Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
The Issue The issues are whether Respondent's construction of Section 11.062, Florida Statutes (2006), is an unadopted rule, described in Subsection 120.56(4), Florida Statutes (2006); whether rulemaking is not feasible for a reason authorized in Subsection 120.54(1)(a), Florida Statutes (2006); and whether either of the petitioners is a person substantially affected by the unadopted rule. (Statutory references are to Florida Statutes (2006)).1
Findings Of Fact Petitioner, Capital Collateral Regional Counsel-Middle Region (CCRC-MR), is one of three governmental units authorized in Section 27.701 to provide collateral legal representation for certain persons convicted and sentenced to death in the state. Each governmental unit functions in a distinct multi-county region identified in the statute as either the northern, middle, or southern region. The middle region in which CCRC-MR is statutorily required to function consists of eight judicial circuits. The judicial circuits are statutorily identified as the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, and Thirteenth Judicial Circuits. Petitioner, John W. Jennings, is the Capital Collateral Regional Counsel with statutory responsibility for administering CCRC-MR. The Supreme Court Judicial Nominating Committee recommended Mr. Jennings to the Governor, the Governor appointed Mr. Jennings, and the Florida Senate confirmed the appointment. Each appointment is for a three-year period. Mr. Jennings is currently subject to reappointment. The administration of CCRC-MR is supervised by the Commission on Capital Cases (Commission). The Commission has exclusive statutory responsibility for the oversight of each regional office pursuant to Section 27.709. The Commission consists of six members each of whom serves a term of four years. The Governor appoints two members to the Commission. The President of the Senate and the Speaker of the House each appoint two members. One of the two members appointed by the President and Speaker, respectively, must be a member of the majority party, and the other appointee must be a member of the minority party. The Office of Legislative Services is statutorily required to provide staff support to the Commission. Salaries for each regional office must be submitted annually to the Justice Administrative Commission and the offices of the President of the Senate and the Speaker of the House in accordance with Subsection 27.705. However, Section 27.702(1) provides, in relevant part: The three capital collateral regional counsels' offices shall function independently and be separate budget entities, and the regional counsels shall be the office heads for all purposes. The Justice Administrative Commission shall provide administrative support and service to the three offices to the extent requested by the regional counsels. The three regional counsels shall not be subject to control, supervision, or direction by the Justice Administrative Commission in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters. Respondent is a state agency authorized in Section 17.002. Respondent is an executive agency described in Subsection 20.121. Section 11.062, in relevant part, prohibits an executive, judicial, or quasi-judicial department from using public funds to retain a lobbyist other than a full-time agency employee (outside lobbyist) to represent the department before the legislative or executive branches of government (prohibited lobbying). If public funds are misused for prohibited lobbying, the statute provides that Respondent "shall" deduct the amount of misused public funds from the salary of the responsible state employee and that the offending department will be barred from authorized lobbying for two years.2 It is undisputed that Petitioners have registered and paid outside lobbyists to lobby the legislative and executive branches of government on behalf of CCRC-MR from 2001 through 2005. The primary purpose of the lobbying effort has been to ensure annual budgets that are adequate for effective legal representation of persons convicted and sentenced to death in those judicial circuits that are within the functional and territorial purview of CCRC-MR. Between April 15, 2002, and June 22, 2005, Petitioners submitted approximately 28 invoices to Respondent totaling $119,000. Two invoices on April 15 and May 23, 2002, were for $10,000 each. Five invoices from August 25, 2003, through January 26, 2004, were for $2,600 each. The remaining 21 invoices ranged from $3,400 to $7,500 each. Each of the invoices were earmarked as payments for "consulting services." However, Respondent has been aware since 2001 that CCRC-MR has engaged outside lobbyists to represent CCRC-MR before the legislative and executive branches of government. Respondent approved all of the invoices. A primary dispute between the parties involves the issue of whether CCRC-MR is an agency of the executive branch of government (executive agency) or an agency of the legislative branch (legislative agency). Respondent construes Section 11.062 to mean that CCRC-MR is an executive agency and that Section 11.062 prohibits CCRC-MR from using public funds to lobby the legislative or executive branches of government. Petitioners construe Section 11.062 to mean that CCRC-MR is a legislative agency that is not prohibited from using public funds for prohibited lobbying.3 A determination of whether CCRC-MR is an executive or legislative agency is not necessary for the disposition of this rule challenge. A rule challenge conducted pursuant Section 120.56(4) does not require a determination that Respondent's statutory construction of Section 11.062 is invalid because it exceeds the scope of delegated legislative authority or for any of the other reasons described in