The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
The Issue The issue in this case is whether, pursuant to section 112.3172, Florida Statutes, the pension rights and privileges of Petitioner, Joseph Anthony Fuller, in the City of Jacksonville Retirement System should be forfeited.
Findings Of Fact Petitioner, Joseph Anthony Fuller, was employed by the JEA as a Senior Vehicle Coordinator in the Fleet Services Department. Mr. Fuller worked for the JEA for approximately 20 years. In 2013, the JEA received reports from fellow employees that Mr. Fuller was stealing gasoline from JEA fleet pumps. Mark Beebe was a JSO detective assigned as full-time liaison to the JEA. Pursuant to a contract between JSO and the JEA, Det. Beebe investigated all criminal allegations related to the JEA. Most of his investigations involved customer theft of electricity, but he also investigated allegations of theft by JEA employees. Det. Beebe investigated the allegations against Mr. Fuller. During his investigation, Det. Beebe found evidence that Mr. Fuller had stolen from the JEA spools of copper wire and other items that he then sold to metal recyclers. These thefts began in 2012 and carried on until late 2013. After he was satisfied that he had proof sufficient to establish Mr. Fuller’s guilt, Det. Beebe interviewed Mr. Fuller on January 21, 2014. Det. Beebe gave Mr. Fuller his Miranda warnings. Mr. Fuller signed a waiver and voluntarily submitted to the interview. During the interview, Mr. Fuller denied stealing gas but admitted to taking and reselling the recyclable items. Mr. Fuller denied taking the recyclable items from anywhere other than the “trash pile,” “the big dumpsters,” and the recycling bins. Det. Beebe was understandably skeptical that such a large quantity of unused copper wire and electrical items could have been retrieved from the trash and the recycling bins at JEA. After the interview, Det. Beebe placed Mr. Fuller under arrest and charged him with grand theft in violation of section 812.014(2)(c)2., Florida Statutes, a third-degree felony; giving false verification of ownership of pawned items in violation of section 539.001(8)(b)8.a., Florida Statutes, a third-degree felony; and dealing in stolen property in violation of section 812.019(1), Florida Statutes, a second-degree felony. Det. Beebe’s arrest report noted that Mr. Fuller received $3,097.10 for all of his illegal transactions, but that the replacement cost of the lost items to JEA was $6,082.21. The replacement cost was Det. Beebe’s estimate, based on information provided by JEA. Thomas Wigand is a Labor Relations Specialist with the JEA. Mr. Wigand is responsible for JEA’s relations with unionized employees, including civil service and disciplinary matters. Mr. Wigand is the JEA’s primary contact with the International Brotherhood of Electrical Workers (“IBEW”), Local 2358, of which Mr. Fuller was a member during his employment with the JEA. IBEW Local 2358 and JEA have entered into a collective bargaining agreement (the “Agreement”).1/ Under the Agreement, Mr. Fuller had collective bargaining rights and was subject to the Agreement’s rules on discipline, which provided that union member employees could be disciplined only for “just cause.” As an employee of the JEA, Mr. Fuller was governed by the City of Jacksonville’s Civil Service System, including the City of Jacksonville’s Civil Service and Personnel Rules and Regulations (“Civil Service Rules”). Chapter Nine of the Civil Service Rules covers disciplinary actions, grievances, and appeals. Rule 9.05 provides that an employee with permanent status in the Civil Service may only be dismissed “for cause.” “Cause” includes, among other things, “willful violation of the provisions of law or department rules,” “conduct unbecoming a public employee which would affect the employee’s ability to perform the duties and responsibilities of the employee’s job,” and “willful falsification of records.” An employee facing disciplinary action is entitled to a hearing before the Civil Service Board. Petitioner was also subject to the JEA’s company-wide guidelines for disciplinary action, which generally prescribed progressive discipline. However, the guidelines also provided that theft is a ground for immediate termination. After Det. Beebe submitted his investigative report to the JEA, Mr. Wigand convened a fact-finding meeting on January 29, 2014. Mr. Wigand testified that such a meeting was standard procedure under the JEA’s disciplinary process and was designed to allow Mr. Fuller an opportunity to dispute the report or explain his actions. Mr. Wigand explained that, given the “compelling nature” of Det. Beebe’s report, it seemed likely that the JEA would be seeking immediate termination of Mr. Fuller’s employment after the fact-finding meeting, unless Mr. Fuller came forward with “exonerating evidence.” Prior to the fact-finding meeting, Mr. Wigand prepared a “notice of dismissal and immediate suspension” and a “letter of intent to discipline” Mr. Fuller. The letter of intent to discipline Mr. Fuller did not specify the nature of the discipline being sought by the JEA. Mr. Wigand presented this letter to Mr. Fuller for his signature at the outset of the fact-finding meeting, in compliance with the Agreement. The notice of