ms. Joy was having difficulties in her classrooms, Principal Carbonell decided to institute a semester (18 weeks) of additional support. This support was consistent with the system hammered out by the Board and the local teachers’ union. This system, entitled Volusia System for Employment Teachers (“VSET”), included provisions such as this to help struggling teachers retain their jobs. Despite the support, Ms. Joy did not demonstrate improvement in her teaching skills. As a result, Ms. Joy was placed on an “improvement plan” under the VSET. An improvement plan calls for establishment of a support team picked jointly by the teacher and School administration. For the team, Principal Carbonell selected Gail Burton, a regional resource teacher; Nicholas Fidance, assistant principal at another Volusia County school; and Jennie Hughes, a principal intern. Ms. Joy chose Jennifer Lastowski, math coach; Sharon Lavallee, a principal intern at another school; and Sandra Tweedy, a math specialist. This support team was not created to perform evaluations of Ms. Joy’s work. They merely provided support in their area of expertise to assist Ms. Joy in improving her teaching skills. The VSET Handbook sets a timeline of 90 days for a teacher to show improvement once a support team is in place. Typically, one support meeting per month is held for the purpose of offering suggestions to the teacher. In between the meetings, the team members may shadow, or be shadowed by, the teacher for the purpose of constructive feedback. The VSET states, at page 34: “If sufficient improvement has not been demonstrated by the teacher while on the Improvement Plan, termination of the teacher’s employment will be recommended by the Superintendent to the school board.” Ms. Joy was fully on notice as to the serious nature of having an improvement plan in place. The first meeting of the VSET support team was held on October 19, 2017. All members of the team, as well as Ms. Joy and Brandy Hogue, were in attendance. The minutes of that meeting note that the team’s role is to support, not evaluate, Ms. Joy. The minutes also noted that the Improvement Plan would be up for review on or after November 21, 2017. At the meeting, Ms. Joy shared a little of her background, wherein she said that she had had some personal and professional “situations” during the past year. She welcomed the support team and expressed a desire to improve her teaching skills. Four suggestions were made as means of pursuing that improvement: 1) use of the “Algebra Nation” concept and attendance at Professional Learning Community (“PLC”) meetings; 2) work with the math coach on one or both of two math schemes entitled CHAMPS and ACHIEVE; 3) observation of Ms. Joy’s classroom and feedback on what was observed; and, 4) having Ms. Joy shadow a teacher in a similar teaching position. From the date of that first meeting until the next meeting on November 6, 2017, Ms. Joy attempted to utilize “Algebra Nation” and made efforts to attend PLC meetings. She also indicated her intent to attend a “Mama’s Math” class in the future. The math coach, along with Ms. Burton and Ms. Tweedy, assisted Ms. Joy in setting up the CHAMPS and ACHIEVE materials in her classroom. Several district staff members conducted observations of Ms. Joy’s classroom and provided feedback. Ms. Joy could not find another teacher to shadow, but said she was still working on doing so. The goals set at this second meeting were very similar to those of the prior meeting. The final VSET support team meeting was held on December 4, 2017. The first point of discussion at that meeting was the classroom observation Ms. Joy had undergone concerning her teaching improvements. Ms. Joy admitted that it had not gone well, that she had “choked” and done poorly. As to the improvement tools, Ms. Joy was continuing to use Algebra Nation and had attended all but one of the PLC meetings. She was using the ACHIEVE, CHAMP, and Anchor Charts in her classroom, but inexplicably failed to utilize them during the classroom observation. She did shadow one teacher, but felt the experience was not beneficial. The proposed interaction with the math coach did not pan out as expected, mostly due to Ms. Joy being unable to free up time on her schedule to meet with Ms. Lastowski. The group then suggested that Ms. Joy continue to work with the math coach and support team, that she implement “stations” in the classroom, and that she increase her pacing, i.e., move along with her improvements. Despite the team’s admonishment to Ms. Joy to continue improving, two weeks later Principal Carbonell made a determination that (based on the findings from the last team meeting) Ms. Joy had “failed to show sufficient improvement” and that termination of her employment would be recommended to the Board. The decision was presented to Ms. Joy on December 19, 2017. Ms. Joy signed a form acknowledging Principal Carbonell’s intended recommendation. One of Principal Carbonell’s concerns about Ms. Joy had been that Ms. Joy was involved in extracurricular activities which interfered with her teaching. Specifically, Ms. Joy, who had always been a runner until hampered by injuries, was coaching the girls’ cross country team. Although Principal Carbonell had advised Ms. Joy at the time she was hired not to be involved in extracurricular activities, Ms. Joy had approached the athletic director and was named to coach the team. Principal Carbonell reluctantly agreed to allow Ms. Joy to coach since she had already cleared it with the athletic director, but still believed it to be contrary to Ms. Joy’s best