The Issue The issues are whether Respondent committed an unlawful employment practice against Petitioner, and if so, what corrective action should be taken.
Findings Of Fact Petitioner is a forty-one-year-old black male. He is a 1977 graduate of the University of Florida with a bachelor's degree in Business Administration. His undergraduate major was Finance. Petitioner has approximately 30 credit hours in Accounting from the University of North Florida, which he earned between 1983 and 1988. Petitioner is currently enrolled in the University of North Florida's Masters of Public Administration program. He has completed 30 of the 39 required credit hours in that program. From November of 1979 to March of 1991, Petitioner worked for Occidental Chemical Company as an accountant. After leaving this job, Petitioner was self-employed from April of 1991 to December of 1991. Respondent's District Two office in Lake City, Florida, hired Petitioner on March 6, 1992, as a Purchasing Agent I. Respondent hired Petitioner under administrative rules pertaining to career service employees as promulgated by the Department of Management Services. Petitioner received a copy of Respondent's disciplinary and conduct standards when he was hired. Petitioner worked as a Purchasing Agent I until September of 1992. His salary during that time was $609.00 bi-weekly. In September of 1992, Respondent promoted Petitioner to the position of Accountant II in Respondent's Office of Financial Services. His bi-weekly salary was $752.91, a 23.5 percent increase. As soon as Petitioner became a member of the fiscal section, he received five weeks of intensive training relative to vouchers. This training was necessary because Respondent's central office was beginning to relinquish many functions to its district financial offices, including the vouchering process. Petitioner's direct supervisor in the fiscal section was Faye McClellan. She occupied the position of Accounting Services Supervisor I. Petitioner was indirectly supervised by David Sheffield, District Financial Administrator. On March 1, 1993, David Sheffield hired Karin Davis Charron, a white female, as an Accountant I in Respondent's Office of Financial Services. Her salary was $674.14 bi-weekly, or ten percent above the minimum for an Accountant I. Prior to her employment with Respondent, Ms. Charron had 15 credit hours in Business Administration and Accounting, which she earned at Lake City Community College. Her prior work experience included the following: (a) head cashier at a food store, October of 1983 to June of 1984; (b) accountant/bookkeeper in private business, July of 1984 to September of 1985; (c) Fiscal Assistant I, Department of Corrections, November of 1985 to April of 1987; (d) Secretary Specialist/Cashier, Department of Corrections, April of 1987 to May of 1988; and (e) Fiscal Assistant II, Department of Corrections, May of 1988 to March of 1993. In March of 1993, Petitioner completed his probationary period as an Accountant II. On March 27, 1993, Faye McClellan and David Sheffield gave Petitioner an overall performance rating of "exceeds." On June 1, 1993, Petitioner was promoted to the position of Accountant III. At this time, Petitioner's salary was increased by 10 percent to $828.20 bi-weekly. On August 20, 1993, Respondent hired Ricky Haddock, a black male, as a Fiscal Assistant II at a bi-weekly salary of $549.90. Ricky Haddock testified that soon after he was employed, Ms. Charron told him that "we can make your life a living hell." This statement is not credible due to Mr. Haddock's poor memory concerning the circumstances under which Ms. Charron allegedly made this statement. On or about March 11, 1994, Respondent promoted Ms. Charron to Accountant II with a bi-weekly salary of $766.94, a ten percent increase. Subsequently, Dave Sheffield received a promotion and vacated his position as District Financial Administrator. Linda Green, a white female, took his place. Ms. Green had over ten years of managerial experience when she accepted this position. As manager of the fiscal section, Linda Green became responsible for the direct supervision of Faye McClellan. She was Petitioner's and Ms. Charron's indirect supervisor. On or about March 17, 1994, Faye McClellan gave Petitioner a special performance appraisal. The appraisal form indicates that Petitioner, as an Accountant III, had attended voucher quarterly meetings, SAMAS contract training, payroll training, ADA training, and conduct standards training. The appraisal form described Petitioner as a team player. Of special note was his participation in the Youth Motivator Program in the Columbia County School System. Petitioner received a overall performance rating of "exceeds." Linda Green concurred in Ms. McClellan's assessment of Petitioner's job performance. On September 9, 1994, Respondent promoted Petitioner to the position of Accountant IV. The promotion increased Petitioner's salary by ten percent to $938.36 bi-weekly. Linda Green, as manager of the financial office, recommended Petitioner for this promotion. As an Accountant IV, Petitioner's duties primarily consisted of auditing consultant contracts. These contracts are the most complicated contracts that the financial office processes. Petitioner was also responsible for the payroll and for the supervision of other contract auditors. About two months after Petitioner became an Accountant IV, his immediate supervisor, Faye McClellan, requested and received a position reassignment in Respondent's purchasing office. Petitioner filed an employment application to fill the vacancy created by Ms. McClellan's reassignment. On November 21, 1994, Respondent promoted Petitioner to the position of Accounting Services Supervisor I. The promotion increased Petitioner's salary by 19 percent to $1,161.31 bi- weekly. Linda Green recommended Petitioner for the Accounting Services Supervisor I promotion. She became his direct supervisor. As Accounting Services Supervisor I, Petitioner was responsible for the direct supervision of several subordinate Fiscal Assistants and Accountants, including Ms. Charron. Petitioner was the only black supervisor in Respondent's second district. Historically, the financial section is one of the more racially diverse offices in District Two. From November of 1994 through June of 1995, there were approximately ten people working in the fiscal section. Three of these employees were black. At least two employees were members of other minorities. Petitioner, Ricky Haddock, and two other minority employees were the only employees in the financial office with a college education. On December 23, 1994, Respondent promoted Ms. Charron to Accountant IV. Her bi-weekly salary became $928.50 which was equivalent to the minimum of the pay grade for that position. Linda Green recommended Ms. Charron for the promotion to Accountant IV. Petitioner participated on the panel that selected Ms. Charron as the most qualified candidate to fill Petitioner's former position. In so doing, he reviewed her application and interviewed her for the job. There is no credible evidence to support Petitioner's current allegation that Linda Green allowed Ms. Charron to misrepresent her qualifications for the position of Accountant IV. Ms. Charron's application in February of 1994 for the position of Accountant II, and her application in November of 1994 for the position of Accountant IV, accurately describe all duties and responsibilities that she performed at Stafford's Fire Extinguisher Service in 1984-1985. In 1994, an applicant for the position of Accountant IV was required to have a bachelor's degree in accounting, or a certificate as a Certified Public Accountant, or equivalent work experience in accounting. Neither the Petitioner nor Ms. Charron possessed a bachelor's degree in accounting or a certificate as a Certified Public Accountant when Respondent promoted them to their respective Accountant IV positions. Nevertheless, the evidence indicates that they were well qualified for the position of Accountant IV, at the time of their respective appointments, based on a combination of their education and work experience. Petitioner had a bachelor's degree in Finance, over eleven years of accounting experience in private industry, and more than four years of experience in state governmental accounting. Ms. Charron, on the other hand, had less then one year of formal education in business administration/accounting, over one year of accounting experience in private industry, and more than eleven years of experience in state governmental accounting. State employees have to comply with numerous statutes and rules which do not apply to private enterprise. In this case, Ms. Charron's experience in working for the state more than compensated for her lack of formal education. As Accounting Services Supervisor I, Petitioner's supervisory responsibilities increased. In February of 1995, he directly supervised Rick Haddock and three other Fiscal Assistant II positions, two of which were vacant. He also had direct supervision over Ms. Charron. Ms. Charron, in turn, was responsible for the direct supervision of four other Accountant positions. On February 13, 1995, Petitioner signed a Review and Performance Planning (RAPP) form. This was a new form which Respondent began using just prior to implementing a major career service reform within the agency. The form states that from February 1, 1995, through January 31, 1996, Petitioner would be evaluated based on his performance of the following duties: Supervise district vouchering section. Active participation/supervision vouchering section. Coordinate workloads. Provide liaison with personnel, DOT and State Comptroller. Assist in Legislative budget request. Assist with budget preparation for various programs. Assist in formulating budget information into the different entities LBR's. Manage contract section. Manages all contracts. Verifying information and all supporting documentation for payments to vendors. Audit district disbursements. Audit disbursement for accuracy in accordance with GAP and pertinent federal/state/department rules/ regulations/statutes. The RAPP form lists the following as Petitioner's departmental responsibilities: 1. Coaching; 2. Delegation; 3. Management control; 4. Leadership/Influence; 5. EEO/Affirmative Action; 6. Performance goals; 7. Planning and organization; 8. Judgment; Resources; and 10. Safety practices. Linda Green wanted to increase the cross-training of all employees so that work would not become back-logged when one of them took leave. She also wanted to give Petitioner an opportunity to broaden his experience in other functions of the financial office. In order to accomplish her goals, Ms. Green gave Petitioner additional budget responsibility and deleted his property administration duties in February of 1995. Linda Green gave Petitioner's property administration duties to Ms. Charron. From February 1995, through May 1995, Ms. Charron spent a portion of her time working on the inventory. Ms. Charron continued to work on several special projects to supervise other accountants. As Accounting Services Supervisor I, Petitioner's desk was located in a glass enclosed area within a larger office. Petitioner was supposed to be a "working" supervisor. However, Petitioner spent an inordinate amount of time in his office with the door closed. During these times, Petitioner had long social visits with an employee from another office in the building. He discussed personal matters with an auditor from the central office on the phone for extended periods of time. At times Petitioner's door was locked, so staff could not use the computer which was located in his office. Petitioner's subordinates were