The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
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
The Issue Whether Respondent violated the Florida Civil Rights Act 1992, as alleged in the Charge of Discrimination filed by Petitioner on August 10, 2002. of
Findings Of Fact Stipulated Facts 1. Petitioner, Ernest E. Whitehurst, was employed by the Duval County School District (school district) beginning November 26, 1984. 2. Petitioner was discharged from employment effective August 25, 2000. 3. Petitioner was informed of his discharge by a letter signed by Lisa Moore, an employee of the school district, a copy of which was hand-delivered by management. 4. Petitioner suffered an on-the-job injury in September of 1991. 5. After recovering from the on-the-job injury, Petitioner had a permanent injury in that he was restricted in lifting objects. 6. Petitioner filed a charge of discrimination in relation to his termination on or about August 6, 2001. 7. Petitioner is presently suffering from a serious mental disorder. Facts Established by the Evidence of Record 8. The letter of termination stated in pertinent part: Under Civil Service Rule 9.05(1), an employee can be dismissed for inability to perform assigned duties. You were hired as a school [sic] clerk II, after a fitness for duty assessment, job skills inventory and job search, the district has determined that you are unable to perform your assigned duties and that there are no other positions available, 9. Petitioner was hired and worked as a Stock Clerk II. The position description for Stock Clerk II includes the following: KNOWLEDGES, SKILLS AND ABILITIES: Ability to establish and maintain effective working relationships with others. Requires alertness and manual dexterity. Ability to understand and carry out oral and written instructions. Ability to maintain manual and computerized records. Ability to lift 60 pounds. Ability to operate computer. Knowledge of computers regarding maintenance of records and inventories. Knowledge of storeroom methods and procedures. 10. The job description also includes the following as examples of work to be performed: supervising and/or participating in the ordering, receiving, storing, and issuing of a variety of equipment and supplies; assembling, parking, and arranging for transport of stored materials; preparing and maintaining an inventory system using computerized and manual records; and may be required to drive a truck up to 26,000 GUV, as well as to operate a forklift, stock-picker, and other material-handling equipment. Physical Injuries 11. During his first years as a district employee, Petitioner apparently performed his job without serious problem or difficulty. On September 9, 1988, however, he strained and pulled his right arm and shoulder while lifting a gate to open it, which limited his ability to raise his arm over his head and in reaching. Medical records reflect that a long period of limited duty ensued during which Petitioner was medically restricted to lifting no more than 30 pounds and doing no overhead lifting with his right arm. 12. On September 6, 1991, Petitioner was injured on the job again. The description of the accident furnished by the school district, is as follows: Employee was moving storage bins in Warehouse and they fell over on him, hurting his head, nose, back, both shoulders and both knees. 13. Petitioner's treating physician at the time of the 1991 injury, Dr. Lenger, a neurologist, placed work restrictions on Petitioner. The primary work restriction limited Petitioner to lifting not more than 30 pounds. The physical sequela from this accident remained with Petitioner through the time he was dismissed. 14. On August 30, 1995, Dr. Lenger, determined that Petitioner's injury was permanent in nature and irreversible. Petitioner's work restrictions at this point included the following: sitting no more than one hour; driving no more than one hour; standing no more than one hour; no prolonged walking; no repetitive bending; and no carrying or lifting in excess of 30 pounds. These same work limitations were reiterated by Dr. Lenger on March 8, 1996, with the exception of the walking limitation. The last medical report reiterating the physical restrictions was dated April 27, 2000. The restrictions described by Dr. Langer remained in effect when Petitioner was dismissed. 15. In 1999, Petitioner developed carpal tunnel syndrome. On September 17, 1999, Dr. Lenger reported that Petitioner had "worsening CTS [carpal tunnel syndrome] bilat." This finding was reported by Dr. Lenger again on September 27, 1999, along with the notation "requires wrist splints for CTS." Dr. Lenger's January 14, 2000, report indicates "Rt. Carpal 2 This condition also continued to affect tunnel syndrome." Petitioner through the end of his employment with the school district. It hindered his ability to do repetitive work. 16. The school district accommodated Petitioner for his physical disabilities for many years by permitting him to remain on light-duty status. He received generally satisfactory job evaluations. However, his supervisors based these evaluations on the limited amount of work he was able to do, not on the entire scope of the job. Mental Illness® 17. Petitioner also developed manifestations of mental illness during the time frame he was employed with the district. On or about March 8, 1996, Dr. Lenger reported that Petitioner was so upset he couldn't stop crying. Dr. Lenger's progress notes reflect that Petitioner's regular physician put him on an anti-depressant. Petitioner continued to take the anti- depressant through the time he was dismissed from employment by the district. 