interests. Obviously, Ms. Joy would have been better served to have spent the time improving her teaching skills. Ms. Joy presented no evidence at final hearing to refute the findings of the support team or those of Principal Carbonell. Instead, she raised several issues concerning things that restricted her progress. For example, she had undergone a severe injury involving torn tendons and muscles at the beginning of her tenure at the School. This injury not only made it difficult to maneuver around a classroom, but it prevented her from her passion, running, resulting in some depression and anxiety, as well as ongoing physical pain and stress. Ms. Joy alluded to some technological issues in her classroom that stymied some of her efforts, but did not demonstrate exactly what the problems were or that they were significant. She complained about the absence of a permanent teacher in her area for support, claiming that the use of interim teachers created more work for her. She provided no other evidence and little explanation concerning this complaint. She complained that she received little written feedback from her support team, but did not address all of the verbal feedback that had occurred. Ms. Joy stated that she had had no prior problems at her previous places of employment and that she was well-respected by the superintendent of schools and by many school principals. None of those persons testified at final hearing, so Ms. Joy’s representations, consisting of nothing more than unsubstantiated hearsay, are rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Volusia County School Board, upholding the recommendation to terminate the employment of Respondent, Susan L. Joy. DONE AND ENTERED this 18th day of May, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 18th day of May, 2018. COPIES FURNISHED: Thomas Martin Gonzalez, Esquire Nathan J. Paulich, Esquire Thompson, Sizemore, Gonzalez and Hearing, P.A. Suite 1600 201 North Franklin Street Tampa, Florida 33602 (eServed) Susan L. Joy Apartment B2 980 Canal View Boulevard Port Orange, Florida 32129 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) James T. Russell, Superintendent Volusia County School Board 200 North Clara Avenue DeLand, Florida 32720-2118 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Petitioner gave Respondent's June 30, 1995 correspondence, informing Petitioner that his employment contract would not be renewed, to Petitioner's attorney. That correspondence informed Petitioner that he could appeal Respondent's decision through "the appropriate administrative structure" or the formal grievance procedures contained in Respondent's Rule 6C1-7.041, Florida Administrative Code. A copy of Rule 6C1-7.041, Florida Administrative Code, was attached to the June 30, 1995 letter. Pertinent to this proceeding is the language of a portion of the rule contained in paragraph 6C1-7.041(4)(a), Florida Administrative Code, which reads as follows: Initiation of a proceeding under Section 120.57, F.S. shall be made by submitting a petition to the Clerk of the University of Florida, as provided in Rule 6C1-1.005, F.A.C. A copy of the petition should also be sent to the President of the University. The petition should be printed, typewritten, or otherwise duplicated in legible form on white paper. Unless printed, the impression should be on one side of the paper only, and lines shall be double-spaced and indented. The June 30, 1995 letter did not state the location or personal identity of the Clerk of the University. Rule 6C1-1.005, Florida Administrative Code, referenced in Rule 6C1-7.041(4)(a), Florida Administrative Code was not included in Respondent's correspondence. Rule 6C1-1.005(1), Florida Administrative Code, provides: The Clerk of the University is the administrative assistant in the Office of the General Counsel at 207 Tigert Hall, University of Florida, Gainesville, Florida 32611. In the absence of the individual holding this position, the administrative assistant to the Vice-President for Admin- istrative Affairs shall act as the Clerk of the University of Florida. Petitioner did not obtain and was not provided by Respondent with a copy of Rule 6C1-1.005(1), Florida Administrative Code. Petitioner's counsel did not know who was the Clerk of the University or where that office was located. Petitioner's counsel telephoned the University's information services on August 8, 1995, and asked for a telephone listing for the Clerk of the University of Florida at Tigert Hall. Information services was unable to provide such a telephone listing and referred counsel to the University's President. On August 8, 1995, Petitioner's counsel telephoned the office of the University's President and spoke with Lois Ivanko. A senior secretary in the President's office for eight years, Ivanko greets guests, opens and directs mail, and receives grievances. When informed by Petitioner's counsel of the need to file an administrative petition with the Clerk of the University of Florida on that very day, Ivanko said she would be happy to help counsel with the filing process and that he should send his law clerk, Joseph Marlar, to her, that she would take the petition and that she would file it. Marlar went to Ivanko's office on August 8, 1995, and spoke with Ivanko. Marlar explained that his mission was to file Petitioner's Petition For Formal Administrative Hearing. Marlar specifically told Ivanko that the document had to be filed with the Clerk of the University of Florida that day. Ivanko, ignorant of the existence of a Clerk for the University, assured Marlar that he was at the right