The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, 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 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
Findings Of Fact Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field. Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital. As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida. From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure. In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching. Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation. With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship. With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate". Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured. Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89. After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion. Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that: As you are aware, a candidate for promotion or tenure should be highly qualified in at least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average. As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees. Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the University of Florida requiring that Petitioner's appointment as a non-tenured social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980. COPIES FURNISHED: Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602 Ashmun Brown, Esquire University Attorney's Office 207 Tigert Hall University of Florida Gainesville, Florida 32611
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2001.
The Issue Whether Petitioner Rayburn should have been re-nominated and reappointed by Respondent as a teacher aide.
Findings Of Fact Petitioner, Doris Faye Rayburn was employed by the School Board of Leon County, Florida from 1973 to 1977: 1973-74 teacher aide, Nims Middle School; 1974-75 teacher aide, Nims Middle School; 1975-76 secretary/bookkeeper, Nims Middle School, later transferred during the school year to a teacher aide position at Nims Middle School; 1976-77 teacher aide, Nims Middle School. She was not reappointed for the 1977-78 term and thereupon filed a grievance procedure and then a petition for this administrative hearing. Petitioner's contract of employment as a teacher aide each year was for 180 days and included the right to participate in the State Personnel Retirement System to accumulate sick leave, and participate in the payroll deduction plan for 12 months insurance coverage. Thirty-six of the 165 teacher aides employed by the School Board in 1976-77 were not reemployed including Petitioner. The procedure for employment of teacher aides is by a recommendation from the Principal to the School superintendent, a nomination by the Superintendent and subsequent approval by the School Board. This procedure takes place each year for each teacher aide. Petitioner was not promised reemployment and was not reemployed. The principal testified that his decision not to recommend Petitioner for reemployment was not based alone on her comments to the Superintendent's wife or for things she had said concerning the operation of the school, although he was aware of her activities. There were some complaints about Petitioner "over- stepping" her job and posing as a counselor. After the expiration of Petitioner's last contract two assistant principals urged the Principal not to recommend Petitioner for future employment. Petitioner satisfied at least two guidance counselors with whom she worked. She is active and interested in school activities. Petitioner feels that she was not reappointed because of things she said concerning the school and its policies. She wanted to be reappointed and had so planned. Petitioner contends: Petitioner was denied employment as a result of exercising her first amendment right of freedom of speech. Mrs. Rayburn voiced her general concerns about the quality of education provided by the school system. These comments were within her right as a public employee, parent and citizen to publicly comment on events of community interests and her speech did not disrupt the efficiency of providing educational services. Section 231.141, Florida Statutes, gave Mrs. Rayburn an objective expectation in her employment as a teacher aide, protected by the fourteenth amendment. That she had "de facto" tenure and should have been reemployed. Respondent contends: Petitioner was a "non-instructional employee" and not entitled to tenure under the statutes. The fact that Mrs. Rayburn had been appointed to four previous years and the fact that 78 percent of the 1976-77 teacher aides were reemployed did not give Petitioner a constitutionally protected interest in continuing employment. That the incident of the comments Petitioner made regarding the school policy to the School Superintendent's wife was not constitutionally protected speech and that there is no showing that the Superintendent's decision not to again nominate her for employment as a teacher aide was related in any way to any speech or communication by Petitioner.
Recommendation Dismiss the petition. DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joyce Davis, Esquire Steven Seliger, Esquire Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Michael Dodson, Esquire Post Office Box 391 Tallahassee, Florida 32301
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue Whether the Respondent’s predecessor engaged in discriminatory employment practices by retaliation against Petitioner by discharging him, and giving him poor employment references thereafter because of a claim of discrimination Petitioner had filed with the Human Relations Commission alleging racial discrimination in denying Petitioner a promotion.