reluctant to disturb Petitioner during these times even if they had a question they needed to ask him. They began to complain to Linda Green about Petitioner's unavailability. Linda Green observed Petitioner sleeping during meetings. At first she ignored the situation. However, employees from other offices began to complain about Petitioner's sleeping during meetings. Linda Green also received complaints from other employees that Petitioner was misusing state property. They claimed that he was receiving facsimile transmissions not related to department business. Linda Green began taking notes about these complaints on her computer. She did not share these notes with Petitioner. Linda Green discussed the prohibitions against misuse of state property in staff meetings. She also discussed her concerns about Petitioner's sleeping in meetings, talking on the telephone, and entertaining visitors with Petitioner personally. In February of 1995, Respondent initiated a new job classification and pay plan. The 1994 Legislature mandated this new system, which is distinct from the career service rules promulgated by the Department of Management Services. The new system is unique to Respondent as an agency. Under the new system, Respondent's employees retain career service status and benefits. However, Respondent changed position descriptions, job classifications, employment qualifications, and pay scale ranges to create more flexibility in hiring, promoting, and reassigning duties of employees within the department. The new system concentrates on the knowledge, skills, and abilities required for each position rather than a minimum qualification for each class specification. Formal education remains important, but it is not the paramount consideration in deciding whether to hire or promote employees. The focus of the new system is to ensure that employees can perform the required functions and duties of the specific positions which they occupy or for which they apply. Under the new system, Respondent can reward employees for productivity by increasing their salary without having to promote them to a new position or reclassify their existing positions. Respondent can increase or decrease salaries within a new classification, depending upon the actual duties assigned and performed by the employees. The new plan reduced the number of career service job classes from over 52 occupational groups with 1700 job classifications to 16 occupational groups divided into six levels. Respondent uses the fourth and fifth levels within an occupational group to recognize the distinctive, but equivalent, value of technical and managerial expertise. For example, each occupational group embraces a Level IV and Level V which corresponds to technical and managerial expertise respectively. A reassignment from a Level V managerial position to a Level IV technical position, or vice versa, is not a demotion or promotion, respectively. The new Level IV and Level V positions allow Respondent to reassign employees to different duties to meet the demands of the changing work load and work force without adversely affecting their work status, employment records, or incomes. Thus, Respondent can shift employees from obsolete duties to new and viable tasks where they are more productive. When Respondent initiated the new system, and for one year thereafter, Respondent's central office had to approve every reassignment from an old career service position "title" to the corresponding new title. In performing this duty, Respondent's central office verified the salary for each position to ensure that the salary corresponded to the duties assigned to that position. The initial reassignments in the new system were effective February 24, 1995. At that time, Linda Green, Ms. Charron, and Petitioner were reassigned to the new Accounting, Audit, and Tax occupational group with no change in their respective salaries. Linda Green was assigned to Level VI, as District Financial Services Manager. Petitioner was assigned Level V, Accounting Services Supervisor I, which required that Petitioner spend over 51 percent of his time supervising other employees. Ms. Charron was assigned to Level III as an Accountant IV. Petitioner continued to be Ms. Charron's direct supervisor. A personality conflict developed between Petitioner and Ms. Charron after she became an Accountant IV in December of 1994. Ms. Charron did not want the employees that she supervised to seek or receive assistance from Petitioner, even though he was her supervisor. If Ms. Charron disagreed with Petitioner, she would go over Petitioner's head to Linda Green to resolve the conflict. Petitioner resented not having total control over all of the employees under his direct and indirect supervision. His attitude became confrontational with other employees when they asked a question or made a comment that he perceived as undermining his authority. At times he was overly assertive in an effort to prove that he was right on one point or another. Linda Green did nothing to open lines of communication between Petitioner, as supervisor, and Ms. Charron, as his subordinate. Petitioner did not seek Ms. Green's assistance in resolving the conflict with Ms. Charron. As the power struggle between Petitioner and Ms. Charron ensued, dissension and poor morale became a problem in the fiscal section. On one occasion, Debbie Williams and Laura Kennon were working with the central office to correct an invoice error on one of Petitioner's consultant contracts. Petitioner questioned the method they were using to correct the problem. He wanted them to correct the error without involving the central office or the State Comptroller's office. Ms. Williams wanted to leave a proper audit trail. Before the situation was resolved, all three employees became angry and confrontational. Around the end of February 1995, a member of the financial services staff requested a meeting to discuss the problems the office was having as a result of the dissension between Petitioner and Ms. Charron. Jean Jones, District Two's Director of Administration attended the meeting. Linda Green and Jean Jones advised the staff that they could go to either Petitioner or Ms. Charron for answers to any questions about their work. Linda Green did not tell her staff in this meeting, or any other meeting, that education did not mean anything in Respondent's financial section. After the meeting was over, Jean Jones told Linda Green that some changes had to be made to better define the lines of communication within the office. Ms. Jones instructed Ms. Green to do some research and develop a solution to the problem. A large part of Ms. Charron's duties included working on special projects. These projects necessitated frequent consultations between Linda Green and Ms. Charron. There is no persuasive evidence that Linda Green showed favoritism to Ms. Charron by conspiring with her against Petitioner in private meetings and conversations. To the contrary, the dissension that existed in the office was the result of a personality conflict between Petitioner and Ms. Charron. Ms. Green's inability to establish a clear chain of command aggravated the situation. Prior to November of 1994, Respondent provided Petitioner with an abundance of training in technical and management subject areas. Some of the technical seminars included consultant procedures and negotiation, contract fund approval and encumbrance, and contractual services training. Other training programs included office staff skills enhancement, employee selection, conduct standards and discipline, district budget development, supervisory decision making, employee performance appraisal, fundamental skills of communication, fundamental skills of management, and Certified Public Management Level I. After November of 1994, Petitioner continued to receive training to enhance his career. Some of the programs he attended included review and performance planning, how to supervise people, managing change, presentation skills, budget and budget orientation, federal aid training, records retention, and management problems of the technical person in a leadership role. Linda Green encouraged Petitioner to participate in the training programs. She gave him the opportunity to develop the skills necessary to enhance his career. In the spring of 1995, Linda Green worked on training plans for all personnel in the fiscal section including Petitioner. On April 7, 1995, Ms. Green discussed Petitioner's training plan with him. On April 25, 1995, a copy of Petitioner's training plan was discovered on his desk with the word "bullshit" written across the bottom. Petitioner admits that he wrote this expletive on his training plan in the presence of Ms. Charron. In April of 1995, the State Comptroller's office rejected and returned a great number of invoices to the financial office. Linda Green responded by assigning Petitioner the responsibility of handling the returns and correcting the errors. In order to stay apprised of the situation, Ms. Green required that all mail relating to returns be directed to her before being delivered to Petitioner. She did not review Petitioner's mail unrelated to the returns. In April of 1995, Linda Green became aware that certain work assigned to Petitioner and/or Petitioner's subordinates was not being performed in a timely manner. Ms. Green had to enlist the help of other personnel to complete the work. In April of 1995, Linda Green initiated the procedure to issue reprimands to Petitioner concerning his continued misuse of the office telephones and facsimile machines, his sleeping on duty, and his social visits that wasted time. However, this procedure was delayed because Petitioner was hospitalized for surgery. Petitioner was out of work on sick leave from April 27, 1995, to May 30, 1995. During his illness, Linda Green extended Petitioner's probationary period for his Accounting Services Supervisor I position. In the 1992-93 fiscal year, the financial services office had approximately 12 primary responsibilities. The financial office gained 10 additional duties in the 1993-94 fiscal year and 18 new duties in the 1994-95 fiscal year. During this time, the number of positions in the financial office doubled. In May of 1995, Linda Green began to plan the reorganization of the financial section. She discussed the reorganization with her supervisor, Jean Jones. They made a decision to divide the responsibilities in the financial services office between Petitioner and Ms. Charron, the two established supervisors. They based the decision in part on a need to accommodate the increased work load. They also decided to split the supervision duties in an effort to improve the lines of communication within the office and to eliminate dissension. Officials in Respondent's central and district offices approved the reorganization. Under the reorganization plan, Ms. Green decided to give Petitioner responsibility for the following: supervising the concentration account; processing purchase orders, local purchase orders, local charge accounts, and utility invoice transmittals; processing travel and individual reimbursements; handling deposits; supervising warrant distribution; and processing mail. Ms. Green deleted Petitioner's duties relative to payroll and contracts. Ms. Charron's duties under the reorganization included supervision of the following: contracts, reconciliations, compliance reports, interest payments, and journal transfers. She assumed supervision of the payroll at the express request of Jean Jones. Additionally, Ms. Charron was assigned numerous special projects. When Petitioner returned to work from sick leave on June 1, 1995, Linda Green discussed the reorganization with Petitioner and