Subsections 120.52(8)(b) through (f). The scope of this rule challenge is limited to a determination of whether the challenged statutory construction is invalid solely because Respondent has failed to promulgate the statutory construction as a rule within the meaning of Subsection 120.52(8)(a). For Petitioners' rule challenge to succeed, Subsection 120.56(4) first requires the evidence to show that the challenged statutory construction is a rule. Subsection 120.52(15) defines a rule, in relevant part, to mean: . . . each agency statement of general applicability that implements, interprets, prescribes law or policy [but] . . . does not include [the express exceptions in Subsections 120.52(15)(a)-(c)]. Subsection 120.52(15) imposes several requirements that must be satisfied in order for Respondent's construction of Section 11.062 to be defined as a rule. First, Respondent must express the challenged statutory construction as an agency statement. Second, the agency statement must satisfy the test of general applicability. Third, the statement of general applicability must, in relevant part, implement, interpret, or prescribe law or policy. Finally, the statement of general applicability that implements, interprets, or prescribes law or policy must not fall within one of the express exceptions to the definition of a rule. Respondent has expressed the challenged construction of Section 11.062 in several statements of longstanding agency policy. That policy traces its roots to the early 1990s, and Respondent has iterated its policy through various means of government communication. Most recently, Respondent stated its policy in a letter to Mr. Jennings dated September 27, 2006, approximately eight days after Petitioners filed the instant rule challenge. In relevant part, the letter states: This is in response to your letter to the Bureau of State Payrolls dated September 20, 2006, regarding your W-4 Form. Whenever state employees are under investigation for possible misuse of state funds, we routinely flag their W-4 record in our payroll system; your payroll account was flagged because of questions surrounding lobbying expenditures you authorized. Because of this action, however, our data processing system automatically generated a new W-4 form that was inadvertently sent to you twice. Please disregard both of these W-4 forms. No action of any kind has ever been taken by this office as a result of the duplicate forms you received. We apologize for any inconvenience that may have been caused. Petitioner's Exhibit(P)- 9. Respondent previously stated the challenged statutory construction in an investigative report precipitated by several complaints against the Capital Collateral Regional Counsel for the Southern Region (CCRC-SR), the last of which Respondent received on March 29, 2005. Respondent's Office of Fiscal Integrity (OFI) initiated a formal investigation of CCRC-SR and subsequently expanded the scope of the investigation to include the lobbying activities of CCRC-MR. Respondent issued a final report of the investigation on August 29, 2006. In relevant part, the report expressed the challenged statutory construction as follows: CCRC officials have argued that CCRC's are not part of the executive branch, claiming this would make them exempt from the provisions of Section 11.062. . . . A legal opinion dated January 11, 2006, by DFS counsel indicates that although CCRC's were initially created in the judicial branch, they were moved to the executive branch in 1997. The legal opinion noted that the CCRC's have been repeatedly defined by statute as executive branch agencies. . . . Examples include Section 23.21(1). , which notes that CCRC's are included as "principal administrative unit(s) within the executive branch of state government. . . . CCRC's are also defined by name in Section 186.003(6) . . . as state agencies, which are in turn defined in this section as "any official, officer, commission, board . . . or department of the executive branch of state government.[4] * * * In the case of the CCRC-Middle office, a staff attorney working for Jennings wrote an opinion saying essentially that the CCRC's were exempt from the provisions of Section 11.062 . . . because in their opinion, they are not part of the executive branch. In Jennings sworn statement, he acknowledged that he did not seek a legal opinion from anyone outside of his office. According to Jennings' sworn statement, he continues to pay . . . for lobbying services even though the contract reflects "consulting services." Jennings, on behalf of CCRC-Middle authorized payments . . . totaling $119,000. * * * It is recommended that . . . DFS legal staff initiate action against . . . Jennings to recover . . . funds that were inappropriately paid by Jennings to lobbyist[s] in violation of Sections 11.062 and 216.311. P-1 at 19 and 20. Respondent has also stated the challenged statutory construction in an Interoffice Communication dated January 11, 2006, and in a memorandum to state agencies dated March 31, 2003. Respondent issued the latter memorandum as a direct result of the lobbying expenditures of CCRC-MR but did not deliver the memorandum to CCRC-MR. Respondent argues that it has not uttered an agency statement, in relevant part, because the recommendation in the Report of Investigation has no force or effect without the authorization of the agency head.5 The argument ignores substantial evidence of other iterations of the agency statement over the years as well as the consistent interpretation by agency witnesses of the force and effect of the statement in its various iterations. The agency statement of the challenged statutory construction satisfies the test of general applicability. Respondent intends the agency statement to have the force and effect of law. Respondent applies