place and that leaving the documents with her would constitute appropriate filing. Marlar left Petitioner's Petition For Formal Administrative Hearing with Ivanko who date and time stamped the document. Ivanko later brought the original to the office of the University's Vice- President of Academic Affairs. Ivanko placed a date and time stamp on a copy of the documents provided by Marlar so that Marlar would have proof of the filing of the document. All three documents, one original and two copies, were clearly entitled "Petition For Formal Administrative Hearing (CH.120)." Karen Grabel is the Clerk of the University of Florida. She has held that position since May 1993. Grabel works in the General Counsel's office, located at 207 Tigert Hall. Ivanko works in the Office of the President at 226 Tigert Hall on the same floor of the building as Grabel. Petitioner's Petition For Formal Administrative Hearing was not filed in Grabel's office by the required deadline of close of business on August 8, 1995. By order of the University's President dated August 23, 1995, the Petition was denied on the basis that it was not filed with the Clerk.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding Petitioner's Petition For Formal Administrative Hearing to have been timely filed. DONE and ENTERED this 19th day of September, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-33. Accepted and incorporated in HO findings, although not verbatim. Respondent's Proposed Findings 1.-3. Accepted, not verbatim. 4.-5. Rejected, relevance. 6. Incorporated by reference. 7.-8. Accepted. 9. Rejected, subordinate to HO findings. 10.-12. Accepted. Rejected, cumulative. Rejected, relevance to this proceeding. COPIES FURNISHED: Paul A. Donnelly, Esquire Post Office Box 1308 Gainesville, Florida 32602 Barbara C. Wingo, Esquire University of Florida Post Office Box 113125 Gainesville, Florida 32611-3125
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985). At all times pertinent to this proceeding, Flynn was a licensed "dealer in agricultural products" as defined by Section 604.15(1), Florida Statutes (1985), issued license No. 04147 by the Department, and bonded by Respondent, Lawyers Surety Corporation (Surety) in the sum of $4,500.00 - Bond No. 337892. At all times pertinent to this proceeding, Surety was authorized to do business in the State of Florida. Petitioner's complaint was timely filed in accordance with Section 604.21(1), Florida Statutes, (1985). On November 28, 1986, Petitioner and Flynn entered into a contract whereby Petitioner would furnish, install and roll 100,000 square feet of Floratum sod for a total contract price of $14,500.00. The sod was to be installed at the Brooksville Post Office (Brooksville) job site. Edwards Construction and Development, Inc. (Edwards), the prime contractor on the job, subcontracted with Flynn for the landscaping on the Brooksville job. Flynn in turn subcontracted with Petitioner for the sodding portion of the landscaping. Flynn was delinquent in completing the landscaping contract, due in part to the sodding not meeting contract specification in a timely fashion, and was assessed a penalty of $1,800.00 by Edwards for this delinquency. Although there were problems with the sodding meeting contract specification in a timely fashion, there was insufficient evidence to show that the problems were due to Petitioner's failure to timely and properly install the sod in accordance with the contract between Petitioner and Flynn. Although Flynn was required to expend additional funds to bring the sod into compliance with Edwards' contract for acceptance, there was insufficient evidence to show that this expenditure was due to Petitioner's failure to timely and properly install the sod in accordance with the contract between Petitioner and Flynn. Flynn was required to spend $77.00 to replace flowers damaged by Petitioner's employees while installing them on the Brooksville job. Petitioner billed Flynn $3,476.00 or $0.11 per square foot for installing 31,600 square feet of bahia grass sod on the Carriage Hill job. The measured square feet of bahia grass sod actually installed was 24,570 square feet. Petitioner overbilled Flynn for 7,030 square feet of installed sod for a total dollar amount of $773.30. Petitioner billed Flynn $130.00 for pallets used to deliver grass sod to Flynn which allegedly were not returned to Petitioner. Pallets are not "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes (1985). Likewise, Petitioner does not "produce" pallets.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that Flynn be ordered to pay Petitioner the sum of $2,037.70. It is further Recommended that if Flynn fails to timely pay the Petitioner as ordered, the Respondent Lawyers Surety Corporation be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985). Respectfully submitted and entered this 28th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of October, 1987. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, Gen. Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Clinton H. Coulter, Jr., Esquire Dept. of Agriculture and Consumer Services Mayo Building Tallahassee, Florida Ben H. Pridgeon, Jr., Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Thomas G. Flynn Flynn's Nursery and Landscape, Inc. 1345 S.E. 33rd Court Ocala, Florida 32671 Lawyers Surety Corporation Post Office Box 47480 Dallas, Texas 75247 Leo F. Steinmetz G. O. Parker Sod, Inc. Post Office Box 217 Lady Lake, Florida 32659
