Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. Petitioner, Carolyn Pittman, is a single mother with three children. At all times pertinent to this proceeding, Petitioner was employed by HRS at the Landmark Learning Center ("Landmark") as a Human Service Worker I. Petitioner began working at Landmark beginning sometime around 1980. By certified letter dated January 26, 1990, Respondent advised Petitioner that she was deemed to have abandoned her career service position. That letter advised Petitioner that she had the right to petition the State Personnel Director for a review of the case and that any such petition for review had to be filed within twenty calendar days after the receipt of the letter. The return receipt for the certified letter was signed by Petitioner and indicates the letter was delivered on February 2, 1990. Petitioner's handwritten request for a hearing was sent to the State Personnel Director and received on March 2, 1990. In her request, Petitioner indicates that she received the certified letter on February 14, 1990. However, the greater weight of the evidence established that the letter was received on February 2, 1990. Therefore, the request was not timely filed in accordance with the requirements set forth in the certified letter. On March 29, 1990, the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. That Order states that "This agency accepts the Petition and hereby elects to request the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct a fact finding hearing in this matter. The issue for resolution will be whether or not the Petitioner abandoned her position and is properly deemed to have resigned from the Career Service." During the time she was employed at Landmark, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. While employed at Landmark, Petitioner has filed at least seven separate workmen's compensation claims. In addition, Petitioner has taken three leaves of absences totaling approximately one year. As a result, Ms. Pittman was aware of Landmark's requirements regarding workmen's compensation claims and leaves of absence and her need to provide documentation regarding her course of treatment to the Landmark Personnel Office. On September 25, 1989, Petitioner was injured while at work. Petitioner was helping a nurse with a client and claimed to have sustained a back and/or neck injury. She was transported by ambulance to Palmetto General Hospital where she was examined and released. Petitioner was not required to stay over night at the hospital. Whenever an accident occurs at Landmark involving one of the employees, the employee is referred by the Personnel Office to a physician who is on an approved list of doctors established by the Division of Risk Management. In the case of a unique injury or special need, the administrative staff will request permission from the Division of Risk Management to use another physician. On September 27, 1989, Petitioner was sent by the Landmark Personnel Office to a Medical Clinic, the Worker's Compensation Medical Center, for follow-up treatment. At the Worker's Compensation Medical Center, Petitioner was diagnosed as having a strain of the neck and back. She was given a neck collar, a prescription for drugs and advised to rest in bed. After two weeks, Petitioner claimed there was no improvement in her condition. On October 11, 1989, the Landmark Personnel Office staff scheduled an appointment for Petitioner with an orthopedist, Dr. Steven Nadler. Petitioner visited Dr. Nadler on October 17, 1989. After examining the patient, Dr. Nadler issued a report dated October 23, 1989. Dr. Nadler's report was sent to the Personnel Office at Landmark. Dr. Nadler found no spasm, no limitations, excellent range of motion, no neurological deficit, no fractures or dislocation and no signs of root irritation. The closing comment on Dr. Nadler's report states as follows: It appears at this time that Ms. Pittman has sustained a soft tissue injury to the neck and possibly the lower back at the time of her accident in September of this year. At this time I find no evidence of neurologic deficit or signs of nerve root irritation on examination today. I find no objective findings to go along with her subjective complaint and is [sic] also interesting to know [sic] that merely touching of her skin causes her to complain of pain which is sometimes seen in patient's [sic] who are exaggerating their symptoms. I feel at this point that no treatment is needed from an orthopedic point of view. I would recommend that she return to her regular activities and work. I do not feel she has sustained any permanent disability from this injury. After seeing Dr. Nadler, Petitioner requested a neurological examination. Because none of the previous treating physicians had found a need for a neurological consult, the Landmark Personnel Office initially denied Petitioner's request. However, the Personnel Office did offer to send Petitioner to a chiropractor or another orthopedist. One of the reasons for agreeing to send Petitioner to another doctor was to confirm whether a neurological examination was necessary. The Personnel Office scheduled an appointment for Petitioner with another orthopedic specialist, Dr. Kerness, on November 2, 1989. However, Petitioner did not keep this appointment. After missing her appointment with Dr. Kerness, Ms. Pittman arranged on her own to see another orthopedic physician, Dr. Bermann. Dr. Bermann called for authorization to see the patient on November 3, 1989. Although Dr. Bermann was not on the Division of Risk Management's list of approved physicians, Landmark agreed to pay him for his treatment of the Petitioner. Dr. Bermann provided Petitioner with a slip indicating she should not work until November 10, 1989, after he was scheduled to see her. That slip was provided to the Personnel Office. Petitioner was advised that she was required to provide the Personnel Office with documentation regarding her work status after that visit. Petitioner was also advised that she was required to keep her supervisor and the Personnel Office apprised of why she was not at work and that her reports should include a medical statement from an authorized physician. On November 9, 1989, Dr. Bermann put Petitioner on a therapy program for two weeks and advised her not to return to work. After Petitioner completed therapy, Dr. Bermann approved her return to work on a light-duty status. Petitioner returned to work on December 1, 1989. Petitioner was assigned to light duty work in the card shop pasting greeting cards together. After working for four days, Petitioner complained that she was unable to continue and left work on December 5, 1989. Petitioner returned to Dr. Bermann on December 7, 1989. At the end of that visit, Dr. Bermann provided her with a note that indicated she was not to return to work until she returned to see him again on Friday, December 29, 1989. That note was provided to the Landmark Personnel Office. Prior to the Petitioner's visit to Dr. Bermann on December 29, 1989, Elaine Olson, a personnel technician with Landmark, contacted Dr. Bermann. Dr. Bermann agreed to provide Ms. Olson with documentation as to Petitioner's ability to return to work after her next visit. The Petitioner was seen by Dr. Bermann on December 29, 1989. In his report regarding that visit, Dr. Bermann noted "[f]rom the orthopedic point of view, patient can return to work on a trial basis. However she wants to see what the consultant will say." This report was sent to the Personnel Office. Petitioner denies ever receiving a copy of Dr. Bermann's December 29, 1989 report indicating that she could return to work and there is no evidence indicating that she was provided with a copy of that report. Although Dr. Bermann indicated that he saw no reason why Petitioner could not return to work, he requested permission from Landmark to refer her to a neurologist, Dr. Bader, to confirm his findings. Dr. Bader was not on the list of approved physicians prepared by the Division of Risk Management. However, Landmark arranged for authorization of Dr. Bader's treatment of Petitioner. On January 9, 1990, Elaine Olson advised Petitioner that she had received the report from Dr. Bermann indicating that she was able to return to her job as of December 29. Ms. Olson was aware that Petitioner had an appointment with Dr. Bader scheduled for the next day. Ms. Olson advised Petitioner that if Dr. Bader did not find anything wrong with her, Petitioner would be removed from Workmen's Compensation and placed on unauthorized leave without pay and therefore could be subject to abandoning her position. Petitioner indicated that she intended to see another doctor whose name was not disclosed. Ms. Olson advised her that no other doctor had been approved and that Petitioner would be responsible for paying any other physician that she saw. Dr. Bader saw the Petitioner on January 10, 1990. Following his examination of the patient, Dr. Bader advised Elaine Olson that he did not find any neurological problems with the Petitioner and that her complaints were inconsistent with her report of the accident. Dr. Bader indicated that he saw no neurological reasons why she should not be working, but that it was Dr. Bermann's role to decide when the patient could return to work. Although Dr. Bader did not find anything wrong with her, Petitioner did not return to work on January 11 nor did she obtain authorization from her supervisors or provide any documentation to them regarding her absence on that date. Beginning on January 11, 1990, Petitioner's absence from work was treated by Respondent as unauthorized leave without pay. From January 11 through January 26, 1990, Petitioner did not return to work and did not provide any documentation from any doctor stating that she was unable to work. Between January 10 and January 26, 1990, Ms. Olson attempted to contact Petitioner without success. On January 26, 1990, Petitioner prepared its letter to Petitioner indicating that she was deemed to have abandoned her position. Petitioner contends that she did not return to work because she never received a note from Dr. Bermann advising her that she should return to work. She claims that she thought she was supposed to return to Dr. Bermann after seeing the neurologist. The evidence established that Petitioner was advised that she was to return to work on January 11, 1990 unless Dr. Bader provided a report indicating that she was unable to work. Petitioner was also advised that her failure to return to work or provide medical authorization for her absence would result in her being considered absent without authorization. There is some indication that Petitioner may have been seen at the Worker's Compensation Medical Center and by Drs. Nadler and Bermann on occasions other than those detailed above. However, no persuasive evidence was introduced to establish the dates and/or results of those visits. More importantly, Petitioner never provided any additional documentation to the Personnel Office that her physicians had advised her not to return to work. At the hearing, Petitioner provided a handwritten note dated January 18, 1990 that indicates it is "from the desk of Dr. Stuart A. Kaplan." Dr. Kaplan is a chiropractic physician to whom Petitioner was apparently referred by her attorney. That note states that Petitioner had been receiving treatment from December 7, 1989 to January 18, 1990 and that she been unable to work due her back condition. Petitioner also produced at the hearing a type written note on the stationary of Dr. Kaplan dated January 26, 1990. This second note states that Dr. Kaplan began treating Petitioner in October and that she was still unable to work due to her condition. Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. Dr. Kaplan did not testisfy at the hearing. Dr. Kaplan is not on the Division of Risk Management's approved physician list. Petitioner's visits to Dr. Kaplan were not approved by Landmark and Landmark had previously advised Dr. Kaplan that it would not be responsible for payment of his fees. No records of Dr. Kaplan's treatment of Petitioner were provided to the Personnel Office prior to February, 1990. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Kaplan's reports prior to receiving the January 26, 1990 certified letter. However, the more creditable evidence established that from January 10 through at least January 26, 1990, the Personnel Office was not provided with any documentation from any physician that Petitioner was unable to work. On February 21, 1990, Petitioner attempted to return to work, but was instructed that she was deemed to have abandoned her position. On her February 21, 1990 visit to Landmark, Petitioner presented her supervisors with a form from Dr. Bermann's office which indicates that she was approved to return to work on a trial basis. This form was dated February 19, 1990. Petitioner contends that she had never previously received a "return to work slip" by Dr. Bermann. However, the evidence established that she was alerted at least by January 9, 1990, that Dr. Bermann did not believe she needed to stay home from work and that Dr. Bermann had cleared her to begin work as of December 29, 1989. In order for her absence from work subsequent to January 10, 1990 to be justified, Petitioner knew that she had to provide a physician's report indicating that she could not work. Petitioner did not present any further documentation to justify her refusal to return to work until some time after January 26, 1990. Even then, the only documentation was from an unapproved chiropractor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Carolyn Pittman's challenge to the determination that she abandoned her position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of February, 1991. COPIES FURNISHED: Carolyn Pittman, pro se, 4270 NW 192nd Street Miami, Florida 33055 Julie Waldman, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite S424 Miami, Florida 33128 William A. Frieder, Esquire Senior Attorney Department of Administration 438 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petition for Dismissal filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent has been employed by the Broward County School Board since August 1, 1977. In June of 1981 she became the budget director for the school district and was subsequently re-appointed as the budget director, pursuant to a series of annual contracts, through June 30, 1991. On April 8, 1991, Respondent was given a notice of non-renewal which would result in her contractual employment concluding on June 30, 1991. However, allegations of misconduct, specifically that Respondent had engaged in unlawful employment practices to exclude black applicants from employment positions within the budget office, were brought to the attention of William Dandy, the deputy superintendent, on January 16, 1991. Dandy immediately caused an investigation to be conducted by the School Board's special investigative unit. As a result of that investigation, Virgil L. Morgan, superintendent of schools, filed the subject Petition for Dismissal with the School Board seeking to terminate Respondent's employment as of June 9, 1991, three weeks before her annual contract expired. In 1987 an Order was entered approving the settlement of a civil rights action which had been filed in federal court against the Broward County School Board. The settlement entered into recognized the under-representation of blacks as employees in the School Board's data processing department and in the budget office managed by Respondent. The settlement specifically required that those two departments hire qualified black applicants for employment in order to correct the under-representation in those departments. Immediately following the entry of that court order, then-superintendent Leary conducted a meeting with administrative personnel and specifically directed those with hiring responsibilities to comply with the court order. Also following entry of the federal court order, associate superintendent Thomas P. Larkin, Respondent's immediate supervisor during her ten years as the budget director, ordered Respondent to hire qualified blacks for the next openings in her department. He specifically directed Respondent to comply with the federal court order and to find and recruit qualified blacks if that were necessary. On many occasions thereafter, Larkin again told Respondent to recruit qualified blacks and to hire them. Respondent understood the directive given to her both by then-superintendent Leary and by associate superintendent Larkin. Over the ten-year period that Respondent served as the budget director, there were many vacancies and many persons were hired in the budget office for both clerical and professional positions. The absence of black employees in the budget office over that extended period of time was not accidental. It was easy for staff members in the budget office to understand why only white persons worked there. Respondent was open and blatant in her dislike for black persons. She referred to specific black employees within the school system as being dumb and lazy. She told her staff that black teenage girls at a certain high school in Broward County got pregnant so that they could collect welfare. She voiced her opposition to a black person being nominated for membership on the board of a professional association by pointing out that there was already one black on the board and putting another on the board would degrade the association. During her ten years as budget director, Respondent occasionally referred to black School Board employees as "niggers" or "black bastards" when talking to her budget office staff. She also made statements about "lily-white" neighborhoods and told her staff that she was not going to hire any more "blacks, southern baptists, gays, or pink cows". Respondent made derogatory comments to her staff about specific black employees of the School Board in a blatant attempt to humiliate those employees. She told her staff that a certain employee had two strikes against him: one was that he was black, and the other was that he wanted to be called "Mr." After a budget office employee once told a story about a game show contestant responding to the clue word "doe" (a female deer) with the word "knob," Respondent began referring to black persons as "doe knobs". Before Respondent became the budget director, she was employed in the School Board's management audits department where she supervised a black employee who voluntarily took a demotion and a paycut to be assigned to another individual rather than work for Respondent. Within a few weeks of that person's voluntary demotion, Respondent was re-assigned from management audits to the budget office. When that demoted employee heard that Respondent was being transferred, he told other School Board employees at lunch that, "I feel like such a fool." One of Respondent's subordinates in the budget office told her that story when it occurred. Thereafter, Respondent compelled that subordinate to relate the story numerous times over the years, particularly to new members of the budget office staff. It was understood by the staff that the story was told as an opportunity for Respondent both to degrade a black employee and to intimidate the new budget office employee. Respondent openly stated to her staff that her boss wanted her to hire a black but that she would never consider having a black in her budget office. On one occasion after her supervisor Larkin told Respondent who then had a vacant budget analyst position that she needed to hire a qualified black applicant, Respondent instructed her subordinates to speed up the screening and interview process before the NAACP came after her and she was required to hire a black. A list of 197 racial, ethnic, and sexual "jokes" was brought into the budget office by an unknown person. Respondent directed a secretary to make copies for everyone in the office. Respondent assembled the staff in the budget office conference room where she instructed the secretary to distribute copies to all present. Thereafter, Respondent sat there with her subordinates while she and they read aloud to each other "jokes" from the list. Most of those present were uncomfortable due to the nature of the "jokes" and considered Respondent's distribution of that list in the office setting to be unprofessional, inappropriate and demeaning. The hiring process for professional positions within the budget office was a two-tiered procedure, depending upon the position and accompanying pay grade. The basic procedure began with a public advertisement for the position with a job description. Upon their receipt, the applications for employment for that position were submitted to Respondent to establish criteria for review during the screening process. The applications were then screened based upon the criteria, narrowing the list for interview purposes. Following the interviews, candidates were ranked in a numerical order from which an individual was selected for that particular position based upon the recommendation of the budget director. The School Board has implemented policy 6Gx6-4011.13 governing employment for positions of pay grade 25 or higher. This policy, known as "target selection," covers administrative and supervisory positions and includes some of the budget analyst positions within the budget office. The screening process was based upon criteria established by Respondent, which culminated in a formal interview process in order to narrow the field to three candidates. The names of those three candidates were then submitted to the superintendent, together with Respondent's recommendation as to which of those candidates should be hired. Respondent's recommendation was followed in every instance. This more stringent screening and interview process was not required for pay grade 24 and below. For those pay grades, Respondent, as the department administrator, developed the job description for the position, developed the criteria for screening applicants, and