Ms. Charron. She advised them that Ms. Charron would supervise four Level Two positions, one of which was vacant. Petitioner would supervise five Level One positions, all of which were occupied. Petitioner and Ms. Charron would report directly to Linda Green. Linda Green decided to have Petitioner supervise the Level One positions because they needed more supervision than the Level Two positions. Petitioner was better qualified than Ms. Charron to supervise the five entry level positions occupied by minority and non-minority employees. On June 15, 1995, Linda Green promoted Ms. Charron to Accounting, Audit, Tax Level V. Her salary was increased by 20 percent to $1,114.20 bi-monthly. The promotion was effective before the expiration of Ms. Charron's probationary period as an Accountant IV. The decisions to reorganize the section and promote Ms. Charron were made while Petitioner was absent on sick leave. Linda Green did not deliberately choose to promote Ms. Charron without consulting Petitioner as her supervisor. Moreover, Ms. Green, as manager, had no duty to consult with Petitioner before reorganizing the office. On June 16, 1995, Linda Green issued two official written reprimands against Petitioner. The first written reprimand involved a violation of Respondent's Conduct Standard 14-17.012(4)(a)6., Florida Administrative Code, for sleeping on duty. The reprimand documented the following occasions that Petitioner violated this conduct standard: November 30, 1994; December 1, 1994; January 5, 1995; March 13, 1995; March 20, 1995; March 21, 1995; March 30, 1995; June 5, 1995; and June 7, 1995. Prior to June of 1995, numerous employees were observed sleeping in meetings. The record contains no evidence that any of them were given written reprimands for sleeping on duty. Except for one of these employees, there is no evidence that their respective supervisors were aware that they were sleeping on duty. One employee, Jim Spencer, was observed sleeping on duty by his direct supervisor, Jean Jones. He was not on permanent career status at the time. Jean Jones decided to extend Mr. Spencer's probationary status rather than issue him a written reprimand. Ms. Jones made a conscious decision to give Mr. Spencer an opportunity to correct his behavior before dismissing him from employment. The second official written reprimand charged Petitioner with violating Respondent's Conduct Standard 14-17.012(4)(a)25., Florida Administrative Code, for unauthorized use or misuse of state property, services, equipment or personnel, and Respondent's Conduct Standard 14-17.012(4)(a)7., Florida Administrative Code, for loafing. This reprimand was the result of Petitioner's continued abuse of telephone privileges from January through June of 1995, misuse of the facsimile machines from February through May of 1995, and extended social visits with an employee from another office from January through March of 1995. Petitioner's alleged misuse of Respondent's facsimile machine was due to his involvement with the Safe and Drug-free Schools Advisory Council sponsored by the Columbia County School Board. Petitioner was cautioned in staff meetings on February 13, 1995, and February 21, 1995, against using state property for personal reasons. After those meetings, he received announcements of advisory council meetings on February 27, 1995, and April 26, 1995. He received a third fax transmission from the school board on May 16, 1995, while he was on sick leave. The school board solicited Petitioner's participation in the advisory council during one of Respondent's staff meetings. Respondent's employees did not have to request leave to attend the meeting. Nevertheless, Respondent did not give its employees permission to use its facsimile machines to receive notices about advisory council meetings or other volunteer work. Petitioner contacted the school board staff to tell them not to send him notices using Respondent's facsimile machines. The record is not clear as to when Petitioner made this request. Petitioner did not receive facsimile transmissions from the school board after he received the reprimand in June of 1995. The record contains evidence of four written reprimands for employee misuse of state property from December 1994, through May 1995. From February 1996, through June 1996, six employees were given written reprimands for misuse of state property. The reprimands of other employees included misuse of telephone privileges, computers, and agency stamps and stationary. These reprimands, together with competent evidence that Petitioner abused his long-distance telephone privileges as set forth below, eliminate any concern that Petitioner received disparate treatment regarding his reprimand for misuse or unauthorized use of state property. There is no evidence that Respondent has ever cited anyone but Petitioner for loafing. Nevertheless, the record supports this charge against Petitioner. Juanita Aiken works in Respondent's central office as an Disbursement Services Analyst. She testified that she often discussed personal matters with Respondent's employees in long- distance telephone conversations before she addressed the business purpose of her call. Linda Green personally informed Petitioner in January of 1995 that he needed to confine his long-distance telephone conversations with Ms. Aiken to department business. Petitioner did not heed her verbal warning. Ms. Aiken's personal telephone conversations with Petitioner did not cease until Linda Green and Jean Jones contacted her supervisor in Tallahassee. In the spring of 1995, Linda Green solicited Debra Williams' help in monitoring Petitioner's personal telephone calls. Ms. Williams declined to become involved and requested that her desk be relocated to another area. Linda Green assigned Ms. Charron a desk in Petitioner's private office in April of 1995. Ms. Charron complained to Ms. Green that Petitioner was talking on the phone for 30 to 45 minutes everyday and sometimes twice a day. The personal nature of the calls made Ms. Charron feel uncomfortable. Olu Olyewole worked for Respondent as a Distributor Computer Systems Analyst. He was responsible for connecting personal computer terminals to the networking system. He visited Petitioner regularly for extended periods of time until Ms. Green complained to his supervisor. When Mr. Olyewole visited Petitioner, the door to Petitioner's private office would often be closed. Early in 1995, Wanda Jean Hills desk was located in the glass-enclosed office with Petitioner's desk. On one occasion she could not get to her desk because she believed Petitioner and Mr. Olyewole were having a private conversation. The long social visits with Mr. Olyewole wasted time in an office that was overburdened with work. The visits interfered the performance of work by Petitioner and his subordinates. Petitioner was unavailable to his subordinates during these visits because they were reluctant to disturb his conversations, even when they needed his assistance. Linda Green did not reprimand any of her subordinates except Petitioner for misuse of state property, sleeping on duty, or loafing. However, there is no evidence that other employees under her authority violated the same conduct standards that Petitioner violated. There is evidence that Linda Green sold Amway products to employees on Respondent's property over a two-month time span. The record does not reflect the exact period of time in which Ms. Green engaged in this activity. The greater weight of the evidence indicates that Linda Green passed out Amway brochures and delivered merchandise before work in the mornings. At times, her co-workers would place an order with Ms. Green during work hours because they were familiar with Amway products and knew that she was an Amway representative. Occasionally, Respondent's employees would hand Ms. Green a check or leave one in her desk during work hours. Linda Green did not aggressively pursue her private enterprise during work hours. There is no evidence that Ms. Green's private business activities interfered with her duties or usurped a significant portion of her time as manager of the financial section. Respondent did not give Linda Green a written reprimand for conducting private business on Respondent's property. The record does not reflect whether Ms. Green was verbally reprimanded. It does not appear that her supervisor, Jean Jones, was aware that Ms. Green was involved in selling Amway products on department property. The record does not contain evidence of any written reprimand based solely on unauthorized solicitation on state property. It does contain evidence that Respondent issued a written reprimand to an employee for conducting personal business while using a state vehicle. The employee's actions, like Ms. Green's, were incidental to the performance of his duties. The employee's supervisor did not require the employee to reimburse the agency for any cost. On June 16, 1995, Linda Green gave Petitioner a special performance appraisal to evaluate his performance as a supervisor since November 21, 1994. To conduct this evaluation, Ms. Green used the performance appraisal form for supervisors and managers that was in effect when Petitioner was promoted to Accounting Services Supervisor I in November of 1994. Linda Green admits that she did not conduct the required initial review of the relevant performance standards with Petitioner within two weeks of his promotion. Nevertheless, Petitioner's claims that he was not familiar with the performance standards used by Ms. Green to evaluate his performance is not persuasive. Petitioner attended at least two seminars in performance appraisal and performance planning. Petitioner was familiar with the performance standards for a supervisor, which became effective after Respondent initiated its career service reform in February of 1995. He signed the RAPP form on February 13, 1995. The standards contained on the new appraisal form are substantially similar to the performance standards listed on the older appraisal form. Linda Green gave Petitioner an overall performance rating of "below" standards. The record supports her determination that Petitioner's work performance began to fall short of expectations after he assumed the position as an accounting supervisor. Linda Green determined that Petitioner's performance in two categories deserved the highest rating of "achieves." These two categories were EEO/AFFIRMATIVE ACTION and SAFETY PRACTICES. Linda Green determined that Petitioner's performance was substantially below expectations in at least one area of each of the remaining six categories for the following reasons: PLANNING, CONTROLLING AND ORGANIZING WORK Petitioner failed to operate his work areas efficiently. He did not notify his supervisor of job related problems. Petitioner did not take necessary and appropriate action on performance and shortcomings of subordinate employees. SUPERVISION/LEADERSHIP OF PEOPLE Petitioner failed to delegate effectively. Petitioner demonstrated dissension toward other staff members. PERFORMANCE APPRAISALS Petitioner did not take necessary and appropriate action on performance shortcomings of subordinate employees. PROBLEM ANALYSIS/DECISION MAKING Petitioner failed to inform and/or consult with necessary persons during the decision- making process. SELF DIRECTION/PERSONAL SKILLS Petitioner failed to use his work time effectively. He abused his telephone privileges. He wasted time visiting with an other employee. JOB PERFORMANCE Petitioner failed to perform specific job assignments as outlined on his position description or as assigned by appropriate management. A job applicant claimed that he earned 2400 credit hours in a U.S. Army finance school within a two-month