Findings Of Fact Petitioner filed his petition and request for formal hearing approximately December 1, 1992. The attachments thereto suggest that he began requesting redress June 19, 1992. The agency referred his December 1, 1992 petition to the Division of Administrative Hearings, pursuant to Section 120.57(1) F.S. The Petitioner alleges that Petitioner's substantial interests are adversely affected by his employing agency paying other employees similarly situated more than Petitioner is paid. The Petition's attachments also obliquely put at issue the agency's refusal to process a special pay increase request for an individual exception in Petitioner's pay rate to the Department of Administration (now Department of Management Services). Such an application was refused by the agency approximately May 21, 1990. (See Petition attachments and Petitioner's Exhibit P-6.) Petitioner has not formally petitioned to invalidate any agency rule. Petitioner was hired by the Department of Corrections on April 6, 1965 in the position of guard. On September 1, 1965, he was promoted to Road Prison Officer I (RPO I), and his salary was increased. On October 27, 1989, he was promoted to Correctional Officer II (CO II). At the time of his promotion to CO II, his biweekly salary was $1,029.07. The maximum biweekly salary for that class was $1,004.14. Salary ranges for a job-class are posted on the job vacancy notice for that position. Petitioner had constructive, if not actual, knowledge of the pay grade range (maximum and minimum) at the time he accepted his October 27, 1989 promotion to CO II. Petitioner remained in the CO II class as of the date of formal hearing, however CO II is now known as Correctional Officer-Sergeant. The Petition herein has not affirmatively put at issue the Respondent agency's failure to promote Petitioner since 1989, however it is noted that at all times material, Petitioner met or exceeded all job performance requirements of a CO II. Petitioner, like all other employees similarly situated, has received salary adjustments and pay raises as appropriated by the legislature since October 27, 1989, even though he exceeded the maximum salary for the class he was occupying at the time. The testimony is clear that, as a CO II, Petitioner's salary is negotiated with the Respondent agency by a bargaining representative of the Police Benevolent Association, and that Petitioner was aware, at least by May 21, 1990, when he was denied an individual pay adjustment above the maximum for his pay grade, that he could file a grievance. He has never done so. From the foregoing, the only reasonable inference is that Petitioner has, at all times material, been subject to the terms of a collective bargaining agreement for State of Florida career service employees which provides for a grievance procedure. The terms of the collective bargaining agreement are not in evidence, however. As of the date of formal hearing, Petitioner also has filed no action before the Public Employees Relations Commission. The maximum authorized annual salary for a Correctional Officer- Sergeant as of the date of formal hearing was $29,479.84. At the present time, six employees ranked as Correctional Officer-Sergeant receive salaries in excess of Petitioner's salary. These employees in the same class are James Vaughn, Charles Williams, John C. Norman, Glynn H. Dunham, James Newsome and James Hamilton. Some of these employees have been employed by Respondent fewer years total than Petitioner. James Vaughn was promoted to CO II (now Correctional Officer-Sergeant) on April 19, 1974; Charles Williams on November 28, 1975; John C. Norman on February 20, 1976; Glynn H. Dunham on November 9, 1975; James Newsome on January 9, 1976; and James Hamilton originally on December 1, 1975 and then after a separation from employment, rehired as a CO II on January 1, 1985. As of January 1, 1987, all six of these employees were granted an across the board pay raise which equalized their salaries. The excess raise was given to the employees in a lump sum payment. Employees working in certain geographical regions of the state were granted a set pay adjustment for that region, up to $5,000. This amount may cause an employee's salary to exceed the maximum of the pay range for the CO II class. The Petitioner does not work in one of these geographic regions. By the time Petitioner was promoted to the position of CO II on October 27, 1989, the other six employees were earning $1,120.04, biweekly. Although their salaries exceeded the maximum salary for that class ($1,004.14), their pay raises were appropriated by the legislature across the board, regardless of whether the maximum range would be exceeded. Petitioner was also being paid in excess of the maximum for his class (RPO I) and in excess of the promotional class (CO II). Petitioner's biweekly salary at that time was $1,029.07. He also was given a raise in salary whenever it was authorized by a legislative appropriation bill. (See Finding of Fact 5). In early 1993, Petitioner brought to Respondent agency's attention that another employee, Richard E. Cobb, was making a salary in excess of what was permissible. Once the Department became aware of the error, it forwarded the information to the State of Florida, Office of the Comptroller for review. The error was corrected, and Richard E. Cobb's salary was reduced prospectively and the retroactive recovery of the overpayment was begun through deductions to Mr. Cobb's salary. Petitioner also complained about employee Blendage Weeks being promoted on September 1, 1989 with a 3.5 percent pay raise. Mr. Weeks is not a similarly situated employee because he is in a different job class than Petitioner. Also, although Petitioner believed that Mr. Weeks was given a raise in excess of the maximum for his class (Correctional Officer Chief I), in fact, the evidence shows that Mr. Weeks received a raise that brought him up from his then salary of $1,209.55 biweekly to the maximum for his class of $1,253.31 biweekly. 17. Rule 60K-2.002(5), F.A.C. (formerly 22A-2.001) provides: An employee shall not be paid in excess of the maximum of the salary range for a class, unless such payments are authorized by these rules or legislation. 18. Rule 60K-2.004(1)(b), F.A.C. (formerly 22A-2.004) provides: The agency head is authorized to grant a promotional appointment to an individual at a base rate of pay from the minimum to the maximum of the salary range for the class to which promoted provided such increase does not exceed 10 percent of the employee's base rate of pay prior to promotion. Pursuant to the foregoing rules, promotional pay raises are treated differently than legislatively appropriated pay raises and the agency may grant a promotional pay raise as long as it does not exceed the maximum of the salary range for the class into which the employee is being promoted. Petitioner does not fall into any of the protected classes governed by Section 760.10, F.S. and has filed no charge of discrimination with the Florida Commission on Human Relations.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the relief sought be denied and the petition therefore dismissed. RECOMMENDED this 21st day of December, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7417 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted, except as to month and day. Accepted as to content of Rule 60K-2.002(5) [not 60K-1.002(5)] F.A.C. The remainder of PFOF 3 is not properly cited. Accepted. Accepted as to what the salaries are and their names. The remainder of PFOF 5 is rejected as mere argument. Respondent's PFOF: 1-7,9-11,14-15 Accepted. 8,12 Accepted as modified to more accurately reflect the record evidence. 13 Covered in FOF 8; otherwise rejected as immaterial. Rejected as mere argument. Covered except as cumulative; see FOF 16. Rejected as evidentiary rulings or cumulative; see FOF 12. COPIES FURNISHED: Brian T. Hayes, P.A., Esquire 245 East Washington Street Monticello, Florida 32344 Laura S. Leve, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the transfer of John Jackson, Sr., be sustained. DONE and ORDERED this 24th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. John Jackson, Jr., Department of Environmental Regulation 2551 Executive Center Circle, West Lafayette Building Tallahassee, Florida 32301 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Jurisdiction The Respondent, a special district, is engaged in the operation of a hospital in New Smyrna Beach, Florida. Based on the pleading and the admissions contained therein, I find that the Respondent is a public employer within the meaning of Chapter 447, F.S., and was such at all times material herein. The Labor Organization Involved The Florida Nurses Association, hereinafter sometimes called FNA or the Association is, based on the pleadings and the admissions contained therein, an employee organization within the meaning of Section 447.203(10), F.S. The Alleged Unfair Labor Practices Introduction Briefly this case concerns itself, in the main, with the measures taken by Respondent in the promulgation of its no solicitation - no distribution rule and secondly whether or not the employees were unlawfully denied a cost of living increase in an effort to thwart their organizational activities. The complaint alleges, and the General Counsel and the Association contend that the no solicitation rule is invalid on its face in that it contains an absolute prohibition on solicitation during working hours without any clarification or distinguishing of the phrases "working hours" and "working time", citing Essex International, Inc., 211 NLRB No. 112, 86 LRRM 1411, 1412 (1974) and May Department Stores, 15 LRRM 173 (1944). The contention is additionally made by the General Counsel that while the NLRB has recognized exceptions to a general rule containing a broad restriction in the interest of business justification to facilitate production and discipline, no such showing or justification has been made by the Respondent in this case and therefore employees are denied an opportunity to discuss organizational activities at any time at their place of work. The General Counsel distinguishes the Respondent's defense that its no solicitation - no distribution rule is protected by Section 447.509, F.S., since it makes no differentiation between 447.509(1)(b), F.S., since distribution is forbidden in every part of the hospital including areas where employees do not perform official duties such as the cafeteria and lounge. Next the General Counsel contends that the Respondent unlawfully denied employees the annual cost of living increase because of their, organizational activities in a departure of its previous grant of such annual increases based solely on employees organizational activities and its effort to thwart such. While the General Counsel concedes that a clarifying statement was made with regard to merit increases, the contention is advanced that no such explanation was given to the statement concerning cost of living increases. During the fall of 1975, the FNA began discussions of organizing the subject employees for collective bargaining purposes. As far as the record reveals, since January 1, 1974, Respondent's policy handbook contained a provision urging its employees to participate in the annual United Fund Campaigns. The section further adds that "all other solicitations are prohibited throughout the year." (See General Counsel's Exhibit No. 1 incorporated by reference.) Thereafter in March, 1975, the rule contained in the policy handbook prohibiting solicitation was amended to read, as stipulated by the parties, Solicitation and Distribution: We cannot afford to have outside activities interfere with patient care. Therefore, the following rules concerning these matters will be enforced: Employees may not solicit funds or support for any fund, drive, cause of organization