Findings Of Fact On April 10, 1978, the Department, through its Division of Purchasing, submitted an Invitation to Bid on State Contract number 451-600-38-BS, to various vendors of copying equipment to secure contracts for the State's annual requirements of bond and bond-like magazine-finish paper copying machines. The Invitation to Bid included General Conditions, Special Conditions and technical specifications which described the various categories of copying equipment based on type, class and system. Paragraph 7 of the General Conditions of the Invitation to Bid provided, in part, that: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening, file number and bid number. Failure to comply with this condition will result in bidder waiving his right to dispute the bid specifications. Paragraph 8 of the General Conditions provided that: The award hereunder is subject to the provisions of Chapter 112, Florida Statutes. All bidders must disclose with their bid the name of any officer, director or agent who is also an employee of the State of Florida, or any of its agencies. Further, all bidders must disclose the name of any State employee who owns, directly or indirectly, an interest of ten percent (10 percent) or more in the bidder's firm or any of its branches. Finally, paragraph 10 of the General Conditions, covering service and warranty, reads as follows: Unless otherwise specified, the bidder shall define any warranty service and replacements that will be provided during and subsequent to this contract. Bidders must explain on an attached sheet to what extent warranty and service facilities are provided. In addition to the General Conditions, the Invitation to Bid also contained Special Conditions, several of which are pertinent to this proceeding. Paragraph 6(A) concerning machine A cost, provides that: In determining the per copy cost of each type and class of copy machine bidders must include installation and removal costs as well as verify operation of all equipment and training of key operators and warranty for operation of one (1) year. On an Outright Purchase Plan the monthly machine costs shall be determined by dividing the purchase price by 36 months. To this figure add the current monthly cost for preventive maintenance service. In paragraph 29 (D) , the Special Conditions require that: A copy of the manufacturer's standard warranty must be submitted with the proposal. A warranty is required against defective material, workmanship, and failure to perform in accordance with required performance criteria, for a period of not less than one year from date of acceptance. Replacement of all parts found defective, including all labor and materials, within the warranty period shall be made without cost to the State. Finally, paragraph 30 of the Special Conditions provides that: All questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than May 1, 1978. Inquiries must reference the date of bid opening and bid number. Failure to comply with this condition will result in bidder waiving his right to dispute the bid conditions and specifications. Written response to all questions will be mailed to all bidders by May 10, 1978. For the Type I/Class 1 and Type I/Class 1-A categories, the Department received responsive bids from Petitioner and Saxon. Petitioner submitted its bid on June 30, 1978. Saxon submitted its bid from which the Department computed an average per-copy cost of $.0613. In arriving at this figure, the Department applied the following methodology: The $2,525 total cost of the Saxon machine was divided by 36 months, resulting in a figure of $70.14; Saxon's current monthly maintenance cost of $27.71 was then multiplied by 24 months, and that figure was divided by 36 to arrive at a monthly pro-rated maintenance cost of $18.47 for the three year life of the machines; this figure was then added to the $70.14 to arrive at a total monthly machine cost of $88.61. When supply costs and labor costs for various copy volumes were added to the fixed monthly machine costs, an average per-copy cost of $.0613 resulted. Petitioner, however, used a different methodology in formulating its bid and calculating its per-copy cost. Petitioner's methodology was as follows: Petitioner's total machine cost of $2,475 was divided by 36 months, resulting in a figure of $68.75; to this figure was added the current monthly maintenance cost of $10.00, which, when added to the above figure, resulted in a monthly machine cost of $78.75. When supply costs and labor costs were added for various monthly volumes, an average per-copy cost of $.0624 resulted for Petitioner's machine. The essential difference in the bid submitted by Petitioner and that submitted by Saxon is that Saxon amortized its 24-month cost of preventive maintenance over a period of 36 months with the understanding that the first 12 months of preventive maintenance would be furnished by Saxon to the State at no cost. Petitioner, on the other hand, computed its monthly maintenance cost at a flat rate for the full 36-month period apparently assuming that the one-year warranty required in the Special Conditions would necessitate Petitioner's also furnishing preventive maintenance for the first year at no cost. Petitioner therefore contends in its Third Amended Petition that the Department erred in its computations which concluded that Saxon had submitted the low bid in that Petitioner, like Saxon, provides the first year of preventive maintenance at no charge to the State and that: When the first year of maintenance, $120.00, is taken out of [Petitioner's] computation, it results in a copy cost of $.0605, whereas Saxon's stated cost A is $.0613. The manufacturer's warranty submitted by Petitioner with its bid