period. Petitioner offered the applicant a job without verifying this information. Linda Green subsequently determined that the applicant had misrepresented his qualifications and withdrew the job offer. Based on this incident alone, Petitioner did not meet the standard for job performance in general. In December of 1995, Rick Haddock received a promotion to a Level II accountant. His salary increased by 20 percent to $715.27 bi-monthly. In March of 1996, Petitioner had a confrontation with Mary Caldwell, a white female accountant. Petitioner's voice was loud; he sounded very angry and threatening. The disturbance alarmed several employees who were in the vicinity. Ms. Caldwell and Petitioner went into a private office where the argument continued. Petitioner's behavior toward Ms. Caldwell was totally inappropriate. On March 22, 1996, Linda Green gave Petitioner a written reprimand for violation of Respondent's Conduct Standard 14-17.012(4)(a)16., Florida Administrative Code, involving rudeness, display of uncooperative or antagonistic attitude, actions or behavior. That same day, Ms. Green gave Petitioner a mandatory Employee Assistance Program Referral. In June of 1996, Linda Green deleted Petitioner's duties involving the budget and supervision of the vouchering section. Linda Green gave Patsy Green, a white female, Petitioner's budget responsibilities. Linda Green took this initiative because of the increased work load resulting from continued decentralization. The central office initiated a process in 1996 to conduct a periodic formal Quality Assurance Review (QAR) in each district office. The purpose of the QAR was to ensure that all vouchers were correct before they were sent to the billing office of the State Controller. Ms. Green wanted Petitioner to focus his energy on making sure that District Two's vouchers were in compliance with all state regulations. In June, 1996, Linda Green gave Petitioner additional duties including financial audits and investigations, quality assurance reports, reconciliations, comptroller returns, and liaison with the State Comptroller's office. His new duties were in-depth auditing and accounting responsibilities involving job cost reporting and making sure that the accounting system stayed in balance. Petitioner's salary was not decreased when his job description changed. At the same time, Linda Green gave Ms. Charron additional duties including contract funds management, joint participation agreements, settlement agreements, management reports, training, and numerous special projects. Ms. Green deleted Ms. Charron's supervisory responsibilities over the contract section. Linda Green received information in June 1996, that the central office intended to audit the supervisory positions in District Two. The central office wanted to make sure that all Level V positions in the Accounting, Audit, and Tax occupational group were held by employees spending at least 51 percent of their time in supervision. Petitioner and Ms. Charron were not spending 51 percent of their time in supervising the work of other employees. Accordingly, both of them were reassigned on June 14, 1996, to Level IV of the Accounting, Audit, and Tax occupational group. The working title for each of them became Accounting Services Administrator. This change was not a demotion and did not effect their respective salaries. Instead, the reassignments accurately reflected the actual duties of their positions. After Petitioner filed his Charge of Discrimination, Michael Klump, from Respondent's Minority Program Office in Tallahassee, Florida, was assigned to furnish all information requested by FCHR and to prepare the agency's response to the complaint. Mr. Klump's duties did not involve investigating the alleged charges on behalf of FCHR. Respondent's Minority Program Office prepared a letter dated September 11, 1995, addressed to Petitioner. The purpose of the letter was to advise Petitioner that the agency had received the complaint. It states that Petitioner should contact Mr. Klump if Petitioner had any additional information or questions regarding this matter. There is no competent evidence to indicate whether Petitioner received the letter from the Minority Program Office. Mr. Klump visited Respondent's District Two Office in Lake City to gather the information requested by FCHR. He did not interview Petitioner while he was there. Respondent's Minority Program Office does not routinely interview complainants who file a charge of employment discrimination with FCHR unless the complainant responds to a letter similar to the one addressed to Petitioner. There is no credible evidence that Respondent prepared its response and/or position statement to FCHR with the intention of misrepresenting material facts. Linda Green gave Petitioner a copy of her computer notes relative to dissension in the office when he first requested them. However, she edited the notes to delete the names of employees that had complained about Petitioner. At the hearing, Ms. Green produced an unedited copy of the notes which had been updated beyond the time relevant here. There is no persuasive evidence that Respondent intentionally discriminated against Petitioner on the basis of his race or gender or retaliated against him for filing his Charge of Discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claims of racial and gender discrimination and retaliation. Recommended this 15th day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
The Issue The issue in this case was to determine whether Respondent violated Sections A-5(B) and F-4(4), (19), (27) and (33) of the ECUA Human Resources Policy Manual.
Findings Of Fact In 2000, Respondent was employed by Petitioner. At the time, Respondent was given a copy of the employee handbook, receipt of which was acknowledged by Respondent. The Handbook is a summary of Petitioner’s human resource policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. Both documents reference a Code of Ethics that is to be adhered to by employees (page 2 of the Employee Handbook and page 5 of the Human Resources Policy Manual). Likewise, both documents contain provisions for discipline of an employee (page 32 of the Employee Handbook and page 52 of the Human Resources Policy Manual). The Human Resource Manual states, in relevant part, as follows: Section A-5 Code of Ethics * * * * B. No ECUA employee shall use or attempt to use their position to secure special privilege or exemptions for themselves or others, except that which may be provided by policy and/or law. * * * * Section F-4 Disciplinary Offenses * * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job that involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee. . . . Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. * * * * (19) Unauthorized use of ECUA Property or Equipment The unauthorized use of any ECUA property or equipment for any reason other than ECUA business. * * * * (27) Theft or Stealing The unauthorized taking of any material or property of the ECUA, other employees, or the public with the intent to permanently deprive the owner of possession or to sell or to use for personal gain. * * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of failure to take corrective action or report rule violations and employee misconduct. * * * * Sometime in 2003 or 2004, Respondent moved to his residence located at 280 East Ten Mile Road. The home had a 10,000 gallon pool. The home’s waterline was attached to a metered water tap on a three-inch ECUA waterline. At some point Respondent became dissatisfied with his home water service and wanted to connect his home’s waterline to a 12-inch ECUA water line that also ran in front of his home. Respondent asked Steve Castro, a crew supervisor for Region 1, the region Respondent’s house was in, about “what I needed to do” to transfer his house waterline from the three- inch line to the 12-inch line. Respondent was informed that when the work in that region was caught up, Mr. Castro would have the new tap put in. About two days later, Jeremy Stewart, an ECUA service technician, installed a tap on the 12-inch line in front of Respondent’s home. No meter was installed on the new tap. At the time, Respondent’s houseline was not hooked to the new tap, leaving the tap unused. In 2004 and 2005, the Pensacola area was hit with multiple hurricanes that caused damage to Respondent’s home. His pool developed black algae, which generally requires pressure washing and chemical treatment to remove. In preparation for removal of the algae, Petitioner drained his pool about half way. Sometime in late March or early April, 2006, Petitioner asked Harry Shoemore, his supervisor, to find out how to apply for water service from the 12-inch line and how much it would cost in fees to obtain the new water service. Mr. Shoemore obtained the information for Respondent and radioed him with the information. The fees for the new service would exceed 1000.00 dollars and had to be paid prior to service being installed. On April 9, 2006, Respondent, with full knowledge that he had not paid for any tap, hooked a waterline to the 12-inch tap that had been installed earlier. The line ran around the house to the backyard and into the pool. He did not attach a meter to the tap and did not pay any fees to ECUA. Respondent used water from the tap to pressure wash his pool and fill it. An estimated amount of water used by Petitioner to accomplish these tasks would be over 7,000 gallons of water. On April 10, 2006, Mr. Dawson received a telephone call that there was an unmetered tap at 280 Ten Mile Road. Mr. Dawson and Mr. Shoemore drove to the address to investigate the call. They arrived at Respondent’s house around 8:30 a.m. and saw the ECUA’S one-inch black service tubing from the 12- inch line attached to white PVC piping extending to the backyard of Respondent’s home and emptying into Respondent’s pool. The pool was being filled and water had overflowed into the backyard. There was no meter on the service line. Respondent’s father met Mr. Dawson and Mr. Shoemore at the door to the house. He advised them that he had called Respondent and that Respondent was on his way to his house. Respondent drove up to the house in an ECUA work truck. As he approached Mr. Dawson and Mr. Shoemore, Respondent stated, “You caught me.” Respondent also admitted to attaching the PVC pipe to the line and using the water to pressure wash and fill his pool. He admitted he was wrong for making the attachment and using the water without paying for it. Respondent indicated he was willing to pay for the water and service. There is no question that Respondent illegally connected to and used ECUA property, stole water from ECUA, and deprived ECUA, as well as the County, the connection and impact fees related to such use. Respondent was immediately placed on Administrative Leave with Pay, pending further investigation by Petitioner. Later Respondent was afforded his due process rights by ECUA. Petitioner did review prior disciplinary action against other employees who were allegedly “caught stealing,” including two past incidents that Respondent indicated had not resulted in termination of the employee. One of the incidents could not be verified. The other incident was vague, was not brought to the attention of the past administration for discipline and occurred well prior to the current administration’s policy against theft and employee conduct. Respondent also referenced two employment actions that involved the falsification of time records. At least one of these actions resulted in some form of hearing. However, the evidence was vague regarding these disciplinary actions and any similarity between these cases cannot be determined from the evidence.
