Findings Of Fact Petitioner is a black male. On August 2, 1979, he applied for an Educational Consultant II position in the Migrant Education Section of DOE. He filed his application with the DOE Personnel Office, where it was determined that he met the training and experience requirements of the position. Petitioner's application was then forwarded to Dr. James Scruggs, Supervisor of the Program Support Subsection, Bureau of Compensatory Education, where the position was located. Dr. Scruggs selected Petitioner as one of 17 applicants to be interviewed, and ultimately ranked him fifth in order of hiring preference after four female applicants. For various reasons, each of the first four applicants. For various reasons, each of the first four applicants was rejected within the Bureau or determined to be unavailable. Dr. Scruggs then recommended hiring Petitioner to his supervisor, Mr. Waters, who concurred and forwarded the recommendation to the Director, Division of Public Schools. The application was reviewed by the Administrative Assistant to the Division Director who returned it to Dr. Scruggs for additional information regarding Petitioner's experience. In response to Dr. Scrugg's request for this additional information, Petitioner prepared a letter dated September 24, 1979, summarizing his educational experience, which Dr. Scruggs forwarded to the Division Director's office. The application was then reviewed by Mr. Ferrell, the Division Director. By memo of October 4, 1979, Mr. Ferrell rejected the recommendation that Mr. Norman had the five years experience the position required. Mr. Ferrell further stated in his memo that he would reject the application even if Mr. Norman met the minimum requirements 1/ for the following reasons: Nothing in Petitioner's training or job record specifically related to evaluation of educational programs. Other candidates possessed superior qualifications. Priority should be given to women in making a subsequent recommendation, since only 18 percent of staff positions in the section would be filled by women if the Norman appointment were made. 2/ In analyzing Mr. Norman's work experience, Mr. Ferrell determined that Mr. Norman had only four years and seven months applicable experience although Mr. Norman claimed over seven years experience. Mr. Ferrell reached this conclusion on the basis of personal judgment rather than objective standards. The minimum training and experience guidelines for this position were established by the Department of Administration (DOA). 3/ DOE had no departmental rules or written guidelines on evaluating applications for training and experience. After learning of his rejection, Mr. Norman contacted Mr. Ferrell who informed him that he did not meet the minimum training and experience requirements. However, Mr. Ferrell advised Mr. Norman that if DOA found him to be qualified he would be bound by that decision and it would supersede his determination. Mr. Norman then took his application and resume to Daniel MacDonald, a Personnel Analyst with DOA, to ascertain his qualifications for the Educational Consultant II position. Mr. MacDonald reviewed the application and issued an eligibility certificate, which represents that an applicant is qualified. Mr. Norman delivered the certificate to Dr. Scruggs at DOE. However, this document did not reach Mr. Ferrell. By memo dated October 17, 1979, Dr. Scruggs requested approval to readvertise the position. By memo of October 22, 1979, from Mr. Ferrell to Dr. Carlton, the Bureau Chief, Mr. Ferrell denied the readvertisement request pending an explanation of why Dorothy Zipperer, a white female with experience in this area, had not been offered the position. However, Ms. Zipperer had been interviewed on August 20, 1979, and was ultimately selected for another position where the Bureau Chief determined her skills could best be utilized. Mr. Ferrell thereafter granted the request and the position was readvertised between November 8 and December 3, 1979, with no change in job qualifications. Interview arrangements for the second advertisement period were changed, however, and Dr. Frank Carpenter, a subordinate of Dr. Scruggs, was assigned to screen applications and conduct interviews. Mr. Norman asked Dr. Scruggs if he should submit a further application to remain in consideration. Dr. Scruggs informed him that another application to remain in consideration. Dr. Scruggs informed him that another application was not required and that he would again be considered for the position. The policy of DOE was to reconsider all initial applicants upon readvertisement of a position. Contrary to this procedure, Dr. Carpenter considered only those applications which were submitted to the Personnel Office during the second period. Gerald Richardson, a white male, who had applied during the second advertisement period was recommended on January 29, 1980, and thereafter hired. After DOE rejected his application, Petitioner was hired by the Department of Transportation, and has suffered no loss in salary or benefits resulting from the rejection. He has, however, worked outside his chosen filed of education and therefore has lost the job satisfaction and experience associated with employment in an education related position. Mr. Norman's attorneys claim fees and costs totaling $5,214.90, based on 68.1 hours at $75 per hour and costs of $107.40. Affidavits of attorneys practicing administrative law reflected reasonable charges of $5,000 (submitted by attorneys for Petitioner) and $3,000 (by attorney for Respondent).