selected the winning applicant after the interview process. There were a total of 18 budget analyst positions filled within the budget office from December 17, 1981, through April 17, 1990, of which 12 were pay grade 24 and below and, therefore, not subject to the target selection procedure. The employment procedures for all pay grades, however, were governed by equal opportunity and fair employment policies, implemented through personnel policy statements which required fair employment practices. These policies and procedures, along with the applicable state and federal laws governing hiring practices, were fully explained to Respondent by employees in the School Board's personnel department each time Respondent arranged to advertise a vacant position. Respondent's pattern of eliminating applicants identified by her as potentially black individuals spanned her tenure as budget director and included her last hiring of a budget analyst in April of 1990. Respondent directed her subordinates involved in the screening process to eliminate applicants she suspected of being black, utilizing certain information on their applications or resumes. She directed her subordinates to eliminate persons who were born and/or educated in Jamaica or in the West Indies, who attended certain colleges or universities such as Florida A & M and Bethune-Cookman, who had belonged to recognized black fraternities or sororities, or who belonged to certain organizations such as the Black Accountants Association. One applicant was eliminated due to Respondent's stated belief that only black females would play basketball. On one occasion, Respondent expressed the difficulty in eliminating a black applicant who had made it to the interview process. Respondent specifically directed her subordinates who were screening applications to manipulate the criteria when necessary to eliminate black applicants. Sometimes those interviewed were allowed to have a bachelor's degree with a major in accounting or a related field, and sometimes those interviewed were required to have bachelor's degrees with only a major in accounting. Sometimes Respondent would establish a criterion that the applicant's degree must have been received within two years, sometimes three years, sometimes four years, and sometimes there was no "recency" requirement. She directed the elimination of black applicants who held a master's degree in accounting, declaring them to be over-qualified, even though the minimum qualification for the position was a bachelor's degree. On one occasion, she established different minimum educational qualifications for applicants who were already employees of the School Board and applicants who were not, even though the official job description contained no such distinction regarding the type of degree held. In April of 1990, Respondent conducted an informal vote among her staff to select an individual from those who had successfully completed the interview process. The budget office staff voted unanimously for a female who was already employed within the school system because they were familiar with her and believed she would do an excellent job. Respondent rejected the staff's recommendation, however, stating she would hire a different applicant because she needed "to employ a white male in order to keep the salaries up." Respondent also discriminated against black applicants for clerical positions in the budget office. The School Board's personnel department would screen those applicants and administer the proper testing. A list of those who qualified by testing would then be forwarded to Respondent for interviews. Respondent utilized an interview system for clerical applicants whereby each applicant was afforded a 30-minute interview. However, if the applicant "sounded black" on the telephone when the appointment for the interview was being made, then that applicant was only scheduled for a 15-minute interview. Respondent's subordinates involved in the screening and interviewing processes followed Respondent's directives to eliminate suspected black applicants and did not report Respondent's discriminatory tactics to Respondent's superiors. They were fearful of losing their jobs and fearful of other retaliation by Respondent due to her vindictive nature. Respondent on occasion openly bragged about her successful retaliation against other employees who had complained about what she considered simply her management style. She created the impression that she was "untouchable". Respondent was verbally abusive and demeaning to her staff. She referred to them as peons. She told one that he was "an asshole" for working overtime to complete an assignment. She removed the telephones from the offices of her professional staff for making personal phone calls during their lunch hour. She yelled, screamed, and cursed at them. When she wanted an employee to terminate employment, she took away that employee's duties, leaving that employee with nothing to do but feel worthless and isolated from the rest of the staff. The staff often wondered which of them would be Respondent's next target. From June 15 until August 15, 1990, Respondent was on workmen's compensation leave due to a back injury. During her absence, her immediate supervisor, associate superintendent Larkin, became involved in the budget office's day-to-day activities due to the need to prepare for School Board approval the budget for the 1990-91 school year. Several of the staff members became more comfortable with Larkin as they worked together over that summer. They began telling him about the working conditions suffered by the budget office staff under Respondent's leadership. It became clear to Larkin that the morale problems in that office created poor productivity when Respondent was there, a situation that did not exist while Respondent was on workmen's compensation leave. He understood it would be necessary for administrators with authority over Respondent to become involved in resolving the poor working conditions Respondent had created in the budget office. In July of 1990, Larkin told the two senior budget office staff members with whom he had worked most closely that summer that Respondent would be returning to work. They became upset and questioned how Larkin could allow her to return to her position as budget director. During that conversation, they also told Larkin that Respondent discriminated against blacks in the hiring process. Because of the serious nature of that accusation, Larkin told them they would have to document such an allegation in writing before he could commence an investigation. They did not. When Respondent returned to work, William Dandy, the deputy superintendent, met with the entire budget office staff to discuss the morale problems that were affecting productivity in the budget office. Respondent was present, and the staff did not tell Dandy about her discriminatory hiring practices at that meeting. By January 15, 1991, a secretary who had been hired while Respondent was on workmen's compensation leave and whose duties had been taken away from her by Respondent got "fed up" with what she considered an intolerable work environment and announced that she was going to speak to Mr. Larkin. The entire staff, except for one secretary, volunteered to go with her and did. They complained to Larkin about Respondent's interpersonal and management problems. On January 16, 1991, deputy superintendent Dandy contacted several of the budget office staff and asked them individually if they had any knowledge that Respondent had engaged in discrimination in her hiring practices. Each of the individuals admitted to having such knowledge. They subsequently provided written statements to Dandy, who referred those statements to the special investigative unit. The ensuing investigation resulted in the notice of non- renewal of Respondent's annual contract and in the Petition for Dismissal filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in the Petition for Dismissal filed against her; Affirming the superintendent's suspension of Respondent; Terminating Respondent from her employment with the Broward County School Board; and Denying Respondent's claims for back pay, benefits, attorney's fees, and costs. DONE and ENTERED this 25th day of October, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3863 Petitioner's proposed findings of fact numbered 2-5, 8, 9 and 11-33 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6 and 7 are rejected as being unnecessary to the issues involved herein. Petitioner's proposed finding of fact numbered 10 is rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 1, 34, and 35 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 3, 95-97, 108, 128, 129, 140 and 153 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 99, 114, 126, 137 and 192 are rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 22, 26, 30, 56 and 75 are rejected as being unnecessary to the issues involved herein. Respondent's proposed findings of fact numbered 138, 147 and 163 are rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 4, 5, 9, 33, 34, 37, 45, 52, 54, 57, 59-61, 70-74, 83, 85, 87, 101, 111, 130, 146, 156, 162, 167, 175, 178, 186, 195 and 198 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 2, 6-8, 10-21, 23-25, 27-29, 31, 32, 35, 36, 38-44, 46-51, 53, 55, 58, 62-69, 76-82, 84, 86, 88-94, 98, 100, 102-107, 109, 110, 112, 113, 115-125, 127, 131-136, 139, 141-145, 148- 152, 154, 155, 157-161, 164-166, 168-174, 176, 177, 179-185, 187-191, 193, 194, 196, 197, and 199 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock, Soloff & Rodriguez, P.A. 1512 East Broward Boulevard, Suite 300 Fort Lauderdale, Florida 33301 Thomas F. Panza, Esquire Jan Marie Kelly, Esquire Panza, Maurer, Maynard, Platow & Neel, P. A. 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Virgil L. Morgan, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
The Issue Did the Historic St. Augustine Preservation Board (the Board) discriminate against Heidemarie Mosier, based upon its decision to employ an allegedly younger, less qualified person in selecting an employee for a half-time career position at a museum where Petitioner and the selectee worked at the time? Did the Board discriminate against Petitioner in that selection process by not selecting Petitioner based upon her national origin, being of German ancestry? Is Petitioner entitled to loss of earnings as back pay and associated benefits based upon the aforementioned alleged acts of discrimination? In the event that the Petitioner has proven acts of discrimination for which she is entitled to loss of earnings as back pay, is the State of Florida, Department of State, as the Respondent in substitution for the abolished Historic St. Augustine Preservation Board, liable for the payment of those earnings as back pay? If successful in her claim(s) of discrimination, what amount of attorneys' fees and costs is Petitioner entitled to receive? Should the Department of State pay the attorneys' fees and costs in that instance?