Conclusions For Petitioner: John E. Griffin, Esquire Carson & Adkins 2958 Wellington Circle, North Suite 200 Tallahassee, Florida 32308-6885 For Respondent: Marc Hughes 280 East Ten Mile Road Pensacola, Florida 32534
Conclusions Having reviewed all matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint (Case No. 2011008586), with an Election of Rights form to the Respondent (Ex. 1). The Election of Rights form advised of the right to administrative hearings. 3. The parties herein entered into the attached Settlement Agreement (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $13,000.00. Ten payments of $1,300.00 shall be due as follows: The first payment is due on January 31, 2012; the following payments are due on the last day of each successive month. If full payment has been made, the cancelled checks act as receipts of payment and no further payment is required. Overdue amounts are subject to statutory interest and may be referred to collections. All checks shall contain the ten-digit AHCA case number, shall be made payable to the “Agency for Health Care Administration” and be shall be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed January 19, 2012 10:58 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this { 8 day of we ri , 2012. cy Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct capy of this Final Order was served on the below-named persons by the method designated on this _/ 7" day of ~ , 2012. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Rogie Babas, Owner Pleasant Manor ALF, LLC J. Travis Godwin, Esq. Weekley, Schulte & Valdes, LLC 6926 Durant Road 1635 North Tampa Street, Suite 100 Plant City, FL 33567 Tampa, FL 33602 (U.S. Mail) (U.S. Mail) Suzanne Suarez Hurley, Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue The issue in this case is whether Respondent has violated the personnel policy established by Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Respondent was hired by Petitioner as a utility service worker. Currently, Respondent works on the “manhole truck” on the 7:00 a.m. to 3:30 p.m. shift. At some point in time, Respondent was given a copy of the employee handbook. The handbook is a summary of Petitioner’s human resources policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. The manual is available to all employees; both documents provide for the discipline of employees. The Human Resources Policy Manual states as follows: SECTION F-4 DISCIPLINARY OFFENSES * * * (33) Violation of ECUA Rules or Policies or State or Federal Law The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . ECUA has a policy that annual leave must be requested in advance and coordinated with an employee’s supervisor. The reason for the requirement is to ensure that a sufficient number of employees are present to perform necessary and ongoing maintenance repairs on ECUA’s sewage and water system. Such coordination is especially important during holiday time periods, such as Thanksgiving and Christmas. In particular, the utility wastewater service department requires employees seeking annual leave to put their request in the computer, fill out a leave request slip, discuss the request with the supervisor, and post the request on the board in the supervisor’s office. These requirements were verbally given to all wastewater utility employees by their supervisor Doug Gibson beginning about five years ago. Since that time, employees, including Respondent, were periodically reminded of these requirements during the time periods when many employees seek time off, such as major holidays and hunting season. Indeed, the evidence was clear that Respondent knew about these requirements since he had been personally counseled and/or reprimanded for not following them on April 26, 2010; May 12, 2010; June 25, 2010, and July 21, 2010. Around mid-November 2010, Mr. Gibson met with his employees, including Respondent, to remind them of the leave requirements and the necessity to schedule such leave in advance since many employees wanted the same time off during the upcoming holidays and hunting season. His goal was to develop a list of employees who wanted time off so that required utility work during that time period could be maintained. On November 17, 2010, Mr. Gibson again met with his employees, including Respondent, to advise them that this was the last chance to schedule annual leave during the holiday period and that no further leave would be granted unless there was an “extreme” emergency. At that time, Respondent did not request any time off. On November 22, 2010, Respondent worked his regular shift. He did not mention that he wanted to take November 23 off and did not fill out a leave request slip or follow any of the other procedures for such leave. In particular, he did not discuss such leave with his supervisor. On November 23, 2010, Respondent arrived at work before his supervisor and filled out a leave slip requesting annual leave for that day. Respondent intentionally dated the slip for November 22, 2010, to make it appear that he had filled it out the day before. He placed the slip in his supervisor’s box and left work. When his supervisor arrived at work, he found the leave slip and denied Respondent’s request for annual leave. On November 24, 2010, Respondent was questioned by his supervisor about the request. Respondent told his supervisor that he had a doctor’s appointment on November 23, 2010. Respondent did not indicate that the appointment was unanticipated or for an emergency. Respondent did indicate that he should have requested a different type of leave for the doctor’s appointment. Additionally, later in this disciplinary process, Respondent indicated the doctor’s appointment was not his, but was for his girlfriend who had some sort of dental problem on November 23. There was no evidence that the girlfriend’s dental problem was an emergency or one that she could not handle herself. In fact, the only evidence regarding a medical appointment attended by Respondent reflected an appointment after 3:00 p.m. on November 23rd, close to the end of Respondent’s regular shift. Such evidence indicates that Respondent did not have a medical emergency on November 23rd. Additionally, Respondent’s basis for missing work is not credible, given Respondent’s changing story about his absence from work on November 23 and/or whether such absence was due to an emergency medical issue for either himself or his girlfriend. On November 30, 2010, Respondent again did not follow ECUA policy for requesting leave. On that day, Respondent left a leave slip in his supervisor’s box asking for one hour of leave at the end of his shift. He did not discuss the leave with his supervisor. Respondent returned to the ECUA office about an hour before the end of his shift because he thought it was not a problem to ask for time off without following procedure. Respondent’s supervisor advised him his request was denied and instructed Respondent to “get back on the truck” and finish his shift.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated its human resources policy F-4(33), and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resources Policy Manual. DONE AND ENTERED this 22nd day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 22nd day of April, 2011. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Willie Leigh 2101 Scenic Highway, Apartment C108 Pensacola, Florida 32503 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, itis ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $4,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 90 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed July 15, 2014 4:14 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this Lo day of Tele, , 2014.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_copy of this Final Order was served on the below-named persons by the method designated on this //”” day of y f \ VA , 2014. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Deborah E. Leoci Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas W. Caufman, Esq. Quintairos, Prieto, Wood & Boyer, P.A. 4905 West Laurel Street, Suite 200 Tampa, Florida 33607 (U.S. Mail)
Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
The Issue The issues for determination are: Whether Respondent, as the Division Chief of the Emergency Medical Services Division for the Miami Dade Fire and Rescue Department, violated Subsections 112.3135(2)(a) and 112.313(6), Florida Statutes, by advocating for the appointment, employment, promotion or advancement, of his brother within that Department, and, if so, what is the appropriate penalty.