dismissal and immediate suspension was more forthright, commencing with the statement “Your conduct as an employee of JEA has been unacceptable and requires terminal disciplinary action” before reciting the specific factual allegations and rule violations forming the basis of the termination. There was no evidence indicating that Mr. Fuller was shown this notice at the meeting. The fact-finding meeting was attended by Mr. Wigand, Mr. Fuller, two IBEW union representatives, and JEA audit manager Linda Schlager, who kept detailed notes of the meeting. During the fact-finding portion of the meeting, Mr. Fuller initially denied remembering much about his interview with Det. Beebe. When he was specifically asked about the copper and other materials allegedly sold to the scrap recycler, Mr. Fuller continued to insist that he took the metal from a JEA dumpster. He denied taking it from either the JEA’s recycling areas or from JEA trucks. He conceded only that he engaged in “dumpster diving” while on the clock for JEA. At this point, Mr. Wigand began showing Mr. Fuller photos of specific items sold to the recycler.2/ Mr. Wigand also stated that it is not JEA’s practice to throw new spools of copper wire into the dumpster. After viewing some of these photos, Mr. Fuller requested a private conference with his union representatives. Mr. Wigand and Ms. Schlager stepped out of the conference room. After approximately 15 minutes, one of the union representatives emerged from the conference room and made a proposition to Mr. Wigand to resolve the matter. Mr. Fuller would be willing to resign and use his accumulated annual leave to pay restitution to the JEA, in return for JEA’s agreement not to prosecute. After some internal caucusing, the JEA agreed to allow Mr. Fuller to resign, contingent on his making full restitution to the JEA and providing an accurate account of how he stole JEA property. If Mr. Fuller complied with these conditions, the JEA would inform the state attorney that it had been made whole by Mr. Fuller and did not wish to prosecute. Mr. Wigand made it clear to Mr. Fuller that the JEA could not control whether the state attorney decided to go forward with the case. One of the union representatives asked about the post- resignation status of Mr. Fuller’s pension. Mr. Wigand stated that the JEA does not control the pension or make pension decisions. Mr. Fuller agreed to the conditions and then admitted the thefts. He detailed where and how he stole the materials, and satisfied the JEA that he acted alone. He admitted to stealing gas on several occasions. At the JEA representatives’ request, Mr. Fuller even offered advice on how the JEA could improve controls in order to prevent such thefts in the future. At the conclusion of Mr. Fuller’s statement, the union representatives, Mr. Fuller, and Mr. Wigand agreed that the effective date and time of Mr. Fuller’s resignation was the current date, January 29, 2014, at 1:00 p.m. An irrevocable letter of resignation was submitted by Mr. Fuller on the following day. The letter stated the date and time of his resignation and his agreement to reimburse the JEA in the amount of $6,248.00. The letter also stated that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” On a date unspecified in the record, the state attorney declined to prosecute that case against Mr. Fuller, in part due to the JEA’s notice that it had received restitution and did not wish for the matter to proceed. On January 24, 2014, Mr. Fuller had submitted a “Retirement Information Request” to the City of Jacksonville Retirement System, asking for a computation of the benefits he would receive if he retired on that date. Counsel for Mr. Fuller argues that this document establishes that Mr. Fuller resigned on January 24, five days prior to the fact-finding meeting. The document is not a resignation letter under any common understanding of that term. As titled, the document is an information request. The Board argues, for reasons explained in the following Conclusions of Law, that Mr. Fuller’s resignation was in fact a constructive discharge. The Board contends that the JEA would have proceeded to terminate Mr. Fuller’s employment if the allegations against him were proven, and therefore that his resignation under pressure was the functional equivalent of termination. Central to the Board’s argument is the assertion that Mr. Fuller “voluntarily admitted” to Det. Beebe that he had stolen materials from the JEA, and that an evidentiary finding of theft was thus a foregone conclusion. The evidence of this “admission” is ambiguous at best. The interview with Det. Beebe consisted mostly of long monologues by the detective followed by monosyllabic responses by Mr. Fuller. In his own words, Mr. Fuller admitted only to taking materials from the “trash pile,” “the bin,” and the “big dumpsters.” He described his takings as “stuff they throw away over there.” Mr. Fuller’s counsel pointed out that there was no evidence establishing that materials contained in the recycling bins or trash dumpsters of the JEA remained the property of the JEA or retained any value for the JEA. Even assuming that the JEA could have established the value of the items and that Mr. Fuller could not have obtained them from the trash, there was no guarantee that