Findings Of Fact The Petitioner is Fitzgerald Wesley, a black male. The E-Z Serve is a corporation employing more than 15 employees which purchased Sunshine Jr. Food Stores, which was a corporation also employing more than 15 employees. E-Z Serve admits having assumed liability for Sunshine’s actions. Petitioner was employed by Respondent at Store 322 as an Assistant Manager, and was discharged by the Respondent on or about September 23, 1993. Petitioner performed a range of services for Respondent in store number 322 and was being trained to handle the responsibilities of managing this store. When the store’s manager left, Petitioner thought he would be considered for the promotional opportunity; however, he was not promoted to the opening which was filled by a white male. Feeling he had been discriminated against, the Petitioner filed a Charge of Discrimination with the Commission on Human Relations raising the issue of racial discrimination in denying him the promotion. This case was forwarded to the Division of Administrative Hearings, Case No. 93-5059, and was ultimately closed for failure to prosecute. On or about September 23, 1993, the new manager of Store 322, Greg Grubbs, discharged the Petitioner without stating a reason for the action.1 The Petitioner applied for a similar position at a Suwannee Swifty convenience store down the street from Store 322. This store was managed by Kimberly Littman. Ms. Littman testified at the hearing. She was manager of the Suwannee Swifty store at which Petitioner applied for employment. Because of his prior experience, Ms. Littman was interested in hiring him. She contacted Greg Grubbs, who was the manager of Store 322 and the person who had discharged Petitioner. Ms. Littman asked Mr. Grubbs about the Petitioner’s work history. Mr. Grubbs advised Ms. Littman that Petitioner was a hard worker and did his job well, but Mr. Grubbs stated that Petitioner was prejudiced against customers. Ms. Littman concluded that Mr. Grubbs meant the Petitioner was prejudiced against White customers because the Petitioner was Black. Mr. Grubbs said he would not re-hire the Petitioner because he was prejudiced against customers. Notwithstanding the negative comment of Mr. Grubbs, Ms. Littman hired the Petitioner who went to work for her within three days of his discharge by Respondent. Petitioner’s wage was slightly lower; however, Petitioner did not have exact information regarding his wage loss. Petitioner represented himself and presented no evidence regarding his costs in presenting his case. Petitioner presented no evidence of mental anguish. Petitioner referenced other positions for which he applied; however, he did not present evidence that other potential employers had spoken with Mr. Grubbs. Petitioner eventually left the employment of Suwannee Swifty after being robbed two times. The Petitioner filed a Charge of Discrimination with the Commission of Human Relations on March 28, 1994, based upon retaliation. In was investigated and a “no cause” determination was made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Commission on Human Relations enter a final order finding that the Respondent engaged in retaliation against the Petitioner and direct the Respondent to take action to prevent any re-occurrence of this conduct with other employees; however, in the absence of any demonstrated injury or costs of litigation, the Petitioner not be awarded any damages or costs. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating in its failure to promote Petitioner on the basis of her race.
Findings Of Fact Based upon my review of the entire record, including the Transcript of the proceedings and the documentary evidence, the following findings of fact are made: Petitioner, Laura Lucas, is an African-American female, who has been employed by the Department's Orlando office since about November 1995. At all times relevant to this proceeding, Petitioner was employed by the Department as a Human Services Program Specialist. Prior to that time, from November 1995 until about November 2000, Petitioner was employed by the Department's Orlando office as a Human Services Counselor II. In or about August 2003, the Department had a vacant position for a Government Operations Consultant II, which is also referred to as a contract manager or a management analyst. The position was advertised through a contract provider, People First. All applications for the position were electronically filed with and received by People First, which then forwarded the applications to the Department. The Department received approximately 50 applications for the Government Operations Consultant II position from People First. Petitioner's application was among the applications for the Government Operations Consultant II position that People First provided to the Department. The application form used by individuals applying for the Government Operations Consultant II position included a space for applicants to indicate the position for which they were applying. In that space, Petitioner's application noted she was applying for the position of "Community/Social Service Specialist/All Other," but made no mention of the Government Operations Consultant II position. Although Petitioner's application did not specifically indicate that Petitioner was applying for the Government Operations Consultant II position, Helen Tasker, on behalf of the Department, accepted, considered, and treated Petitioner's application as an application for that position.1 The reason is that Petitioner's application was included with the approximately 50 applications for the subject position that were transmitted to the Department from People First. In fact, that was the only application for Petitioner that the Department received from People First for the subject position. At all times relevant to this proceeding, Ms. Tasker was the acting program director for the Developmental Disabilities Office. In that role, Ms. Tasker was responsible for hiring a qualified person for the Government Operations Consultant II position. Consistent with her duties related to hiring such person, Ms. Tasker reviewed the applications, independently ranked the applications, and selected the members of the interview team, which