18. On July 13, 1998, a Monday, Petitioner told his supervisor and another co-worker that he had contemplated suicide during the prior weekend. He also told them that he had hit himself in the head numerous times. Larry McDonald, Director, Consolidated Services Property Manager, told Petitioner to go to the district's Wellness Clinic for counseling, but Petitioner refused. 19. Petitioner admitted to barking from time to time in the workplace. According to Petitioner, he did this to startle people. Petitioner's barking was observed and heard by many district employees, including Larry McDonald, Lee Taylor, Leroy Williams, Michael Myers, Colleen Taylor, and Rufus Harmon. These people found Petitioner's barking disturbing, frightening, strange, or annoying. It occurred frequently, was very loud, and could be heard 300 to 400 feet away, half the length of the warehouse, and while visitors were present in the warehouse. 20. During the course of his employment, Petitioner made threatening remarks concerning management and specifically concerning Larry McDonald, Petitioner's superior through the reporting chain. On one occasion in 1999, Petitioner remarked to a co-worker that he would line management up and shoot them. Petitioner stated that if he lost his job, he would get even, a comment made in a conversation concerning other persons on "light" duty who had been dismissed. 21. Petitioner had a psychiatric examination on August 24, 2000, after he had received his letter of dismissal, but prior to the last day of his employment, August 25, 2000. According to Petitioner's psychiatrist, Dr. Martinez, Petitioner was having intense thoughts of killing himself and his supervisor because of being dismissed. Dr. Martinez hospitalized Petitioner due to suicidal and homicidal ideation on an emergency basis at Ten Broeck Hospital, and recommended long- term psychiatric treatment. It was Dr. Martinez's opinion that Petitioner was not employable at that point. 22. Petitioner acknowledged that when he visited Dr. Martinez on August 24, 2000, he had been homicidal and that he expressed at that point that he wanted to kill Mr. McDonald. 23. Dr. Martinez has continued to see Petitioner on a very regular basis. Petitioner's diagnosis is intermittent explosive disorder, clinical depression, and personality disorder. Dr. Martinez testified that Petitioner functions on a chronic level of paranoia and distrust, which is psychotic. Dr. Martinez stated that Petitioner continues to be permanently mentally disabled as a result of his industrial accident and the psychiatric sequelae following the accident.‘ 24. It is Dr. Martinez's opinion that Petitioner "has always been severely mentally disturbed," that he is very distrusting on a chronic basis, probably since he was a small boy, and that he is suspicious, hypervigilant and explosive. "I think he's been that way for quite a while." According to Dr. Martinez, behavior such as barking in the workplace is indicative of severe mental disturbance. Employability at Time of Dismissal 25. Mr. McDonald estimated that Petitioner was doing only 35 percent of his job and was not carrying out its essential functions at the time of his dismissal. A supervisor estimated that Petitioner did 40 percent of his job. Another supervisor estimated that Petitioner could do between 15 percent to 25 percent of the job. One co-worker stated that Petitioner did very little work. No one testified that Petitioner was able to do all functions of his job. 10 26. In the opinion of Dr. Martinez, Petitioner was not able to do his work: Q: If he hadn't been terminated, I mean, is there any reason you would suspect he couldn't continue working unless there was another triggering event? A: If he had not been terminated? Q: Yes. A: I think that he needed to be out of this work situation. He couldn't do it. Q: Because there were triggering events other than the termination? A: He's fully disabled. You know, he couldn't do his job. But it's how it was handled that I have the issue with. It was--minimize the damage control. It should have been--human resources screen them before they work with children, you know. 27. In 1998, the district had 65 employees in "light" duty positions who could not perform and who had reached maximum medical improvement ("MMI"). The purpose of "light" duty was to allow employees a reasonable period of time to heal if they were injured. The school district hired a new "Safety Director" who was instrumental in the implementation of a process directed toward this large number of individuals who were not performing the full scope of their jobs. A review of their status commenced to either find jobs for them or separate those individuals who had reached MMI. Petitioner was one of the employees who became a subject of this process. 