during working hours. Employees may not distribute literature on behalf of any fund, drive, cause or organization during working hours or in areas of the hospital where employees work. Persons not employed by the hospital are prohibited from entering the premises to solicit funds or support for or distribute literature on behalf of any fund, drive, cause or organization. The referenced rule is still in effect and the Respondent as far as the record reveals, enforces the rule as written. Hospital employees take a 30 minute unpaid lunch period and the record clearly established that except in emergency situations, a registered nurse may not leave the hospital during a meal period without prior authorization. Sometime during the months of January or February, 1975, Francis Doggett, Respondent's nursing director, first learned that the FNA was organizing in the hospital. In mid March, 1975, a meeting was held of all head nurses and supervisors including the nurses director, Respondent's attorney William E. Sizemore, and approximately ten (10) nurses. A sign-in sheet was used to record attendance. William Schneider, Respondent's administrator asked the head nurses and supervisors whether any of them had signed authorization cards and those in attendance responded. Only two nurses, Ms. Hadlow and Ms. Lewis, responded that they had signed authorization cards. Immediately after the meeting, Mr. Schneider met with Ms. Hadlow and Ms. Lewis and encouraged them to withdraw their authorization cards from the FNA. To accomplish this, on March 19, the following day, Shirley Reynolds, Respondent's Personnel Director, typed two letters at the request of Schneider on hospital stationery and received into evidence as General counsel's Exhibit No. 4 requesting that the designation of FNA as a bargaining agent be returned to June M. Hadlow and Evelyn M. Lewis. Shortly after the March 18 meeting, the Administrator met with the other registered nurses in the hospital's conference room in two different sessions. Attendance was required and based on the evidence it is clear that it was not the normal practice of Mr. Schneider to meet with RN's and in fact none of the nurses had ever met with him previously. Mr. Schneider inquired of the nurses what their problems were, why they were organizing and why they felt they needed a third party to intervene on their behalf. He showed the nurses and attendants a copy of a resolution, adopted by the Board of Commissioners of the Hospital District, opposing collective bargaining by hospital employees. Ms. Doggett, who was also in attendance expressed her displeasure that the registered nurses would be the first employees to try to organize for collective bargaining purposes. Thereafter on or about April 15, a memo was posted on the hospital's bulletin board stating that the medical staff had adopted a policy in opposition to collective bargaining. Three days later, on April 18, the FNA filed an RC petition for certification with PERC seeking to represent all registered nurses. On May 7, 1975, the hospital's Administrator held another mandatory meeting for RN's in a classroom in the old section of the hospital and for those nurses who were not on duty. They attended and were paid for the time spent at the meeting. Two sessions were held and Mr. Schneider, Ms. Doggett, Mrs. Reynolds and Mr. Sizemore, Respondent's attorney, represented management. Discussions by management concerned itself with the ramifications of the RC Petition filed by FNA and Mr. Schneider informed the nurses that the administration was planning a nurses lounge for them. Thereafter, Ms. Doggett told employees that the RN's would not receive a cost of living raise because they were organizing. One nurse asked if the nurses would receive merit raises whereupon Ms. Doggett replied no. Mr. Sizemore, seeking to clarify Ms. Doggett's statement, stated that the nurses would receive merit raises because it was an established hospital practice. The testimony reveals that hospital employees have received annual budgetary increases for eight of the last nine years and the year in which no increase was given was occasioned by the wage and price freeze. All nursing personnel who testified received some type of non-merit upward adjustment in their salary in every year except the year of the freeze. As stated, the Respondent takes the position that its solicitation- distribution rule tracks 447.509, F.S., and is not a violation of it inasmuch as the legislature cast aside the policy that has prevailed for many years in the private sector. Respondent adds that the General Counsel of PERC seeks to totally ignore this intended departure and simply graft the Federal Rules on Florida Law. Section 447.509, F.S., provides in pertinent part that employee organizations, or any persons acting on their behalf are prohibited from: (a) soliciting public employees during working hours of any employee who is involved in the solicitation and (b) distributing literature during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations and any similar public installations. This section shall not be construed to prohibit the distribution during the employees' lunch hour or in such areas not specifically devoted to the performance of the employee's official duties. Respondent cites the U.S. Supreme Court's decision in Republic Aviation Corp. v. N.L.R.B., 324 US 793, 16 LRRM 620 (1945), a case which addressed at length the issue of solicitation. The court in that case noted that a balance must be struck between "the undisputed right of self organization" and the "equally undisputed right of employers to maintain discipline in their establishments." The NLRB traditionally struck that balance by prohibiting employers from restricting solicitation except when the employee is actually engaged in the job function he performs. Thus, the employer is allowed to restrict activities only during "working time" and during break time or lunch time, even though paid for by the employer, an employee is free to solicit for a union. As Respondent notes, there have been literally hundreds of NLRB cases affirming this rule and striking down rules restricting activity during "working hours". The NLRB has long held that restrictions on employees' solicitation, or distribution of literature, in non-work areas, when employees are not actually working are presumptively invalid. The NLRB also presumes that a rule limiting solicitation during the time when an employee is working is for the maintenance of production and discipline and is valid, even though it is a restriction on Section 7 rights. 2/ If a rule is ambiguously phrased so that it may be interpreted as prohibiting legitimate activity, it is invalid. In Essex International, 211 NLRB No. 112, the board dealt with rules against solicitation during "working time" and distribution during "working hours". A board majority concluded that there is a clear distinction between "working hours" and "working time". The term "working time" or "work time" connotes the time spent on actual job duties. The board considers rules prohibiting solicitation during "working time" or "work time" to be valid presumptively, but the presumption can be overcome by extrinsic evidence that the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during break time or other periods when employees are not actively working. A study of the rule in question indicates that it is clearly a departure from Section 447.509, F.S., because Section 1(b) thereof indicates that the Section shall not be construed to prohibit the distribution during the employees' lunch hour or in certain areas not specifically devoted to the performance of the employees' official duties. Turning to the rule in question, solicitation and distribution is banned in all areas including the cafeteria and other places in the hospital where employees work. Since the Employer has not issued any clarifying statement and is susceptible of an interpretation which implies an overly broad restrictive reach, the Employer, by not electing to clarify the rule must bear the burden of the unlawfulness inherit in the ambiguity since it cannot be said that the ban on soliciting and distributing literature applies only to working areas during working time. The undersigned is of the opinion that the rule in question is a prohibition of solicitation during "working hours" and is presumptively invalid, and that the presumption should be applied in the absence of an affirmatively established clarification by the Employer which was not done in this case. See for example, John H. Swisher and Son, 211 NLRB no. 114 Pepsi Cola Bottling Company of Los Angeles, 211 NLRB no. 132; Groendyke Transport, 211 NLRB no 139. For discussion of a rule which was found valid and lawful which restricted employee activity during working time, see for example, General Motors Corporation, 212 NLRB no. 45. Based thereon, I shall therefore recommend that the Respondent's solicitation- distribution rule in this case, violates Section 447.509, F.S. The second issue raised is whether the Respondent violated Section 447.501(1)(a), F.S., by threating its registered nurses by informing them that they would not receive the annual cost of living increases because of their organizational activity. The alleged threat occurred during the May 7 meeting of all registered nurses. William Schneider testified that the annual salary adjustments were not tied to any cost of living index but rather came as a conclusion of wage survey and budgetary processes. Accordingly, the raises varied in amounts from year to year, the raises varied from position to position and the raises varied among the various departments with particular nursing skills. The General Counsel concedes that a clarifying statement was made with regard to merit increases but that no explanation was made concerning cost of living increases. Respondent's attorney, Sizemore, who was present at the May 7th meeting, clarified the statement by Ms. Doggett to the effect that merit increases would be given inasmuch as it was an established practice but that cost of living increases would not be given due to the absence of an established policy. It is clear that the meeting centered around the discussion of annual raises, merit raises and a new employee lounge and the effects it could have once a petition was filed and during collective bargaining. It is significant to note that no employee witness testified that the annual increases were tied to any cost of living increases. Rather it appears that the annual wage increases were tied to factors cited by Respondent such as its concern about remaining competitive with other employers in the area and its ability to be able to attract and retain employees with specialized training. It is further clear that the employer's counsel discussed the annual raise and the employees who testified did not deny that counsel did so. There was no evidence that the employer had withheld increases that it had previously promised employees but rather it appeared that the employer continued to grant what had been given in prior years except that the issue of cost of living increases was one which was not an established practice and therefore would arguably violate Section 447, F.S., if the employer were to bestow it to employees during the pendency of an RC petition. Based on these facts, it appears that as the Respondent urges in its defense, it was merely trying to inform the employees of the legal implication of granting the wage increase alleged to be violative while an RC petition was pending. In these circumstances, I shall therefore recommend that the General Counsel has failed to prove a violation based on the evidence presented as it relates to withholding of an annual cost of living increase because of alleged organizational activity. I shall therefore recommend that this allegation be dismissed.