subsequently interviewed the candidates. During her tenure with the Department, Ms. Tasker has served on between ten to 15 interview teams. In some instances, Ms. Tasker served not only as an interview team member, but also as the interview team leader. As a result of this experience, Ms. Tasker knew the standard procedures for reviewing applications as well as for setting up and conducting interviews. In this case, Ms. Tasker followed the standard procedures for reviewing the applications and setting up and conducting interviews for the subject job opening. Ms. Tasker reviewed the job description and the related knowledge, skills, and abilities (KSAs) for the Government Operations Consultant II position. Ms. Tasker then reviewed and ranked all the applications that had been transmitted to the Department from People First, including Petitioner's application.2 Ms. Tasker rated and ranked each application based on the applicant's training and education and experience, including contract management experience, budget experience, and experience in direct care involving developmental disabilities. Utilizing the application rating scale that she developed, Ms. Tasker determined that the four applicants with the highest application ratings were Petitioner, Wendy Shields, Carol Solomon, and Tom Preston. Petitioner, Ms. Shields, and Ms. Solomon each received an application rating of 15, and Mr. Preston received an application rating of 12. Ms. Tasker selected the four applicants with the highest application ratings to be interviewed. Of the four applicants selected to be interviewed for the Government Operations Consultant II position, three were Department employees: (1) Petitioner, an African-American female; (2) Ms. Shields, a white female; and (3) Ms. Solomon, an African-American female. The fourth applicant selected to be interviewed, was Mr. Preston, a white male. The Government Operations Consultant II position is a higher-level position and would be a promotional opportunity for Petitioner and Ms. Shields. The person hired to fill the Government Operations Consultant II position is required to (1) negotiate and establish contracts with providers in accordance with applicable rules and regulations of the Department; (2) serve as provider liaison; (3) serve as the Medicaid waiver contract manager for the program under the Home and Community-Based Waiver Program; (4) maintain the Medicaid waiver database to track dates related to background screening, licenses, and agreement expiration dates, etc.; (5) serve as contract manager for assigned providers who serve Developmental Disabilities clients and provide technical assistance to Developmental Disabilities providers; (6) track reports prepared by private contractor that monitor the services under the Home and Community-Based Waiver Program and determine if reports require any follow-up assistance by Department staff; (7) answer questions and review proposals regarding Medicaid waiver contracts of outside organizations and/or new persons or agencies seeking to become Medicaid waiver providers; and (8) serve as member of the contract negotiation team and the budget entity committee, which addresses issues regarding rates for specific services and provides related information to providers. In addition to the specific job responsibilities for the Government Operations Consultant II position, the KSAs necessary to perform the job duties include the following: (1) ability to understand applicable rules, regulations, policies and procedures relating to operational and management analysis activities; (2) ability to organize data into logical format for presentation in reports, documents, and other written materials; (3) ability to collect, evaluate, and analyze data to develop alternative recommendations, solve problems, and document work flow and other activities relating to the improvement of operational and management practices; (4) ability to plan, organize, and coordinate work assignments; and (5) ability to communicate effectively. Ms. Tasker selected Paula Bowser and Michele Levy to serve with her on the three-member interview team. Ms. Bowser and Ms. Levy were selected because of their extensive and relevant work experience with the Department. At all times relevant hereto, Ms. Levy had been employed by the Department for 29 years and was a senior unit services specialist. As a senior unit services specialist, Ms. Levy performed some of the same duties required of a contract manager. Prior to being hired as a senior unit services specialist, Ms. Levy had worked as a contract manager with the Department for seven years. At all times relevant hereto, Ms. Bowser was the Medicaid waiver coordinator, which is a supervisory position. In this position, Ms. Bowser supervised the Department's cost plan unit review; received, interpreted, and disseminated applicable policies and procedures; and served as liaison to the Medicaid support coordinators. Prior to Ms. Bowser's working in her current position, she was the "budget person" in the Developmental Disabilities Office for five years. As leader of the interview team, Ms. Tasker prepared the interview questions. The 12 interview questions accurately reflected and related to the job duties and the KSAs necessary for the Government Operations Consultant II position. In October 2003, the four selected applicants were interviewed by the interview team. On the day of, but prior to the interviews, Ms. Tasker gave both Ms. Bowser and Ms. Levy a packet for each of the four applicants that were to be interviewed. The packets included the interview questions and an interview rating sheet. The scoring process used for the interview required each interview team member to rate each applicant on a scale of one to five. The assigned rating was based on the applicant's responses to the interview questions. As explained on the interview rating sheet, the numerical ratings represented the following: five for outstanding; four for above satisfactory; three for satisfactory; two for less than satisfactory; and one for poor. Based on this rating scale, the highest rating an applicant could receive from one interview team member was 60 (five points for his/her responses to the 12 interview questions). All