a hearing before the Civil Service Board would have inevitably led to Mr. Fuller’s termination. Mr. Wigand conceded under cross-examination that the outcome might have been some lesser form of discipline such as suspension. It is clear that as of January 29, 2014, the JEA entertained doubts about its chances of success in a termination hearing, else it would not have allowed Mr. Fuller to resign. The only full and unambiguous admission of guilt made by Mr. Fuller was pursuant to the resignation deal brokered by his union representatives on January 29, 2014. Mr. Fuller did not resign his position as the result of an admitted commission of a specified felony; rather, he admitted the thefts only after the JEA agreed to allow him to resign. The resignation letter itself, which the January 29 meeting notes indicate was at least partially drafted by the JEA, states that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” Even accepting that Mr. Fuller’s statements to Det. Beebe were not credible and that the JEA would likely have prevailed at an evidentiary hearing before the Civil Service Board to terminate Mr. Fuller’s employment on the ground of theft, there remains the problem of the quid pro quo that was part of the resignation agreement. By accepting Mr. Fuller’s resignation, the JEA was spared the time and expense of litigating his termination and was afforded the certainty of Mr. Fuller’s immediate and permanent removal from the workplace. Mr. Fuller was not the only party to benefit from the agreement that the Board now seeks to nullify. It appears to the undersigned that if the Board were to be allowed to effectively rescind Mr. Fuller’s letter of resignation and treat him as a terminated employee, then Mr. Fuller should be entitled to go back to square one and invoke his right to challenge that termination before the Civil Service Board. It is doubtful that anyone involved in these events would desire such an outcome. The Board’s position that Mr. Fuller’s resignation from the JEA was tantamount to termination is implausible on its face and lacks record support. The JEA was under no pressure to settle the case with Mr. Fuller. It presumably made the deal with its eyes open and aware of all the possible ramifications. The JEA allowed Mr. Fuller to retain his accumulated annual leave despite the fact that section 11.6 of the Agreement calls for forfeiture of unused annual leave by employees “who are discharged for stealing.” The JEA plainly did not consider Mr. Fuller to have been “discharged” or “terminated.” Though Mr. Wigand told the union representative that the JEA does not make pension decisions, the JEA in fact made such a decision when it allowed Mr. Fuller to resign. The JEA benefitted from making a deal with Mr. Fuller. The Board should not be permitted to step in and rewrite the deal after Mr. Fuller has given up his hearing rights and fully performed his end of the bargain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the City of Jacksonville Retirement System enter a final order withdrawing the Notice of Proposed Final Agency Action. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of November, 2014.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice as envisioned in Section 760.10, Florida Statutes (2005), on the basis of the Petitioner's disability or handicap, and his age. It must also be determined whether the Respondent committed retaliation against the Petitioner for the Petitioner's alleged exercise of statutorily protected rights in complaining about health, or safety concerns, regarding his operation of a machine or device while an employee of the Respondent.
Findings Of Fact Jimmy D. Forehand was hired by the Department of Management Services or its predecessor on January 21, 1977. He was employed at that Agency for approximately 27 and one-half years through June 30, 2004. For the last 19 years of his tenure he was classed as an electrician. This is the entry level electrician trade position and has fewer complex duties and skills required for its performance, as opposed to the more complex position of master electrician, in terms of working with complex wiring, wiring problems, electrical devices, and so forth associated with that latter position. It has been stipulated that through his termination date of June 30, 2004, Mr. Forehand, was qualified to perform the duties and functions of his job. The Respondent is an Agency of the State of Florida charged with managing all state government agency resources, services, properties, benefits, and procurement. It manages state-owned facilities, handles state human resources or personnel matters, employee benefit matters, as well as procurement of such things as office space and office supplies. It maintains the physical integrity of all state-owned properties. The Petitioner was employed for the Respondent by the Division of Facilities Management and Building Construction (Division of Facilities) which is responsible for managing and maintaining office complexes and other properties owned by the state. The Petitioner specifically worked for the electrician unit of that Division. The Disability Claim The Petitioner experienced several purported medical conditions which resulted in workers' compensation claims during his tenure as an