provides, in part, that: Canon U.S.A., Inc. warrants all Canon Copier Products for a period of one year from date of installation against defective material and workmanship. All broken or defective parts not caused by accident or misuse will be replaced at contractors expense, including nonconsumable parts, labor and transportation, if any. Canon U.S.A., Inc. also warrants Canon Copiers against failure to perform in accordance with required performance criteria. Although the Special Conditions require that bidders supply a one-year warranty against defective material, workmanship and failure to perform in accordance with required performance criteria, there is no requirement that a bidder agree to provide cost-free preventive maintenance. Other than Petitioner's notation in its bid of a $10.00 monthly maintenance cost, Petitioner makes no other notation in its bid with respect to the provision of cost-free preventive maintenance. Further, the evidence clearly establishes that the types of services contemplated by the phrase "preventive maintenance" were different from, and outside the "warranty" requirements. The warranty requirements amount essentially to a guarantee of performance for the first 12 months of machine life, whereas the phrase "preventive maintenance" clearly was intended to cover periodic servicing of the machines short of actual repairs of mechanical malfunctions. Had Petitioner intended that its warranty cover cost- free preventive maintenance for the first year of machine life, it should have, but did not, so indicate in response to paragraph 10 of the General Conditions requiring a bidder to define to what extent warranty and service facilities are to be provided. The warranty requirements for outright purchase of copying equipment contained in paragraph 29(D) of the Special Conditions do not include an express or implied requirement that a bidder provide preventive maintenance service at no cost during the first year following purchase of copying equipment. Further, the cost formulas contained in paragraph 6A of the Special Conditions do not require a bidder to include a cost for current monthly preventive maintenance service which it does not intend to charge, and there is no prohibition in that paragraph against expressing the actual monthly preventive maintenance cost for the months in which these costs will be charged. Petitioner failed to submit written questions concerning its interpretation of any of the conditions in the Invitation to Bid or to question the Department's interpretation of those provisions. Additionally, Petitioner failed to define, in accordance with paragraph 10 of the General Conditions, the warranty service which it intended to provide, and likewise failed to express any intent to provide preventive maintenance service at no cost during the first year following possible purchase of its equipment. The Department properly accepted Petitioner's cost data for machine costs set forth in its bid, and properly calculated a per-copy cost for the three-year period without altering Petitioner's machine cost data. Based solely upon data supplied by Petitioner and Saxon, the Department has correctly determined, according to the formula set forth in the bid request, that Saxon's per-copy cost for equipment in the Type I/Class 1 and Type I/Class 1-A categories is lower than that submitted by Petitioner. Petitioner next contends that the Department's bid specifications for bond paper copying machines in the Type I/Class 4 and Type IV/Class 5 System A categories allowed only for machines utilizing a selenium drum, whereby precluding the use of Petitioner's machine which was equipped with a cadmium sulfide drum. Petitioner asserts that the Department " . . . has failed to demonstrate any justification . . ." for the use of a selenium, as opposed to a cadmium sulfide drum, and that " . . . [b]ased on latest available industry-wide data, there is no reason to distinguish between the [selenium] and the [cadmium sulfide] drum used in Petitioner's copying equipment." Although the Department acknowledged that it had no written rules or criteria established for the writing of technical specifications in the Type I/Class 4 and Type IV/Class 5 System A categories, the Department decided on the use of selenium drums in these categories based upon at least five years favorable experience with the selenium drum. Based upon this experience, and a familiarity with literature in the machine copier field, the Department determined that machines equipped with the selenium drum were generally guaranteed for greater volumes than a cadmium sulfide drum equipped machine, and that machines with selenium drums were less susceptible to breakdown in greater volume categories. On the other hand, information available to the Department indicated that machines with cadmium sulfide drums were less likely to withstand heavy usage in types and classifications requiring greater copy volume. Finally, on this issue, at no time prior to the opening of the bids in these categories did Petitioner either question the Department's specifications or attempt to have the Department amend its specifications in these types and classes in order to allow for machines equipped with cadmium sulfide drums. Petitioner neither submitted to the Department prior to bid opening, nor submitted any evidence at the hearing in this cause to substantiate its allegations that the Department was not justified in requiring machines with selenium drums in these categories. In addition, Petitioner failed to submit any evidence to substantiate its allegation that, based