Findings Of Fact The Board was created by Part I, Section 266.0001, Florida Statutes, and placed under the administrative supervision of the Division of Historical Resources of the Department of State, but it was governed by its own Board of Trustees during its life. Part II, Sections 266.001 through 266.008 specifically identified the activities of the Board. Among the activities exercised by the Board's Trustees was the selection of a manager, subject to final approval of the Department of State. That manager was to report to the Board's Trustees. The manager once selected was a member of the Selected Exempt Service. Section 266.0006(1), Florida Statutes. In addition to the manager, the Board's Trustees could employ other employees, as necessary, consistent with the provisions of the Career Service System Section 266.006(10), Florida Statutes. The overall purpose of the Board was to restore, preserve, maintain, reconstruct, reproduce, and operate certain ancient or historic landmarks, sites, cemeteries, graves, military works, monuments, locations, remains, buildings, and other objects of historical and antiquarian interest of the City of St. Augustine and St. Johns County. Section 266.0001(1)(a), Florida Statutes. These activities were performed with the assistance of the manager and other Board employees. Effective May 16, 1997, Part II of Chapter 266, Florida Statutes, consisting of Sections 266.0001 through 266.0008, Florida Statutes, was repealed by Chapter 97-68, Laws of Florida, at Section 1. Chapter 97-68, Laws of Florida, at Section 7 added paragraph (o) to Subsection (3) of Section 267.061, Florida Statutes (Supp. 1996). Through that legislation the Division of Historical Resources was obligated to establish regional offices for the purposes of assisting that Division in delivering historic preservation services to St. Augustine, among other communities. In accordance with Chapter 97-68, Laws of Florida, Section 8, the management of state-owned properties that had been the responsibility of the Board was turned over to the City of St. Augustine through a contract entered into between the Department of State and the City of St. Augustine. This was an arrangement in which the proceeds derived from the management of the state-owned properties would be used for purposes of maintaining buildings and advancing historic preservation. Moreover, funds that remained from the Board's operating trust fund could be appropriated to the City of St. Augustine for the maintenance of state-owned buildings in advancing the historic preservation in St. Augustine. The Department of State could transfer ownership and responsibility for artifacts, documents, equipment, and other forms of tangible property to the City of St. Augustine to assist the city in the transition of management of the state-owned property. The Department of State was authorized by this legislation to use the unexpended balance of up to $500,000 in general revenue funds as provided in the 1997- 1998 General Appropriations Act for the St. Augustine Preservation Board, for the purpose of entering into contracts with the City of St. Augustine to continue the operations and maintenance of historic properties. Although Chapter 97-68, Laws of Florida, did not address the employment status of persons who worked for the Board prior to its abolishment, the record reveals that certain employees, to include Petitioner, transitioned from the Board to the City of St. Augustine effective July 1, 1997, to perform similar duties to those carried out prior to that date. PETITIONER'S CLAIMS Petitioner was born July 19, 1944, in Germany. She has since become an American citizen. She speaks English fluently. In September 1962, Petitioner received a diploma from Ludwig-Meyn Gymnasium, Bremen-Germany. This was the equivalent of a high school diploma in the United States. From October 1962 through September 1965, Petitioner attended Berufsschule Business College in Stuttgart, Germany, participating in a business course with a specific emphasis in the import and export business. From January 1980 through July 1982, Petitioner served as a client manager for Pine Castles Center for Living in Jacksonville, Florida. Her position there involved the teaching of mentally-challenged adults in the fields of basic education and daily self-care. It also involved the teaching of arts and crafts and the providing of finished products for Pine Castle Center Gift Shop. From March 1983 until November 6, 1984, Petitioner worked for the Board in an Other Personnel Services (OPS) position in which she interpreted the history of St. Augustine, Florida, for visitors to exhibits managed by the Board. In the OPS position, Petitioner demonstrated arts and crafts and daily living of the 18th-century period in St. Augustine in the exhibit area of the Spanish Quarter Museum. In this assignment Petitioner occasionally filled in for career service employees on their days off. This substitute duty included operating the cash register and demonstrating spinning, weaving, and cooking from the period represented by the exhibit. From November 6, 1984, through June 30, 1997, Petitioner worked as a museum artisan employed by the Board in a one-half time career service position. This involved selecting and ordering historically correct fabric for the Spanish Quarter Museum wardrobe. It also involved the construction of new clothing and the maintenance of existing clothing and accessories for the employees who worked for the Board. During this time Petitioner occasionally filled in as an office worker in any capacity for which she was needed and served as an interpreter in the Spanish Quarter Museum operated by the Board. The information that has been described concerning Petitioner's education and job experience was set forth in an application which Petitioner made on June 16, 1995, to be employed as a half-time museum guide for the Board in position 00467. In applying for that position it was Petitioner's intention to hold her current employment as a museum artisan in the half-time career service position while simultaneously performing a half-time career service position as a museum guide. In her complaint alleging discrimination in contravention of Section 760.10, Florida Statutes, Petitioner claims that she was denied the position of half-time museum guide in a circumstance where a younger, less qualified candidate was selected. Moreover, Petitioner alleges that she was not selected because she was the only person of German ancestry who sought that position. Paul Tracy Spikes, at times relevant to this inquiry, was the Museum Administrator for the Board. On May 30, 1995, consistent with requirements in the career service system, Mr. Spikes submitted for approval a Task/KSA identification form in relation to the position entitled, 00467 museum guide (shared), together with a list of screening criteria, interview questions, rating scale form, willingness questionnaire, and employer reference check form. KSA stands for knowledge, skills, and abilities. These materials constituted the selection module associated with filling the position of museum guide. The proposed selection module was considered by the Bureau of Personnel Services for the Department of State and approved, as evidenced by a memorandum transmitted from the Bureau of Personnel Services for the Department bearing the supervisor's signature from that organization dated June 7, 1995. More specifically, the Tasks/KSA identification form outlines the major four or five tasks to be performed by the employee filling the museum guide position and what knowledge and ability the employee must have to perform the job. The screening criteria to preliminarily determine the more fit candidates for the position through a grid assigning points for various work related experiences, college level course work, and veterans preference points were used in selecting the employee to fill the job. Should a candidate for the position survive the screening process, then the candidate would be interviewed personally. The interview questions consisted of 8 uniform questions designed to identify the knowledge of the candidate of historical interpretation, the candidate's ability to communicate, the candidate's knowledge of basic arithmetic, the candidate's knowledge of the principles of correct grammar usage, and the candidate's ability to present information in an organized manner. Each interview question carried a maximum of 5 points. There was also the opportunity to assign veteran's preference points to an interviewee. The rating scale form in the module assigned points for experience and the ability to communicate effectively in relation to the questions posed in the interview. Questions 2, 4, 7, and 8 were in relation to the ability to communicate. The other questions related to experience. The rating scale form described the basis for assigning 0 points, 3 points, and 5 points for the respective questions. The willingness questionnaire related to the willingness of a candidate to work on weekends and occasionally on evenings. The employer reference check form called upon the present or former employer to rate the candidate and to describe the nature and quality of performance while the candidate was or had been employed by the present or former employer. The module and its components are parts of Respondent's Exhibit No. 1 admitted into evidence. In relation to the opportunities for persons employed in a career service position with the Board, the Florida Department of State Career Service Employee Handbook indicated that: Employees shall conduct the Department's business in the manner conducive to equal opportunity without regard for age, race, color, sex, religious creed, national origin, political opinions or affiliations, marital status, or handicap. Discrimination and/or harassment is prohibited. Similarly, the Florida Department of State Affirmative Action Plan indicates: In issuing this Affirmative Action Program the Department of State affirms its commitment and pledges its full support to equal employment opportunity (EEO) for all persons regardless of race, religion, sex, religious creed, national origin (including those for whom English is a second language, or those who may have legal status as immigrants), marital status, physical handicap, medical condition, age, status as a disabled veteran or veteran of the wars including Vietnam, or political opinions, or affiliation. Petitioner was not the only Board employee who applied for the half-time position as a museum guide. Lisa Hill, whose date of birth is December 20, 1972, also applied. Lisa Hill's present name is Lisa Hill-Calvert. In her application for the half-time museum guide position, Ms. Hill referred to her receiving a high school diploma from Allen Allnease in Jacksonville, Florida, in April 1991. Further, she stated that her education included earning a degree in English with a minor in Communications in December 1994 from Flagler College in St. Augustine, Florida. In her job experience Ms. Hill stated that she had worked for Wal-Mart in Jacksonville, Florida, from August 1989 through September 1994 during the summers and holidays in customer service and sales. She indicated working for an employer, "All for One," in St. Augustine, Florida, during the period January 1995 through March 1995, in customer service, sales, and stocking. She indicated job experience with Wave 1428 AM Radio during the period August 1994 through June 1995, doing live on-air