employee. The ones relevant to this case commenced in approximately 1992. In 1992 the Petitioner was engaged in a repair work assignment at a DMS-administered office building in downtown Tallahassee. He allegedly became exposed to asbestos during that job. The Petitioner and the employer, DMS, initiated a First Report of Injury and a workers' compensation claim ensued regarding the asbestos incident. The progress of that workers' compensation claim and its disposition are not relevant to this case, aside from the diagnosis concerning that claim as a part of the predicate for showing a disability for purposes of the case at bar. In any event, in 1992, the Petitioner was diagnosed by a physician with asbestosis. Because of that diagnosis, through the workers' compensation process, the employer and carrier have authorized the Petitioner, in all the years since, to have an annual medical examination and chest X-ray under the auspices of the Division of Workers' Compensation, Department of Financial Services. This is for the purpose of monitoring the status of the asbestosis. The Respondent has stipulated that it was aware of the diagnosis of asbestosis. It does not agree that the asbestosis constitutes a disability for purposes of Chapter 760, Florida Statutes (i.e. handicap). The Petitioner was released from the physician with regard to the asbestosis situation without work limitations or restrictions due to that diagnosis. Sometime in 1999 the Petitioner injured his left knee on the job, apparently a severe sprain. A workers' compensation notice of injury was filed and a workers' compensation claim process ensued whereby he received treatment for his knee problem. When he reached maximum medical improvement he returned to work with a light duty recommendation from his treating physician, on a temporary basis. In fact, the Respondent accorded him a temporary light duty assignment after he returned to work from the knee injury. The Respondent, through the Petitioner's supervisors, particularly Joe Jacobson, generally made an effort to try to find the Petitioner a light duty assignment when he returned from illness or injury, based upon a doctor's recommendation and/or the Petitioner's own request for light duty. His supervisor, Mr. Jacobson, would customarily call other building managers, the "OP/CON Center" and other agencies in an effort to find a light duty post Mr. Forehand could perform in until he was ready for the full duties of his regular position. Thus, on several occasions Mr. Forehand was placed in light duty as a janitor or answering phones. It was not always possible to find temporary light duty for Mr. Forehand when he requested it or when a doctor recommended it. Apparently Mr. Forehand was on leave without pay for a number of months on at least one occasion when no light duty was available for him. In this connection, however, the Respondent, throughout Mr. Forehand's tenure as an employee or at least since his 1992 asbestosis diagnosis, has shown a penchant for allowing Mr. Forehand to occupy and perform his duties in his regular position of electrician by working at his own pace, without regard to any time limit for performing his duties, without prohibition on his taking frequent rest breaks, and with tolerance for his late arrival at work, if tardiness was related to his physical condition. Thus, in a defacto fashion, the Respondent accommodated what it knew of Mr. Forehand's impairments, as he related them to the Respondent, or as they learned of them from reports from his physicians and from the workers' compensation process (i.e., breathing difficulties and to some extent left knee impairment after 1999). In any event, the preponderant evidence establishes that when the Petitioner requested light duty and/or his physician recommended it, the Respondent would provide him with light duty if it was available, although it was not always available. It accommodated what it knew of his impairments when he worked in his regular position, performing his regular duties, by the means described above; even though the Petitioner did not for the most part request rest periods, frequent breaks from his duties, additional time to complete his assignments, or for permission to trade assignments with another worker who might have a less physically taxing job. In fact, when the matter of his physical difficulties came up, or was raised by the Petitioner in a conversation with his supervisor on at least one occasion, his supervisor told him in effect to "do the best you can." The implication thus clearly was that if the Petitioner needed rest breaks, needed additional time to do assignments, that the Respondent would accommodate him by not holding him to a strict standard as to when his job duties got performed. Since approximately the year 2000 or the fiscal year 2000-2001 the Respondent, like other state agencies, have been under a mandate from the Legislature and the Office of the Governor to save on costs and to become more efficient in its operations. One of the primary means of accomplishing this has been to require a reduction in the Agency's workforce. The Respondent has thus experienced a loss of employment positions since that fiscal year in each budget year and session of the Legislature. It has thus lost approximately 635 