Recommendation From the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Human Relations Commission enter a Final Order 1) finding the Respondent guilty of an unlawful employment practice; 2) ordering that Respondent hire Petitioner as an Educational Consultant II at a salary level commensurate with earning she would currently be receiving had he been hired at the close of the first advertisement period in October, 1979, and; 3) awarding $5,000 reasonable fees and costs to Petitioner's attorneys. DONE and ENTERED this 26th day of August, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, 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 26th day of August, 1981.
The Issue Whether Respondent discriminated against Petitioner based on her age as alleged in the Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed with the Florida Commission on Human Relations (FCHR) on February 26, 2003.
Findings Of Fact Petitioner is a female who was born April 29, 1946. At all times material to this proceeding, Respondent employed Petitioner as a sales person at a retail sales counter operated by Respondent, but located within a Burdines department store. Respondent did not have an on-site manager for this sales location. In December 1999, Petitioner received a routine performance evaluation signed by Joyce Rodriguez, who was Petitioner's supervisor. This was a favorable evaluation that rated Petitioner in each category as either having "Exceeded Standards" or "Achieved Standards." As a result of this favorable evaluation, Petitioner received an increase in her hourly rate of pay. There was no evidence that Petitioner was discriminated against by her 1999 performance evaluation or by the pay increase she received as a result of that evaluation. Ms. Shafi, the employee mentioned by name in Petitioner's Amended Charge of Discrimination, was not hired by Respondent for a management position, nor was she ever promoted to a management position. Petitioner has never applied for or otherwise requested a management position with Respondent. Opportunities for entry- level management positions exist only at retail locations with on-site managers, which would require Petitioner to transfer to another location. Respondent's management has discussed such positions with Petitioner at various times, but she failed to take advantage of any of these opportunities.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 6th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2003.
The Issue The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position. Petitioner's supervisor in Marion County was Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing. In 1994, Petitioner learned that she was diabetic. From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job. Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11, 1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal. Ms. Bartsch wrote the following comment in the February 1994 performance appraisal: During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall." Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal. Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal. In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work. On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and signed by Ms. Bartsch and Petitioner contains the following comments: Strengths: being perfectionist; works in timely manner helps other people; always available lot of knowledge re HRS/investigations hard worker organized Areas Needing Improvement: (1) personality problems with co-workers The following changes will be made: isolate and stay from others letting Gloria speak in place On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows: Issues: court problems. calendar needs organization getting not enough support from attorneys doing better at getting along with people continue not allowing others to lean too much There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team. Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May 1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs. On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows: Issues: fantastic - no backlog work on trying to UPS or petition without removing kids if not in imminent danger interpersonal relations ignore other's comments say nothing to hurt people's feelings Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch "on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994. Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993. During some staff meetings, Petitioner felt that Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that Ms. Bartsch should have intervened on Petitioner's behalf during a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson. Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs. Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements. There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time. There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff. In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford. The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing. Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands. Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class. Regarding "failure to follow instructions," Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint. This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements. On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that from that time forward she was only willing to help one other PI who appreciated her work. On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file. Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part: Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit. The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers. Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child. Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns. There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works. Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you. You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue. * * * This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan. There are two "core" standards which must be met on the new RAPP form. They are: Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image. Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization. You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this. They strongly take this as lack of respect towards them on your part. Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also. You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues. Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct. Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help; In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours; (i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer. On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file. On January 19, 1995, Mr. Crawford complained to Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS. On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact, Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin. Anyway, it is too late now." In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions. Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations. On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose. On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida. At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson. On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her. On July 20, 1995, Ms. Bartsch wrote Petitioner a "Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP). On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel." When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred. On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996, Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996: Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work. At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter an order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cynthia Ausby 5 Hemlock Loop Lane Ocala, Florida 34472 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Findings Of Fact The Petitioners, Shirley Arnold and Joannie Greer, are black females and were high school students at the time pertinent to this proceeding. They were employed by Burger Queen Systems, Inc. from the latter part of November, 1979 through January 8, 1980. Burger Queen Systems, Inc., at that time, operated a "fast food" restaurant at which the Petitioners were employed in Arcadia, Florida. The Petitioners complain that they were terminated from their positions because of their race. They assert in support of that position that they were not given as much training by their employer as white employees were given, nor that they were allowed to rotate through all job positions, with training in all job duties (especially operating the cash register and making sales) as were white employees. The Petitioners were enrolled in a vocational training program in their senior year of high school which allowed them to work up to 20 hours per week part-time and it was through this program that they received part-time jobs at the Respondent's restaurant in Arcadia. They were given training in food preparation and in preparing the various kinds of hamburgers and cheeseburgers sold by the restaurant. They were rotated through a number of different duties and given training in the performance of each one. In the case of Joannie Greer, however, it was established that in addition to receiving training in preparing the various kinds of sandwiches sold at the restaurant, she was given some training in operating the cash register; and indeed, was trained in most phases of the "fast food" restaurant's food preparation and sales, with the exception of operating the cooking grill and cooking hamburgers, cheeseburgers and the like. The Petitioners were informed by their Vocational teacher that they could work up to 20 hours per week, and in Joannie Greer's case, at least, she worked up to 16 hours per week, but both Petitioners worked varying numbers of hours according to a schedule provided them by their employer because they were part- time workers still attending high school. Both Petitioners knew they were part-time employees when they were hired and Joannie Greer admitted they were not excluded from any formal training course. Although the Petitioners did not rotate through and train for each duty involved in operating the restaurant, they were informed that they would be allowed to do so, but neither was employed for a sufficient period of time to train in all available duties. It was the restaurant's consistent business practice to train only management personnel in all duties required to operate the restaurant, including cooking and running the cash register, and that no part-time employees were given training in every field. It was not established by Petitioners that white part-time employees were given different or additional training than black part-time employees, including the Petitioners. All starting employees were paid the same rate. Both Petitioners knew they were part-time employees only and Joannie Greer acknowledged that they were not promised any definite length or hours of employment, but rather worked on a flexible, part-time schedule. During the time the Petitioners were employed at the restaurant, Burger Queen Systems, Inc. was in financial difficulties. It operated 19 stores at the time, but by July, 1982 was forced to close all stores due to insufficient revenue and excessive expenses. It was a regular management practice of Burger Queen Systems to send in a management person from its home office in order to attempt to make an unprofitable store profitable. The Arcadia store involved herein was operating at a loss at the time the Petitioners were employed. It was Burger Queen System's regular business practice in order to turn unprofitable stores into profitable operations, to change management and even change any or all personnel if that was required, in order to improve the profit and loss posture of a given restaurant. In any event, Ann West was dispatched from the home office to the Arcadia store to attempt to improve operations there so it would become profitable. As part of that process, both white and black employees were reduced in the number of hours they could work and employees who did not perform properly were dismissed. Satisfactory employees were dismissed as well for cost control-reasons. The Petitioners were dismissed because they performed their duties too slowly and in a substandard fashion. In this connection, Petitioner's witness Sonia Murphy, attributed an unsubstantiated statement as being made by Ann West to the effect that she had "to get rid of" some black employees. In other portions of her testimony however, Sonia Murphy acknowledged that Ms. West desired to keep some employees, including some black employees, and indeed, some black employees were retained after the Petitioners were terminated. Sonia Murphy was herself in charge of Joannie Greer's training and she, in conducting her training, was told by unspecified management personnel, to have the Petitioner do "other things," that is, rotate her through several jobs, training her in each. This testimony, coupled with that of Petitioner Joannie Greer herself, to the effect that she was well-treated by management personnel and was not excluded front any training programs as compared to other part-time employees, as well as Greer's testimony that a management employee by the name of "Dusty" actually informed her that she was terminated, coupled with Sonia Murphy's testimony that she could not remember the names of the store managers indicates no attempt by Ms. West or other management personnel to single out blacks, and particularly the Petitioners for dismissal, reduction in work hours or reduced training for racially discriminatory reasons. Thus, the totality of the testimony of these two witnesses, coupled with Witness Murphy's general demeanor on the stand, renders her testimony that this statement was made, unreliable and not direct, credible evidence of racially discriminatory practices. Even if the statement had been made by Ms. West, the evidence of record independently establishes that the statement did not represent the motivating factor for the termination of Petitioners. The Petitioners did not demonstrate that they were the only employees, black or white, terminated for the above reasons. Indeed, in the ensuing period of time prior to hearing, the Respondent ultimately closed all of its stores because of its financial difficulties, such that the Respondent corporation only retains one employee, Casey Richards, its accountant and home office manager, who established from contemporaneous personnel records the above reason for the termination of the two Petitioners. In short, the Respondent ultimately terminated all its restaurant employees due to its financial difficulties and in the case of the Petitioners, for the additional reasons of substandard job performance. There was no substantial prima facie evidence adduced to establish that the Petitioners were terminated solely for reasons of race, nor that, while they were employed, they were discriminated against through the provision of inferior training compared to other non-black employees, nor that the Petitioners got less desirable work than non-black employees. The Petitioners thus did not establish that the conditions of their employment, including training opportunities, nor the reasons for their termination, were due to their race and moreover, the Respondent employer established valid business reasons for their termination, and indeed ultimately for all its employees, that is, severe financial difficulties culminating in ultimate business failure, and in the case of these two Petitioners, substandard job performance. This last was the reason provided by the employer, in writing, to the Petitioners high school teacher in charge of their vocational training, part- time job program.
