The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993).
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993). Respondent employed Petitioner, a black female, in March of 1980 as a Clerk-Typist II. Over the years, Petitioner worked in the position of Secretary II, Clerk-Typist Specialist, and Secretary Specialist. Petitioner held the position of Administrative Secretary when she filed her Petition for Relief in September of 1996. At the time of the hearing, Petitioner was working as a Staff Assistant. In September of 1992, Otto Hough became the Accounting Services Director in Respondent’s Office of Financial Management. He was responsible for several sections including General Accounting, Accounts Receivable, Accounting Systems and Procedures, and Contract Administration. The Office of Financial Management lost eleven (11) of eighty-eight (88) employees due to reorganization of the agency in the early months of 1993. One of the positions that Respondent eliminated was the Staff Assistant position assigned directly to Mr. Hough’s office. As Accounting Services Director, Mr. Hough had the authority to recommend position reclassifications and pay additives for employees in the Office of Financial Management. One of his initial objectives was seek higher pay classifications for as many positions as possible. In 1993, Petitioner worked as an Administrative Secretary in the General Accounting section of Respondent’s Office of Financial Management. Her direct supervisor was the Finance and Accounting Director, a position held by a career service employee. Mr. Hough developed a job reclassification package that impacted about sixty (60) full time positions in the spring of 1993. As a part of that package, Mr. Hough recommended an upgrade of Petitioner’s position from Administrative Secretary to Staff Assistant. He made similar requests for two other Administrative Secretaries. Linda Ball, a black female, worked as an Administrative Secretary in the Accounts Receivable section. Rita Cook, a white female, worked as an Administrative Secretary in the Accounting Systems and Procedure section. The agency’s Comptroller, Personnel Office, and Program Advisory Council approved Mr. Hough’s recommendations to reclassify most of the positions. However, they declined to upgrade the Administrative Secretary positions because the agency’s rules required a select exempt employee to supervise Staff Assistants. In this case, a career service employee supervised all three Administrative Secretaries. Mr. Hough advised the Administrative Secretaries that he would seek a special pay increase for them. Linda Ball subsequently vacated her position as an Administrative Secretary when she transferred to Respondent’s office in Tampa. Her transfer left only Petitioner and Rita Cook occupying the positions of Administrative Secretary. In late 1993 or early 1994, Mr. Hough physically relocated Ms. Cook to his work area. He moved her work station into his office because he lacked secretarial support. At the time, he was officially serving as Accounting Services Director. However, he also acted as Accounting Staff Director for Revenue Management, Financial Support Director, and Comptroller. Except for the position of Accounting Services Director, all of these positions were vacant from March through June of 1994. After her relocation, Ms. Cook continued to occupy the position of Administrative Secretary in the Accounting Systems and Procedure section. She performed eighty (80) percent of her work for that section. The rest of her time was spent providing secretarial support to Mr. Hough. Ms. Cook’s relocation made her position eligible for reclassification from Administrative Secretary to Staff Assistant because Mr. Hough was a select exempt employee. Petitioner had more seniority in time than Ms. Cook. Nevertheless, Ms. Cook was more qualified than Petitioner to work in the office of the Accounting Services Director because of her prior experience in the Accounting Systems and Procedure section. Ms. Cook possessed more expertise and knowledge about Respondent’s district offices. She was familiar with the interaction between the district fiscal offices and the central office in Tallahassee. Mr. Hough was aware that Petitioner did not want to relocate from General Accounting to Accounting Systems and Procedure before he relocated Ms. Cook to his office. In February and May of 1994, Mr. Hough gave Petitioner the opportunity to move upstairs to work in the Accounting Systems and Procedures section. A lateral transfer to a position in that office would have allowed Petitioner to gain knowledge and experience similar to Ms. Cook’s. However, Petitioner declined the offer. She decided to stay downstairs in General Accounting and wait for a position reclassification or a special pay increase. The work environment in the General Accounting section was less stressful than the Accounting Systems and Procedures section. The latter had the additional pressure of interacting with the Deputy Secretary of Administration and Budget. It also was involved with the flow of information to the Legislature. Toward the end of the 1993-1994 fiscal year, Respondent’s Deputy Secretary of Administration selected Glenda Guess as the new Comptroller. The Deputy Secretary directed Mr. Hough to arrange for Ms. Guess to have the level of staff that she was expecting when she came "on board." Pursuant to this directive, Mr. Hough realigned the duties of staff in the offices of the Comptroller and the Accounting Services Director. On