upon latest available industry-wide data, there was no rational basis to distinguish between the selenium and cadmium sulfide drums. In its third and fourth affirmative defenses, the Department asserts that Petitioner, in submitting its bid, failed to disclose the name of a corporate officer who was also an employee of the State of Florida, and also failed to disclose indirect ownership of ten percent (10 percent) or more of the Petitioner corporation by an employee of the State of Florida. In view of the foregoing Findings of Fact concluding that the Department reasonably interpreted and correctly applied the bid specification pertaining to the calculation of monthly preventive maintenance costs for the Type I/Class 1 and Type I/Class 1-A categories and that the Department's bid specification requiring a selenium drum for the Type I/Class 4 and Type IV/Class 5 System A categories was a reasonable one, it is unnecessary to reach, and this Recommended Order does not reach the question of whether Petitioner complied or failed to comply with the requirements of Chapter 112, Florida Statutes.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, by terminating Petitioner's employment with Respondent because of her race (African-American) and/or color (Black).
Findings Of Fact Petitioner, Charmaine Lewinson-Evans, was employed by Respondent, Gambro Healthcare, Inc., from November 2001 until June 2002, in the position of center director at the Ocoee, Florida, facility (Ocoee facility). The center director was the highest administrative job at the Ocoee facility. Petitioner was hired as an exempt employee, earning approximately $51,000 per year in salary. Petitioner is an African-American female and a member of a protected class. Respondent is an employer, as defined by the Florida Civil Rights Act (FCRA). Petitioner had been hired by Scott Yerger (Yerger), regional director for Respondent. He was Petitioner's immediate supervisor to whom she reported daily. At the time Yerger hired Petitioner, she had represented through the interview, her resume, and application for employment that she had an extensive nursing background, had functioned as a charge nurse, and had supervised professional and non-professional staff, as well as functioned as a team leader. However, at the time of her hire, Petitioner did not have the requisite management skills to run the Ocoee facility. Michelle Lee (Lee) was also employed by Respondent as a center director. Lee is currently the center director of the Orlando Southwest Clinic. She is also an African-American female and has reported to Yerger for the past several years. Center directors had monthly meetings wherein various matters were discussed, including monthly reports that were due to the regional director. These meetings were conducted by Yerger. Petitioner testified that she does not recall ever discussing monthly reports in the center director meetings. Lee testified that there were routine reports due each month by the center directors and that Yerger always went over the reports at each monthly meeting. Yerger testified that there were monthly meetings and that he went over the monthly reports that the center directors were to have prepared, both prior to April and after April 2002. Petitioner's failure to recall ever discussing the monthly reports at the center director meetings is not credible. Lee's testimony is credible. At the time of Petitioner's hire and for a period of time up to April 2002, all center directors had monthly reports due to Yerger by the 15th of each month. Yerger made it clear to the center directors how important it was to have the monthly reports in by the 15th of each month. The monthly reports prepared by the center directors for the regional director were vital to the operation of the clinic and the company. In April 2002, the monthly reports for the center directors changed in format, and Yerger sent out a template to all center directors for use in preparing the monthly reports. In the April 2002 center director monthly meeting, the template for the new monthly reports, which had been the subject of the e-mail previously sent to all center directors, was discussed. Petitioner testified that these monthly reports were derived from financial information she did not have and that it would take up to two days to prepare the reports. In fact, the monthly reports required of the center directors did not require financial information or a review of payroll records in order to prepare them. Any financial information necessary was already on the reports and had been placed there by Yerger. The only information required was clinical in nature and staffing reports. In fact, Petitioner did have access to financial information, if necessary, as well as instruction by Respondent as to financial information. Petitioner's role was to make certain the reports were due on time. Petitioner was also instructed on the items in the center director's checklist by use of a preceptor method. Petitioner's primary preceptor was Lee. Petitioner was instructed on patient statistics, patient liability reports, staff schedules, and erythropoietin (EPO) survey reports at healthcare plan meetings, and she was taught to close payroll and report statistics at the quarterly Quality Assurance (QA) meeting. Lee mentored Petitioner on how to do the monthly and other reports. Petitioner was trained in the same manner as all of the other center directors on the new monthly report format and how to complete the reports. During the time Petitioner was a center director, there was a total of seven center directors