Findings Of Fact The Department is a department within Miami-Dade County, and Respondent, as an employee of the Department, is a Miami-Dade County employee paid by Miami-Dade County (“County”). Respondent has been an employee of the Department for approximately 25 years. In February and March 1999, Respondent was Division Chief of the Emergency Medical Services Division for the Department. He was transferred to the Communications Division, effective April 5, 1999, where he currently serves as Division Chief of Communications for the Department. Respondent is currently an employee of an “agency” and was an employee of an “agency” within the meaning of the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes, while serving as Division Chief of the Department’s Emergency Medical Services Division. Respondent is subject to the provisions of Subsection 112.313(6), Florida Statutes, for his acts or omissions during his tenure as Division Chief of the Department’s Emergency Medical Services (“EMS”) Division. As a Division Chief for the Department, Respondent is subject to laws, rules and regulations governing County employees, including State ethics laws and County and Department rules and regulations regarding nepotism, hiring, promotion, and advancement of employees within the Department. As a Division Chief for the Department, Respondent was expected to be familiar with State ethics laws and County and Department rules and regulations regarding nepotism, hiring, promotion, and advancement of employees within the Department. In February 1999, there was a vacancy for the position of Emergency Medical Services Officer in Charge (“EMS-OIC”) within the Department. The EMS-OIC position is a second-in-command staff position within the Department’s EMS division that reports directly to the EMS Division Chief. The EMS-OIC position is a position subject to the terms and conditions of the Collective Bargaining Agreement between Miami-Dade County and the Dade County Association of Fire Fighters, Local 1403 ("the Union"). Vacancies for Department positions subject to the Collective Bargaining Agreement are filled by a process known as the “bid system.” Applicants for vacancies submit "bids," listing in order of preference, positions for which they are applying. The bid system is a method administered by the Department that allows Department employees to vie for positions on a competitive basis. Most operational positions are filled based purely on seniority, but the higher level staff positions, such as the EMS-OIC position, are usually filled after comparing qualifications. The job description for the particular vacancy listed in the Position Vacancy Announcement outlines the criteria, certifications, and requirements for a position. Division Chiefs are responsible for the content of job descriptions for vacancies within their respective divisions for inclusion in the Position Vacancy Announcement. As Division Chief of the Department’s EMS Division, Respondent was responsible for reviewing the job description for the EMS-OIC Position already on file with the Department and making any appropriate changes. The Position Vacancy Announcement is compiled twice a year and contains job descriptions for vacancies submitted by the various Department Division Chiefs for positions within their divisions. Article 14.3 of the Collective Bargaining Agreement provided as follows: Where Department requirements provide for an evaluation of applicants [sic] qualifications, evaluation of job performance, written test, and demonstrated abilities to perform in the position sought, qualifications will be relevant to the position bided. A written description of those qualifications will be provided to Local 1403, two (2) weeks prior to the bid announcement. The same criteria will be applied equally to each bidder in establishing the relative ranking. Time-in- grade will be a major consideration in making selections among those bidding. If all qualifications are equal, the most senior person will receive the award. In the event employees were hired or promoted on the same date, time-in-grade seniority for bid purposes will be determined by the employee’s position on the eligibility list. Pursuant to the written policies and procedures of the Department, the Fire Chief is the Director of the Department and is vested with the authority to hire, promote, transfer, and assign individuals to positions within the Department. It is the long-standing custom and practice of the Department for its Division Chiefs to make the initial selection regarding the best applicant among those bidding for staff positions within their divisions. The Department’s Director, Fire Chief R. David Paulison, expects his Division Chiefs to recommend to him their choice from applicants who apply for staff level positions such as the EMS-OIC position. By virtue of his position as EMS Division Chief, Respondent would have been delegated the initial responsibility of selecting the person to fill the EMS-OIC Position, subject to approval by the Fire Chief. All bids are "worked" at a bid working meeting of Division Chiefs and select administrative personnel. In addition to Respondent’s authority to recommend by virtue of his position as Division Chief, the evidence also suggested that Respondent and other participants of the group at the bid working meeting were expected to provide input into the process and deliver a solution in the form of recommendations to fill the job vacancies. There are three different criteria for selecting individuals to fill position vacancies within the Department. Most operations vacancies are filled based solely on seniority. For vacancies in Rescue, as Driver Operators, at the airport, on the Air Truck, and in a Hazardous Materials Unit, applicants must meet certain minimum qualifications, such as having a particular certification or driver's license. Of the applicants having the minimum qualifications, the most senior applicant will be selected. The overwhelming majority of positions are filled using these two criteria. The position vacancy at issue in this case, EMS-OIC, is a forty-hour administrative staff position, and unlike the other position vacancies mentioned, is allowed to be awarded based on a third criteria, the most qualified applicant. The position vacancy announcement for the EMS-OIC position issued by the Department on February 12, 1999 (effective February 22, 1999), provided as follows: This Position is responsible to the EMS Division Chief for the coordination of on- going operational training activities of the EMS Bureau and will replace the Division Chief in his absence. It is an administrative staff position responsible for planning, organizing and implementing various activities of the Division to include the direct supervision of 12 EMS Captains and 2 EMS research and development lieutenants. The EMS-OIC will ensure that all EMS related training needs are met for the license re-certification of all paramedics and EMTs. This position will also serve as the liaison with other Fire Departments, EMS Bureaus, physicians and hospitals, and will assist the EMS Division Chief in systems research, operational analysis, budget preparation, managing division projects and serve as Protocol Committee Chairman. Qualifications: Requires State Paramedic Certification and Fire Department Protocol Certification. Must currently hold the rank of Chief Fire Officer. Persons seeking this position must have knowledge of applicable HRS rules and regulations; possess strong verbal and written communication skills; demonstrate a comprehensive understanding of department EMS policies and procedures and be able to effectively prioritize and organize work assignments. Familiarity or experience in the development of organizational policies, standard operating procedures and medical and/or administrative protocols is a must. Proficiency in the use of personal computer is a requirement of the position. A resume of any training, experience, education or certification and a summary of practical experience that can serve to substantiate the skills, knowledge and abilities listed for the position must be attached to the Assignment Preference Form for consideration when awarding the bid. Preference will be given to the most qualified applicant. The work schedule for this position is four 10-hour days per week. The new roles and responsibilities of this position require that interested personnel meet with the Emergency Medical Services Division Chief prior to the bids being awarded. This may be accomplished by phone if necessary. The purpose of this meeting will be to answer any questions the bidder may have, discuss the direction and philosophy of the EMS Division and discuss the knowledge, skills and abilities of the applicant. The EMS Division Chief will meet with the bidder on duty if needed. Please call between 8AM and 4PM to schedule this interview. Some time prior to the bid working meeting, perhaps several months, Respondent learned from his brother, David James, who was also a Department employee, that David James was going to bid the EMS-OIC position vacancy. Respondent was knowledgeable of anti-nepotism and ethics laws; and recognizing that this presented a potential conflict, Respondent advised his immediate superior, Chief James J. Brown, of the potential conflict. This was done by a telephone conversation, by e-mail, or both. In the same conversation, Respondent reminded Chief Brown of previous conversations they had had regarding David James' involvement in two previous bids for the same position. In the previous bids, both Respondent and David James believed that David James had not been treated fairly. After being notified of the potential conflict, Respondent and Chief Brown agreed that Chief Brown would make the selection for the EMS-OIC position vacancy. Neither told Fire Chief Paulison that Chief Brown, instead of Respondent, was going to make the selection for the EMS-OIC position vacancy. The EMS-OIC position was an advancement or promotion over the job that David James held at the time. It was a coveted position that allowed those who held it to be paid more than a Division Chief. It had more responsibility and administrative duties, and paid approximately $5,000 a year more than the position that David James held at that time. In March 1999, David James, Aubrey Fisher and Ronald Adkinson, who were all Department employees at the time, submitted applications consisting of Assignment Preference Sheets with attached résumés (collectively “bids”) for the EMS- OIC position vacancy. After the bids were submitted, but prior to the bid award, David James and Aubrey Fisher contacted Respondent and Respondent discussed with them the duties of the position and answered questions the two applicants had. Respondent did not review the résumés of any EMS-OIC position vacancy applicant. Respondent explained at the final hearing that since he took himself out of the process, there would be no need to review applicants’ résumés. Although Respondent talked with Aubrey Fisher and David James, Respondent did not conduct an interview with them to discuss their knowledge, skills, and abilities in connection with their applications for the EMS-OIC position as provided in the job description. In Respondent’s view, an interview to discuss the knowledge, skills and abilities of the applicants was not necessary. Respondent was personally familiar with both David James and Aubrey Fisher. Respondent testified that he did not tailor the interview process to avoid nepotism, but rather conducted his discussions with the applicants in accordance with his experience as a Division Chief who conducts prebid interviews. The process in which position vacancies within the Department are awarded, including the EMS-OIC position vacancy, is known as the “bid awards process.” As part of this process, the “bid working meeting” is held at the Department where decisions regarding which applicants have been selected to fill the various