full-time positions over a four-year period ending with the 2005 Legislature and Appropriations Act. In fiscal year 2000-2001, the Petitioner's position was identified by the year 2000 Florida Legislature to be eliminated, by making it "non-recurring," such that his position would be cut or eliminated effective July 1, 2001. The Respondent's supervisors did not want him to be laid off. Therefore, they avoided his lay-off in that fiscal year by re- classifying him or his position into a vacant position within the Division of Facilities. They made the decision to retain him even with knowledge of his past workers' compensation claims, his asbestosis diagnosis and his knee injury of 1999 with related occasional light duty and time off from work. When the 2000 Legislature identified his position as being one which would be non-recurring or deleted after July 1, 2001, the Respondent held a meeting with the Petitioner and all other employees whose positions had been deemed non-critical and subject to deletion in the job force reduction. What had occurred was explained and their options and procedures to remain employed or become re-employed were explained. Because his supervisors wanted to save him from lay-off, and re- classified a different position to place him in, he was protected when the 2001 Legislature carried through with its previous year alteration of his position to non-recurring funding by withdrawing all funding and rate supporting his original position. In continuation of its mandate to reduce the work force, the 2003 Legislature made 20 positions non-recurring, including the Petitioner's. This meant that the funding was determined to be non-recurring, meaning that the positions would be funded one more year, but at the end of the fiscal year, on June 30, 2004, these positions would no longer be funded and would be abolished. In the Governor's and agency's budget preparation process thereafter, in 2003 and early 2004, the Legislatively- mandated reduction of 20 positions was incorporated. The Agency, however, in late 2003 or early 2004, arrived at the conclusion that it needed 15 of those 20 positions to be re- classified as critical positions necessary to its mission. Therefore, in the Legislative budget-making process, beginning in February and early March 2004, it sought to convince the Legislature's Appropriations staff and members that 15 of the positions were critical. It was successful in doing that during the Legislative session. The Petitioner's position was not re-established as a recurring, critical position. This was because his position had previously been determined to be non-critical in the 2000-2001 fiscal year, and, since his job duties and responsibilities had not changed since that time, his position was again deemed to be no longer critical to continued division operation. It was determined by the Respondent that the functions of his position could be performed by including them in the duties of other positions, to be performed by persons who qualified for and occupied those positions (such as master electricians). Although Mr. Jacobson, his supervisor, wanted to find a vacant position to place the Petitioner in as he had done in the 2000-2001 fiscal year job force reduction, there were no vacant positions available in which to place the Petitioner. Mr. Jacobson's testimony establishes this, as does that of Clint Sibille and Cherri Linn (Mr. Jacobson's supervisors). The fact that Mr. Jacobson had a desire to try to find a way to retain the Petitioner is somewhat corroborated by the statement or message from Ms. Linn to Mr. Jacobson to the effect that "you can't save him this time." This meant that, unlike the situation in 2000-2001, there were no vacant positions which could be converted to a position in which to place the Petitioner. Moreover, the testimony of the supervisory lead worker, Bill Kerr, corroborated that of Joe Jacobson and Clint Sibille that there were no vacant positions to place the Petitioner in or to convert to a position suitable for his qualifications. Their testimony shows that the Petitioner's position was not a critical one in the division, especially because it did not involve duties concerned with intricate electrical wiring, wiring repairs, working on complex electrical devices and other complex electrical work. This testimony established that it made no sense to convert a master electrician position into one which met Mr. Forehand's lesser qualifications because a qualified person in a master electrician position, can perform the Petitioner's duties and many more duties in terms of complexity and critical importance than can a person with the Petitioner's lesser qualifications in an entry-level electrician position. Mr. Forehand is not a licensed electrician. The Respondent thus determined that there were no positions which were vacant and sufficiently less critical to its operation as to justify it in converting such to one which met the Petitioner's qualifications (in a managerial context). The Petitioner was not told of his lay-off until June 14, 2004. In fact, Mr. Jacobson, his supervisor, did not know that it was certain to occur until immediately before Mr. Forehand was told, several days before at the most. Clint Sibille had told Mr. Jacobson before the Legislative