The Issue The issue in this case is whether the training and education authorized in Section 440.491, Florida Statutes,1 is required for Petitioner to return to suitable gainful employment within the meaning of Section 440.491(1)(g).
Findings Of Fact Petitioner has been employed by Intervenor as a sales associate since January, 1993. Petitioner sustained an injury on March 3, 1993, while working for Intervenor. Petitioner tore the meniscus in his left knee. Dr. Michael Smith, an orthopedic surgeon, performed a partial medial meniscectomy. On October 7, 1993, Dr. Smith performed a second surgery on the same knee. Petitioner returned to light duty work for half-days on November 15, 1993. He worked half-days until June 30, 1994, when he began working five to six hours a day. He continues to work five to six hours a day for Intervenor. Petitioner reached maximum medical improvement on April 21, 1994. Dr. Smith rated Petitioner's permanent impairment at six percent. Petitioner can not tolerate lifting more than 20 pounds occasionally or more than 10 pounds frequently. He can not tolerate repetitive squatting, stooping, and climbing. Petitioner can not tolerate standing more than six hours at a time in consecutive eight-hour days. Petitioner's current sales position requires too much standing, squatting, stooping, and climbing for Petitioner to work consecutive eight-hour days. However, Petitioner can work consecutive eight-hour days in a job that does not exceed the restrictions Petitioner can tolerate. Petitioner can work consecutive eight-hour days for Intervenor in a commercial sales position because it requires less lifting, standing, squatting, stooping, and climbing each day. However, a commercial sales position is not available. 1. The Pub In July, 1992, Petitioner began working as a bartender for the Pelican Pub (the "Pub"). He was employed by the Pub on March 3, 1993, when he was injured working for Intervenor. Before the injury, Petitioner worked approximately 57 hours a week in both jobs. Petitioner worked approximately five eight-hour or nine-hour shifts for Intervenor. He worked two eight-hour shifts at the Pub. After the injury, Petitioner returned to work at both jobs. However, he does not work 40 hours a week for Intervenor. In August, 1996, Intervenor required Petitioner to elect either full-time status, working 40 hours a week, or part- time status, working four shifts of five to six hours each. Petitioner elected part-time status. Since July, 1994, Petitioner has worked approximately 48 hours a week at both jobs. Petitioner works approximately 24 hours a week at each job in four six-hour shifts. Petitioner works no more than eight hours a day each day except Monday. Monday is a very light day for business at the Pub. Petitioner has seven hours to rest between his two jobs each Monday. At the Pub, Petitioner can sit much of the time, especially in the first three hours of each shift. While working for Intervenor, Petitioner is on his feet most of the time. Average Weekly Earnings One of the requirements of "suitable gainful employment" is that Petitioner's average weekly earnings after the injury must equal, as nearly as possible, his average weekly earnings at the time of the accident. The parties stipulated that average weekly earnings at the time of the accident ("pre- injury earnings") were approximately $360. The stipulation does not specify whether it includes earnings from the Pub. Petitioner argues that earnings from the Pub were excluded from the stipulated amount of pre-injury earnings and should also be excluded from his post-injury earnings. Respondent and Intervenor assert that earnings from the Pub should be included in Petitioner's post-injury earnings, irrespective of the stipulated amount of pre-injury earnings. Earnings from any job that qualifies as employment is properly included in post-injury earnings. It is uncontroverted that Petitioner's job with Intervenor qualifies as employment. Petitioner's employment with the Pub is employment within the meaning of Section 440.02(15)(a). The Pub is a private employer that employed four or more employees before and after the injury. Earnings from Petitioner's employment with the Pub are properly included in Petitioner's post-injury earnings. Before the injury, Petitioner earned approximately $360 a week from his employment in both jobs. He earned $289 a week from his employment with Intervenor, working 41 hours a week at $7 an hour. He earned approximately $71 a week from his employment with the Pub, including salary and tips. After the injury, Petitioner earns approximately $358 from his employment in both jobs. Petitioner earns $214 from his employment with Intervenor, working 24 hours a week at $8.90 an hour. He earns $144 from his employment with the Pub, working 24 hours a week at $6 an hour. The $214 Petitioner now earns from his employment with Intervenor is less