Recommendation Based on the above findings and conclusions of law, I recommend, that the Respondent be ordered to cease and, desist from enforcing and retract its existing solicitation-distribution rule and that it post an appropriate Notice to employees to such effect. In all other respects, I recommend that the complaint be dismissed. DONE and ENTERED this 15th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues in this proceeding are whether the Respondent discriminated against the Petitioner on account of his race and, if so, what relief Petitioner should receive.
Findings Of Fact The Petitioner is a black male. He worked for the Respondent, Alexander Cabinet Company, for most of the eighteen years prior to May 7, 1979. At various times during that period, he was otherwise employed. He had worked continuously for the Respondent for approximately two years prior to May 7, 1979. The Respondent is in the business of constructing kitchen cabinets. The Respondent was incorporated in 1966. In its prior business form, the Respondent commenced doing business in 1947. Petitioner was employed with Respondent as a "door hanger." He was well qualified for the position and was one of the best employees in that capacity that Respondent ever had. Petitioner was terminated from his employment with Respondent on May 7, 1979. Respondent contends that he was terminated due to "insubordination." Petitioner was replaced by a white male. Petitioner's replacement was ultimately replaced by a black male. Subsequent to his termination, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations. The Commission investigated the charges and found reasonable cause to believe that Respondent discriminated against Petitioner on account of his race. This proceeding ensued. Petitioner was compensated for his work with the Respondent on a "piece-work" basis. At the time of Petitioner's termination, most of the Respondent's black employees were paid on a piece-work basis, while most of the Respondent's white employees were paid on an hourly basis. Black employees did not receive time-and-a-half overtime pay, and black workers were required to perform extra duties for which they were not paid. Respondent refused to allow black employees to be paid on an hourly, rather than a piece-work, basis. Piece-work employees were, however, if they were diligent, able to earn as much or more compensation than workers paid on an hourly basis. At the time of his discharge, the Petitioner had a part-time job as well as his full-time job with Respondent. On Fridays, Petitioner would typically leave Respondent's shop at approximately 12 noon in order to go to his other job. The Respondent distributed its paychecks on Fridays. The Respondent, over a long period of time, gave the Petitioner his paycheck when he left the shop at midday on Friday. Approximately five weeks prior to May 7, 1979, the Respondent adopted a policy that paychecks would not be delivered until 3 p.m. on Fridays. Employees were given appropriate notice of this policy. Despite the adoption of this policy, Respondent continued to deliver Petitioner's paycheck to him when Petitioner left the shop at approximately noon on Fridays. On Friday, May 7, 1979, Respondent was having difficulty getting sufficient funds into its accounts to cover its payroll checks. When the Petitioner went to the office to pick up his check at approximately 12 noon, he was reminded by the older Robert Alexander of the new policy and was told that he could not obtain his check before 3 p.m. Petitioner left the office and returned on several occasions. On each occasion that he returned, he demanded his paycheck, and the exchanges between him and the older Robert Alexander became more heated. At approximately 2:15 p.m., the Petitioner returned to the office and requested his paycheck. Both the older Robert Alexander and the Petitioner were quite angry. The older Robert Alexander threatened Petitioner with a handgun, gave him his paycheck, and advised him that his employment was terminated. Prior to May 7, 1979, the older Robert Alexander had threatened to fire his black employees and replace them with whites. The older Robert Alexander usually carried a handgun on his person during working hours. The older Robert Alexander was known by his employees to be very competent in the use of such a gun. A white employee in a similar circumstance to the events surrounding Petitioner's discharge would not have been fired. There was testimony offered with respect to the firing of a white employee by the Respondent for insubordination unconnected with the employee's job performance. The circumstance of that termination, however, was not sufficiently similar to the circumstances surrounding Petitioner's termination to justify any finding that a white employee in a circumstance similar to Petitioner's would have been discharged. Petitioner has made diligent effort to obtain other employment since his termination by Respondent. Petitioner's income tax returns fairly reflect Petitioner's earnings for the years 1978, 1979, and 1980. During 1978, Petitioner's income, discounting income earned by his wife, was $14,096.18. Of that amount, he earned $8,085.26 from his employment with Respondent. During 1979, Petitioner's total income was $7,592.21. The difference between his total income in 1978 and 1979 resulted from his being terminated by Alexander Cabinet Company. This difference is $6,503.97. During 1980, Petitioner earned a total income of $7,911.85. The difference between Petitioner's 1978 and 1980 income resulted from his termination by Respondent. That difference is $6,184.33. No evidence was presented as to Petitioner's income during the years 1981 or 1982. It appears that his income tax returns for the 1981 calendar year had not yet been prepared at the time of hearing. No evidence was presented at the hearing as to a reasonable attorney's fee for Petitioner's counsel.
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner suffered an unlawful employment practice pursuant to the pertinent provisions of Chapter 760, Florida Statutes, and relevant decisional law, by allegedly being the victim of disparate, discriminatory treatment based upon his race (white) by being denied compensation comparable to black professors of equal or lesser rank, credentials, qualifications and experience.
Findings Of Fact The Petitioner was hired as an employee of the Respondent, Florida A & M University (FAMU), in August 1988. He had previously worked for UNISYS Corporation in California. He was initially hired as an untenured assistant professor in the Computer Information Systems (CIS) Department of the College of Arts and Sciences (College) of FAMU. The Petitioner now is a tenured associate professor in the same department, employed on a nine-month faculty contract and often on supplemental contracts during summer terms. He now holds a Ph.D. degree in computer science, which he earned in 1992. The Respondent is a University which is a component of the State of Florida State University System. It meets the definition of "employer" under the pertinent provisions in Chapter 760, Florida Statutes. The Petitioner maintains that his claim concerning alleged discriminatory failure of the Respondent to adjust his salary to be equivalent to that of his black colleagues, based upon his race, white, is a jurisdictional claim. He maintains that the discriminatory treatment he complains of began from the time he earned his Ph.D. degree in 1992 until the day that he actually filed charges, because he continually suffered discriminatory treatment in terms of inequitable salary, compared to higher-paid black professors with equivalent or lessor qualifications and experience. He contends that the discriminatory actions against him were continuing during this time period, extending until the filing of his complaint on October 9, 1995, because during this time period his attempts to rectify his salary inequity were continually rebuffed by the University. Three assistant professors worked on their Ph.D. degrees in the CIS Department at FAMU from August 1988 to April 1991. They were employed in teaching and related duties at the CIS Department at FAMU while they worked on their Ph.D. degrees in computer science at Florida State University. Marion Z. Harmon is a black male, Sara M. Stoecklin is a white female, and the Petitioner is a white male. All were earning nine-month salaries in the mid to upper $30,000 range with the Petitioner earning $37,491, Dr. Stoecklin earning $38,421 and Dr. Harmon earning $39,383. Both Dr. Harmon and Dr. Stoecklin earned their Ph.D. degrees in the spring of 1991. Dr. Harmon, upon receiving his Ph.D., was awarded a salary adjustment. Dr. Stoecklin learned of this and raised an issue of fairness with the administration. She was told to seek other positions and get job offers as Dr. Harmon had, so as to establish her "market value." She produced the required job offer from her previous employer, Eastern Tennessee State University. Through their "market equity adjustments" of approximately $10,000 each (effective August 1991), Dr. Harmon's salary was raised to approximately $50,000 and Dr. Stoecklin's salary to a little over $48,000. The Petitioner contends that the "market equity increases" given to Drs. Harmon and Stoecklin in 1991 were given because they had earned their Ph.D. degrees. This is not clearly the case, however. Rather, because they had received their Ph.D. degrees their utility as professors was more marketable and, coupled with the offers they received from other institutions, prompted FAMU to make a counter-offer in the amount of the so- called "market equity increases." Moreover, although there is no written policy whereby salary raises, other than across-the-board increases granted by the Legislature, must be obtained only through the means of countering job offers from other institutions, there is an unwritten practice of non-routine salary increases being obtained in this offer, counter-offer, or "bidding" fashion. However, there is no actual requirement that a professor, including Petitioner, can only obtain an equity adjustment to his or her salary in this fashion, and other means have certainly been used. In the academic year 1991-92, Dr. Harmon received tenure and a promotion to associate professor. His salary was likewise increased to $52,625 for that academic year. The Petitioner's salary remained at $37,945. In April 1992, the Petitioner earned his Ph.D. degree. On April 9, 1992, he requested a meeting with Dr. Aubrey M. Perry, Dean of the College of Arts and Sciences. The Petitioner wanted to discuss his salary situation and his future at FAMU with the Dean. In their May 5, 1992, meeting, the Petitioner asked for a salary adjustment similar to that given to Dr. Stoecklin and Dr. Harmon when they received their Ph.D. degrees. He informed Dean Perry that he could not remain at FAMU at his current salary. He was told by Dean Perry that his earning of the Ph.D. was commendable, his contributions to the CIS Department were valued, and although funds were very limited, Dean Perry promised to do his best to effect a salary adjustment. Dean Perry never instructed the Petitioner that in order to receive a salary adjustment he had to seek a job offer from another school. In fact, Dean Perry testified that if the Petitioner had presented an offer from another institution, there was still