Conclusions For Petitioners: James F. Mensing, Esquire Florida Rural Legal Services, Inc. Post Office Drawer 1449 305 North Jackson Avenue Bartow, Florida 33830 For Respondent: Gilbert Bentley, Esquire Post Office Box 577 Maitland, Florida 32751 This cause arose when Petitioners Shirley Arnold and Joannie Greer filed complaints with the Florida Commission on Human Relations alleging that they were victims of an unlawful employment practice by the Respondent, Burger Queen Systems, Inc. The petitions generally allege that the Petitioners were discriminated against because of their race (black) and were unlawfully terminated from their jobs with the Respondent for this reason. The petitions were filed on May 14, 1984 and were, in due course, transmitted to the Division of Administrative Hearings for hearing. On August 21, 1984, some three months after the case had been opened at the Division of Administrative Hearings, the Respondent filed a Motion to Dismiss alleging that the statute of limitations had run on the cause of action and that the Division of Administrative Hearings had no jurisdiction in the matter. That motion was denied by the Hearing Officer. On August 31, 1984, the Hearing Officer noticed the hearing for Tuesday, November 27, 1984. On November 20, 1984, the Petitioner filed a Motion for Determination of Facts Not In Dispute, based upon the Respondent's failure to file an answer which the Petitioner maintains is mandatory pursuant to Florida Administrative Code Rule 22T-9.08. That rule provides that each Respondent shall file an answer with the Commission within 20 days from service of the petition, and that if a Respondent fails to timely answer, the failure shall be deemed to constitute an admission of the material facts alleged in the petition. That motion should be denied inasmuch as it was not timely raised. The petitions were filed May 14, 1984, accordingly the motion attacking the failure of the Respondent to file an answer was not filed until almost six months after the issue concerning the Respondent's failure to answer became ripe for determination by appropriate motion. During this time discovery was conducted, all parties conducted preparation for trial and the motion was never raised until one week prior to hearing, after significant expense in time and preparation was incurred by the parties. Further, the Petitioners were-on notice, through pre-trial preparation and no later than the date of filing of Respondent's Motion to Dismiss, that the factual allegations of the petitions were genuinely disputed and showed no prejudice occasioned by the failure of Respondent to frame the disputed issues of fact in a formal answer. The hearing was held as scheduled on November 27, 1984 because the response time to the motion had-not elapsed prior to the time set for trial, thus, argument on the motion was heard at trial, at the conclusion of which, the Hearing Officer announced that his recommendation would be to deny the motion. Given the circumstances of this case, the motion clearly was not timely and to grant it would unduly prejudice the Respondent, thus it is denied. See Shepherd v. Board of Dentistry, 385 So. 2d 143 (Fla. 1st DCA 1980). At the consolidated hearing, the Petitioners presented the testimony of Joannie Greer and Sonia Murphy and the Respondent presented the testimony of Harold Kite, the President and owner of Burger Queen Systems, Inc. and Casey Richards. Additionally, the Petitioners called Casey Richards as a rebuttal witness. Petitioner Shirley Arnold did not testify nor personally appear at the hearing. At the conclusion of the proceeding, Respondent moved to dismiss the petition on the authority of McWilliams v. Escambia County School Board, 658 Fed. 2d 326 (5th Cir. 1981), asserting in effect, that the Petitioners had not established a prima facie case of employment discrimination for reasons of race. That motion is dealt with by the Conclusions of Law below. Additionally, at the conclusion of the proceeding, the parties requested the right to file proposed findings of fact and conclusions of law after obtaining a transcript of the proceedings. No transcript was ever obtained and filed with the Hearing Officer however. All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses c is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So. 2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So. 2d 383 (Fla. 5th DCA 1983). The issue concerns whether the Petitioners were the victims of unlawful employment practices inflicted upon them by the Respondent by virtue of their race.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Petitions for Relief filed by Shirley Arnold and Joannie Greer be DISMISSED with prejudice. DONE and ENTERED this 12th day of June, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 12th day of June, 1985. COPIES FURNISHED: James F. Mensing, Esquire Florida Rural Legal Services, Inc. Post Office Drawer 1499 Bartow, Florida 33830 Gilbert Bentley, Esquire Post Office Box 577 Lakeland, Florida 32751 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