vacancies are announced. Bid worksheets are then prepared at this meeting, listing the applicants chosen, which are then submitted to the Fire Chief. The official certified bid awards list is issued upon approval of the Fire Chief. On February 22, 1999, a memorandum was distributed to all of the Department’s Division Chiefs, including Respondent, announcing that the bids would be “worked” on Thursday, March 11, at 8:00 a.m. in the Director’s Conference room, and stating, in part, that “Division representatives must be on time and have authority to make decisions without counsel on who will be awarded a bid for their Division.” On the morning of March 11, 1999, Chief Brown approached Respondent at the bid working meeting and asked him, "How was the selection process made, was it seniority or was it most qualified?" This surprised Respondent because it indicated to him that Chief Brown had not read the Position Vacancy Announcement. Prior to the start of the bid working meeting, Chief Brown reviewed the résumés submitted by Aubrey Fisher, David James, and Ronald Adkinson for the EMS-OIC position vacancy. After reviewing the résumés, Chief Brown determined that all three applicants were essentially equally qualified. So he "fell back on what had been the determining factor in a lot of situations, that was seniority," and awarded the EMS-OIC position to the most senior, Aubrey Fisher. The bid working meeting began at 8:00 a.m. on the morning of March 11, 1999, in the Director’s conference room. There were approximately 12 to 25 people at the bid working meeting, including: Respondent; Special Assistant John Moore, who was coordinating the meeting; Management Representative Patricia Frosch; Labor Representative Stan Hills; a number of Division Chiefs; and others who had an interest in the bid process. Moments before the bid working meeting began, Chief Brown told John Moore of his decision and asked John Moore to make the announcement at the meeting. Chief Brown then left the room. At the beginning of the bid working meeting, John Moore told the individuals filling out the bid worksheets of Chief Brown’s selection of Aubrey Fisher to fill the EMS-OIC position. Respondent only heard the announcement “out of one ear” because he was not really paying attention, but rather was reading a newspaper. Realizing that Aubrey Fisher had been selected, Respondent stated to those present that he had a problem with Aubrey Fisher’s selection. Respondent became visibly angry and upset and stated words to the effect that his brother had been "cheated" or "screwed" again. Patricia Frosch, left the room, found Chief Brown, and brought Chief Brown back into the room, whereupon Respondent told Chief Brown that his decision was wrong, and asked how the bid had been assigned. Someone suggested that Respondent and Chief Brown take their discussion out of the conference room, which they did. Respondent and Chief Brown continued their discussion during which Respondent mentioned the qualifications of his brother. Chief Brown told Respondent that, based upon his review of the résumés, the applicants were equally qualified, and that when two people were equally qualified, the position goes to the senior person. But Respondent stated, “J.J., that’s ridiculous, David has a bachelor’s degree in public administration, he’s been a Division Chief of numerous areas within this Department and has served those positions well. He has numerous seminars. He’s taught at the Executive Development Academy for the International Association of Black Fire Fighters, he has a number of years in the area in finance. J.J., excuse me, Fisher can’t hold a candle to this man.” Chief Brown believed Respondent was sincere in his belief that the rules had been improperly applied and that the most qualified applicant had not been selected. Respondent attended the bid working meeting in his official capacity as a Division Chief. If not for Respondent’s official position as a Division Chief and the respect Chief Brown had for Respondent, Respondent would not have had an opportunity to challenge Chief Brown’s decision at the time or in the manner in which he did. Chief Brown gave Respondent’s comments more credence because Respondent was the EMS Division Chief and because he and Respondent had served together for more than twenty years and he knew Respondent to be a sincere, good, "by the book," man. Respondent’s comments affected Chief Brown’s decision to recommend Aubrey Fisher and caused Chief Brown to refer the matter to Fire Chief Paulison. By his comments to Chief Brown, Respondent was clearly advocating for the selection or recommendation of his brother over the selection or recommendation of Aubrey Fisher. With the exception of his momentary outburst at the bid working meeting and following discussion with Chief Brown, Respondent made no other attempts to advocate the selection or recommendation of his brother. Respondent believed that his comments to Chief Brown were directed to the fact that the bid award was not made to the most qualified applicant as required by the terms of the Position Vacancy Announcement. Chief Brown eventually stated that if Respondent felt that strongly about it he would take the issue to the Fire Chief. In response, Respondent said something to the effect of, “That’s all I want.” Chief Brown then took the issue to Fire Chief Paulison. At that time, Chief Brown did not tell the Fire Chief that he recommended Aubrey Fisher. Rather, he told the Chief that there was a controversy between the selection of Aubrey Fisher and David James. Respondent did not return to the bid working meeting, as he had no other vacant positions in the EMS division. Respondent then telephoned his brother and advised him that Chief Brown had recommended Aubrey Fisher for the EMS-OIC position vacancy. After considering the three applications with staff, Chief Paulison decided that David James was the most qualified and gave the job to Respondent’s brother, David James. If Respondent had not challenged Chief Brown’s decision to recommend Aubrey Fisher on March 11, 1999, there is a probability that Chief Brown’s recommendation would have stood and Aubrey Fisher would have been selected to fill the EMS-OIC position vacancy. Recommendations from the bid working meeting are generally accepted by the Fire Chief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order and public report be entered finding that Respondent, Donald James, violated Subsection 112.3135(2)(a), Florida Statutes, imposing a civil penalty of $2,500 for Respondent’s violation of the anti-nepotism provisions found in Subsection 112.3135(2)(a), Florida Statutes, reprimanding him for the violation, and finding that Respondent did not violate Subsection 112.313(6), Florida Statutes, and dismissing that charge. DONE AND ENTERED this 27th day of August, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 27th day of August, 2001. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David Rothman, Esquire Jeanie Melendez, Esquire Thornton & Rothman, P.A. 200 South Biscayne Boulevard First Union Financial Center, Suite 2690 Miami, Florida 33131 Phillip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, Emerald Coast Utilities Authority, as a result of its failure to accommodate Petitioner’s disability, in violation of section 760.10, Florida Statutes (2014).
Findings Of Fact ECUA is a local governmental body which was formed by the Florida Legislature. It provides water, wastewater (sewer), and sanitation collection services in and around defined areas of Escambia County, Florida. ECUA employs more than 15 full- time employees at any given time. Petitioner began his employment with ECUA in September 1995 as a Refuse Collector/Driver in ECUA's Sanitation Department. In 1999, Petitioner transferred to ECUA's Regional Services Department. At all times relevant hereto, he held the position of Utility Service Technician II. On or about June 28, 2012, Petitioner was given a copy of the ECUA’s revised Human Resources Manual and Employee Handbook (Manual). The Manual contains ECUA's human resource policies, including those for discipline and termination of employees. Section B-13 of the Manual establishes disciplinary guidelines, including “general examples of unacceptable employee conduct for which the employee may be disciplined up to and including termination of employment.” Section B-13 A.10. provides that “disciplinary offenses” include: 10. Failure to maintain job qualifications: Failure to maintain required licenses, certifications, or other similar requirements such that an employee is no longer qualified for a position or can no longer perform assigned duties. Section D-16 of the Manual establishes procedures for work related injuries suffered by ECUA employees. In addition to procedures for reporting and treating injuries, the Manual establishes that “[w]hen temporary, light, or unusual duties are suggested; these will be reviewed and, if available, arranged by the Human Resources Department staff, the supervisor and/or department head.” Section D-16 A.2. further provides that: Employees will return to work anytime they are medically able, up to six (6) months from the date of injury. At that point, if unable to return to work the employee must retire, resign, or be terminated. The department head, after consultation with the Human Resources Director, may extend this time based on evaluation of the employee's ability to return to work. ECUA’s Regional Services Department has 111 employees, who are responsible for the maintenance of all water and wastewater services and infrastructure for the ECUA, including, approximately, 1,200 miles of water lines; 1,000 miles of wastewater lines; 22,000 manholes; 20,000 valves; 10,000 water hydrants; and 473 air-release valves. Many of the valves are underground, often under asphalt or concrete. The ECUA position description for Utility Service Technician II (UST II) describes the requirements of the position as: having sufficient physical ability and mobility to work in a field environment; to walk, stand, and sit for prolonged periods of time; to frequently stoop, bend, kneel, crouch, crawl, climb, reach, twist, grasp, and make repetitive hand movement in the performance of daily duties; to lift, carry, push, and/or pull moderate to heavy amounts of weight; to operate assigned equipment and vehicles; and to verbally communicate to exchange information. Lifting heavy objects is a daily component of the UST II position. Items that are routinely lifted off of the job- site truck include pumps that can range from 50 to 80 pounds, 50 to 70 pound jackhammers, ductile and friction saws that weigh 50 to 60 pounds, and sections of pipe that can weigh from 25 to 100 pounds. While the pumps, saws, and other equipment can be retrieved from the bed of the truck, lengths of pipe are frequently carried on overhead racks. In addition to lifting tools and equipment from the truck, the job requires lifting 100-pound manhole covers using a hook, cutting asphalt and concrete with saws, digging to find leaks and access valves, and loosening valves that may not have been turned for decades. Manual dexterity is necessary when a utility worker is in a hole, where they may be called on to grab tools and items passed down to the UST, or get past items in the hole. Mr. Dawson testified credibly that UST work is very strenuous, involving work conditions and positions that are “not ergonomically sound,” and becomes more-so when fatigue sets in. He further testified that given the demands of the job, one cannot expect to perform while keeping his or her arms close in to their body, stating that “it’s hard to short-arm a heavy pump.” On December 18, 2013, the Petitioner incurred an on- the-job injury to his shoulder. The injury occurred while Petitioner was bearing down to loosen a valve that had become “frozen” as a result of having not been turned for a long period of time. While pulling up, he felt something “pop” in his arm. He finished