June 8, 1994, Mr. Hough approved a reclassification of Ms. Cook’s position from Administrative Secretary to Staff Assistant. Mr. Hough signed the Request for Payroll Action form as the Respondent’s Acting Comptroller. On June 10, 1994, Glenda Guess became Respondent’s Director of Financial Management/Comptroller. The "promotion due to reclassification" resulted in a five (5) percent pay raise for Ms. Cook. She began to devote one hundred (100) percent of her time to duties within the office of the Accounting Services Director. In 1994 and 1995, the agency was in the process of decentralizing its functions. In the short run, this process required the central office to perform additional functions until the district offices could assume those responsibilities. In 1995, Respondent closed the Jacksonville office, phased out twenty-nine (29) positions, and brought the child welfare voucher system into General Accounting at the Tallahassee office. When this change occurred, Petitioner assumed the additional duty of controlling the inflow of documents for the child welfare vouchering system from all the districts. As Petitioner’s responsibilities increased, she and Mr. Hough discussed the possibility of changing her classification from Administrative Secretary to some type of accounting position. However, Petitioner preferred to remain in the secretarial/clerical niche and not seek a position with an accounting orientation. In April of 1995, Mr. Hough sent Ms. Guess a memorandum requesting a ten (10) percent "pay additive for additional duties" for Petitioner. Ms. Guess denied the request because it was not in the correct format. Additionally, she thought a three-to-five percent increase was a more appropriate raise for employees assuming additional duties. At that time, Respondent’s ability to provide pay increases for additional duties was a new concept. Ms. Guess was not aware of a precedent for a ten (10) percent pay increase for additional duties. In May of 1995, Mr. Hough revised Petitioner’s position description to reflect Petitioner’s additional duties. On May 16, 1995, Mr. Hough again requested a ten (10) percent pay additive for Petitioner. He felt the salary increase was justified because Petitioner handled the Child Welfare Vouchering System input documents, as well as the reconciliation documentation from the districts each month. According to Mr. Hough, these additional duties were beyond the scope of Petitioner’s normal tasks as an Administrative Secretary. On May 25, 1995, Petitioner wrote Mr. Hough a memorandum to advise that she would not be satisfied with a three-to-five percent raise. She demanded a ten (10) percent salary increase. Petitioner sent Ms. Guess a copy of the memorandum. On May 31, 1995, Ms. Guess properly denied the second request for Petitioner’s salary additive for the following reasons: (a) the additional duties were of a clerical nature; (b) the additional duties did not require Petitioner to work overtime except for her involvement in year-end closing; (c) Petitioner’s salary was in line with other clerical positions in the Office of Financial Management; (d) funds for pay increases were insufficient to raise the salary of every employee in the Office of Financial Management who were performing additional duties; and (e) a raise of three-to-four percent was more in line with raises given to employees in Respondent’s Office of General Services for assuming additional duties. On or about June 25, 1995, Ms. Guess learned that funds were available for pay increases based on added duties and/or sustained superior achievement. The next day, Ms. Guess sent the Deputy Secretary for Administration a request for pay increases for the following: (a) Melissa Pugh, white female, 7.5 percent for sustained superior achievement and added duties; Beverly Smith, white female, 5 percent for added duties; Kimmie Canfield, white female, 10 percent for added duties and superior performance; (d) Gail Kruger, white female, 5 percent for superior performance; (e) Cindy Philips, white female, 5 percent for superior performance; (f) Barbara Huskey, white female, 5 percent for superior performance; (g) Sonja Bradwell, black female, 5 percent for superior performance; and (h) Petitioner, 5 percent for additional duties. Ms. Canfield worked for Respondent as Staff Assistant to the Financial Support Director for approximately seven months as of June 26, 1995. Her 10 percent raise was due in part to her salary being substantially below the salary of other support staff. Petitioner’s salary remained higher than Ms. Canfield’s even though she was in a more responsible position. Petitioner’s performance evaluations for 1994-1995 and 1995-1996 indicate that she was an above-average employee. She performed her duties in a timely manner with little or no supervision. She willingly assisted her co-workers when they needed help. However, Petitioner’s performance was not superior. Therefore, Ms. Guess properly did not consider awarding Petitioner more than a five (5) percent pay increase for sustained superior performance in June of 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed in this case. DONE AND ORDERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 1st day of July, 1997. COPIES FURNISHED: Curley R. Doltie, Esquire Post Office Box 1325 Tallahassee, Florida 32302 Sandra R. Coulter, Esquire Department of Children and Family Services Building 1 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against her based on sex and race and by retaliating against her.