three members of the interview team understood and utilized the interview rating system described in paragraph 24. The four interviews were conducted in the same manner and consistent with Department policy and procedure. Each candidate was interviewed by all three interviewing team members at the same time and was asked the same interview questions. After each interview, the interview team members independently scored the candidates on the rating sheets before any discussions between and among interview team members occurred. Each interview committee member approached the task of rating the applicants in an objective manner. To this end, each committee member's interview ratings were based on that member's professional opinion and assessment of the applicants' responses to the interview questions, in light of the job duties required of the Government Operations Consultant II position and the KSAs related thereto. After all the interviews were completed, Ms. Bowser and Ms. Levy gave their interview rating sheets for the four candidates to Ms. Tasker. The interview sheets for the candidates were then reviewed and the total interview rating for each candidate was calculated. This total was obtained by adding the total interview rating of each interview team member for the particular applicant. The final ranking of each applicant was determined by adding that individual's applicant or application ranking and his or her interview ranking. This total point score resulted in the applicant's final overall ranking. Typically, the candidate with the highest overall rating is offered the position. However, the head of the interview committee has the final decision-making authority and, for a limited number of exceptions, is not bound to offer the position to the highest-ranking applicant. For example, the person with the highest overall point total may indicate, after the interview, that he or she is no longer interested in the vacant position. In other instances, the head of the interview team may determine that for some objective reason, the individual with the highest overall rating can not perform the job duties of the position for which he or she interviewed. In this case, none of those exceptions existed. Therefore, based on the unanimous agreement of the interview team, the candidate with the highest overall rating was the person who was offered the position. On the interview rating, Ms. Bowser ranked Ms. Shields as her top choice, with a total rating of 47. Ms. Bowser ranked Petitioner a close second, with an interview rating of 46. At the time of the interviews, Ms. Bowser knew both Petitioner and Ms. Shields, but had known Petitioner much longer. Also, Ms. Bowser had worked with Ms. Shields and, to a lesser degree, Petitioner. Ms. Bowser had worked some, although not primarily, with Ms. Shields after Ms. Shields was assigned to the Department's Developmental Disabilities Program Office.3 For eight of the 12 interview questions, Ms. Bowser's ratings for Petitioner's and Ms. Shields' responses were either the same or within one point of each other. For the remaining four interview questions, there was a two-point difference in Ms. Bowser's ratings for the responses of Petitioner and Ms. Shields. Petitioner was rated two points higher than Ms. Shields in her responses to questions regarding (1) training in contract management, (2) experience in quality assurance and monitoring activities, and (3) experience in staff training. With regard to the interview question regarding the applicants' computer skills, Ms. Bowser's rating for Ms. Shields was two points higher than that of Petitioner. In arriving at her interview ratings for the selected four applicants, including Petitioner and Ms. Shields, Ms. Bowser considered the substance of the applicants' responses and to some degree their demeanor. Despite the closeness of her interview ratings for Petitioner and Ms. Shields, Ms. Bowser believed that Ms. Shields was the best candidate for the job. First, Ms. Bowser believed that Ms. Shields' experience as a provider4 would give her a perspective that would be beneficial in working with providers. Additionally, Ms. Bowser believed that Ms. Shields had knowledge of the Medicaid rules and regulations, which was a requirement of the position for which she was applying.5 Finally, Ms. Bowser believed that Ms. Shields had good organizational skills and computer skills and that these skills would make her the best candidate for the position.6 Ms. Bowser's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender. Ms. Levy rated Ms. Shields as her top applicant, with a total interview rating of 49. Ms. Levy's interview rating for Petitioner was 46, making her the applicant with the second highest interview rating. The closeness of Ms. Levy's ratings is based on her belief that Petitioner and Ms. Shields interviewed well. In fact, Ms. Levy's interview ratings for all of Petitioner's and Ms. Shields' responses to the 12 interview questions were within one point of each other. Despite the fact that Ms. Levy's interview ratings for Petitioner and Ms. Shields were close, Ms. Levy believed that Ms. Shields was the best candidate for the position of Government Operations Consultant II. Among the reasons that Ms. Levy considered Ms. Shields the best candidate were the following: (1) Ms. Shields' prior experience as a provider in Nebraska gave her more perspective and would be helpful in working with providers, (2) Ms. Shields' responses indicated that she could and would effectively handle work priorities and work assignments,7 and (3) Ms. Shields had good computer skills, including experience setting up databases. Ms. Levy's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender. Ms. Levy knew both Petitioner and Ms. Shields prior to the interview, but had known Petitioner a lot longer. Ms. Levy also had "worked some" with both Petitioner and Ms. Shields prior to the interview, but had worked more with Ms. Shields. Ms. Levy worked with Ms. Shields after the contract manager for the unit left. During this time, Ms. Shields sometimes accompanied Ms. Levy on visits to monitor new providers. While working with Ms. Shields, Ms. Levy observed that Ms. Shields performed numerous tasks and did so very well