session convened that Mr. Forehand's position might be eliminated but he was not certain at that time (approximately in December 2003 or January 2004). It is not clear which supervisor or manager made the initial decision that the Petitioner's position was not critical. It apparently was the recommendation of Clint Sibille, in concert with Cherri Linn, and with the final approval of the Division Director, then LeeAnn Korst. Mr. Jacobson, the Petitioner's immediate supervisor, did not request that his position be deleted. During most of 2003, the Petitioner's job duties included operation of a florescent bulb or lamp crushing system. This was a device known as a VRS Bulb Crusher also known as the "bulb eater." It had apparently been purchased by the Agency sometime in 2002. The device consists of a large drum with a vertical tube through which burned-out florescent light bulbs are inserted so that they fall into the large drum where a mechanical device is operated which crushes the bulbs for disposal. The Petitioner performed a large portion of the bulb crusher's operation. This was particularly true during early 2004, when the Petitioner used the machine at a more intense level. Sometime in February 2004, the exhaust or filtration system of the machine sustained damage, or a break, so that dust and particulate matter and any gaseous or chemical contents of the broken bulbs had the opportunity to leak out of the area of the break into the ambient air. A temporary repair was made and a permanent replacement part was ordered from the manufacturer. The machine continued to malfunction, however, and the repair did not hold. The Petitioner complained to Bill Kerr, his lead worker, concerning the dust and particulate matter the machine apparently sprayed into the air. He also complained to his supervisor, Joe Jacobson. The Petitioner stated that he believed that the dust and particulate matter and other unknown contents of the broken florescent bulbs might aggravate the breathing problems he professed to have, which he related to his original asbestosis diagnosis. These complaints began in early March 2004. The Petitioner also complained to Dave Wiggins, the Respondent's Environmental Supervisor in March of 2004. When the complaints were made and the temporary repair was not successful, the Respondent stopped all use of the bulb machine in early March 2004. This was contemporaneous with the time or occasion when the Petitioner refused to use the machine any longer. The complaints about the bulb crushing machine were reported up the "chain of command" so that on March 16, 2004, Glen Abbott, the Employee Relations Specialist of the Bureau of Personnel Management Services, made a written "medical report" (according to the Petitioner's testimony) concerning the Petitioner's reported exposure to "poisonous chemicals" in the fluorescent bulbs being crushed through operation of the machine. This report was apparently required for workers' compensation purposes. The Petitioner also told Clint Sibille, Mr. Jacobson's supervisor, of the machine's purported malfunction. Mr. Sibille asked Dave Wiggins, the Environmental Specialist, to investigate the machine to determine if the machine was malfunctioning or if the problem reported by the Petitioner was caused by operator error. Mr. Wiggins and Joe Jacobson, after investigating the matter, believed it to be caused by operator error in the manner in which the bulbs were inserted into the vertical tube of the machine. The Petitioner maintains that he asked Clint Sibille to send him to a doctor concerning his fears of heath problems related to the machine and states that Clint Sibille told him to "see his own doctor." Mr. Sibille did confer with Cherri Linn about the Petitioner's request and Cherri Linn informed him that the Petitioner would have to engage in the workers' compensation report and claim process in order to see a doctor concerning his health-related fears about the bulb crushing machine. Mr. Sibille then told the Petitioner's supervisor Joe Jacobson to tell the Petitioner of this. Thereafter, at some point during the period of March through June 2004, after the Petitioner reported his complaints concerning the use of the bulb crusher, Glenn Abbott told all the electricians and carpenters who had worked with the machine to obtain medical examinations under the normal workers' compensation procedure, to try to ascertain if there are any deleterious effects caused by these persons' operation of the machine. Sometime in early May of 2004, the Petitioner called the Department of Environmental Protection (DEP) and spoke to someone there and made a verbal report of his belief concerning unsafe conditions regarding operation of the bulb crushing machine. After the Petitioner left employment with the Respondent Agency in July of 2004, the machine and the warehouse space where it was located was examined by a representative of the DEP and samples were taken, in an effort to ascertain if any hazardous materials had been produced by the machine or were present in that working area. On May 18, 2004, the Petitioner re-injured the same knee which he had injured in 1999. A Notice of Injury concerning this knee injury was filed to trigger the workers' compensation process and the Petitioner saw a doctor