Findings Of Fact Ms. Jones is an African-American female. From May 29, 2007, to December 5, 2007, Ms. Jones was employed by Spherion. Spherion provides temporary employees to businesses. Spherion had a contract with American Automobile Association (AAA) to provide temporary employees for an AAA call center in Lake Mary, Florida. AAA does not pay the Spherion employees, Spherion does. AAA can request that Spherion terminate a Spherion employee from an assignment at AAA. Ms. Jones was employed as a customer service representative (CSR) at the AAA site in Lake Mary, Florida. Her duties included taking calls from AAA customers who were in need of roadside assistance. At the time Ms. Jones was working at the AAA site, approximately 150 to 200 Spherion employees were assigned to the AAA call center. Approximately 60 to 70% of the Spherion employees were female, and approximately 60 to 70 of the female employees were members of racially protected classes. Ms. Jones received the CSR Performance Participant Guide, which is provided to all CSRs working on-site at AAA. On May 21, 2007, Ms. Jones executed an acknowledgement of having received the Spherion Workplace Harassment policy, the Spherion Attendance and Punctuality policy, and Spherion’s Policies and Procedures – Application Supplement. She also executed an acknowledgement of having received Spherion’s Equal Opportunity Statement. On June 7, 2007, Ms. Jones executed an acknowledgement of having received Spherion’s Customer Service Quality Commitment policy. During her employment with Spherion, Ms. Jones was paid $10.00 per hour. Ms. Jones received approximately two weeks of training. She began taking live calls on her own on June 10, 2007. Spherion allowed Ms. Jones two months to learn her job before Spherion began to evaluate her calls for quality assurance purposes. Spherion has a progressive discipline policy. A verbal warning is first given followed by a written warning, and then a final warning. On July 30, 2007, Ms. Jones received a verbal warning for attendance. On August 23, 2007, she received a final warning for call avoidance because she had failed to follow Spherion’s policies and procedures related to receipt of incoming calls. On September 18, 2007, Ms. Jones received a verbal warning regarding safety because she did not use a safety statement in one or more of her calls. According to the policies of Spherion and AAA, the goal for each skill set for a CSR is 90%. On September 11, 2007, Ms. Jones’ performance for quality assurance (QA) for the month of August was rated as 79%. She was given a verbal warning for performance on September 7, 2007, for her poor performance in August. Ms. Jones was advised that immediate action was required to correct her performance, and that failure to meet the quality standards could lead to further discipline, including termination. Ms. Jones’ QA average for September was 69%. As a result of her QA average for September, Ms. Jones was given a Written Warning for Performance on October 11, 2007.1 Again, she was warned that she needed to take immediate action to improve her performance and that failure to do so could result in further disciplinary action, including termination. Ms. Jones received a QA average of 77% for the month of October. As a result of her October average, she received a Final Warning for Performance on November 2, 2007. Once again, Ms. Jones was reminded that she needed to take immediate action to improve her performance and that failure to do so could lead to further discipline, including termination. For the month of November 2007, Ms. Jones received a QA average of 78.2%. On December 2, 2007, Spherion received an e-mail from Matthew Cooper, an AAA supervisor, directing Spherion to terminate Ms. Jones assignment at AAA for failure to achieve QA from August through November, 2007.2 As a result of her poor performance, Ms. Jones’ assignment with AAA was terminated on December 7, 2007. At the time her assignment was terminated, Ms. Jones was being paid $11 per hour and was working 40 hours per week. AAA has requested that other Spherion employees assigned to the AAA call center have their assignments terminated for low performance for four months, and Spherion complied with those requests. Such employees included a white male, an African-American/Hispanic female, and an Asian/American male. The termination of an assignment to the AAA site did not mean that Ms. Jones was terminated from employment with Spherion. If Ms. Jones desired to seek an assignment with another Spherion client, she could have contacted the Spherion branch office. Ms. Jones did not contact Spherion for another assignment. Ms. Jones filed for unemployment compensation and received one check for $182.00.3 During the second week of January 2008, Ms. Jones began to work for Kelly Services. She worked approximately 25 hours per week until she left Kelly Services during the first week of June 2008. Her hourly rate of pay was $10.75 per hour. From June 23, 2008, to September 22, 2008, Ms. Jones was employed by Careers USA. She worked approximately 40 hours per week, and her hourly rate of pay was $10.75. After leaving Careers USA, Ms. Jones went to work for Comcast, where she is currently employed. She works 40 hours per week, and her hourly rate of pay is $10.75. Spherion has a workplace harassment policy which was provided to Ms. Jones at the time of her hiring. The policy provides in