no guarantee that it would be matched by FAMU and that such an offer would not be required for a person to receive a salary adjustment. Dean Perry acknowledged, moreover, that if the Petitioner had his recommendation for a salary adjustment, the Petitioner could reasonably expect it to be accomplished. After earning his Ph.D., the Petitioner applied for faculty positions at other schools and interviewed for several, at least by telephone. He had one or more informal offers of positions, for instance at the college where he formerly taught before coming to FAMU. However, he chose not to pursue any potential employment positions with other institutions because of his wife's job in Tallahassee, his children's school enrollment, his purchase of a home, and other personal reasons. Among those other reasons was the prospect, he believed at the time, of a significant salary adjustment if he stayed at FAMU. None of the so-called "rejection letters" in evidence indicate that he was lacking in any way in his credentials or qualifications. Many of them were because his area of research and expertise did not fit the needs of the other school. Indeed his entire tenure at FAMU reflects that his performance has been good and his evaluations have been favorable. He ultimately received an award for meritorious teaching skills and performance. However, despite the Dean's asserted support for a salary adjustment for him, the Petitioner received no salary adjustment during the 1992-93 academic year. In the 1992-93 academic year, the Petitioner, Dr. Stoecklin and Mr. Malcolm Barnes, who is black, all applied for tenure. Dr. Stoecklin and the Petitioner also applied for the rank of associate professor. Mr. Barnes was already an associate professor, although he did not hold a Ph.D. He had also been serving as the CIS Department chair since 1990. Department chairs at the college are elected by their faculty-member colleagues in their departments and serve a three-year term, with a $1,500 supplement to their salary for their administrative duties, as well as a reduced teaching load. In April 1993 Mr. Barnes was voted out as the chair of the Department by his colleagues, and Dr. Harmon, the associate professor referenced above, was elected as chair of the Department for a three-year term beginning in August of 1993. In approximately that same period of time, in the spring of 1993, both Dr. Stoecklin and Mr. Barnes were denied tenure. Dr. Stoecklin was also denied her promotion to associate professor. The Petitioner was awarded tenure and promotion to associate professor in May of 1993. The Petitioner was granted no salary increase then as a result of his promotion and gaining of tenure. He was thus still earning his original salary of $37,491 per year at a time when Mr. Barnes maintained his salary of $56,288 a year as a non-Ph.D., associate professor who had just been denied tenure. Dr. Harmon was paid $52,625 as a newly- tenured associate professor. Upon failing to gain tenure and being voted out as Department chair, Mr. Barnes was accorded a new position, or at least new responsibilities, as a "program director" in the Department. This is not an official position on the Department's roster of positions. It was, rather, a creation of new duties for him, as shown by Dr. Harmon's testimony. Mr. Barnes is still carried on the faculty roster as an associate professor. Faculty who fail to earn tenure are generally terminated. Mr. Barnes was not terminated, but rather was given this new position or "role" as Dr. Harmon described it. This favorable treatment of Mr. Barnes initially may have been based upon the fact that Mr. Barnes had been an employee and faculty member for approximately 20 years. It may be that an attempt was being made by the administration of the University to recognize his long, faithful service, in creating new duties for him in an administrative capacity, to avoid the onus of having to terminate him for failing to gain tenure. Inferentially, Mr. Barnes' salary probably was higher than the Petitioner's salary level, even when the Petitioner was hired in 1988, due to Barnes' long service with FAMU. However, the large differential between their salaries was maintained and even widened after Petitioner became an associate professor and after he earned his Ph.D. and tenure. Dr. Stoecklin, on the other hand, was denied both tenure and a promotion. She thereupon took a one-year leave of absence and threatened legal action against the Respondent, feeling that she had been denied tenure because of being a white female. This dispute was eventually resolved, apparently by her being granted tenure, but she was never granted a promotion with any related raise. She was not required to change any aspect of her performance, credentials, or qualifications in order to gain tenure, nor was she ever given a reason for the initial, approximate, one-year denial of tenure. In April of 1993, Petitioner again met with Dean Perry. The Petitioner requested a salary adjustment to make his salary equitable with that of his colleagues. Dean Perry told him at this meeting that he would support his request, that the Petitioner should make a written request, and that the Petitioner should stop seeking to leave FAMU as his services were valued there and Dean Perry wanted him to stay. The Dean also informed him that his promotion to associate professor would put him in a good position to receive a substantial salary increase. Following that meeting, on or about April 23, 1993, Dean Perry approved a three-year grant proposal submitted by the Petitioner. In that grant proposal, the Petitioner had budgeted his salary at $50,000 for the first year, with an increase in later years of the three-year grant period. The Petitioner had previously discussed with Dean Perry his reluctance to engage in such a long-term grant program at his low salary of $37,491 per year. Upon his submission of the grant proposal with the $50,000 initial annual salary attached, no opposition was expressed by the Dean, but that salary was never awarded. Upon receiving his promotion to associate professor and his grant of tenure in May of 1993, the Petitioner followed Dean Perry's advice and made a written request for a salary adjustment by memorandum dated May 24, 1993, addressed to his Department chair. The Petitioner reasonably anticipated a significant salary adjustment for the upcoming 1993-94 academic year, based upon the Dean's assurance in the April 1993 meeting. The Petitioner believed that the Dean's authority over the large budget of the entire College of Arts and Sciences, his approval of the Petitioner's grant proposal, and the Petitioner being awarded tenure and promotion, when other higher-salaried faculty had been denied tenure and promotion, put the Petitioner in a good position to receive a significant salary raise. Because of this belief, the Petitioner suspended discussion with other institutions about potential job offers and took his house off the market, planning to stay at FAMU. Sometime in mid-1993, the FAMU administration again increased Dr. Harmon's salary as a result of an offer he presented to them from Winston-Salem State University. Dr. Harmon's salary was thus raised from $52,625 to $58,000. The Petitioner's salary still remained at $37,491. In August 1993 a new, black associate professor, Dr. Patrick Bobbie, was hired. His starting salary was set at $62,000. Dr. Bobbie had 11 years less experience in private industry and three years less teaching experience then did the Petitioner at that time. Certain faculty salary increases were announced in September of 1993 for the 1993-94 academic year. The Petitioner received only the standard across-the-board raise of approximately nine percent due to his promotion and received no pay equity increase of the type he and Dean Perry had discussed. The across-the-board promotion increase brought his salary to $41,427 per year at that point. Both Mr. Barnes and Dr. Harmon received increases at that time bringing their salaries to $58,332 and $59,740 annually, respectively. After not receiving the salary increase he expected with the September 1993 announcement of salary increases for the academic year 1993-94, the Petitioner scheduled another meeting with Dean Perry during September 1993. Once again, the Dean agreed that Petitioner's salary was too low and he assured the Petitioner that he would try to remedy that situation. However, he also told the Petitioner that funds were not available to give him an increase beyond the nine-percent promotional raise amounts that month. The Dean told the Petitioner to put his request in writing and have the Department chair endorse it and the Dean would see that it was presented to the University administration. The Petitioner wrote the memo and delivered it to the Dean's office after having it endorsed by Dr. Harmon, his Department chair. The memo was dated September 30, 1993, and was delivered on or shortly after that date. After making contact with the Dean's office on or about October 17, 1993, the Petitioner was informed that the Dean had apparently misplaced the memo and no action had been taken. The Petitioner immediately re-submitted it on that date. Dean Perry promised to act on the Petitioner's request upon returning from a trip. On November 29, 1993, he informed the Petitioner that he had sent the memorandum to the administration with a recommendation for positive action. However, as a result of Petitioner's inquiry on January 10, 1994, he learned from the Dean's secretary that the Dean had not yet written the required letter with his recommendation. As a result of this inaction, the Petitioner decided to engage in a salary equity study (SES) for that academic year of 1993-94. The SES was submitted on February 10, 1994, in accordance with the Florida Board of Regents-United Faculty of Florida (UFF) collective bargaining agreement. In the SES, the basis for the claim of sexual or racial inequity must be drawn from a self-study process in which the employee compares himself or herself with counterpart employees. The counterparts must meet specific criteria and the comparison must be based on specific criteria set forth in published guidelines. The underlying principle of the SES, as indicated by Section 240.257, Florida Statutes, is that employees in similar positions with similar credentials and performance should make similar salaries, independent of their sex or race. The Petitioner was earning $41,427 at the time of his SES. His main counterparts in the study, Dr. Harmon, Mr. Barnes, and Dr. Bobbie, were then earning $59,740, $58,332 and $62,000, respectively. When he initially did not get a favorable decision, the Petitioner allowed the self-study to run its course through the internal university appeal process. The university appeal was to an appeals committee of two members appointed by the president, one of whom was black and one of whom was white. Through the course of the self-study, two faculty committees, the University Salary Equity Committee and the President's Appeal Committee, as well as Dean Perry and Dr. Hogg, the Provost, all reached the conclusion that the Petitioner's salary was inordinately low in comparison with his colleagues. The administrators maintained, however, that the inequity was not related to race, but purportedly resulted from such factors as "compression" or "inversion," a phenomenon where later hired