Findings Of Fact The parties have stipulated to the following findings of fact: Petitioner, Danny Rivera, is an inmate incarcerated at Dade Correctional Institution, Florida City, Florida. Dade Correctional Institution is a correctional facility operated by the Department of Corrections of the state of Florida. The Florida Legislature enacted section 944.276, Florida Statutes, in 1987 to provide for "Administrative Gain Time." The parties request the Hearing Officer take Official recognition of this statute. Respondent promulgated Rule 33-11.017, Florida Administrative Code, effective July 7, 1987. This rule, entitled "Administrative Gain Time," excludes inmates who were convicted of certain crimes from receiving this type of gain time. Those exclusions track the exclusions set forth in Section 944.276, Florida Statutes. The parties request the Hearing Officer take official recognition of this rule. Both Section 944.276, Florida Statutes, and Rule 33-11.017, Florida Administrative Code, refer to Section 917.012(1), Florida Statutes, defining various sex crimes. Persons convicted of those specified sex crimes were excluded from receiving administrative gain time. The parties request the Hearing Officer take official recognition of this statute. Petitioner was charged with a five count information including three counts of sexual battery. Petitioner entered guilty pleas to counts one and two, burglary with assault and robbery with a deadly weapon. The prosecutor dropped the sexual battery counts as part of a plea bargain. On April 18, 1983, Petitioner was sentenced to fifteen years in the Department of Corrections for the burglary and robbery counts. This is the sentence Petitioner is serving at Dade Correctional Institution. The parties request the Hearing Officer take Official Recognition of the certified copies of the information and judgment and sentence. In July of 1987, Respondent promulgated the booklet entitled Administrative Gain Time which is the subject of this Petition. The booklet, a copy of which was supplied to the Hearing Officer, was sent to officials at Dade Correctional Institution from Respondent's offices in Tallahassee. Angie Rivera, a classification Specialist at Dade Correctional Institution, calculated gain time to be given Petitioner. When Section 44.276, Florida Statutes, became effective, Petitioner was granted two-hundred-eighty days of administrative gain time through August, 1987. Ms. Rivera voided the two-hundred-eighty days once the Classification Supervisor, Clarence Cryer, received the booklet in question and directed recalculation of certain inmates' administrative gain time awards. Petitioner filed a grievance attacking his loss of two-hundred-eighty days. Thomas Crews, Assistant Superintendent at Dade Correctional Institution, denied the grievance. Petitioner was told that the questioned booklet was a valid policy statement from the Department Secretary. Since Petitioner was convicted of burglary with an assault, he was excluded from those eligible to receive administrative gain time. Petitioner discussed this problem with his Classification Officer on several occasions. Eventually he was shown the booklet. On pages 9 and 10, Section V(1)(B)(8), the booklet specifies if the charging document alleges the first degree felony of burglary with an assault in one count and states in the document that a sexual assault or battery was attempted or completed during the burglary, and if the judgment reflects a conviction for burglary as a first degree felony, the inmate is not eligible for administrative gain time. Neither Section 944.276, Florida Statutes, nor Rule 33-11.017, Florida Administrative Code, specifically list burglary with assault as an excludable offense. Both refer to Section 917.012(1), Florida Statutes. The section does not specifically list burglary with assault as a sex offense. Sections 917.012(1)(e) and (f) do classify assault or aggravated assault and battery or aggravated battery when a sexual act is completed or attempted as sex offenses. Petitioner alleges that the Administrative Gain Time booklet exceeds the delegated legislative authority in Section 944.276, Florida Statutes, by adding burglary with assault to the list of sex offenses which render inmates ineligible for administrative gain time. Since Petitioner lost his two-hundred-eighty days of administrative gain time, Respondent has awarded one-hundred-twenty days of administrative gain time to eligible inmates for the months of September, October, and November, 1987. Petitioner was not awarded the one-hundred-twenty days. The monthly awards of administrative gain time have varied in amounts due to the fluctuating prison population. If administrative gain time is awarded in December, 1987, and subsequent months in yet to be determined amounts, Petitioner will not be granted administrative gain time.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner has established, by a preponderance of the evidence, that Respondent is guilty of unlawful employment practices as alleged in the Petition for Relief. AUTHORITY Chapters 120 and 760, Florida Statutes, and Rule 60Q, Florida Administrative Code.