announcing, production, and public relations. Ms. Hill indicated in her application that she worked for Wilder Communications from December 1994, to the time of her application editing scripts and announcing. Before applying for the half-time position as museum guide, Ms. Hill indicated that she worked in an OPS position as officer-of-the-day for the Board from March 1995 to the time of the application and described her duties as opening and closing the museum, supervising staff, and maintaining daily reports, etc. From the record it can be reasonably inferred that Ms. Hill was born in the United States and that Ms. Hill is fluent in English. Petitioner and Ms. Hill are females. Both the Petitioner and Ms. Hill were told that they should not assume that any interviews held with those candidates in relation to the application for the half-time museum guide position would be in a setting in which the interview panel knew anything about those candidates beyond what was revealed by the candidates in the interview sessions and through their respective applications. Petitioner and Ms. Hill were reminded of that approach in view of the familiarity of the interview panel with Petitioner and Ms. Hill as their co-employees. It is assumed that these arrangements were made to not create an advantage for Petitioner and Ms. Hill in comparison to persons who were not presently working for the Board and who were being interviewed for employment in the half-time museum guide position. Consistent with the practices of the Florida Department of State, a job opportunity announcement was prepared in relation to Position Number 00467, Museum Guide, which reminded the reader that the employer was an equal opportunity/affirmative action employer, which hired only U.S. citizens and lawfully authorized alien workers. Numerous applicants applied for the position. Some applicants did not qualify for an interview. Seven applicants passed the initial screening and were offered the opportunity to interview. Five applicants participated in the interview process. Petitioner and Ms. Hill were among those persons who passed the screening and were interviewed. The three other candidates interviewed were as follows: Kenneth Reynolds, a male born March 3, 1950; Elizabeth Roberts, a female, who graduated from high school in May 1990; and Peggy Swift, a female, born December 10, 1935. The decision to hire was based upon the scores received in the interview process. Nonetheless, Petitioner and Ms. Hill received similar preliminary screening points. Once the screening process had been concluded, those persons to be interviewed were considered on an equal footing pending the interview. The interview was designed to select the best among qualified applicants. As referenced before, all members of the interview team were employees of the Board. In addition to Mr. Spikes; Susan VanFleet, Museum Education Program Representative; and Patricia Eighmey, Museum Education Program Specialist, participated in the interview sessions with the candidates and rated the interviewees. The three evaluators who conducted the interviews scored each candidate in association with the eight interview questions for a maximum of 40 points. The scores assigned were based upon individual choices by the evaluators. In turn, the respective scores assigned by the evaluators were added together to reflect the final score for each candidate. Each evaluator had a set of interview questions available to rate each candidate. The sheets which contained the interview questions had spaces available to allow the interviewers to make written remarks concerning the answers provided by the candidates to assist in the assignment of scores. Scores for the candidates that were interviewed were not assigned in comparison to other interviewees. The scores were assigned based upon the candidate's performance during the individual interview session. The maximum points that could have been earned by a candidate was 120 points. Ms. Hill received 118 points, Mr. Reynolds received 112 points, Ms. Roberts received 104 points, Petitioner received 102 points, and Ms. Swift received 80 points. The career service system position description for the museum guide position stated: Percentage of time for each 40 Conducts public tours of exhibit buildings. Interprets the history and culture of colonial St. Augustine, the collections, buildings and artifacts to the public. Describes program of the Historic St. Augustine Preservation Board. Wears period dress in keeping with historic program. 30 Employs interpretive skills toward the accomplishment of a variety of specific historic activities which enhances the visitors' museum experience. 20 Assists in maintaining security of exhibit buildings and collections. Assists in inspecting and maintaining buildings, collections, and grounds. Performs light cleaning. 20 Sells tickets, receives money and makes change, keeps record of tickets sold, and reports sales and income at close of business day. 5 Attends training programs; performs other related duties as required. In assigning scores for Petitioner's interview, Mr. Spikes noted that Petitioner did not answer questions as fully as they might have been answered to satisfy him. Sometimes the responses that were given to the questions were not, in Mr. Spikes' view, "right for that position that we were looking for." Mr. Spikes recalled that the reason the Petitioner expressed an interest in the half-time museum guide was to allow her to combine that half-time career service position with the half-time career service position as an artisan so that Petitioner could receive full-time benefits for a full-time job. Petitioner felt that obtaining the half-time career service position would benefit her as far as health insurance and retirement opportunities. By comparison, Ms. Hill in her interview expressed an interest in a career in museums and stated that she loved coming to work "so far" and really liked the job she occupied at that time. As Mr. Spikes recalls, Ms. Hill went into depth about the types of things that she had been doing for the Board and how she liked working with everyone. Ms. Hill had been working as the officer-of-the-day, which gave her a huge amount of responsibility, according to Mr. Spikes. As Mr. Spikes recalls, as officer-of-the-day Ms. Hill became familiar with the different facets of the functions performed by other employees. Mr. Spikes observed that the communication skills Ms. Hill expressed in her interview were stronger than the communication skills that Petitioner expressed in her separate interview. Communication in this sense is related to the ability to make connection with the interviewer. Mr. Spikes noted the difference in the assignment of scores between Ms. Hill and the Petitioner was based on the contrast in their answers, not a direct comparison between their answers. In response to question 2 in the interview which states: "Service to the visitor is important. Please indicate how you feel a visitor should be treated and what you feel are your responsibilities to the visitor," Mr. Spikes noted that Petitioner answered this question by indicating that Petitioner should be a host to the visitor and should stress the civilian life of the people living there in the period depicted in the museum exhibit. Petitioner's answer indicated that she preferred first-person interpretation but that the museum used third-person interpretation. First-person as Mr. Spikes perceives it is the instance where a person is more in the character of the time depicted in the museum. Third-person is more of a narration by the guide in which the guide does some role-playing. Mr. Spikes gave Petitioner a three-out-of-five points for this question. Ms. Hill received the five-point maximum for question number 2. Ms. Hill's answer, as Mr. Spikes recalls it, was to treat the visitors as Ms. Hill would like to be treated if she were coming to visit a museum. Ms. Hill stated that she liked to stress that the village in the museum was a Spanish village and felt the need to be extremely friendly and enthusiastic to the visitors. Ms. Hill then indicated in her answer that she liked to initiate questions and answers to persons coming to the museum. Ms. Hill indicated that she would initiate questions to the visitors to get those persons to interact with her. Mr. Spikes recalls that the answer to question 2 and answers to other questions given by Ms. Hill were very clear and understandable and that her presentation was logical in relation to the service being performed for the visitor and the importance of that service. Mr. Spikes distinguished between the scores given to Petitioner and Ms. Hill in relation to question 7 which asked: "what are your professional career goals?" Mr. Spikes recalls that the Petitioner wanted to work as long as she was physically able, that she wanted a higher-level position, that her heart was in interpretation, that she wanted to be full-time, and that she could work under all conditions. In the response which Petitioner gave to question 7, wherein she stated that her "heart was in interpretation," Mr. Spikes was not certain what was meant by the Petitioner in that remark because Petitioner did not further explain the meaning. Ms. Hill stated that she really enjoyed the museum field. Ms. Hill stated she wanted to stay with the museum field for a longer period of time and especially enjoyed the type of work she was doing at present. Mr. Spikes considered that the answer Ms. Hill gave was more in line with the types of goals that were being set for the museum program. For her answer to question 7, Petitioner received a score of three. Ms. Hill received a score of five. Mr. Spikes differentiated between the scores assigned to Petitioner and Ms. Hill in relation to question 8. Question 8 asked: "Why are you interested in this position?" Petitioner received a score of three for her answer, whereas Ms. Hill received a score of five. The answer which Petitioner gave for question 8 was the same as the answer given for question 7. Ms. Hill's answer given for question 8, as Mr. Spikes recalls, was that she was interested in the position because of her career goals, that there was more challenge and responsibility in relation to the museum field, and that anything that helped her to gain more experience in that field was desirable. Overall Mr. Spikes felt that Ms. Hill showed more enthusiasm for getting the position that was being offered than did the Petitioner. Mr. Spikes recalls that in the interview conducted with Ms. Hill, the answers that candidate gave were in-depth, whereas Petitioner's separate interview tended to center around the fact that Petitioner wanted the job so she could have full-time benefits. Ms. VanFleet based her ranking of the applicants who were interviewed upon answers given to the questions that were posed during the interview sessions. In relation to question 2, Ms. VanFleet gave the Petitioner three points and Ms. Hill five points. These scores were assigned based upon the fact that the Petitioner answered the question by stating that the Petitioner is the host to the visitors, somewhat of a teacher. Petitioner indicated that she shows the visitors about civilian life in eighteenth century St. Augustine, leaving open the possibility for questions directed from the visitors to the Petitioner, after having given the visitors enough information to be able to ask questions. In dealing with school kids, Petitioner indicated that her response to those