through the workers' compensation procedure who examined and treated his knee problem (severe sprain). He was off work for a few days and then was sent back to work by the physician with a prescription of "light duty." He thus became available for work with light duty, at the doctor's recommendation, on or about June 1, 2004. At about this time he told his lead worker Bill Kerr, of his blood clot and showed him the doctor's report concerning leg swelling. He also informed Joe Jacobson of this. He sought light duty and indeed Joe Jacobson made substantial efforts to find light duty available for him by calling the various building managers and the "opcon" center to see if any light duty was available. Mr. Jacobson went so far as to try to ascertain if there were any office filing duties that the Petitioner could perform. He was unable to locate any light duty work for the Petitioner at this time. Joe Jacobson took annual leave in early June and while he was on annual leave, he received a call from his employer, (apparently Cherri Linn) around June 10th or 11, 2004, requiring him to come back to work because the job force reduction lay-off was going to be imposed on the Petitioner and his presence as his supervisor was apparently needed. On June 11, 2004, the Petitioner was called and told to report to work on Monday morning, June 14, 2004. On Monday the Petitioner was called in to a meeting with Joe Jacobson and Tim Carlisle and told of his lay-off. He was immediately required by the Department's Inspector General, Tim Carlisle, to take boxes and pack up his belongings and to leave the premises. Carlisle helped him pack his belongings and ushered him off the Respondent's premises. The Petitioner maintains that he did not know of his lay-off until that same day, which happened to be his fifty-fifth birthday. He was placed on leave with pay until June 30, 2004, his actual termination date. In July of 2004, apparently on or about July 2, 2004, he filed a formal written complaint to the Chief Inspector General regarding his concerns and feared health consequences of the operation of the bulb crushing machine. On or about July 20, 2004, Mr. Forehand visited a walk-in medical facility because he contends he was experiencing shortness of breath, chest pains, and tightness in his chest. He attributed these symptoms to use of the bulb crusher back in March and earlier. He testified that he was diagnosed with silicosis and that he physician determined that he could not tolerate walking 30 to 60 minutes at a time or lifting more than 15 or 20 pounds. Neither this physician nor any other testified, nor was non-hearing medical information admitted into evidence in this regard. Interestingly, Mr. Forehand's testimony indicates he was diagnosed with a heart condition, apparently based on these symptoms, and in late 2004 underwent insertion of an arterial stint. The Petitioner thus complained to his supervisors beginning in about early March 2004, concerning the fears he had about the results of the machine operations. He complained verbally to DEP in early May of 2004, but made no written formal complaint, to any agency or person, until after his termination in July 2004. The Petitioner was not asked to participate in an investigation, hearing or inquiry concerning the operation of the bulb crushing machine and made no written complaint to any supervisory officials of the Respondent, who could then themselves submit a complaint to the Inspector General or to the Human Relations Commission. In fact, in his own testimony the Petitioner admits that he made a written complaint in July of 2004. In an apparent effort to show that the Respondent's proffered non-discriminatory reason for his termination was pretextual, the Petitioner advanced testimony from a number of witnesses, including himself, which he maintains shows a pattern and practice by the Respondent of retaliating against, and, if necessary, effectively firing older, disabled employees or employees who complain of safety hazards. In this regard, of the five positions selected to be eliminated in the job force reduction of 2004, four had incumbents when the decision was made. All four of those incumbents were over 40 years of age. Two of those four positions, however, became vacant before they were eliminated by the job force reduction. Ms. Ashraf Achtchi was fired by the Respondent before her position became officially eliminated in the job force reduction and Preston Booth voluntarily resigned from his position for unknown reasons. Ms. Achtchi testified to the general effect that she felt she had been discriminated against because of being ill and under medical treatment, yet she was still singled out (in her view) for being absent or tardy. Although the record may establish that she is over 40 years of age, there is no persuasive evidence that she suffered from a legally cognizable disability as that condition or term is defined below, even if she was under a doctor's care, was ill, and had frequent tardiness or absentness due to illness or a doctor's visit during her employment tenure. In any event, other than her own subjective opinion and Mr. Forehand's speculations based upon hearsay, there is no persuasive, competent evidence to show that she was terminated for any reasons based