up the job as well as he could. The shoulder injury was initially described as a strain or sprain. After his work injury, Petitioner was directed to Sacred Heart Medical Group to be treated. Dr. Albrecht placed initial restrictions on Petitioner to avoid stooping, kneeling, crawling, climbing, and commercial driving. He was also limited to lifting only up to 15 pounds and pushing and pulling 15 pounds. As a result of the injury, Petitioner took authorized leave under the Family Medical Leave Act (FMLA) beginning December 19, 2013. As such, Petitioner was entitled to job- protected leave for a period of twelve weeks. At that time, Petitioner became eligible for, and received, workers’ compensation benefits. In January 2014, when it became apparent that Petitioner was going to be out for an extended period, a temporary employee was hired. However, the temporary employee was insufficient to meet the workloads of the Regional Services department, requiring closer supervision, and being limited in the work that the employee could perform independently. On January 2, 2014, Petitioner was treated by his physician and was restricted from pushing, pulling, or lifting more than 15 pounds. He was to avoid climbing and commercial driving. He was also to avoid lifting more than five pounds with his right arm. His physician further opined that he was to be kept on a light-duty status and prescribed physical therapy. The diagnosis was “revised to strain of right shoulder.” On January 23, 2014, Petitioner was treated by his physician, Dr. Albrecht, who opined that conservative treatment had been maximized and a referral to orthopedic physician was made. Petitioner's restrictions remained the same, namely he was restricted from pushing, pulling, or lifting more than 15 pounds. He was to avoid climbing and commercial driving. He was also to avoid lifting more than five pounds with his right arm. Petitioner was seen on February 11, 2014, by Dr. Turnage, an orthopedic specialist. Dr. Turnage’s impression was that Petitioner had “probable labral pathology and/or partial rupture of the biceps.” Surgery was recommended. Surgery was originally scheduled for February 19, 2014, but was delayed due to a problem in the process of approving the procedure by ECUA’s third-party administrator for workers’ compensation claims. Approval was ultimately obtained, and Petitioner was scheduled for surgery on March 14, 2014. Although Petitioner’s authorized FMLA leave was exhausted on March 12, 2014, Petitioner was not terminated from employment. Petitioner presented for the scheduled surgery on March 14, 2014. As the procedure commenced, Petitioner’s blood pressure fell to a degree that the surgeon terminated and postponed the surgery so that Petitioner could be evaluated by a cardiologist to determine if he could safely undergo surgery. Petitioner passed the “cardio test,” and the surgery was rescheduled. By letter dated March 26, 2014, Petitioner was advised that, before he could be restored to employment, he would have to be able to perform the essential functions of his position, as evidenced by a “fitness-for-duty certificate.” The surgery on Petitioner’s right shoulder and bicep was finally performed on April 16, 2014. Petitioner next saw Dr. Turnage on April 29, 2014, approximately two weeks after surgery. Petitioner was, at that time, in a sling and an immobilizer. At that point, Dr. Turnage was of the opinion that Petitioner could not perform duties even at the sedentary level, and recommended that Petitioner undertake physical therapy. On April 30, 2014, the Pensacola area experienced a 200-year rain event which caused significant damage to ECUA’s water and wastewater systems. Mr. Dawson described the damage to ECUA’s infrastructure as being worse than that caused by Hurricane Ivan. Repair of the water and wastewater systems was not work that could be delayed. In addition, ECUA was implementing Department of Environmental Protection requirements for its air release valves, as well as performing routine maintenance and upgrades. Due to the Regional Service department’s extraordinary needs, Mr. Dawson determined that Petitioner’s position needed to be filled by a person who could physically perform all of the required duties. ECUA proved it was under extraordinary pressure due to the 200-year storm event of April 30, 2014, and needed “all hands on deck” who could perform the essential functions of the job. Maintaining the UST II position open for an indefinite period while waiting for Petitioner to recover from his injury, thus necessitating the continued use of a less-capable temporary employee, would have been contrary to the interests of ECUA’s customers, and an undue hardship to ECUA. At some unspecified time after his surgery, Petitioner inquired as to whether he could repair water meters as a light- duty job with ECUA. He had performed that job during a period in 2005 in which he was restricted from duty due to a work- related injury. Repairing meters is not an essential function of a UST. A meter repair technician is a separate position within ECUA, with a separate job title. Petitioner also requested that he be allowed to perform “cut-non-pay” work, which involves the termination of water service connections for non-paying customers. “Cut-non- pay” is performed by a service technician, which is a separate position within ECUA’s Customer Service department, with a separate job title. Petitioner’s inquiries regarding light-duty work were forwarded to Ms. Scruggs. Ms. Scruggs testified that she made inquiry to the Regional Services department and to the Sanitation department as to the availability of light-duty work for Petitioner, but there was none. Ms. Scruggs’ inquiries continued after the expiration of Petitioner’s FMLA leave, and up to the date of his termination, but there were no light duty opportunities within his restrictions and qualifications. Mr. Dawson also testified that the meter technician positions were fully staffed. There was no evidence to the contrary. On May 27, 2014, Dr. Turnage executed a Workers’ Compensation Uniform Medical Treatment/Status Reporting Form in which he identified Petitioner’s work restrictions as sedentary duty, with a “likely” return to duty with no restrictions six weeks hence. By letter dated June 3, 2014, Petitioner was advised by ECUA that, if he could not return to work by June 18, 2014, six months from the date of his injury, he would be terminated pursuant to sections B-13(10) and D-16 of ECUA’s employee handbook, and that ECUA had reviewed the circumstances and determined there to be “no cause for any further extension of your inactive work status.” The letter also advised Petitioner of his right to a predetermination/liberty interest hearing to contest the basis for his recommended termination, including the opportunity to “provide any documents, explanations, or comments.” On June 19, 2014, the predetermination/liberty interest hearing was held. Up to that date, ECUA had not received a medical clearance for Petitioner to return to full duty. Petitioner indicated that his physical therapy was proceeding well and he believed that he would be cleared for duty on July 15, 2014. Petitioner stated that he could get a letter to that effect from Dr. Turnage on that day, since the doctor would be in his office, and asked that ECUA hold off on its decision. Petitioner also indicated that he would go to the office of his physical therapist immediately upon the conclusion of the hearing to get a current assessment of his status. In light of Petitioner’s representation, he was given until June 20, 2014, to provide ECUA with medical clearance for work. During the predetermination hearing, Petitioner made no additional request for a light-duty assignment, nor did he ask for any form of accommodation other than the additional day to provide letters from his doctor and physical therapist. On June 20, 2014, Petitioner provided ECUA with a letter from his physical therapy provider. The letter stated that Petitioner’s shoulder was improving and that the physical therapist anticipated Petitioner could return to work as a UST “following completion of his course of physical therapy.” However, the physical therapist further stated that a medical release would ultimately be up to Dr. Turnage, and if there remained doubts regarding Petitioner’s readiness to return to work, a Functional Capacity Evaluation could be administered to identify his functional abilities. No specific dates were provided for the completion of therapy or the release for duty. Upon receipt of the additional information, which suggested that Petitioner’s ability to return to work as a UST II remained an unknown, ECUA determined that Petitioner still could not perform the essential duties of his job, either with or without accommodation. There were, at the time, no other jobs in the Regional Services department that could be performed by Petitioner, the only jobs not requiring strenuous activity being those of Mr. Dawson and his two assistants, all of which were filled. Thus, for a job in the Regional Services department, there were no reasonable accommodations for one who was unable to lift, carry, maneuver, and use heavy tools and equipment. Based on the information available at the time, the decision was made to terminate Petitioner’s employment with ECUA. On June 23, 2014, ECUA notified Petitioner that his employment with ECUA was terminated, and advised him of his right to request a formal hearing to appeal the employment action. The letter closed by stating that “[s]hould your medical condition improve, you are welcome to apply for any open position for which you are qualified and can perform the essential functions.” Petitioner’s next appointment with Dr. Turnage was scheduled for July 8, 2014. The appointment was canceled, and rescheduled for July 22, 2014. On July 22, 2014, Petitioner was released for work involving no overhead lifting of greater than 20 pounds, and with the restriction that he keeps his arms close in to his body, i.e., no extending his arms. On August 13, 2014, Petitioner was discharged from physical therapy, with the conclusion that Petitioner “[a]chieved the established therapy and RTW [return-to- work]/Functional goals.” That information was not provided to ECUA. In September 2014, Petitioner applied to ECUA for the position of lift-station mechanic assistant, a position that he became aware of through an ECUA on-line job posting. Petitioner did not meet the minimum qualifications for that position, and was therefore not hired. Based thereon, it is apparent that Petitioner was capable of accessing ECUA job opening announcements. On October 23, 2014, Petitioner was released for duty with no restrictions. That information was not provided to ECUA. From October 2014 to February 2015, at least five UST positions became available. Petitioner did not apply for any of those openings. Between October 23, 2014, and January 1, 2015, ECUA hired thirty to forty sanitation truck drivers, positions for which Petitioner was qualified. Petitioner did not apply for any of those openings. Petitioner did not perceive himself as disabled, and never complained to anyone at ECUA that he was disabled. He did not assert a disability at his predetermination hearing. Petitioner did not report that he believed he was being discriminated against, on the basis of his disability or otherwise, to his supervisor, to Mr. Dawson, or to anyone in the Human Resources department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Emerald Coast Utilities Authority, did not commit an unlawful employment practice in its actions towards Petitioner, Roderick Billups, and dismissing the Petition for Relief filed in FCHR No. 2014- 01582. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of June, 2015. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Bradley S. Odom, Esquire Odom and Barlow, P.A. 1800 North E Street Pensacola, Florida 32501 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