children depended upon the ages of the children. Ms. Hill's response to that question was that the visitor should be treated as Ms. Hill would like to be treated: that the visitors are greeted, that she smiles at the visitors, that she acts enthusiastic with the visitors, that she initiates conversations leading to questions and answers, and that she lets the visitors know she is accessible. In relation to question 3 within the interview questions Ms. VanFleet gave Petitioner three points. She awarded five points to Ms. Hill. Question 3 asked, "What experience do you have in a work setting handling financial transactions?" Petitioner answered the question by stating that she had operated a cash register at the Spanish Quarter within the museum when necessary. Ms. Hill said that she had five-years experience at Wal-Mart as a cashier. In relation to questions 7 and 8, Petitioner received a score of three from Ms. VanFleet. Ms. Hill received a score of five for the answers given to questions 7 and 8. In relation to question 7, Petitioner said that she wanted to work as long as she was able and that she wanted a full-time position. Ms. Hill answered question 7 by stating that she was interested in the museum field and that she liked the living history context. Ms. VanFleet recalls the answer given to question 8 in that the Petitioner repeated the answer that had been given to question 7. Ms. Hill gave a somewhat similar answer to question 8 compared to question 7, in that she said she was interested in a career in the museum field, wanted more challenges, and wanted to gain more experience. The differentiation in the scoring for question 8 was based upon Ms. VanFleet's anticipation of the "kind of answer" that she was expecting. Her expectation was that she was desirous of finding a person who was interested in the museum guide position because that person wanted a career in museums, whereas Petitioner answered that she wanted a full-time position without further explanation. Ms. VanFleet consciously attempted to set aside her familiarity with Petitioner and Ms. Hill as co-workers when determining the scores to assign in association with the interview process. Again, this was in furtherance of the attempt to not favor persons with whom the interviewers were familiar at the expense of those persons who were unknown to the interviewers prior to the interviews being conducted. Ms. Eighmey based her scores for answers to the interview questions solely upon the answers given to those questions. Ms. Eighmey was not influenced by other persons in making decisions about the scores to be assigned in the answers to interview questions. She distinguished between the scores assigned to Petitioner and Ms. Hill in response to question 4. Question 4 asked: "What experience do you have in work settings that include public orientation and handling inquiries?" The score given to Petitioner was a three. The score given to Ms. Hill was a five. Specifically, Petitioner said that she had been a guide for five years and had given full orientations to different groups. Those groups included children and adults. The size of the groups included small groups and single-person tours. Ms. Hill responded to question 4 by indicating that she had been the president of a communication club and vice president of a drama club. Ms. Hill said that she frequently had to answer questions about the club and handle inquiries and was a volunteer at a radio station where she had to give orientations and handle inquiries. Following the interview process, Ms. Hill was certified as eligible for the shared position as museum guide in accordance with the process of the Department of State, and she accepted the position in August 1995. The proof does not reveal that Ms. Hill was less qualified to fill the shared museum guide position than Petitioner. The protocol followed in selecting an employee to fill the shared museum guide position sought by Petitioner and others was fair and impartial and did not discriminate against the Petitioner on the basis of her age or national origin. Similarly, the persons responsible for making choices in accordance with the protocol carried out their responsibilities in a fair and impartial manner without discriminating against the Petitioner based upon age or national origin. More specifically, nothing in the selection process, nor in the record as a whole, indicates that the Petitioner was denied the museum guide half-time position based upon the fact that she was of German ancestry. Generally, Mr. Spikes' view of the Petitioner is that Petitioner does not have a problem orally communicating with the public. As Petitioner explains in her deposition testimony, admitted as evidence in the hearing, which is Respondent's Exhibit 14, and as evidenced by her testimony at hearing, she speaks English "quite well." She acknowledges that she is less proficient in writing English. Her writing, which Mr. Spikes had to approve in the past, in relation to her employment, led him to correct Petitioner's spelling and content, in particular content. In one instance, a document that had been written was not acceptable to Mr. Spikes, in that he believed it to be too negative in its import, and he expressed the view to the Petitioner that the document needed to be more positive in its tone. He commented, "We don’t need Gestapo tactics." In addition, the three members on the selection panel who interviewed candidates for the half-time museum guide position were well known to the Petitioner, being co-workers, and Petitioner believes that she probably mentioned the fact to those persons that she was German by ethnic background. However, Petitioner comments on her "very slight accent" and indicates that people, visitors, and co-employees notice an accent, but do not necessarily know that she was born in Germany. These circumstances do not lead to the conclusion that Petitioner was not selected for the museum guide position because of her German ancestry. In October 1996, Mr. Spikes offered a half-time OPS position to Petitioner in addition to Petitioner's half-time career service position as a museum artisan. Petitioner declined the opportunity to work half-time in the OPS position in addition to her present duties. An OPS position does not carry with it benefits other than the salary earned. In addressing her concerns about the decision to hire Ms. Hill to her exclusion, Petitioner did not resort to the grievance procedures available through the career service.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's charge of discrimination based upon age and national origin. DONE AND ENTERED this 17th day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 17th day of September, 1997. COPIES FURNISHED: Kenneth R. Schroff, Esquire 346 Blake Avenue Orange Park, Florida 32073 Joseph Lewis, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact On or about June 15, 1979, Earnie W. Gossage filed with the Division of Licensing an application for a license to operate a professional employment agency-modeling/theatrical agency. An investigation of Gossage was conducted to determine if he satisfied the licensing requirements of Chapter 449, Florida Statutes. On July 24, 1979, the investigator filed his report pursuant to his investigation, finding that Gossage satisfied all of the requirements of Chapter 449. On August 15, 1979, after consideration of the investigative report, the Division of Licensing notified Gossage that the application was denied pursuant to the provisions of Chapter 449.023(1), Florida Statutes, on the sole basis that Gossage did not have three years' experience as an employment clerk or the equivalent thereof in related fields. On August 20, 1979, Gossage filed a Request for Hearing based upon his disagreement with the findings of the Respondent Division and the denial of his application. On October 2, 1979, Gossage was notified of the time and place for the requested hearing, and that hearing was held on November 27, 1979, at 8:30 a.m. in the Aviation Authority Board Room at Tampa International Airport, Tampa, Florida. The parties stipulated that the only issue to be resolved by the Hearing Officer was whether or not Gossage satisfied the experience requirements of Chapter 449.023(1). It was specifically stipulated and agreed that Gossage met all other statutory requirements for the issuance of the license. The proposed theatrical/modeling agency is to be run by Gossage, will be owned by Gossage and Mrs. Carroll Gossage as a partnership, and will be managed and operated by Gossage and Mrs. Gossage, bringing to it the benefit of their individual experience and background. Gossage has participated in the active management and operation of the New Image Emporium School of Modeling, a school licensed by the Department of Education, State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools. This school is owned by Gossage and Mrs. Gossage, and Gossage's participation in that business includes the taking and review of employment applications, employee supervision, and the maintenance of employment records. Further, Gossage has actively participated in contacting potential employers for the purpose of placing graduates of the school in permanent and temporary employment situations, in accordance with the obligations imposed upon the school pursuant to its license. Mrs. Carroll Gossage has worked for, and has been involved in, the operation of modeling and theatrical agencies for a period of approximately ten (10) years. During that time, she has worked as a professional model and has participated in the booking and assignment of models for various jobs. She has further obtained significant experience in the area of contacting potential employers and putting them in contact with models seeking employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of Earnie W. Gossage be approved. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Donald W. Belveal, Esquire 300 North Franklin Street Tampa, Florida 33602