11 28. The evidence is unclear as to whether every step of this process was undertaken regarding Petitioner. The first step was a fitness for duty evaluation. This step was unnecessary regarding Petitioner because the school district already had Dr. Lenger's opinion that Petitioner's physical injuries were permanent. The termination letter indicated that prior to Petitioner's dismissal, a job skills inventory and search for other possible jobs for him within the district had been conducted, although no business records relating to this search was produced. 29. Vicki Reynolds is the current Assistant Superintendent of Human Resources. While she was not in that position at the time of Petitioner's dismissal, she reviewed school district business records relating to available vacancies which the district had in the months immediately prior to Petitioner's dismissal. She also reviewed business records relating to individuals who had been surplused because their positions had been cut for budgetary reasons. Those persons have rights to positions under the collective bargaining agreement and, in the case of teachers, under the applicable teacher tenure law. Ms. Reynolds' review indicated that the school district had no vacant position in which Petitioner could have been placed at the time of dismissal, taking into consideration Petitioner's limitations. 12 30. At the time of Petitioner's dismissal, there were some persons occupying Stock Clerk II positions who did not regularly do lifting, e.g., persons assigned to the purchasing office. However, according to Mr. McDonald, all Stock Clerk II's "are required to have the ability to lift." Regarding those positions, Mr. McDonald stated: Q: He [Petitioner's attorney] mentioned three things, whether stock clerks do computerized work, telephone, typing. Is that all part of a Stock Clerk II's job that goes along with lifting? Do they all do some of that? A: Yeah. The stock clerks that work in the office, their duties are typical clerical duties. They--they're expected to be able to work on a computer, on a computer networking system. They're expected to work on the telephone with both vendors and school board customers and meet personally with the vendors. Q: Do they go into the warehouse ever? A: Yes, they do. Q: What do they do out there? A: The ones on the warehouse side, they are in charge of certain commodities. We have-- in the warehouse, we have 6,000 items, different items. And we break it up by about a third of those for each one. And their duties are to make sure that we are carrying and maintaining our certain inventory levels. This may require them to go out and physically count, physically inspect, move around items, help with the incoming of the inventory when it comes in as an inspector. 13 Q: And. . . but why could Whitehurst not have been placed in one of those jobs, which is the implication, in August of 2000? A: Well, we didn't have any openings. And you cannot bump a person out of a job. It's illegal under the civil service rules and regulations. Q: And any other reason that you can-- A: Well, his physical impairment. Mr. Whitehurst was limited to sitting, standing, walking. He had carpel tunnel on his wrist. He had several reasons that he wouldn't be a candidate for one of those jobs, if I had an opening at the time. 31. Petitioner did not identify a specific vacant position which the district had at the time he was dismissed for which he was qualified. 32. Petitioner had been issued a statement of eligibility for a teaching certificate. However, Petitioner had been evaluated by the school district and found not to be suitable for teaching positions. Dr. Martinez concurred that it would not have been appropriate for Petitioner to work at a school either before or after he was dismissed. 33. Petitioner was dismissed on August 11, 2000, effective August 25, 2000, for inability to perform his assigned duties and because no other position for him was available pursuant to Civil Service Rule 9.05(1). Civil Service Rule 9.05(1) provides that employees may be dismissed for cause. A determination of 14 cause may be predicated on "inability to perform assigned duties."
Conclusions For Petitioner: Arthur G. Santorius, Esquire 1919 Atlantic Boulevard Jacksonville, Florida 32207 For Respondent: Ernst D. Mueller, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is 24 RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Ernest E. Whitehurst. DONE AND ENTERED this aot aay of June, 2003, in Tallahassee, Leon County, Florida. iS 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 20 aay of June, 2003.
The Issue In its formal written protest, Petitioner VisionQuest National, Ltd. (VisionQuest), through paragraph 6.d. and e., challenged the manner in which Respondent Department of Juvenile Justice (DJJ) assigned and weighed points in accordance with specifications set forth in RFP I5J01 (the RFP). The first issue to be resolved concerns the timeliness of that challenge to the specifications. The aspects of the RFP specifications challenged in the formal written protest are related to the assignment of points for past performance in carrying out contracts with DJJ for non-residential programs which can total 250 out of 1000 possible points in the competition. Section 120.57(3)(b), Florida Statutes. The second issue to be resolved concerns the appropriate disposition in the case where DJJ has conceded that the actions of some of its evaluators in considering responses to the RFP materially deviated from agency policy and the expectations in the RFP, thus compromising the evaluation process. Section 120.57(3)(f), Florida Statutes.