than either the stipulated or actual wages Petitioner earned from that employment before the injury. However, the $358 Petitioner now earns from all employment in both jobs is substantially the same as both the stipulated and actual wages he earned from the same employment before the injury. Petitioner's average weekly earnings after the injury, as nearly as possible, equal his average weekly earnings at the time of the injury. Underemployment Petitioner is not underemployed within the meaning of Florida Administrative Code Rule 38F-55.0001(16).2 Petitioner's post-injury wages from his employment with Intervenor are less than 80 percent of his pre-injury wages from the same employment.3 However, Petitioner's post-injury wages from all employment, as nearly as possible, is equal to his pre-injury wages from the same employment. Training and education are not required to return Petitioner to suitable gainful employment solely with Intervenor. All that is required is job availability. Petitioner can earn average wages equal to his pre- injury wages by working five eight-hour shifts for Intervenor in commercial sales when and if such a position becomes available. Petitioner is not precluded from suitable gainful employment with Intervenor by age, education, work history, transferable skills, previous occupation, or injury. A commercial sales position is reasonably attainable in light of Petitioner's age, education, work history, transferable skills, previous occupation, and injury. It offers an opportunity to restore Petitioner as soon as practicable and as nearly as possible to his pre-injury earnings. Training And Education Benefits On January 22, 1995, Petitioner applied for training and education benefits. Respondent conducted a screening and properly determined that Petitioner should not be referred for vocational evaluation. The screening conducted by Respondent complied with the requirements of Section 440.491(6)(a) and Rule 38F-55.009. Respondent obtained Petitioner's medical file, a history of wages and earnings from Petitioner's employment with Intervenor and the Pub, and relevant background information. Respondent then scheduled an interview with Petitioner. Respondent reviewed the medical file, work history, and background information. Respondent investigated the information to determine whether Petitioner had the ability to perform the duties required by his pre-injury employment with Intervenor and the Pub. Respondent interviewed Petitioner and representatives of both employers. Respondent obtained written clarification from the treating physician regarding Petitioner's ability to perform his duties in both jobs. Respondent properly determined that Petitioner should not be referred for vocational evaluation. Petitioner had returned to suitable gainful employment, maintained such employment for at least 90 days, and had transferable skills which allowed him to work in suitable gainful employment within the meaning of Rules 38F-55.009(5) and (6). As soon as was practicable after the accident, Petitioner returned to both of the positions he held prior to the accident. Petitioner has consistently worked approximately 48 hours a week in suitable gainful employment with Intervenor and the Pub. Petitioner's current employment offers a meaningful opportunity to restore Petitioner to his average weekly earnings at the time of the injury. Petitioner's average weekly earnings before and after the injury, as nearly as possible, are equal. Training and education are not required for Petitioner to return to suitable gainful employment. Such employment is reasonably attainable in light of his age, education, work history, transferable skills, previous occupation, and injury. 5. Training And Education Goals Petitioner wishes to return to college in a program that leads to a bachelor's degree in sociology. Petitioner has previously earned 84 credit hours from Bucks Community College. Petitioner needs approximately 30 credit hours to complete the requirements for a bachelor's degree. The average annual income for entry level positions in sociology is approximately $20,000. Petitioner may be able to tolerate the duties of a position in sociology more easily than he tolerates those in his current employment if a future position in sociology requires less standing, stooping, squatting, bending, or lifting. A course of study leading to a bachelor's degree is not an education program within the meaning of Rule 38F-8.021(4). Approved education programs are limited to those in vocational and adult education, trade or business schools, and community colleges offering associate degrees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that training and education are not required for Petitioner to return to suitable gainful employment and denying Petitioner's request for training and education. DONE AND ENTERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997.