pertinent part: Spherion Corporation, including all of its divisions, business groups and subsidiaries [“Spherion”], is committed to providing a work environment free of unlawful harassment. Harassment based on an individual’s race, religion, color, national origin, citizenship, marital status, sex, age, sexual orientation, veteran status, disability or any other legally protected status is strictly prohibited and will not be tolerated at Spherion. Employees have a right to be free from harassment from managers, co-workers, and non-employees with whom Spherion employees have a business, service, or professional relationship, including, but not limited to, vendors, clients and client employees. Every Spherion manager and supervisor is responsible for ensuring that the spirit, intent, and goals of this anti-harassment policy are achieved. * * * All employees must report incidents of harassment. Any employee who believes that he or she is being harassed by a co-worker, supervisor, manager, or other individual at the workplace — whether employed by Spherion or not — or believes that his or her employment is being adversely affected by such conduct, should immediately report such concerns to his or her supervisor, next-level manager, or other manager or the HR department. A human resources representative may be contacted at – Human Resources, c/o Spherion Corporation, 2050 Spectrum Boulevard, Fort Lauderdale, FL 33309, 800- 839-1965, or employeerelations@spherion.com. If a Spherion employee has a complaint about an AAA employee, the Spherion employee is to contact Spherion, not AAA. Spherion has the responsibility to look into the matter. When Ms. Jones first became employed with Spherion, she made a complaint that one of the AAA security guards was rude to her concerning the use of a restroom. April Jaques, who was a Spherion client service supervisor and responsible for staffing and human resources at the AAA call centers, followed up on Ms. Jones’ complaint and learned that Ms. Jones had been using a restroom that was off limits to employees after the building was closed for the night. The security guard had correctly advised Ms. Jones about the use of the restrooms. Ms. Jaques explained to Ms. Jones which restrooms could be used by overnight employees. Ms. Jones claimed that John Sherwood, who was not her supervisor, had discriminated against her based on her gender because he was disrespectful and rude and had accused her of destroying a computer. Her basis for claiming discrimination was that she “didn’t see him talking to men that way.” She also claimed that Mr. Sherwood had retaliated against her because she had complained to management about his being rude and disrespectful. Her testimony was not clear how he retaliated against her. Mr. Sherwood had no control over Ms. Jones’ pay, benefits, or terms and conditions of employment. While Ms. Jones was assigned to AAA, Anthony Hinton was an AAA supervisor. Because Mr. Hinton was employed by AAA, Spherion could not discipline Mr. Hinton. Mr. Hinton has been described as a “by-the-book kind of guy,” who sometimes “rubs people the wrong way.” He expected all employees to follow policy regardless of the employee’s race or gender. There were some complaints about his abrasive management style. Some complaints were made by employees who are not members of a protected class. The evidence does not support Ms. Jones’ assertions that Mr. Hinton was hostile only to African-American women or women of color. In November 2007, AAA required him to attend some anger management sessions with a therapist. He completed the therapy sessions. On September 6, 2007, Ms. Jones sent an e-mail to Mike Fratus, an employee of AAA, complaining about Mr. Hinton. She stated that Mr. Hinton had been rude and hostile to her on her first day of work on the call center floor. She complained that Mr. Hinton had put her on notice because of her footwear,4 but had not said anything to an employee who was sitting nearby and wearing similar footwear. She further added, “[t]he word going around is he is hostile and demeaning to Black women only.” Ms. Jones did not specifically name any other Black women to whom Mr. Hinton was rumored to be hostile and demeaning. Mr. Fratus forwarded the e-mail to April Jaques on September 11, 2007. Ms. Jaques scheduled a time to speak with Ms. Jones regarding her concerns. It was Ms. Jaques’ understanding that AAA would follow-up regarding the complaint against Mr. Hinton because Mr. Hinton was an AAA employee. Mr. Hinton credibly testified that he spoke to Ms. Jones about her inappropriate footwear, but that he did not see any other employee at the time with similar footwear. Mr. Hinton has spoken to non-African-American men and women about their attire. On September 19, 2007, Ms. Jones sent an e-mail to April Jaques. Ms. Jones complained that Mr. Hinton had talked to her about logging in early.5 She denied that she had logged in early and asked that “[n]o action be taken.” She further stated: Again after speaking with you and being counseled on compliance regarding my time I immediately wanted to correct the issue. This is just very disturbing to me especially after sharing with you and Mike how he [Hinton] discriminates with his treatment toward women of color. Ms. Jaques discussed the e-mail with Ms. Jones. Ms. Jones did not give Ms. Jaques any names of women that were being discriminated against by Mr. Hinton. Because