Findings Of Fact Petitioner, D. Paul Sondel, was born August 13, 1928, and was, at the time of final hearing, 65 years of age. On April 11, 1993, Petitioner saw a newspaper advertisement for the position of Analyst I with the Florida Board of Bar Examiners (FBOBE). On April 12, 1993, Petitioner went to the office of the employment agency which the FBOBE was using to locate and screen applicants. Petitioner was told that he would not be allowed to apply or take the pre- employment test for the position because he had a graduate degree and only persons who have a Bachelor's degree but no graduate degree(s) were allowed to apply. On June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that the FBOBE requirement that no one would be considered for the position of Analyst I who had a higher level degree than the minimum required Bachelor's degree, served the "intended purpose" of eliminating older applicants, especially those over Petitioner further alleged that the existence and implementation of such FBOBE policy was in violation of the federal Age Discrimination in Employment Act (ADEA). Respondent hired two persons to fill the April 1993 advertised position of Analyst I. One of the persons hired was 24 and the other was 23 years of age. The FBOBE is an administrative agency of the Supreme Court of Florida and charged by the court with the responsibility of evaluating the character, fitness and competence of each applicant for admission to the Florida Bar. Petitioner has established that he is a person in a protected group; that adverse employment action was taken against him; that the persons hired for the position in question were outside the protected group; and that, but for his graduate degree, he was qualified for the position in question. The FBOBE has a current staff of 29 full time employees. As of March 30, 1994, of those employees, three were 40 years or older at the time of employment. Nine of these employees are currently 40 or older. The employment application used by the FBOBE does not request any information regarding an applicant's age. The FBOBE have hired individuals in the past who were 40 years of age or older. The FBOBE uses the American Employment Agency, Inc. to advertise vacancies and to conduct preliminary screening. Kathryn E. Ressel has been employed by the Respondent for over 22 years and is currently the Deputy Executive Director of the FBOBE. Ms. Ressel is responsible for the instructions given to the employment agency concerning the qualifications for the position of Analyst I. Ms. Ressel testified that the reason for the FBOBE policy of excluding applicants with post graduate college or university degrees is not intended to restrict employment opportunities to younger persons and is not related to the age of any applicant. Ms. Ressel's testimony is that past experience in hiring persons with graduate degrees has indicated that such persons tend to stay in the Analyst positions for short periods of time and leave when an employment opportunity presents itself in the field for which the person is educated. Ms. Ressel testified that the Analyst I position is an entry level position and that the Analyst receives extensive on-the-job training to enable the newly hired employee to perform assigned duties and meet job related responsibilities in an effective and efficient manner. Therefore, according to Ms. Ressel, when Analyst I's leave the employment of the FBOBE after a short time on the job, the Respondent is unable to recoup the time, energy and expense involved in training such individuals. Ms. Ressel's testimony articulates a reasonable nondiscriminatory basis for the employment practice at issue. Ms. Ressel's testimony indicates that the employment policy at issue is age neutral in that it is applied to all individuals who apply for the position of Analyst I, regardless of age. Ms. Ressel's testimony in this regard is unrefuted. Official notice is taken that a given individual is generally older at the time such person receives a graduate degree than when the same individual receives a Bachelor's degree. It does not follow, however, and Petitioner has failed to prove (statistically or otherwise), that in any specific job applicant pool available to the Respondent to fill Analyst I positions, potential applicants with graduate degrees are older than potential applicants who possess only Bachelor's degrees. Petitioner has failed to prove by a preponderance of the evidence (statistical or otherwise) that the employment policy at issue has a disparate impact on persons 40 years of age or older. Petitioner has failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the FBOBE as the basis for rejecting Petitioner's application is in fact a pretext and/or that a discriminatory reason more likely motivated the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition for relief filed in this case be denied. DONE and ORDERED this 19th day of May, 1994, in Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of May, 1994.