Findings Of Fact At all pertinent times, the Petitioner Fox was employed by the Department of Labor and Employment Security in Position Number 02076, class title, Unemployment Executive II. Petitioner's latest appointment to the Career Service was prior to July 1, 1972. Under the terms of the Governor's Recommendations for Implementation of the 1985-86 Fiscal Year Performance Incentive Increase, Petitioner's anniversary date was adjusted from October 30, 1985 to July 1, 1985. On July 25, 1985, the Petitioner was evaluated by his supervisors as "Exceeds Performance Standards." Petitioner qualified for and received a Performance Incentive Pay Increase, which advanced his base pay rate from $2,950.79 to $3,043.26 per month, the maximum for his class. The percentage increase equaled .03133737 of Petitioner's base salary. Petitioner received this increase without protest. No administrative, legal, or grievance action was filed by Petitioner challenging the propriety of his agency's calculation of the Performance Incentive Increase. On January 1, 1986, all Career Service pay ranges were increased pursuant to the Fiscal Year 1985-86 General Appropriations Act. This had the effect of increasing the maximum rate which could be paid to members of the Career Service System. As a result of the increase, Petitioner was once again below the maximum of the pay range. Petitioner's supervisor submitted an additional personnel action form, which sought an amount which would bring Petitioner's total performance incentive increase to five percent of his June 30, 1986, base salary. That increase equaled $55.07 per month for the months of January, 1986, through June, 1986. Plaintiff is, therefore, seeking a total additional salary increase of $330.42. At the time Petitioner received his July, 1985, pay increase, he was informed by certain Department of Labor and Employment Security officials that an additional performance incentive increase could be granted if the pay grade was subsequently adjusted and the maximum pay allowed for the class was increased. The Petitioner's supervisor within his agency apparently based this assumption on oral information which had been received from an unidentified individual within the Department of Administration. At the same time, the Bureau Chief of Classification and Pay within the Department informed agency personnel offices that such an increase was not authorized. By letter dated February 3, 1986, Don Bradley, Chief, Classification and Pay for the Department of Administration, officially advised the Department of Labor and Employment Security that the requested additional performance incentive increases could not be approved. Final Department of Administration action was taken by letter from Secretary Lambert to Secretary Wallace Orr dated June 20, 1986, which denied a special pay increase request in order to maintain fairness among all the departments. In anticipation of the adjustment to the maximum pay ranges, certain personnel officers within the agencies elected to postpone granting employee pay raises until after January 1, 1986. By doing so, they avoided running afoul of the Governor's Recommendation which states that "no employee shall be eligible to receive more than one merit salary advance during fiscal year 1985-1986."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for an A additional $330.42 salary increase be DENIED. DONE and ENTERED this 7th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987. APPENDIX Petitioner's Proposed Findings of Fact numbered 1-9 have been accepted as modified. Respondent's Proposed Findings of Fact have been accepted, with the exception of those portions of the unnumbered paragraphs rejected as not being germane to this proceeding. COPIES FURNISHED: Gregg L. Fox 2509 Killarney Way Tallahassee, Florida 32308 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of February, 2020.