Findings Of Fact STIPULATED FACTS On or about April 12, 2002, DJJ issued an RFP under Solicitation Number I5J01 for "84 Community-based Conditional Release Slots in Orange and Osceola Counties." DJJ appointed one of its employees, Diana Blue, as the Contract Administrator for this RFP. As a Contract Administrator, she had the duties and obligations of the Source Selection Evaluation Team Chairperson. On or about April 10, 2002, Deborah H. Dickerson, DJJ's Chief Probation Officer for the 9th Circuit, appointed Shelley Maxwell, Nathan Marcou and Marcus Freeman as the evaluation team for RFP I5J01. The evaluation team was to review the responses to the RFP and subjectively evaluate the categories labeled "C.2 - Management Capability" and "C-4 - Program Services." These two criteria combine for a possible 550 points out of a possible 1000. Each category is further broken down into subcategories: C.2 - Management Approach and Organizational Structure and C.4 - Soundness of Approach and Comply with Retirements. The RFP also provides for an objective review of the responses in some respect. The RFP provides for up to 250 points, out of the possible 1000, to be awarded in the area of past performance. One way these points are earned is by a provider having operated a DJJ Program(s) within the last three years and the program(s) having earned a "commendable or higher recognition." Such a program(s) would receive 20 points for each year, thereby allowing a single program to earn multiple scores, or multiple programs to earn multiple scores. A second way these points are earned is by a provider having operated a DJJ Program(s) within the last two years and the program(s) having met or exceeded DJJ's approved Performanced Based Budgeting performance measure for recidivism rates. Such a program(s) would receive 20 points for each year, thereby allowing the single program to earn multiple scores, or multiple programs to earn multiple scores. VisionQuest, Eckerd Youth Alternatives (Eckerd) and Children's Comprehensive Services (CCS) submitted timely responses to the RFP which were due no later than May 14, 2002. On May 14, 2002, the evaluation team was contacted and provided addresses so they could receive the RFP and the responses. This was the first contact the evaluation team had with anyone regarding their role on the evaluation team since the date of their appointment, April 10, 2002. Some of the evaluation team received their packages on Friday, May 17, 2002 and were to have their evaluations back on Tuesday, May 21, 2002. At least one of the evaluation team members did not receive their packages until Monday, May 20, 2002. The date to return the evaluations was extended to Wednesday, May 22, 2002. In this package was the RFP, the responses to the RFP, a score sheet, the Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, and Conflict of Interest Questionnaire. Shelley Maxwell, evaluator number 3 for this RFP, is a DJJ probation officer for Osceola County. Part of Ms. Maxwell's responsibilities are to oversee the youth assigned to the current contract provider of community based conditional release slots in Osceola County, VisionQuest. Ms. Maxwell has no experience with RFPs, the evaluation of responses to RFPs nor has she received any training with regards to an RFP. Ms. Maxwell was not told what she would be doing or given any instruction between the time of being appointed to the evaluation team and receiving her materials. Ms. Maxwell reviewed her packet of materials on Friday, May 17, 2002, and was still unclear on what was expected of her. She then contacted a DJJ supervisor who informed her to review the responses and evaluate them. Upon learning that VisionQuest had submitted one of the responses she was to review, Ms. Maxwell thought that she and Nathan Marcou had been appointed to the evaluation team because they worked with VisionQuest on a daily basis. This allowed them to compare VisionQuest's written response with the daily activities of the current program. On Monday, May 20, 2002, Ms. Maxwell met with Nathan Marcou. Ms. Maxwell was told to get together with the other team members and perform the evaluations. Ms. Maxwell and Mr. Marcou discussed the proposal they were reviewing during this meeting, which was Eckerd's. Ms. Maxwell later reviewed the proposals from CCS and VisionQuest at home during the evening of Monday, May 20, 2002. In evaluating the response to the RFP filed by VisionQuest, Ms. Maxwell used her knowledge obtained through her day-to-day contact with VisionQuest. Her knowledge further affected the scores she awarded to VisionQuest. Ms. Maxwell signed her Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, Conflict of Interest Questionnaire, and score sheets for CCS and VisionQuest on May 20, 2002. Her score sheet for Eckerd's response is not signed. Ms. Maxwell submitted her paperwork to go to the main office in Orlando, and then on to Tallahassee via courier. Based on the evaluations, DJJ issued a notice of intent to award a contract to Eckerd posted June 4, 2002. VisionQuest timely filed its Notice of Intent to Protest and its Formal Protest Petition and Request for Hearing. During the pendency of this action, DJJ has admitted that the evaluation process of RFP I5J01 was flawed and contrary to DJJ's policies and practices. In an attempt to remedy the flaws, DJJ desires to conduct a new evaluation of the RFP responses with a new evaluation team. VisionQuest desires to have the RFP rebid.