employees in equivalent positions, make more money than their earlier-hired counterparts because salary rates or levels have increased. In his decision Dean Perry acknowledged that the Petitioner's market value for one of his rank and experience in his discipline was much higher than his current rate of pay reflected. The Dean informed the Petitioner that he would recommend that his salary be adjusted to reflect his current market value. Dr. Hogg, the Provost, informed the Petitioner in a letter of early May 1994 that the Appeals Committee had urged that Dean Perry review the Petitioner's salary and make the best adjustment possible during the 1994-95 academic year, which commenced in August of 1994, assuming that sufficient funds were available. That letter indicated that Dr. Hogg concurred with that decision. The policies or regulations provided the Petitioner by the Respondent, during the salary equity study, indicated that any equity adjustment awarded would be effective on the same date as other salary increases for that academic year. Because of this and because the SES committee recommended that his salary be adjusted (albeit not for reasons of racial discrimination, in the view of the committees) and because of the assurances given him by Dean Perry and Provost Hogg, it was the Petitioner's reasonable expectation that he would receive a salary adjustment as a result of his SES on November 1, 1994, during the 1994-95 academic year. That was the date the Legislature had mandated for any faculty salary increases. In addition to funds allocated by the Legislature for faculty salary increases, effective November 1, 1994, Dean Perry announced on June 30, 1994, that additional funds were available to give all associate and full professors at FAMU a $1,000 "market equity increase." This increase was to be effective August 8, 1994, and, as established by Mr. Rollins’ testimony, was the result of essentially "left over funds," that is, salary money that was not already scheduled to be spent but, as surplus, was to be used to give faculty members an increase. Mr. Rollins testified that the administration had considerable flexibility in shifting funds, including to salary accounts, which had been unexpended for other purposes. Consequently, it was decided to give all associate and full professors a $1,000 "market equity increase." The recipients of this increase were not required to present offers of employment from other institutions in order to establish their "market value." Many of the recipients of the increase, such as Drs. Harmon and Bobbie and Mr. Barnes, were already paid much more than the average salaries for professors of their rank in their disciplines. The Petitioner received notice of the $1,000 raises and immediately wrote a letter to Dean Perry reminding him of his inequitable salary situation and attaching Dr. Hogg's letter containing his assurance of a salary adjustment. The Petitioner was concerned that the unprecedented, $1,000 raises indicated that extra funds had become available at the beginning of the 1994-95 academic year and yet, even on November 1, 1994, the Petitioner did not receive the SES-related, market equity adjustment assured him by Dr. Hogg and Dean Perry. Additionally, in August of 1994, Dr. Deidre Williams was hired. She is black and was a recent Ph.D. graduate. She had no research publications to her credit at the time of hiring and had at least 10 years less teaching experience and 10 years less industry experience than the Petitioner. She was not tenured. As reflected by Dr. Harmon's testimony, she had been hired without a faculty search or advertisement in outside publications, such as professional journals. She was hired as an assistant professor, a rank below that of the Petitioner, who at the time was an associate professor. She was hired at a starting salary of $55,000 with a reduced teaching load compared to the Petitioner. Dr. Harmon, the Department chair, testified that it was his policy since he became Department chair in approximately August of 1993, to allow newly hired faculty with Ph.D. degrees reduced teaching load, for instance, two classes instead of four classes, in order "to get their research off and running." She was hired at approximately $13,000 above Petitioner's salary, and at over $11,000 above the national average salary for entry-level assistant professors at public universities. The average salary in a four-year public institution for a new assistant professor in computer and information sciences was $43.612 as of September 1, 1994, as shown by statistical evidence accepted and referenced by both parties in this proceeding. Dean Perry testified that the reason Dr. Williams was hired at $55,000 for a nine-month salary was to match an offer she had received from another institution. Neither the Dean nor any other witness testified concerning the reason it was necessary to match another offer she had purportedly received from another institution in order to hire her. In fact, no evidence was offered concerning whether her qualifications were equal to or superior to any other applicant, nor did Dean Perry or any other witness state that she was hired by matching an offer because of her superior qualifications for the untenured, entry-level position. Dean Perry’s testimony, and evidence adduced by the Petitioner, shows that the Respondent believes that black professors with Ph.D. degrees, even entry-level professors who are recent graduates, must be hired at substantially higher salaries than their white counterparts and that black professors with Ph.D. degrees command a higher salary in the nationwide marketplace for professors with Ph.D. degrees in that discipline, because they are scarcer. Dean Perry in his testimony, however, did not claim that the university, the college, or the Department had any reason to select and hire black professors in order to promote any remedial "affirmative action-diversity" related goal. When Dr. Williams was hired, there were already five black faculty members on the full-time CIS faculty of ten professors, and a substantial majority of black professors in the College of Arts and Sciences. Therefore, there has been no showing of any market-related or other necessity for the Respondent to hire black professors with Ph.D. degrees at substantially-higher salaries, than it pays its white faculty members. This is especially true in light of the testimony of the Respondent's witness, the Department chair, Dr. Harmon, establishing that funds are not allocated to advertise open faculty positions in publications such as professional journals. Inferentially, no nationwide or regional search is conducted in order to fill vacancies. This keeps the pool of potential applicants for positions very small, according to Dr. Harmon less than twelve for a recent opening. Dr. Harmon testified that some of the applicants are referrals from colleagues or members of the administration. This evidence shows that the University is not really competing in a regional or national market for these professors with Ph.D. degrees and thus further illustrates that there is no economic necessity that black professors with Ph.D. degrees have to be hired or have to be hired at a substantial salary over non-black professors with Ph.D. degrees. Rather, the evidence shows, through Dr. Harmon's testimony, that there is a glut of computer science professors with Ph.D. degrees on the open market. He described, for instance, a vacancy at the University of Florida which drew approximately 500 applicants. Logically, therefore, a large number of qualified applicants could be obtained for these positions (and likely hired at salaries more near the national average, regardless of race), if the Respondent was not of its own volition limiting the applicant pool. Dr. Harmon testified that assistant professor, entry-level positions are typically initially offered at a salary of "$45,000 negotiable" and that he recently offered one at $42,000 to $45,000, which is near the nationwide average salary for such entry-level positions. Because these positions are not widely advertised, a substantial number of potential applicants are not aware of these positions and do not apply. Otherwise, it is reasonable to infer that, in such a market, glutted with computer science Ph.D.s, many qualified applicants, even if non-black, could be found who would take the assistant professor positions for the salary initially offered or at or near the nationwide average for such positions. Therefore, if black professors with Ph.D. degrees do command a higher salary on the national market as the Respondent claims, the Respondent can have no economic incentive for hiring them. In fact, there is an economic dis-incentive for this pattern of salaries awarded, since, if the University competed in a meaningful way in the national market for computer science Ph.D.s, it could undoubtedly find well-qualified candidates, regardless of race, at lower entry-level salaries and thus have more funds to address salary inequities of employees such as the Petitioner. Significantly, Dean Perry testified that no white faculty members had been hired into the Department in tenure- earning positions in the past five years. Although Dean Perry testified that occasionally incumbent faculty members apply for such positions and that the Petitioner could have applied for the positions himself, the evidence shows that the open positions involved were for untenured, assistant professors. It is not reasonable to assume that there was any incentive for the Petitioner, already a tenured, associate professor, to apply for a lower-ranking position as an untenured, assistant professor, or even for an equal associate professor position, especially when he had been told that his salary equity problem would soon be adequately addressed. In early September 1994 the Petitioner wrote another letter to Dean Perry reminding him of his substantial salary inequity and again requesting his help. The letter pointed out to the Dean that the average, nationwide salary for an associate professor in computer and information sciences at four-year public universities was approximately $51,588, according to a generally-accepted survey. In a meeting on November 2, 1994, Dean Perry informed the Petitioner that he could not recall receiving that letter so the Petitioner sent him a letter dated November 18, 1994, complaining that the new assistant professor in the Department was hired without the benefit of a faculty search and at a salary significantly above market value. The national average salary for a new assistant professor in this discipline was $43,612 for 1993-94, more than the Petitioner’s associate professor salary. The Petitioner complained that while the inequity in his salary had not been addressed due to a purported "lack of funds," the University did find the funds to hire the new assistant professor, who is black, at $55,000. In the meantime, on October 24, 1994, the Petitioner was notified of a salary increase for the 1994-95 academic year. These legislatively-mandated raises were to be effective November 1, 1994. The Petitioner received no market equity adjustment related to his salary equity study. Instead, he was paid a $600 across-the-board increase, a discretionary increase of $1,170, and the $1,000 "market equity increase" that had been granted, effective August 8, 1994, to all associate and full