The Issue The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position. Petitioner's supervisor in Marion County was Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing. In 1994, Petitioner learned that she was diabetic. From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job. Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11, 1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal. Ms. Bartsch wrote the following comment in the February 1994 performance appraisal: During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall." Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal. Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal. In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work. On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and signed by Ms. Bartsch and Petitioner contains the following comments: Strengths: being perfectionist; works in timely manner helps other people; always available lot of knowledge re HRS/investigations hard worker organized Areas Needing Improvement: (1) personality problems with co-workers The following changes will be made: isolate and stay from others letting Gloria speak in place On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows: Issues: court problems. calendar needs organization getting not enough support from attorneys doing better at getting along with people continue not allowing others to lean too much There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team. Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May 1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs. On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows: Issues: fantastic - no backlog work on trying to UPS or petition without removing kids if not in imminent danger interpersonal relations ignore other's comments say nothing to hurt people's feelings Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch "on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994. Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993. During some staff meetings, Petitioner felt that Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that Ms. Bartsch should have intervened on Petitioner's behalf during a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson. Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs. Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements. There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time. There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff. In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford. The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing. Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands. Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class. Regarding "failure to follow instructions," Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint. This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements. On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that from that time forward she was only willing to help one other PI who appreciated her work. On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file. Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part: Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit. The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers. Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child. Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns. There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works. Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you. You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue. * * * This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan. There are two "core" standards which must be met on the new RAPP form. They are: Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image. Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization. You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this. They strongly take this as lack of respect towards them on your part. Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also. You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues. Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct. Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help; In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours; (i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer. On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file. On January 19, 1995, Mr. Crawford complained to Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS. On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact, Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin. Anyway, it is too late now." In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions. Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations. On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose. On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida. At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson. On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her. On July 20, 1995, Ms. Bartsch wrote Petitioner a "Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP). On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel." When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred. On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996, Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996: Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work. At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter an order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cynthia Ausby 5 Hemlock Loop Lane Ocala, Florida 34472 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
The Issue Whether Respondent resigned from her position in Career Service by abandonment while employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Prior to August 7, 1989, Gladys Dozier was employed by HRS as a clerk typist. On this date she was absent without authorized leave. On August 7, Respondent called her supervisor to tell her that she wasn't feeling well and would be late coming in. She came in at 9:57 a.m., and at 11:15 a.m. told her supervisor she wasn't feeling well and needed to go home. She left work around 11:20 a.m. On August 8, Respondent again called her supervisor to advise her that she wasn't feeling well but would come in later that morning. Respondent did not come to work that day and was not authorized leave. On August 9, Respondent again called in to say she wasn't feeling well and would not be in for the remainder of the week, but would report to work on August 14, 1989. She was then advised that she needed to bring in a medical statement from her doctor that she was unable to come to work those days she had missed. On August 11, 1989, Respondent again called the office and was reminded that she needed a medical statement for the time she had been absent. By certified letter dated August 15, 1989, and received by Respondent on August 16, 1989, Respondent's immediate supervisor, Mary Simmons, advised Respondent that she was expected at work not later than August 17, 1989, that the medical statement she had sent to the office August 14, 1989 was insufficient to justify more than one day's absence and that if she did not return to work by August 17, 1989, action would be taken to terminate her employment with HRS. Respondent did not return to work. By certified mail dated September 6, 1989 Respondent was advised that she had been absent from work without approved leave since August 14, 1989 and that pursuant to Rule 22A-7.010(2)(c), Florida Administrative Code, she is deemed to have abandoned her position with HRS and to have resigned from the career service system as of the close of business September 7, 1989. Thereafter Respondent submitted her undated letter which was received at the Division of Administrative Hearings on October 26, 1989, and these proceedings followed.
Recommendation It is recommended that the appeal of Gladys Dozier from the determination by HRS that she abandoned her position with the department be dismissed and her resignation from the Career Service be affirmed. ENTERED this 17th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1990. COPIES FURNISHED: Thomas C. Caufman, Esquire Aletta Shutes Department of Health and Secretary Rehabilitative Services Department of Administration 701 94th Avenue North 435 Carlton Building St. Petersburg, FL 33702 Tallahassee, FL 32399-1550 Gladys Dozier Augustus D. Aikens, Jr. 2032 Quincy Street General Counsel St. Petersburg, FL 33711 Department of Administration 435 Carlton Building William A. Frieder, Esquire Tallahassee, FL 32399-1550 Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,144.72. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. Petitioner subsequently requested, by memorandum, a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,144.72; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1996.
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