The Issue The issues in this case are whether the continuing contract of employment between the Petitioner, St. Petersburg Junior College (SPJC or the College), and the Respondent, Mary Tranquillo, should be terminated and, if so, whether the Respondent should be dismissed from her employment.
Findings Of Fact The Petitioner, St. Petersburg Junior College (SPJC or the College), has several campuses and approximately 60,000 students. The Respondent, Dr. Mary Tranquillo, who has 32 years of teaching experience, has been employed by the College for 24 years as an instructor in the area of business technologies, with an emphasis in fashion and marketing. The Respondent has been on a continuing contract with the College since 1974. There is no question as to her performance through approximately 1991. She was a competent, effective and valuable instructor during those years. In approximately January 1992, the Respondent began to complain of illness which she attributed to various factors in her work environment. Over the years since then, Tranquillo has blamed tar fumes from roofing work being done in the vicinity, as well as fumes and molds from various buildings and other sources on or near the campus. The Respondent not only called in sick, she also sometimes stayed away to avoid what she said were the environmental factors responsible for her illnesses. By her own reckoning, the Respondent was absent from work from January 15 through January 24, from February 19 through February 28, from March 27 through June 17, 1992 (for a total of 103 days during the 1991-92 school year.) During the 1992-93 school year, Tranquillo was absent from September 22 through September 24, on October 22, and from October 26 through October 29, 1992, and from February 5 through 10, on February 15, from February 25 through February 26, and from March 23 through May 7, 1993 (for a total of 63 days.) During the 1993-94 school year, Tranquillo was absent on November 8 and 9, 1993, from February 9 through 11, 1994, from June 14 through June 16, and from July 6 through July 14, 1994 (for a total of 17 days.) During the 1994-95 school year, Tranquillo was absent on October 14, 1994, and on March 2 and 3, 1995 (for a total of 3 days.) During the 1995-96 school year, Tranquillo was absent on September 21 and 22, from October 9 through 12, from October 16 through 20, and from November 9 through 16, 1995 (for a total of 18 days.) During the 1996-97 school year, Tranquillo was absent from September 27 through 29, from October 21 through 25, and on November 15, 1996, and from January 6 through 9, from February 10 through 13, 1997 (for a total of 17 days.) During the 1997-98 school year, Tranquillo was absent from October 9 through 17, 1997. Paid sick leave is accumulated by SPJC faculty at the rate of one day per month of service and is permitted to be carried over. Sick leave is credited at the beginning of each school year. There also is a sick leave pool available; members of the pool are assessed one day of leave in return for the ability to use up to 44 days of sick leave from the pool after their personal sick leave is exhausted. The Respondent exhausted her paid sick leave each year since 1992, except for the 1994-95 school year. In addition, the Respondent has used all 44 days of sick leave available to her as a member of the sick leave pool. The Respondent's absences clearly impaired the educational experience of students enrolled in her classes. The Respondent's classes were not impacted equally. As evidenced by the testimony of many students, the Respondent's students generally seem to have been able to obtain valuable educational experiences during times when the Respondent was not absent, or was absent less. On the other hand, as evidenced by the testimony of many other students, the students' educational experiences suffered during times when the Respondent was absent frequently. Despite efforts to focus attention on the former occasions, the Respondent herself admitted to the latter. When the Respondent was absent frequently, it was sometimes difficult to obtain and prepare substitutes. Sometimes, there was little or no notice. Sometimes, substitutes could not be found at all, and class had to be canceled. Sometimes, a substitute was found, but the substitute was not qualified to teach the Respondent's class. Sometimes, there was not enough time to prepare the substitute. The College did not prove that the problems with covering for the Respondent's absences were all the fault of the Respondent. Before June 1997, the Respondent generally seemed to try to prepare her substitutes, and the College did not prove that the Respondent failed to prepare lesson plans for substitutes prior to June 1997. But there sometimes was difficulty communicating instructions to substitutes or locating materials to be used by the substitutes. The Respondent sought to blame all difficulties in covering for her absences on the administration, office clerical staff, and the substitutes. The Respondent blamed the administration for having the clerical staff select substitutes and blamed the clerical staff for selecting substitutes who were not qualified. The Respondent also went so far as to suggest the existence of a conspiracy among members of the administration, clerical staff and substitutes to sabotage the Respondent's efforts to cover for her absences in order to trump up charges for her dismissal. It is found that there was no such conspiracy against the