the statement in a manner that requires compliance by all state agencies and employees with the direct and consistent effect of law. The statement creates enforcement rights in Respondent and imposes substantive standards on state agencies and employees who are not described in the express terms of Section 11.062. According to the Program Manager in charge of OFI, it is unlawful for Petitioners to expend funds for outside lobbying irrespective of whether CCRC-MR is an executive agency or legislative agency. "The issue of whether they're an executive agency is just an issue of collection." Respondent's Director of the Division of Accounting and Auditing agrees with the testimony of the Program Manager. The agency statement of general applicability interprets and implements Section 11.062. Section 11.062 does not expressly define an executive agency to include CCRC-MR.6 The agency statement defining CCRC-MR as an executive agency interprets law within the meaning of Subsection 120.52(15). The executive branch of government is constitutionally and statutorily required to organize its executive agencies into no more than 25 departments.7 The executive departments enumerated in Chapter 20 do not expressly identify CCRC-MR as an executive agency. The agency statement that CCRC-MR is an executive agency interprets law within the meaning of Subsection 120.52(15). Respondent relies on Subsection 23.21(1) to define CCRC-MR as an executive agency for the purposes of Section 11.062. Subsection 23.21(1), in relevant part, defines the term "department" to include "a principal administrative unit within the executive branch . . . and includes . . . the Capital Collateral Representative. . . ." However, the quoted definition is expressly limited to "the purposes of this part", i.e., the Paper Reduction provisions in Sections 23.20 through 23.22. Expanding the quoted definition for purposes other than Paper Reduction, including the purposes of Section 11.062, interprets law within the meaning of Subsection 120.52(15). In similar fashion, Respondent relies on Subsection 186.003(6) to define CCRC-MR as a state agency. Expanding the definition beyond the purposes of Chapter 186 to include the purposes of Section 11.062 interprets law within the meaning of Subsection 120.52(15). Respondent states in the alternative that CCRC-MR is not an agency but is a subdivision of an executive agency. The parties devoted a substantial amount of evidence in an effort to demonstrate that CCRC-MR is a unit of either a legislative or executive agency of government. As previously stated, the scope of this proceeding does not require a resolution of the dispute between the parties. The competing evidence, however, does demonstrate that the challenged agency statement interprets law within the meaning of Subsection 120.52(15). The agency statement of general applicability that interprets law and implements Section 11.062 does not fall within an express exception to the definition of a rule in Subsection 120.52(15). The iteration of the agency statement in the letter to Mr. Jennings that followed the report of investigation is not an internal management memorandum, legal memorandum, or memorandum to other state agencies within the meaning of Subsections 120.52(15)(a), (b), or (c). The iteration of the agency statement in an internal management memorandum issued as a direct result of the lobbying efforts of CCRC-MR affects the private interests of Mr. Jennings, if for no other reason, by subjecting his salary to garnishment. The challenged statutory construction is a rule within the meaning of Subsection 120.52(15). Respondent has not promulgated the rule pursuant to the rulemaking procedures prescribed in Section 120.54. A preponderance of evidence does not support a finding that rulemaking is not feasible within the meaning of Subsection 120.54(1)(a)1. Respondent argued but offered no factual evidence to support such a finding. Nor did Respondent initiate rulemaking in accordance with Subsection 120.56(4)(e). Mr. Jennings is a person substantially affected by the unpromulgated rule within the meaning of Subsection 120.56(4)(a). Subsection 11.062(1) requires Respondent to garnish the salary of Mr. Jennings if Respondent determines that Mr. Jennings violated the statutory prohibition against outside lobbying. After Respondent concluded the administrative investigation on August 29, 2006, the Director of the Division of Accounting and Auditing directed the Bureau Chief for the Division of State Payrolls to access the personal payroll account of Mr. Jennings on two occasions. Respondent subsequently exercised prosecutorial discretion not to garnish the salary of Mr. Jennings. Mr. Jennings is currently subject to reappointment to his position of employment. Mr. Jennings must disclose to the Supreme Court Judicial Nominating Committee that he is currently under investigation by OFI. The disclosure subjects Mr. Jennings to a potential loss of reappointment. CCRC-MR is a person substantially affected by the unpromulgated rule. A change in leadership would impair the institutional knowledge required to adequately represent persons in eight judicial circuits who have been convicted and sentenced to death. Placement of CCRC-MR within the executive branch of government creates a potential conflict of interest for CCRC-MR. Such a placement arguably would make the legal representative of death row inmates responsible to the executive branch of government which, in turn, must either execute the clients of the representative or commute their death sentences.
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. 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 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 2nd day of April, 1992. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