and was very organized. As a member of the interview team, Ms. Tasker also completed interview ratings for the four applicants interviewed. Ms. Tasker's interview ratings for Petitioner and Ms. Shields were very close, with Petitioner receiving the highest rating and Ms. Shields receiving the second highest rating. Based on their responses to the 12 interview questions, Ms. Tasker's interview rating for Petitioner was 48 and her rating for Ms. Shields was 46. For most of the 12 interview questions, Ms. Takser's interview ratings for Petitioner's and Ms. Shields' responses were either the same or within only one point of each other. The only exception was Question No. 6, which asked the applicants to describe their experience with quality assurance activities. With regard to their responses to that question, Ms. Tasker's rating for Petitioner was five and for Ms. Shields was three.8 After the interview team had interviewed all the applicants and independently completed their interview rating sheets, the overall ratings for the candidates were totaled. The total ranking for each candidate was based on the applicant's application ranking and the interview rating/ranking assigned by the three interview team members. Ms. Shields' application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 142, giving her a final overall ranking of 157. Petitioner's application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 140, giving her a final overall ranking of 155. The remaining two applicants, Ms. Solomon and Mr. Preston had final overall rankings of 140 and 137, respectively. As noted in paragraph 30 above, the Department's usual procedure is offer the position to the applicant who has the highest final ranking. In the instant case, of the four applicants interviewed, Ms. Shields had the highest final ranking, with an overall ranking of 157. Petitioner had the second highest final ranking, with an overall ranking of 155. The interview team members believed, as reflected by the close final rankings, that both Ms. Shields and Petitioner were both excellent candidates for the position and met all the qualifications for the job. Nevertheless, Ms. Shields' total overall ranking of 157 was two points higher than Petitioner's overall ranking of 155.9 Throughout the application review and ranking process and the interview process, Ms. Tasker wanted to select the applicant who she believed had the competencies to perform the job, and who could perform the work required of the position. At no point during the hiring process (i.e review of applications, interview process, and/or calculation of rankings) did race or gender influence Ms. Tasker's decisions. The interview team unanimously and correctly determined that Ms. Shields had the qualifications, experience, and background required and necessary to perform the job of Government Operations Consultant II. As the leader or head of the interview team, Ms. Tasker could have offered the position to an applicant who did not have the highest final ranking if she had an objective basis for doing so. However, Ms. Tasker did not have such a reason, even though her own interview rating for Petitioner was two points higher than her rating for Ms. Shields. Based on Ms. Shields' final overall ranking and Ms. Tasker's belief that Ms. Shields could do the job, Ms. Tasker determined that Ms. Shields was the best candidate. Having made the foregoing determination, Ms. Tasker, on behalf of the Department, offered Ms. Shields the Government Operations Consultant II position. Ms. Shields was hired for the Government Operations Consultant II position on or about October 23, 2003. The Department's usual hiring procedures requires the Department's Human Resources Office to review the applicant's hiring packet prior to an applicant's being offered a position. In the instant case, Human Resources did not review the hiring packet before Ms. Shields was offered the Government Operations Consultant II position. Instead, the Human Resources Office reviewed the packet after Ms. Shields was offered and accepted the position, and after Petitioner filed a grievance. Upon review of the packet, Human Resources determined that no laws or policies were violated that would make the hiring of Ms. Shields for the Governmental Operations Consultant II position unlawful. Petitioner asserted, through various witnesses, that Ms. Shields was pre-selected for the position of Governmental Operations Consultant II. To support this assertion, testimony was presented that in July or August 2002, about a year before that position was vacant and advertised, Ms. Shields was "pulled" from her unit in the Department to work in the Developmental Disabilities Program Office. Petitioner further asserted that Ms. Shields was moved to the Developmental Disabilities Office in order to train her for the Government Operations Consultant II position. However, Petitioner presented no competent evidence to support this assertion. At the time Ms. Shields was sent to work in the Program Office, each unit was required to send one of its employees to that office to assist that office in fulfilling its duties. This additional assistance was required because of a staff reduction in the Program Office. Ms. Shields was the person selected to go to the Program Office, because she had Medicaid waiver experience, which would allow her to assist the Program Office in preparing cost plans. While working in the Program Office, Ms. Shields was exposed to, learned, and performed some of the job tasks for which the Developmental Disabilities Program Office was responsible. However, as noted above, Ms. Shields was not singled out to work in the Program Office, but was one of several employees selected from their respective Department units to go and assist in the Program Office, due to that office's being short-staffed. Ms. Shields' assignment to the Program Office was not related to any effort to pre-select her for the position of Government Operation Consultant II, or to provide her with on- the-job-training for such position.10
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia 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 14th day of December, 2006.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