working under the supervision of Yerger. Petitioner was the only center director who turned in her monthly reports late without seeking prior approval to be late and without prior notification. The only center director that had difficulty with preparing the monthly reports was Petitioner. In April 2002, Petitioner received a raise from Respondent at the same time that all annual raises were given to employees. Petitioner had been with Respondent for only four months. She had not been employed long enough to warrant a formal review; as such, she was provided a standard raise of 3.5 percent. On April 10, 2002, Yerger received a letter from Rex Buchanon, M.D., medical director, indicating serious concerns about the direction of the Ocoee facility managed by Petitioner. After receipt of the letter, Yerger spoke with Petitioner about the contents. Improvement was immediately required of the Ocoee facility and Petitioner. Yerger offered to oversee the responsibilities for corrective actions and staff interviews. He directed Petitioner to focus on clinical issues. During this conversation on April 10, 2002, Yerger provided Petitioner with a series of items to complete and perform. These included cleaning and organizing her office in preparation for the visit by the Divisional President Scott Bartos; establishing a patient services committee to deal with patient complaints; completing the paperwork for Suzanne Giordano with Human Resources; locating Susan Bittner's transfer paperwork; and having the staff rounding reports pulled and ready for a Friday meeting with Elpidio Abreu, M.D. Dr. Abreu was coming to the Ocoee facility to specifically address the issues raised in the letter from Dr. Buchanon. Yerger asked Petitioner, the night before the scheduled meeting with Dr. Abreu, to pull the rounding reports and some of the QA information for him and Lee. Lee was subbing for Petitioner, who was not going to be present at the meeting. When Yerger, Lee, and Dr. Abreu arrived for the meeting the following day, no reports had been pulled, and Dr. Abreu had to wait while Lee and Yerger pulled the reports. Following the meeting on April 10, 2002, Petitioner did not clean up her office or remove the post-it notes, boxes, or clutter as requested. Petitioner did not set up the patient services committee as directed by Yerger. Five of the seven items mandated by Yerger were not completed by Petitioner by early May 2002. On May 8, 2002, Yerger held a meeting with Petitioner and went over matters that needed correcting and improving. Yerger considered this a Performance Improvement Plan. Yerger told Petitioner that although she had started out meeting expectations, she was falling behind. Yerger discussed with Petitioner her lack of follow through with tasks and initiatives that Respondent put out; her failure to complete them; her failure to meet the deadlines provided; and her failure to ask for any assistance from Yerger or to notify him of any difficulties with the reports. He also advised her that she continued to have difficulties in interactions with the staff and that she needed to maintain a professional manner with the staff at all times. He also reminded her that her body language was such that she would cross her arms and shake her head while staff were talking or giving their side of the story and, thus, she was not creating an environment for them to discuss issues. He also stated that the corrective actions process was supposed to be productive and that she was creating an opposite effect by her actions. Petitioner was given 30 days to make improvements in the areas outlined in the May 8, 2002, conversation. Contrary to Petitioner's assertions, Yerger did not ask Petitioner during the May 8, 2002, Performance Improvement Plan discussion to change places with Suzanne Giordano (Giordano). Such would have been highly ineffective and counter-productive to flip-flop positions at Ocoee facility like what was described by Petitioner in her testimony. Yerger did inquire in the May 8, 2002, meeting whether Petitioner was happy in her job as center director and whether she wanted to consider a different role in the company, but not in management. Following the Performance Improvement Plan meeting of May 8, 2002, Petitioner did not show improvement in the areas discussed. After the meeting, Petitioner continued to submit late reports, incomplete reports, and wrong reports and did not provide notification in advance of the reports being late. Petitioner acknowledged that her performance in the preparation of reports was not proficient and that she was still submitting the reports late, even after the meeting. After the Performance Improvement Plan discussion of May 8, 2002, Petitioner's attitude deteriorated. She became angry and upset and focused only on Yerger's not thinking she could perform her job. Other workers thought she was rude and abrasive. Yerger personally observed her being rude to other people and co- workers. Even when the reports were coming in late or were incomplete or wrong, Yerger would call Petitioner about this fact. However, no improvement of Petitioner's performance took place. Yerger did not have any difficulties with other center directors over performance, late reports, incomplete reports, or wrong reports. Several of the remaining seven center directors were African-American. Yerger received a written and verbal complaint from Giordano, charge nurse at the Ocoee facility, regarding Petitioner's request for Giordano to back date short-term care plans in violation of Respondent's internal policies. Anyone that is required