professors, regardless of the salary they were then earning or their salary equity situations. The Petitioner received no "salary compression increase" at this time, and, indeed, under the University policy did not qualify for one since he would have to have been employed for seven full years before he could qualify for a compression increase. These salary adjustments, announced in August and October, 1994, raised the Petitioner's annual salary to $44,197, effective November 1, 1994. The gap between this salary and his black counterparts in the Department widened. Dr. Harmon's salary became $65,733 annually or $21,536 more than the Petitioner’s, where there had formerly been an $18,313 difference. The gap between the Petitioner's salary and that of Mr. Barnes, who was raised to $61,798 per year, increased from a difference of $16,905 before November 1 to $17,601 after November Dr. Bobbie, also an associate professor, was raised to $63,600 (from $62,000), resulting in a gap between his and the Petitioner’s salary of $19,403. The Petitioner tried again to get Dean Perry and Provost Hogg to correct his salary inequity. He expressed his sentiments in a letter to the Dean and Dr. Hogg on October 29, 1994. He noted therein that discretionary salary actions taken for other individuals indicated that funds were available to have given the adjustment previously promised by Dean Perry and Dr. Hogg. He advised Dean Perry, Dr. Harmon, and Dr. Hogg that, in addition to the situation involving Dr. Williams, hired at a salary of $55,000 in August of 1994 as a relatively- inexperienced, assistant professor, a discretionary raise had been given to black faculty member, Mr. Barnes, an associate professor, who was already making more than $60,000, with no tenure or terminal degree. Mr. Barnes had recently been denied tenure and voted out as Department chair by the faculty, based on performance. He was not recommended for an increase by the new Department chair, Dr. Harmon and, because of lack of experience was limited in the courses he could teach. Moreover, a discretionary raise had been given to another black, department faculty member, Ms. Johnson, who was being paid more than $55,000 for a substantially-reduced workload. She did not then have a terminal degree and taught no courses. She only had research duties. The Petitioner thus advised them of his resultant belief that he was being discriminated against. A meeting was held on November 2, 1994, between the Petitioner and Dean Perry. Dean Perry assured the Petitioner that he would schedule a meeting with the President to seek approval of an increase in Petitioner's salary. They discussed a $10,000 increase, but no promises as to an exact figure were made. Later that day, the Dean called the Petitioner and informed him that a meeting with the President was set for November 9 and he would be notified of the outcome. The Petitioner called the Dean's office on November 15 and then encountered the Dean on November 21, both of which contacts led him to believe that nothing had been done on the issue. In the meantime, the College of Arts and Sciences Teacher Incentive Program (TIP), through its award committee, recommended the Petitioner to Dr. Hogg for a $5,000 teaching excellence award on November 16, 1994. The Petitioner, however, did not receive this award during the 1994-95 academic year. Dean Perry wrote a letter to Dr. Hogg on November 22, 1994, finally requesting a salary adjustment of $5,000 for the Petitioner. The Dean made no mention that this salary adjustment had been promised to be an equitable adjustment, resulting from the SES done by the Petitioner. In fact, Dean Perry assured Dr. Hogg that the request was not related to the previous SES. In recommending the $5,000 increase to Dr. Hogg, the Dean declined to compare the recommended salary for the Petitioner to that of his black, associate-professor colleagues, Dr. Harmon, Dr. Bobbie, and Mr. Barnes, nor, for that matter, even to assistant professor Dr. Williams, the black, recent Ph.D. graduate. Instead, he compared it to the white assistant professor, Dr. Stoecklin. This fact is established by Dean Perry's somewhat reluctant testimony and Petitioner's exhibit 73 in evidence. This shows the base salaries in the Department before the January 1, 1996, increases, and shows that the Petitioner's salary on November 22 would have been $44,197, with Dr. Harmon's at $65,733, Dr. Bobbie's at $63,300, Mr. Barnes at $61,798, assistant professor Dr. Williams at $55,000, and white assistant professor, Dr. Stoecklin at $48,921. The $5,000 increase recommended by Dean Perry (as he finally acknowledged in testimony) was only comparable to the salary of Dr. Stoecklin, the white, tenured, Ph.D. assistant professor, who, even after the January 1, 1996, increases, was only paid an annual salary of $50,297. It is apparent that in presenting a salary recommendation to Dr. Hogg, Dean Perry chose to ignore the equity comparisons the Petitioner had made in his SES with his black counterparts and other higher black faculty salaries, apparently believing it appropriate to compare his salary to that of his white colleague, a lower ranking professor, Dr. Stoecklin. It is significant that, although the Respondent references the original market equity increase given to Dr. Stoecklin shortly after she earned her Ph.D. degree in 1991, (after a similar increase to Dr. Harmon), as indicating that white professors in the Department were treated equitably compared to black Ph.D. professors and that, therefore, the Petitioner's salary increases were retarded because of his failure to obtain outside offers which would establish his "marketability" the unrefuted evidence shows that after receiving that increase Dr. Stoecklin received no other salary increase until the January 1, 1996 raises. Even then she was still approximately $5,000 below the salary of equal-ranking, but less- experienced, assistant professor Dr. Williams, who was hired much more recently, in August of 1994, at $55,000 annual salary. Moreover, upon earning her Ph.D. and being granted the raise, she was then denied tenure for unexplained reasons for approximately one year and has never been given a promotion. There is no evidence that her performance is other than satisfactory. She has twenty-five years of relevant experience, eight years at FAMU, and more than twelve years' teaching experience. She has been quite effective in obtaining grants and has published comparable papers and received better teaching ratings than most faculty members. She was finally given a raise to a level comparable to that of Dr. Williams in August, 1996, during the pre-hearing portion of this proceeding. Under the circumstances, she cannot serve as an exemplar of equitable salary treatment of white professors in the Department compared to black Ph.D. associate professors or even assistant professors. The absence of the expected SES-related salary adjustment in the salary increase notification received by Petitioner on October 24, 1994 and the 30-day filing deadline from the time of an action giving rise to a grievance caused the Petitioner to file a grievance on November 23, 1994. This related to the non-discrimination provision in the Florida Board of Regents - United Faculty of Florida collective bargaining agreement, pursuant to which the grievance was filed. On December 19, 1994, Dr. Harmon wrote a letter to Dr. Frederick S. Humphries, President of FAMU, recommending that the Petitioner receive an immediate $10,000 salary raise, retroactive to the date he earned his Ph.D. Indeed, to his credit, Dr. Harmon had previously consistently supported the Petitioner's request for a salary adjustment in earlier communications with the administration. He did not have authority to make the decision, however. He never conditioned that support on a requirement that the Petitioner "prove his marketability" by obtaining a job offer from another institution. Both he and the Petitioner testified that they had discussed the possibility of the Petitioner seeking an outside job offer as a means of cajoling the administration into granting a salary increase, but Dr. Harmon never directed the Petitioner to seek such an offer and testified that he had not actually suggested it to him. On approximately January 17, 1995, the Petitioner received notice of Dr. Hogg's response to Dean Perry's November 22, 1994, letter recommending the $5,000 equity increase. Dr. Hogg denied the requested salary increase, referencing lack of available funds, rather than lack of a competitive outside salary offer, as the impediment to granting the raise. Dr. Hogg's letter expressed that nothing could be done in the 1994-95 academic year, but another attempt at adjusting his salary in the 1995-96 academic year would be made. Soon thereafter, on January 31, 1995, the Petitioner presented his grievance in a "step one" grievance meeting with Mr. David M. Voss, President Humphries' representative for contract administration, and the Respondent's representative for the step-one grievance proceeding. The basis for the Petitioner's grievance is consistent with his position in his complaint and petition filed with the Florida Commission on Human Relations in this proceeding. He presented statistical evidence in his grievance proceeding, and in this proceeding, showing the inequity between his salary and the salary of Dr. Harmon, Mr. Barnes, and Dr. Bobbie, which had been made worse during the course of the period of time when the Respondent acknowledged the inequity and had made assurances to try to re-address it. The Petitioner also presented statistics in his grievance proceeding, and in the instant proceeding, which showed that actions by the Respondent with regard to hiring and salaries, from 1991 to 1996, had aggravated significant differences between the salaries of black and non-black Ph.D.s generally and associate professors in the CIS Department in particular. These statistics show, for example, that black Ph.D.s on the average were paid over $16,000 more than non-black Ph.D.s and black associate professors were paid an average of $21,000 more than non-black associate professors. See, for instance, Petitioner's exhibit 52B. The University maintained through the grievance decision process and in the instant proceeding that race was not a factor in the differentials between the salary of the Petitioner and those of his black colleagues, although it did rely in the grievance process and in the instant proceeding on a purported economic, market value reason for the significantly- higher salaries paid to black faculty members. Specifically, the Respondent's grievance decision at step one of the process states that: In the grievant’s discipline . . . race and gender affect salaries. The scarcity of black male and especially black female Ph.D.'s [sic] contributes to salary differentials. . . . Blacks who hold a Ph.D. in grievant’s discipline do command a higher salary. . . . These statements were concurred in by Dean Perry in his testimony. He testified essentially that blacks are hired at the higher salaries they command for market reasons. That is, the University must pay blacks who hold Ph.D.s in computer science significantly higher salaries in order to hire them and retain them in competition with other institutions and therefore, that there is very little discretionary money to raise the salaries of equally qualified