Mr. Hinton was an employee of AAA, Ms. Jaques sent a copy of the e-mail to AAA. In October 2007, Jamie Jordan, a dispatcher who was employed by Spherion, complained to Mike Fratus about an incident concerning Ms. Jones that happened on the call center floor. Mr. Jordan had approached Ms. Jones about some information that was missing from a call that had been received requesting a tow truck. Mr. Jordan felt that Ms. Jones was rude and disrespectful to him when he approached her. Mr. Fratus sent an e-mail to Ms. Jaques, outlining Mr. Jordan’s complaint. On October 5, 2007, Ms. Jaques spoke to Ms. Jones about the incident between Ms. Jones and Mr. Jordan. Ms. Jones claimed that Mr. Jordan was rude and harsh to her. During the conversation, Ms. Jones became angry and accused Ms. Jaques of discrimination and harassment. Ms. Jaques attempted to calm Ms. Jones and told Ms. Jones that she would investigate the incident. Ms. Jones gave Ms. Jaques the names of some employees who had witnessed the incident with Mr. Jordan. Ms. Jaques investigated the issue, including talking with other employees who had heard the altercation. Ms. Jaques concluded that both Mr. Jordan and Ms. Jones were to blame for the incident. Based on Ms. Jones’ testimony, as of November 1, 2007, she had filed an employment discrimination complaint against Spherion with the Florida Human Rights Association. The complaint was forwarded to the Equal Employment Opportunity Commission. Ms. Jones filed an amended complaint on December 17, 2007. On November 11, 2007, Ms. Jones sent an e-mail to Simon DeYoung, an employee of AAA, complaining of sexual harassment, verbal abuse, and retaliation. Specifically, she was claiming that there were supervisors and a team leader who were listening to her calls and referring them to the quality assurance section; thus, her calls were not being monitored on a random basis. She also claimed that she had made a recommendation that the Dispatch section make return calls to members for updated information rather than having a CSR get the correct information and that Dispatch was upset with her for making the recommendation. Simon DeYoung forwarded the e-mail to Spherion management. Stacy Futch was Spherion’s on-site client service representative at the AAA site in St. Mary. She met with Ms. Jones on November 11, 2007, concerning Ms. Jones’ e-mail to Mr. DeYoung. Ms. Futch asked Ms. Jones about her claim of sexual harassment, and Ms. Jones said that it had happened months ago and that she had not brought the matter up before because she did not think that the issue would be addressed. Ms. Jones did not go into detail with Ms. Futch about the alleged sexual harassment actions. Ms. Jones felt that Mr. Jordan was sexually harassing her based on some comments that he had made to her. Mr. Jordan was not Ms. Jones’ supervisor. During the first week of Ms. Jones’ employment with Spherion, Mr. Jordan asked her if she would like to go fishing. Mr. Jordan admitted that he had told Ms. Jones that he thought she was beautiful, but that he had never seriously asked her to marry him. Ms. Jones went to Mr. Jordan and asked him to stop making comments to her. Three days later he told her that she looked nice. Ms. Jones testified that in October 2007, Mr. Jordan told her that he was drinking milk and that he was growing. Ms. Jones said she took the comment to mean that his penis was getting larger. Mr. Jordan denied he made any comments about drinking milk. Given Ms. Jones’s conversation to Ms. Futch in which she told Ms. Futch on November 11, 2007, that she had not experienced any sexual harassment for several months, and Ms. Jones’s testimony that after the October 5, 2007, altercation with Mr. Jordan that there had been no further incidents involving him, I find that Ms. Jones’ testimony about the milk to lack credibility. Ms. Jones did not make a complaint to Ms. Jaques about Mr. Jordan’s comments. Ms. Jones claims that her low performance scores were a result of her scores being manipulated by either AAA or Spherion as retaliation for making a complaint of discrimination and harassment. The evidence does not support Ms. Jones’ claim that her scores were manipulated. Ms. Jones had heard that some supervisors were dismissed for manipulating scores, and she concluded that if other scores could be manipulated then her scores must have been manipulated. The rumors that Ms. Jones had heard about supervisors had nothing to do with the manipulation of QA scores and Ms. Jones’ claim of manipulation is based on pure speculation. Ms. Jones claims that two other employees Jessica Robart and Marci Palumbo, who were white females, had low QA scores and were not dismissed for poor performance. Ms. Jones’s claim is unfounded. Ms. Robart had low performance scores for the last two weeks in June 2007 and for the last two weeks in July 2007. Marci Palumbo, referred to as Ricky or Marsha by Ms. Jones, had a low performance score for August 2007. Neither Ms. Robart nor Ms. Palumbo had four consecutive months with low performance scores. At least one non-minority male employee’s employment has been terminated for poor performance relating to QA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Ms. Jones’ Petition for Relief and denying Spherion’s request for attorney’s fees and costs. DONE AND ENTERED this 2nd day of April, 2009 in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April 2009.