Findings Of Fact Petitioner was, at all times pertinent to these proceedings, an employee of Respondent in its Miami District Office. Petitioner began her employment with Respondent on September 18, 1974, in the position of Secretary During her employment, she was promoted to Secretary II and then to Secretary III. The position of Secretary III was subsequently reclassified to the position of Secretary Specialist. Petitioner's immediate supervisor since 1982 was Dr. Arnold Cortazzo, Respondent's District Program Administrator. At the time of the alleged event of discrimination, Petitioner was employed as a Secretary Specialist and was under the immediate supervision of Dr. Cortazzo. On January 30, 1987, Respondent published a Job Opportunity Announcement for the position of Staff Assistant in the Miami District Office. Dr. Cortazzo prepared the Position Description which included the following descriptions of duties and responsibilities, and the respective percentages of time for each: 15% - Conducts client satisfaction surveys and reports on results to Program Manager. 15% - Conducts follow-up studies on Vocational Rehabilitation clients, compiles and analyzes results, and submits findings to Program Manager. 10% - Performs special assignments for Program Manager such as monitoring the action plans, surveys, and requests for information. 15% - Coordinates the work flow of the District XI Division of Vocational Rehabilitation Office. 05% - Orders forms and supplies of the District Program Office. 10% - Checks for accuracy monthly attendance and leave reports for District Program Office. Also keeps record of accumulative leave earned and used. Distributes monthly leave report to district offices. 25% - Acts as liaison to Support Staff Council, assists the training coordinator in training support and clerical staff. 05% - Other related duties as required. The Position Description for the Staff Assistant position set forth the following as being the knowledge, skills, and abilities necessary to perform the job: Knowledge of office procedures and practices. Knowledge of the principles and techniques of effective verbal and written communication. Knowledge of the methods of data collection. Knowledge of basic arithmetic. Ability to understand and apply applicable rules, regulations, policies, and procedures. Ability to deal with the public in a tactful and courteous manner. Ability to perform basic arithmetical calculations. Ability to work independently. Ability to utilize problem solving techniques. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. The Position Description for the Secretary Specialist position held by Petitioner in 1987 contained the following duties and responsibilities and the percentage of time for each: 35% - Transcribes dictation from dictating equipment or rough drafts from Program Manager. Types documents for Program Manager. 12% - Receives and reads incoming mail for Program Manager, screens items which can be handled personally, and forwards the rest to Program Manager. Screens Program Manager's incoming calls. 05% - Maintains calendar tickler file for Program Manager on important correspondence and documents, follows up on work in process to insure timely reply or action. 03% - Acts as office receptionist in the absence of other secretarial/clerical staff. 35% - Assembles and summarizes information upon request of Program Manager from files and documents in the office or other available sources. 05% - Composes and signs routine correspondence of a nontechnical nature from verbal instructions of Program Manager. 02% - Keeps Program Manager's calendar by scheduling appointments and conferences with or without prior clearance. 03% - Files Program Manager's correspondence and other materials and maintains the Program Manager's file. The following were listed as the knowledge, skills, and abilities required for the Secretary Specialist position: Knowledge of the techniques for handling telephone calls in a courteous and efficient manner. Skill in typing. Ability to transcribe dictation using notes or a dictating machine. Ability to organize files and other records. Ability to perform basic arithmetical calculations. Ability to use correct spelling, punctuation, and grammar. Ability to type letters, memoranda and other standar business forms in correct format. Ability to operate general office equipment. Ability to handle telephone calls in a courteous and effective manner. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. At the times pertinent to this proceeding, Dr. Cortazzo was the Program Manager referred to by the job descriptions for both the Staff Assistant position and the Secretary Specialist position. The deadline for the filing of applications to fill the Staff Assistant position was set for February 12, 1987. Prior to the deadline, six applications for the position were received for the position. One applicant withdrew her application prior to the interview stage. Included among the applications received in a timely manner were the application of Petitioner and the application of Eulalia Diaz. The applicants were asked to resubmit their applications because the original applications were misplaced. Consequently, the applications in Respondent's files are replacement applications that were received after the advertized deadline. Dr. Cortazzo prepared a list of criteria to be used in the ranking of the applicants and a list of interview questions. Dr. Cortazzo thereafter interviewed the remaining five applicants and asked each of them the same interview questions. Dr. Cortazzo then selected three finalists for the position. Both Petitioner and Ms. Diaz were among the three finalists. Prior to his interviews, Dr. Cortazzo had asked that the four Human Services Program Administrators employed by Respondent in the District interview the top three candidates and to recommend to him their top candidate for the position. Dr. Cortazzo made no effort to influence the interview process followed by these administrators. These administrators were unanimous in their recommendation of Eulalia Diaz as the top candidate for the position. After receiving the recommendation from the four Human Services Program Administrators, Dr. Cortazzo ranked the three finalists using the criteria he had previously developed. Ms. Diaz received the highest ranking of the three finalists. Dr. Cortazzo thereafter made the decision to employ Ms. Diaz as the Staff Assistant. Petitioner's alleged handicap had no bearing on Dr. Cortazzo's decision to hire Ms. Diaz as the Staff Assistant. Petitioner has a congenital deformity of the right leg which resulted from her umbilical cord being wrapped around her right leg at birth. As a consequence, her right leg did not fully develop. She has circulation problems in her right leg and her right leg is both shorter and weaker than her left. Petitioner cannot sit, stand or walk for long periods of time. She wears an orthopedic shoe and walks with a slight limp and an unsteady gait. During the course of her employment with Respondent, she has had to utilize crutches on two occasions for brief periods of time after her right leg had become infected from a cut. Her condition has had, at most, a minimal impact on her ability to perform her job. During the period of time of July 1977 to October 1986, Petitioner received thirteen job evaluations. For each of these evaluations, Petitioner received an overall evaluation of either outstanding or exceeds performance standards. The last six of these evaluations were by Dr. Cortazzo. There was a conflict in the testimony as to the duties Petitioner was actually performing. Petitioner contends that the job description for the Secretary Specialist position does not adequately describe the duties she was actually fulfilling. Petitioner contends that she was essentially performing the duties and responsibilities of the Staff Assistant before the position was created. Respondent contends that the duties Petitioner was performing were primarily secretarial and that the job descriptions and the skills required to fill these positions are separate and distinct. This dispute is resolved by finding that the Secretary Specialist job description adequately describes the job Petitioner was performing and that she was not essentially performing the duties and responsibilities that were expected of the Staff Assistant.
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 charge of discrimination against Respondent. DONE AND ENTERED this 1st day of October, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6823 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1 and 2 are rejected as being conclusions of law. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being conclusions of law. The proposed findings of fact in paragraph 4, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 7 are rejected as being contrary to the greater weight of the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 4, 7, 9-11, and 13-19 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-6, 8, 12, and 20-21 are rejected as being unnecessary to the conclusions reached. (There are two paragraphs numbered 3, both of which are rejected as being unnecessary to the conclusions reached.) Copies furnished: Edward A. Dion, Esquire Assistant General Counsel Department of Labor and Employment Security 2562 Executive Center Circle West, Suite 131 Tallahassee, Florida 32399-0657 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32399-1570 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658 Gladys Laroche 455 N.E. 159th Street North Miami Beach, Florida 33162 Arnold Cortazzo Department of Labor and Employment Security 401 N.W. Second Avenue, Room S221 Miami, Florida 33128 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road --Suite #240 Building F Tallahassee, Florida 32399-1570
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found. Miami-Dade Community College is a public educational institution operated by the District Board of Trustees. Its North Campus has an enrollment of approximately 14,000 students, and employs approximately 340 professional faculty and administrators and 300 clerical personnel. At all times relevant to this proceeding, Respondent Joseph T. King was employed on an annual contract basis as an instructor in the Division of Occupational Careers, Business Data Processing Department, at the North Campus. As pertinent here, his latest annual contract was for the period from August 1984 to August 2, 1985. That contract has not been renewed and did not create the expectancy of employment beyond August 2, 1985. As pertinent to this proceeding, the organizational administrative structure of the North Campus, in descending order, is as follows: the President of the College, the Campus Vice-President, the Dean of Academic Affairs, the Associate Deans of the various divisions, the department Chairpersons and instructors. The North Campus Vice-President is the chief administrative officer at that campus and is responsible for providing broad leadership and administrative direction for all of the campus programs and services. The Dean of Academic Affairs is the chief academic officer and is responsible for the faculty and for providing the planning, development, implementation, monitoring, and evaluation of the various instructional divisions. During the time periods relevant herein, Dr. Lukenbill was the Dean of Academic Affairs and Dr. Kelly was the North Campus Vice-President. Dr. Lukenbill had been employed at the college since 1972 and was appointed as the North Campus Dean of Academic Affairs on January 28, 1985. Dr. Kelly, having served in various levels of college administration for 23 years, was appointed as the North Campus Vice-President during the first week of February 1985. The Acting Associate Dean of the Division of Occupational Careers was Blanca Gonzalez. Within this Division is the Department of Business Data Processing, chaired by Lincoln Andrews. The Respondent King was an instructor in that Department. From January 30, 1985 through February 17, 1985, Respondent was unable to work due to medical reasons. On February 11, 1985, Respondent was advised by telegram from the Director of Personnel Services that he would be required to present a physician's statement to the Associate Dean of his Division substantiating that he is physically able to resume his duties. During the period between January 30, 1985 and February 17, 1985, Respondent did hand-deliver a letter from himself to the College President on January 30, had one dinner engagement, made two visits to a former faculty member's home and had one faculty member in his home. February 18 was a school holiday. At approximately 8:00 a.m. on February 19, 1985, Respondent returned to the North Campus and reported to Associate Dean Gonzalez' office for the purpose of providing documentation regarding his ability to return to work. With him was Harry Forster, a former faculty member who had been terminated and had been asked not to return