and deserving incumbent whites or non-blacks. He also testified that that should not lower the Petitioner’s expectations, although in his communications with the Petitioner in the last several years concerning the Petitioner's salary complaint, and in his testimony, he acknowledged that there was a continuing inequity in the Petitioner's salary verses his black colleagues. In the "step one" grievance decision and in the SES decision, the University made assurances to the Petitioner that it would effect an equitable adjustment in his salary. This had not been done through February of 1995. The only adjustments granted to the Petitioner since earning his Ph.D., tenure, and promotion to associate professor, in 1992 and 1993 were his promotion increase, the $600 across-the-board increase, a discretionary increase of $1,170, as well as the $1,000 "market equity increase" given to all associate and full professors on the faculty, irrespective of salary circumstance, as of August and November 1994. The resultant continuing and widening pay inequity is reflected in the above findings. Upon the University's rejection of the Petitioner's grievance in its step-one decision, the Petitioner appealed to a "step two" grievance decision process, which was presented on April 20, 1995, to Ms. Cynthia Vickers of the Office of Human Resources of the Board of Regents. In his argument at the step- two grievance meeting the Petitioner argued that "compression and inversion" as a factor could not explain the large differential between his salary and those of his black colleagues since he had not been employed at the University long enough to qualify for a compression increase and too large an inequity had already occurred to be explained by this reason. Further, there was no proof of any concrete pay plan showing maximum and minimum rates for the relevant positions which might show a legitimate reason why later-hired colleagues were paid so much more. Moreover, Dr. Harmon started in 1990-91 with a salary only $2,000 or so above the Petitioner's and Mr. Barnes was hired well before the Petitioner. Thus compression/inversion cannot explain their large differentials compared to the Petitioner's salary. The Petitioner presented the same data he had presented at the step- one meeting and which he also presented in evidence in this proceeding, showing his disparate treatment as to salary. Additionally, evidence he presented at the step-two grievance meeting and also in the instant proceeding shows the Oklahoma State University survey information on faculty salaries nationwide by rank. These statistics were not refuted by any evidence offered by the Respondent nor were they disputed. These and other statistics in evidence show that the majority of black, associate professors in the College of Arts and Sciences (22 out of 31) earn above the Oklahoma State University survey average for associate professors in that discipline, and also show that every non-black associate professor in the College of Arts and Sciences (14 out of 14) earn below that average. The Oklahoma State University salary survey information was acknowledged as authoritative particularly in Mr. Rollins testimony. The Petitioner's step-two grievance decision was issued by the Board of Regents' (BOR) committee on or about June 13, 1995. It incorporated a $5,000 salary increase and new contract from the University which brought the Petitioner's salary to $49,197 per year. This decision described the adjustment as a "good faith effort to ease the acknowledged salary differences." The Board of Regents' decision in discussing the University's position stated: Although it acknowledges there is inequity between grievant and his peers . . ., the University's position is that this salary disparity is due to the discipline's national market value for black males and females with terminal degrees. The Petitioner responded in writing to the BOR's step- two decision claiming, as before, that the $5,000 increase accorded him as a result of the grievance process was inadequate to address his salary inequity and reiterating his argument that race had been and was a significant factor in his original and continuing salary inequity situation. He requested an appeal to arbitration from his United Faculty of Florida representative or committee. The statewide United Faculty of Florida committee, pursuant to the Board of Regents/United Faculty of Florida collective bargaining agreement voted to appeal the BOR's step- two grievance decision to an arbitration process. The Board of Regents/United Faculty of Florida collective bargaining agreement limits the ability of an arbitrator to award back pay or to assess penalties for discrimination. Inasmuch as some salary increases had finally been granted to the Petitioner as a result of his grievance and a significant teaching award (the TIP award) had been recommended for him (although not yet awarded), the United Faculty of Florida committee decided, as is its right under the collective bargaining agreement, not to pursue the arbitration process any longer. This was because of the cost involved and because the Petitioner would still be free to pursue his dispute before the Florida Commission on Human Relations (FCHR). On August 4, 1995, the Petitioner filed a complaint with the FCHR alleging continuing salary discrimination based upon his race. In that same month, Dr. Clement Allen who had recently earned his Ph.D. was hired as an untenured, assistant professor at a salary of $52,000. Dr. Allen is black. The Petitioner's salary at this same time was only $49,197. On January 1, 1996, faculty members were granted across-the-board increases by the Legislature and the Petitioner was given a new contract by the University that provided for a $4,440 "other salary increase" as well as a $1,988 "salary compression increase." This last was because the Petitioner had finally qualified for a compression increase as he had by then been on the faculty for the required seven years. These increases brought the Petitioner's salary to $55,625, equivalent to the salary of Dr. Williams, the black, untenured, assistant professor, who had been hired in August of 1994 at a salary of $55,000. Later in March 1996, the Petitioner was finally given his $5,000 "TIP" award for teaching excellence (not an actual salary equity adjustment), which had been recommended in 1994, but never awarded. This made his salary $60,625 per year, which was his current salary at the time of the hearing. There is no evidence to show that the Petitioner's black colleagues Mr. Barnes, Dr. Bobbie, Dr. Harmon, Dr. Williams, (or Dr. Allen) had received any teaching awards to achieve their current salaries which are $63,883, $65,225, $68,141 and $55,625. Dr. Allen, hired as a new assistant professor at $52,000 was apparently no longer on the payroll of the CIS Department at this time in 1996. The un-refuted evidence shows, and there is no dispute, that the Petitioner's performance was consistently excellent during his tenure at FAMU and particularly after earning his Ph.D. His excellence in teaching was recognized, his research papers were accepted at international conferences, and his overall performance was judged excellent by the administration at all pertinent levels. Indeed, in his conversations with Dean Perry after he earned his Ph.D. concerning his salary expectations, Dean Perry urged him to remain at FAMU. Mr. Rollins testified for the Respondent, as Assistant Vice President for Academic Affairs, to the effect that in the last several years more flexibility and discretion had been accorded the University, presumably by the Legislature or Board of Regents, to shift funds from one category to another, such as from expenses to salaries. This was in the course of his testimony explaining how the $1,000 "market equity increase," from "surplus" salary funds, was awarded, effective August 8, 1994, to all associate and full professors. Nevertheless, during this period, when Mr. Rollins described the increased flexibility in shifting funds among categories, including awarding unused salary funds for such a general discretionary pay increase for faculty members, the Petitioner was still being denied a salary equity adjustment purportedly for "lack of funds" according to the information he was provided by Dean Perry and Dr. Hogg. This was at the same time that more advantageous compensation treatment was accorded certain black faculty members. Mr. Barnes, for instance, after being denied tenure was nevertheless retained as a generously-paid associate professor, rendered immune from tenure requirements, and was given a reduced teaching load in return for duties, at one time as much as fifty percent of his time, of an unknown nature in President Humphries' office. The specifics of these duties were unknown to his Department chair, Dr. Harmon. Ms. Thorna Humphries was paid a full salary as an assistant professor during the 1995-96 academic year during the time she was on an approved educational leave of absence pursuing her Ph.D. at the University of Denver. In fact, during that academic year, Ms. Humphries received a $625 salary raise, effective January 1, 1996. Dr. Harmon in his testimony acknowledged that fact and also that Ms. Humphries is no longer being paid for the 1996-97 academic year. Mr. Stephen Payne, a white associate professor who is also pursuing his Ph.D., is still required to teach four courses in return for his salary ($41,350 as of January 1996). The recent new black Ph.D. hires were given reduced teaching loads in addition to their higher salaries, according to Dr. Harmon, in order to give them time to get their research "up and running." Such treatment was not accorded Mr. Payne with regard to earning his Ph.D., although Dr. Harmon, to his credit, has reduced Mr. Payne's workload by arranging his course schedule so that he only has to do two preparations instead of four preparations for his four courses. Additionally, Ms. Lynette Johnson, who is black and who was hired around 1988, was paid a salary from the CIS Department's budget during the year 1995-96 despite having no teaching or other faculty duties, including research, within the Department. She does not have a Ph.D. and is currently paid $59,085 per year. In August 1996, she was transferred from the Department payroll and apparently placed on the Education Department's payroll. Mr. Rollins explained that this is because she was selected as a person to do entirely research duties in order to meet a Legislative or Board of Regents mandate to the effect that faculty members must be shown to be devoting more time than in former years to teaching, with required reduced research time or duties. In order to accomplish compliance with this requirement, Mr. Rollins explained in his testimony that personnel such as Ms. Johnson are selected to perform more research, with no teaching duties, so that research duties can be shifted away from those faculty members who are required to teach. Her substantially-higher salary without a terminal degree versus that of the Petitioner with teaching, publication, research duties, tenure, and a Ph.D., was unexplained. Dean Perry's testimony was equivocal and vague in a number of pertinent areas. Upon cross-examination, he admitted that the Petitioner's colleague he referred to in his letter to Dr. Hogg of November 22, 1994, (Respondent's Exhibit 15) was Dr. Stoecklin. This