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
The Issue The issue in this case is whether Respondent properly reclassified Petitioner's employment position from Career Service status to Selected Exempt Service status.
Findings Of Fact In 2001, the Florida Legislature enacted a substantial revision to Florida's civil service system commonly referred to as the "Service First" initiative. See Ch. 2001-43, Laws of Fla. Among the significant changes, the revision redefined the parameters of the Selected Exempt Service classification for public employees. In essence, the Selected Exempt Service classification was expanded to include most of the supervisory level employee classifications which had previously been identified as part of the Career Service classification. The statutory changes brought about by the Service First initiative became effective on May 14, 2001. Id. at 15. Petitioner was employed under the Career Service classification by the Department of Children and Family Services since 1990, and served as a Public Assistance Specialist Supervisor, position number 64817, in the Suncoast Region. In light of Section 110.25(2)(x), Florida Statutes (2003), Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2003. Petitioner's Career Service position description remained unchanged when it was reclassified to Select Exempt Service status. The position description specifically identifies supervisory responsibilities and states: Duties and Responsibilities: This is a professional position primarily responsible for the supervision of a public assistance unit for determining the initial and ongoing eligibility of applicants for programs such as Food Stamps, Medicaid, ICP, OSS, Waiver, etc. More specifically, pursuant to the written position description, the Public Assistance Specialist Supervisor is required to "supervise the appointment and case management system" to ensure that subordinates are correctly processing applications. The position is responsible for evaluating all scheduled work and appropriately reassigning work. In addition, pursuant to the position description, the supervisor shall analyze work reports provided by subordinate employees, educate staff, schedule case reviews with supervised employees, and conduct monthly conferences with each employee. The supervisor is obligated to review their performance, identify their strengths and weaknesses, and provide supervisory assistance in achieving acceptable standards. The supervisor is required to prepare written evaluations, conduct staff meetings, and develop in-service training for under achieving employees. Petitioner's actual duties and work-load were consistent with the written position description. Petitioner interviewed applicants and recommended candidates for job vacancies in his area. He supervised subordinates, recommended and levied appropriate corrective action, and organized and distributed work. Petitioner set organizational goals, motivated employees, trained and developed their technical skills, resolved employee problems, and implemented performance and quality control standards. Petitioner was responsible for ensuring that the staff assigned to him maintained at least a 90 percent accuracy rate on case reviews processed and a 96 percent processing rate on unit assigned client applications. Petitioner admits that his supervisory duties consumed most of his time. He acknowledges that client interviews were not part of his normal duties and concedes that he regularly supervised employees, provided feedback to employees, and performed evaluations. In addition, he agrees that his recommendations regarding discipline were usually followed. Petitioner routinely led staff meetings with his subordinates and frequently met with them individually. He controlled work-flow and made changes as he deemed appropriate within his department. Petitioner admits that he functioned as the supervisor in an area that was distinct and separate from the other units. The evidence presented at hearing establishes that Petitioner's written and actual duties were supervisory in nature, and he spent the majority of his time performing those duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order approving Petitioner's reclassification. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Joseph A. Conley, Jr. 8511 Sunflower Lane Bayonet Point, Florida 34667 Jennifer Lima-Smith, Esquire Department of Children and Family Services 9393 Florida Avenue, Room 902 Tampa, Florida 33612-7236 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