to the campus. Respondent presented Ms. Gonzalez with certain documentation from his physician and requested her to sign a receipt for the documents. Ms. Gonzalez signed and returned the documents to the Respondent and the conversation between them concluded. At that point, Mr. Forster told Ms. Gonzalez that he wanted to speak with her about the Chairperson of the Business Data Processing Department. Ms. Gonzalez then telephoned Mr. Lukenbill, the Dean of Academic Affairs, and asked him to come to her office to join the meeting because she felt the Academic Dean should be a part of the discussion which Mr. Forster desired to initiate. Having been recently appointed as Academic Dean, and Respondent having been on sick leave since January 30, 1985, Dr. Lukenbill had not met Respondent prior to February 19, 1985. As he walked into Ms. Gonzalez' office, he introduced himself to the Respondent and shook his hand. A discussion thereafter ensued between Dr. Lukenbill, Mr. Forster and Ms. Gonzalez, with the Respondent taking no part in the discussion. The matters discussed by Mr. Forster related to his concerns or beliefs regarding certain activities and personnel at the College. They did not involve the Respondent, though both the Respondent and other administrators had previously heard the allegations made by Mr. Forster. At the conclusion of the discussion between Forster, Lukenbill and Gonzalez, Dr. Lukenbill turned to the Respondent and stated that he would like to have a few words with him and asked if he had a few moments. His purpose in initiating that discussion was a combination of courtesy, to establish a rapport with a faculty member he had just met, and to assure himself that Respondent was physically able to resume his duties as an instructor. It was not unusual for Dr. Lukenbill to speak directly with faculty members, in spite of the organizational it chain of administrative command. In response to Dr. Lukenbill's invitation to talk together, Respondent produced his attorney's business card and responded that he would not speak with Dr. Lukenbill. Respondent then left Ms. Gonzalez' office with Mr. Forster, and attended his scheduled classes. For some time prior to February 19, 1985, Respondent had been involved in a contract dispute with the College concerning his salary. His retained attorney had written a letter dated February 14, 1985, to President McCabe regarding this matter and had requested a response within five days. Respondent was of the impression that he should not speak to college administrators concerning his contract dispute or the Forster allegations in the absence of his attorney. When Dr. Lukenbill asked to speak with the Respondent on the morning of February 19, neither he nor the Respondent mentioned Respondent's salary or contract dispute with the College. Dr. Lukenbill had no knowledge of the February 14 letter from Respondent's attorney to President McCabe. While Respondent testified that he would have spoken to Dr. Lukenbill had Dr. Lukenbill advised him that he wished to discuss academic matters with him, the evidence is clear that Respondent did not express this to Dr. Lukenbill nor did he inform Dr. Lukenbill that he only did not feel at liberty to discuss his salary dispute or the Forster allegations in the absence of his attorney. Dr. Lukenbill did not intend to speak with Respondent concerning either Respondent's contract dispute with the College or the allegations made by Mr. Forster. He had previously heard those allegations and felt that they concerned matters unrelated to the Respondent. Dr. Lukenbill was concerned that Respondent's refusal to speak with him created a situation whereby he, as the Dean for Academic Affairs, could not fulfill his responsibilities of managing the assignment of faculty and the conduct of classes. For this reason, he contacted Vice- President Kelly after the February 19 incident and expressed his concern that Respondent's refusal to speak with him impaired his ability to carry out his responsibilities. Dr. Kelly was also concerned and puzzled about Respondent's refusal to talk with the Dean, and agreed that the situation needed to be immediately resolved. At approximately 11:00 a.m. on February 19, 1985, Dr. Lukenbill instructed Ms. Gonzalez to deliver a note to Respondent requesting him to come to Dr. Kelly's office to meet with Dr. Kelly and Dr. Lukenbill at 11:30 a.m. Ms. Gonzalez had a memorandum prepared and attempted to have it delivered to Respondent's lab. The evidence is conflicting as to the time of the attempted delivery and as to the Respondent's schedule of classes and/or labs on that particular day and time. Respondent did attend two of his classes on the morning of February 19. In any event, the memorandum of February 19 was not delivered to the Respondent. On the morning of February 20, 1985, Dr. Lukenbill again requested Ms. Gonzalez to prepare and deliver a note to Respondent requesting him to meet with Dr. Lukenbill and Dr. Kelly in Dr. Kelly's office at 12:15 p.m. Ms. Gonzalez prepared the memo and attached the similar memo of the previous day. Neither memo stated the reason or purpose of the scheduled meeting. The February 20 memo and attachment were delivered to the Respondent during his scheduled class, and Respondent appeared at Dr. Kelly's office at the scheduled time. Vice-President Kelly had never met Respondent prior to February 20, 1985. He was aware that there had been some problems with faculty members missing classes in the Respondent's Department and had heard the Respondent's name in this regard. His concern, however, on February 20 was to attempt to understand and remedy the Respondent's refusal to speak with his Academic Dean on February 19. Dr. Kelly had no knowledge of Respondent's contract dispute with the College and perceived no connection between Mr. Forster's allegations and the Respondent. Respondent appeared at the February 20 meeting with Dr. Kelly and Dr. Lukenbill and the three individuals sat at a small conference table. Respondent immediately placed a tape recorder on the table and asked if there were any objections to the meeting being taped. Drs. Kelly and Lukenbill both indicated they had no objection. Respondent turned on the tape recorder, taped some background information and then indicated to the others that they could proceed with the discussion. It is undisputed that the discussion began with Dr. Kelly stating that they wished to speak with the Respondent about what occurred on the previous day. What Dr. Kelly was referring to, and what Dr. Lukenbill understood to be the purpose of the meeting, was the Respondent's refusal to speak with his Academic Dean on February 19. In response to Dr.,Kelly's opening statement, Respondent threw his attorney's business card on the conference table and refused to speak to the Vice-President or the Academic Dean. Dr. Kelly explained to the Respondent that he considered Respondent's behavior, both then and on the previous day, to be inappropriate, intolerable and a very serious matter. He informed the Respondent that if he were not going to speak with Dr. Kelly or Dr. Lukenbill, there would be no way Respondent could remain on campus and that he would recommend his suspension to the College President. Respondent inquired as to whether Dr. Kelly was ordering him to leave the campus; Dr. Kelly responded that he was requesting him to leave the campus and Respondent then left Dr. Kelly's office. Respondent offers the explanation that, since the notice of the February 20 meeting did not set forth the subject matter or reason for the meeting, he had no way of knowing what Dr. Kelly meant by stating that he wished to discuss what occurred on February 19. This explanation is not credible and does not justify his conduct of refusing to speak to his college administrators. First, even if Respondent had been instructed by his attorney not to discuss his contract dispute in her absence, there is a conflict in the evidence as to whether Respondent's contract or salary dispute was ever mentioned during the February 20 meeting. Dr. Kelly was not even aware of such a dispute. While Respondent testified that he himself inquired as to whether the meeting had anything to do with his contract, he further testified that Dr. Kelly responded that he did not want to talk about a contract dispute but instead wanted to talk about what happened with Dr. Lukenbill the previous morning. Thus, even accepting the Respondent's versions of the February 20 meeting, it is clear that Respondent understood, at some point in time, that the intended purpose of the meeting was to discuss Respondent's refusal to speak with Dr. Lukenbill. Respondent never offered any explanation to Dr. Kelly or Dr. Lukenbill as to why he would not speak to them. It is clear that the meeting started and ended with the key administrators of the North Campus expressing their desire to have Respondent explain to them and change his position concerning his unprofessional behavior on that day and the previous day. Respondent's own fears or concerns regarding either his contract dispute or the Forster allegations do not excuse his willful and continued failure to communicate with the top two administrators responsible for his employer's functions and operations. By telegram dated February 20, 1985, Dr. McCabe, Petitioner's President, advised Respondent that he was suspended without pay pending Dr. McCabe's recommendation for dismissal to the District Board of Trustees. By letter dated March 1, 1985, Dr. McCabe advised Respondent that he would recommend Respondent's termination at the March 26, 1985, District Board meeting based upon the charge of gross insubordination. At that meeting, the District Board suspended Respondent without pay pending the termination proceedings. The Petition and Notice for Dismissal was served on April 2, 1985, and Respondent requested a formal hearing.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Respondent Joseph T. King be dismissed from employment retroactively to the date of his suspension for gross insubordination. Respectfully submitted and entered this 20th day of December, 1985. DIANE D. TREMOR 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 20th day of December, 1985. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent have been approved and/or incorporated in this Recommended Order, except as noted below: Petitioner: 7 and 8. Rejected as to date of February 19, 1985, due to evidence to the contrary. 32. Partially rejected, no competent, substantial evidence regarding Respondent's schedule between 11:00 and 11:30 a.m. 51. Rejected, irrelevant and immaterial. Respondent: P. 3, last full sentence Rejected, not a factual finding. in last paragraph. Last paragraph beginning Rejected, not a factual finding on P. 3. And irrelevant and immaterial. COPIES FURNISHED: Donald M. Middlebrooks, Esquire and Nancy E. Swerdlow, Esquire Steel, Hector and Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Neil Flaxman, Esquire Flaxman and Flaxman, P.A. 2600 Douglas Road, Suite 311 Coral Gables, Florida 33134 Dr. Robert H. McCabe, President District Board of Trustees Miami-Dade Community College 11011 Southwest 104th Street Miami, Florida 33176
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the 35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age. At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of 133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.
Recommendation Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