is with reference to his recommendation in that letter that the Petitioner's salary be adjusted by $5,000 which he said would "make his salary comparable to that of one of his colleagues with equivalent credentials." He attempted later to recant that testimony only to have to admit that Dr. Stoecklin was the only colleague who he could have been referring to, given the salary figure he recommended. He professed not to know whether Dr. Stoecklin was an assistant or associate professor, even though he was the Dean in 1993 when controversy ensued surrounding the denial of her tenure and promotion at that time. She was and still is an assistant professor and therefore is not a colleague of "equivalent credentials" to the Petitioner in any event. Additionally, the Dean testified that current positions at the assistant professor level in the CIS Department are advertised at salaries within the "fifties" (or $50,000-plus range). He was unaware, apparently, that Dr. Harmon had already testified that such positions were advertised at "$45,000- negotiable" and that one such position was currently being advertised for $42,000 to $45,000 per year. He testified that blacks in the Petitioner's discipline are able to command higher salaries, even "substantial salaries" as he put it, but did not quantify the approximate "premium" salaries blacks could command, even though his position requires him to approve or disapprove recommended starting salaries of new faculty members. The Respondent’s counsel argued at this point that, regardless of available salary dollars, the rate authorized for a position controls what its incumbent can be paid. In response to questioning by the Respondent's counsel, the next witness, Mr. Rollins, testified that salary "rate" for a position is what controls how many dollars the faculty member in that position can be paid, irrespective of the total salary dollars available in the department’s, college’s or university's salary budget. Such testimony begs the question, however, concerning why, sufficient rate and dollars (or at least dollars) were found to pay substantially higher salaries not only to the Petitioner's black colleagues of equivalent educational attainment, experience, and credentials, but even to those assistant black professors who had substantially less experience in teaching, in industry, in research, in publications, and in credentials. It strains credulity to accept that the "rate" for an assistant professor position would allow a new assistant professor to be paid approximately $15,000 more that the "authorized rate" for an associate professor position, occupied by a much more experienced and qualified incumbent. Additionally, Dean Perry was unable to recall a close estimate of his total, approximate salary budget, while adhering to his position that there was little discretionary money for an equitable salary raise. Finally, Dean Perry testified that the University attempts to raise white faculty members up to some equivalent level of pay to that of higher paid, newly-hired black counterparts, but the evidence indicates that, as to the CIS Department, this was only partially done for the Petitioner after he ultimately appealed his grievance procedure to the Board of Regents level and initiated this proceeding. It has not been done for other non-black CIS faculty members included in the statistics the Petitioner presented into evidence, most notably Dr. Stoecklin, who for the reasons found above, cannot serve as the exemplar of equivalent treatment for white faculty members that the Respondent maintains her to be. Accordingly, for these reasons, the testimony of Dr. Perry is accorded less weight and credit than that accorded to the testimony of Dr. Harmon, Dr. Stoecklin and the Petitioner.
Findings Of Fact The parties stipulated that the Petitioner submitted a request for extension of employment after reaching age 65 and that the Agency routinely processed said request, which was denied by the Agency. The Petitioner testified that he was over 65 years of age, eligible for retirement benefits, a career service system employee, was in good health, had a fine employment record, and desired to continue work until November 1976. Continuing work until November 1976, according to the Petitioner, would allow him to meet certain financial obligations which he had. He further testified that he had thought that the general policy of the Department of Transportation was to allow such extentions until the January following to an employee's 65th birthday and that he had planned on that additional employment. Without an extention, the Petitioner would retire effective May 28, 1976. The Agency did not controvert these facts, but pointed out that there was no policy regarding retention of personnel until the end of the year in which an employee reached age 65. The Hearing Officer notes that s. 112.051, Florida Statutes, creates the right in a state agency to retire personnel who are members of a merit system or similar tenure system on the basis of age and without specifying charges if the employee has reached age 65 and is eligible for retirement. The right to continue to employ such an employee is discretionary with the Agency. The facts establish that Petitioner is over 65 years of age and eligible for state retirement benefits. Therefore, Petitioner's retention was totally discretionary. There was no evidence that the Agency abused its statutory discretion in denying the Petitioner's request, or discriminated against the Petitioner in any fashion.
Recommendation Based on the foregoing findings of fact and conclusion of law, the Hearing Officer recommends that the Agency take no further action on the Petition, and not reconsider the Petitioner's request for retention. DONE and ORDERED this 26th day of May, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times material to these proceedings, Petitioner Rodriguez has been employed by the Hillsborough County Board of County Commissioners as the Director of the Department of Emergency Support Services. This position is exempt from the Hillsborough County Civil Service Act because it is a managerial/executive position under the jurisdiction of the County Administrator. Petitioner's employment with the County allows him to participate in the Florida Retirement System administered by the Division. On January 1, 1988, the County implemented a classification and compensation system for all positions under the jurisdiction of the County Administrator that are exempt from the Civil Service Act. This system is known as the Hillsborough County Exempt Service Classification and Compensation Plan (the Plan). As an incumbent employee, Petitioner's salary was not reviewed or subjected to the compensation structure set forth in the Plan until October 1, 1988. Effective October 1, 1988, Petitioner's compensation with the County was structured according to the Plan, as revised May 1988. During his performance rating prepared December 12, 1988, Petitioner's job performance from October 1, 1987 through September 30, 1988 was found to exceed standards. Under the Plan, this meant that his current annual salary could be increased. The salary action permitted by the Plan was a combination of salary adjustment "merit increase" and a one-year "performance pay" increase. The salary adjustment under the "merit increase" category became part of Petitioner's adjusted base salary. The "performance pay" was an increase created for a one- year term. It was not part of Petitioner's base salary. This method of creating a pay increase applied to Petitioner because his pay was already above the midpoint of the pay grade the Plan dictated the County was willing to pay for the performance of his particular job when completed to the required standard. The division of salary increases above the midpoint into two separate categories was placed into the Plan in order to balance two distinct County interests. The first was to keep the maximum salary range in a pay grade aligned with the competitive salary indicators in the geographical area for the same type of work. The second was to annually reward each employee whose performance exceeded standards over the past year and to motivate continued high performance on a personalized basis. The compensation approved for Petitioner for October 1, 1988 through September 30, 1989, was a "merit increase" of three percent of his current annual salary along with a one-year "performance payment" of eight percent of his current annual salary. This created an annual salary of $58,177,00 base pay with a one-year performance increase of $4,514.00. Petitioner's total compensation for the time period was $62,691.00. The pay increase approved for Petitioner for October 1, 1989 through September 30, 1990, was a five percent "merit increase" and a four percent "performance payment" of his current salary. This gave Petitioner a new base pay of $61,090.00 with a one-year performance increase of $2,330.00. Petitioner's total compensation for the time period was $63,419.00. From October 1, 1990 through September 30, 1991, Petitioner had the same base pay and one year performance increase as the year before. So did every other employee subject to the Plan. This salary designation violated the Plan because a "merit increase" was required before a one year "performance pay" increase could occur. However, "performance pay" was still classified in the usual manner and was not pledged by the County as a payment that would be reoccurring. From October 1, 1991 to September 30, 1992, Petitioner's base salary is $66,020.42. The County no longer pays the "performance pay" previously in effect under the Plan. Instead, the part of Petitioner's salary designated as "performance pay" the year before was added into his base salary. As a result, retirement benefits are earned on Petitioner's entire salary in this pay period.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's "performance pay" received from October 1, 1988 through September 30, 1991, should be excluded from the calculation of his "average final compensation" by the Division. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY 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 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. Accepted. See HO #5. Rejected. Contrary to fact. Accepted. See HO #10. Accepted. Rejected. Contrary to fact. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Reestablished each year. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5, #6 and #10. Accepted. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #7. Accepted. Evidence is rejected because calculations are incorrect. Accepted. Accepted. COPIES FURNISHED: GILBERT M RODRIGUEZ 18506 TURTLE DR LUTZ FL 33549 STANLEY M DANEK ESQ DIVISION OF RETIREMENT CEDARS EXECUTIVE CENTER/BLDG C 2639 N MONROE ST TALLAHASSEE FL 32399 1560 A J McMULLIAN III DIRECTOR DIVISION OF RETIREMENT CEDARS EXECUTIVE CENTER/BLDG C 2639 N MONROE ST TALLAHASSEE FL 32399 1560 AUGUSTUS AIKENS ESQ JOHN PIENO GENERAL COUNSEL SECRETARY OF ADMINISTRATION DEPT OF ADMINISTRATION 435 CARLTON BLDG 435 CARLTON BLDG TALLAHASSEE FL 32399 1560 TALLAHASSEE FL 32399 1560
Findings Of Fact Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause. DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Kenneth H. Hart, Jr., Esquire 401 Collins Building Tallahassee, Florida 32304 Brian Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