upon an unproven disability, her age or due to any retaliation regarding any protected status within the purview of Chapter 760, Florida Statutes. The Petitioner maintains that both he and Mr. Feizi were over 40 and disabled. Whether or not the Petitioner established proof of disability will be dealt with in the conclusions of law below. Mr. Feizi apparently suffered from a disease of the nervous system (AMS) and was confined to a wheel chair much of the time. It may thus be inferred that, for purposes of the legal elements of disability referenced below, that Mr. Feizi was disabled. Other than his subjective opinion and Mr. Forehand's subjective testimonial speculation, based upon hearsay, however, there is no competent, persuasive evidence concerning the reasons Mr. Feizi was terminated, other than that his position was simply eliminated through a job force reduction in the manner described in the above findings of fact. There is no persuasive, credible evidence to show that he was dismissed from employment based upon his age or due to his disability or as retaliation, nor was that proven with regard to Ms Achtchi. Other employees testified concerning alleged retaliatory conduct on the part of the Respondent. Sid Palladino and John Corbin opined that they had been retaliated against for making safety complaints of various kinds, as well as for testifying on behalf of the Petitioner in this proceeding. Ralph Cleaver testified that he left the Department to work for the Department of Agriculture because he had filed a "whistle blower" claim and that the Respondent, in his view, would use retaliation for his taking such an action. Barry McDaniel was 60 years old when hired and, abruptly soon thereafter, was asked to resign, according to his testimony, without any given reason. He testified that Mr. Sibille had him read a book purportedly advocating hard work and the hiring of young workers. The book was entitled "The Go Getter." According to Mr. McDaniel's testimony, the book was required to be read by all employees under Mr. Sibille's supervision. There was no evidence, however, that although Mr. McDaniel was asked to resign, that any other employee was so treated. The book was not in evidence and the undersigned has only Mr. McDaniel's subjective testimony concerning his thoughts regarding the theme and content of the book, in relation to his subjective belief that his age was the reason he was asked to resign. He testified that his immediate superior, who was also 60 years of age, was "gone" shortly thereafter. There is no evidence of any circumstances or facts concerning why Mr. McDaniel or his supervisor were actually asked to resign or in the case of his supervisor, may have voluntarily resigned. There are insufficient facts and circumstances established by the evidence to show any discriminatory motive related to age or otherwise with regard to the terminations of either of these men. Sid Palladino testified that he was reprimanded for not wearing his uniform and that other employees were not reprimanded when they had not worn uniforms either. He also testified that he felt he was retaliated against for making safety complaints as well as for testifying in support of the Petitioner in this proceeding. In fact, his reprimand was rescinded shortly after it was given him when it was learned that he had not worn his uniform or worn it properly because the uniform supplied him did not fit. Additionally, other than their anecdotal comments in their testimony, there is no persuasive evidence that Mr. Palladino or Mr. Corbin were retaliated against for complaining of safety issues and the same is true of Ralph Cleaver opining that he was about to be retaliated against for being a whistle blower, and Barry McDaniel as well. There is simply no definitive, credible proof, other than these employees' own subjective opinions, upon which to base a finding that there was any pattern and practice of retaliation against employees for complaining about safety hazards, for supporting other employees' discrimination claims, for making whistle blower claims, for being disabled or on account of their age, which could be persuasively probative of the discrimination and retaliation claims of the Petitioner.1/ In this connection, it is also found that there are a number of remaining employees in the Petitioner's division, who were his age or older. Indeed, Mr. Robert Smith had retired and then was later re-hired by the Department and the Division after suffering at least one episode of injury and medically prescribed light duty. Likewise, there are an unknown number of disabled or physically impaired persons remaining employed by the Department, after the dates and circumstances occurred with regard to the Petitioner's discriminatory claims. At least two of them testified in this proceeding. These facts belie the existence of a systematic policy or practice of eliminating employees over age 40 or of Mr. Forehand's age or older, or those who might be disabled or suffering from physical or medical impairments.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of August, 2006.
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1983.
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2018.
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