to correct an entry in the short-term care plans is required to mark through the entry with a single line and note the "error" and put one's initials on the correction with a date. It would be improper and considered a falsification of the records to back date a document or care plan. The care plans required a nurse's signature on them contemporaneous with the date the action was taken, in order for the care plans to be complete. Several of the care plans containing the signature or initials of Petitioner were incomplete and had corrections not properly noted, in violation of Respondent's policy. Petitioner alleged that there had been a discriminatory motive in the assignment of Lee as her roommate for the center director conferences to be held in Nashville, Tennessee, and that Yerger was responsible. However, the evidence established that Yerger had nothing to do with the assignment of roommates at the Nashville conference held in June 2002. The roommate assignments were not racially motivated but were designed to accommodate the buddy system that had existed between Lee and Petitioner. After Petitioner did not show improvement following the 30-day period after May 8, 2002, Yerger, in conjunction with Loretta Castillo (Castillo), divisional human resources manager for the Southeastern Division, via telephone, discussed with Petitioner on June 21, 2002, her lack of improvement. In this conference, Petitioner admitted to Yerger that she had not been performing her job as center director up to Respondent's standards. It was determined that Petitioner would be terminated from her position as center director. During this meeting, Petitioner never complained or raised that any action by Respondent or Yerger was racially motivated. The decision to terminate Petitioner was based on Petitioner's failure to show improvement. The areas of poor performance were noted in the memorandum prepared by Yerger dated June 21, 2002, and executed by Petitioner on June 25, 2002. Petitioner had been informed she needed to have demonstrated improvements in her leadership and management skills. The memorandum outlined that Petitioner failed to demonstrate improvement and that she continued to struggle in providing leadership to employees and patients. Petitioner had recently reacted to an employee-related situation improperly by suspending an employee without further investigation or counseling with Human Resources or Yerger prior to the suspension. Petitioner's decision was based on her belief that the employee had been insubordinate to her, which was not the case. Petitioner had demonstrated poor judgment and failure to make sound decisions. Further, Petitioner had not demonstrated improvement in the areas covered by her Performance Improvement Plan of May 8, 2002. She had been unsuccessful in bridging the professional relationship with the medical doctors and staff. Yerger continued to hear about Petitioner's lack of professionalism. Based on Petitioner's inability to manage the Ocoee facility and to correct outstanding issues identified on May 8, 2002, she was terminated on June 25, 2002. The decision to terminate Petitioner was not based on her race or color, or any other impermissible factor. Petitioner was aware that Respondent had a policy for employees who felt that actions of an employee were racially motivated and for reporting any such complaint. During her employment with Respondent, Petitioner never availed herself of Respondent's policy for complaints regarding discrimination against any employee. Prior to her termination and the filing of the Equal Employment Opportunities Commission (EEOC) and FCHR charge, Petitioner never complained to anyone that any action against her had been the result of any racial animus by Yerger, nor had she expressed any such beliefs to Lee. Petitioner had been offered the opportunity of continuing to work for Respondent, but in a non-management position and not at the Ocoee facility. Petitioner declined such an option. Petitioner presented no evidence of any comparators or other center directors in regards to their treatment, performance, or handling by Respondent or Yerger. Petitioner did not present any evidence of racial motivation by Respondent during her case in chief; nor did Petitioner present any evidence of any comparators who were white who were treated any differently as a result of similar conduct on the part of Petitioner. Giordano was not a valid comparator of Petitioner since she was a charge nurse, a non- management hourly employee. Petitioner had no knowledge nor did she present any evidence of how Yerger treated the other center directors, how well they performed their jobs, how well they prepared the monthly reports, their leadership and management skills, who they may have roomed with during the Nashville conference, or that she was treated differently in regards to being able to hire employees. In fact, Petitioner testified that she had been authorized to hire employees, contrary to her EEOC charge statement.
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 which DENIES Petitioner's Charge of Discrimination and dismisses her complaint. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of December, 2003. COPIES FURNISHED: Charmaine Lewinson-Evans 9165 Pristine Circle Orlando, Florida 32818 John C. Stivarius, Jr., Esquire Epstein, Becker & Green, P.C. Resurgens Plaza, Suite 2700 945 East Paces Ferry Road Atlanta, Georgia 30326-1380 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 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 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