Respondent. It is true that, as time went on, some of those involved in covering for the Respondent's absences felt put upon. Some administration and clerical staff became frustrated and aggravated; so did some substitutes, some of whom refused to continue to respond to requests to substitute for the Respondent. But these individuals did not cause the Respondent's problems. Rather, the problems of trying to cover for the Respondent were caused by the sheer number of the Respondent's absences, together with their general unpredictability in time and length; these problems made it difficult and frustrating for those involved. The Respondent failed to appreciate, and instead minimized, the hardships on the College in trying to cover for the Respondent's many absences. Additional problems caused by the Respondent's absences included lack of continuity, failure of communication with the students, and student apprehension concerning grading. For some of the Respondent's classes, these problems were so severe that the administration considered giving all students an "A" just for putting up with all of the problems. The Respondent also tended to obsess on the environmental factors she thought was causing her absences. Sometimes, when the Respondent came to class, she spent excessive time discussing her grievances with the College regarding her illness and the factors she blamed for them. This also diminished the quality of the educational experience of many students. The students most impacted by these problems felt cheated and became frustrated and angry, as well as concerned about grades. Some initiated and signed petitions to the administration to attempt to get satisfaction. Contrary to the Respondent's suspicions, these petition drives and student grievances were not instigated by substitutes (who essentially told complaining students that they should make their complaints known to the administration), by administration, or by other faculty. They were not yet another part of an alleged conspiracy to get rid of the Respondent. Rather, they were expressions of honest and understandable concerns and grievances on the part of the students. Generally, instructors at the College are expected to not only teach classes but also attend faculty meetings, serve on committees, and be part of a professional group. It is clear that, due to her excessive absences, at times the Respondent was unavailable to participate in these kinds of extracurricular activities. Some of the extracurricular activities cited by the Respondent to demonstrate her level of participation actually were not extracurricular. For example, she cited the preparation of lesson plans and claimed that they were extracurricular. Similarly, she attempted to characterize the selection of a textbook for her class. Some extracurricular "activities" cited by the Respondent were not very active. The Respondent cited a plan that she had to promote courses in her area of instruction as extracurricular, but there was no evidence that she acted on the plan. The Respondent testified that she was a member of an "organization development network" that holds meetings, but on cross-examination she admitted that she actually never has attended a meeting of the group. The Respondent cited a letter she wrote encouraging students to attend a meeting, but it was revealed on cross-examination that the Respondent herself did not attend the meeting. The Respondent called a witness to testify to time the Respondent spent assisting with one particular extracurricular project, but the testimony was that, in that instance, the Respondent just compiled some materials for the witness, who could not say "how many minutes it took" the Respondent. The Respondent credits herself with time spent writing for publication. Indeed, there was evidence to support this claim. However, it appears that less time was spent writing for publication in the time period from 1992 through 1997, than earlier in the Respondent's career. For example, a book the Respondent claims to have been working on for the last five years still consists of only an outline. While able to cite weaknesses in the Respondent's demonstration of her level of participation in extracurricular activities, and while proving a general requirement to participate in extracurricular activities, the College did not prove precisely what is required of instructors in this regard. There was no evidence of any standards by which an instructor's level of participation can be quantified or measured. Without such standards, the College was unable to prove that the Respondent failed to meet the College's requirements. Beginning with the 1993-94 school year, the Respondent began receiving negative performance evaluations. Essentially, the College cited the problems caused by the Respondent's excessive absences, and the Respondent blamed them on illness allegedly caused by environmental factors on campus that were beyond her control. Although the College tried to accommodate the Respondent, the Respondent did not think the College was doing enough and blamed the College for being callous and uncooperative. Eventually, the College came to question the existence of the environmental factors to which the Respondent attributed her problems and began to believe that the Respondent's demands had become unreasonable. As a result, the working relationship between the Respondent and administration deteriorated, and the College began to give consideration to terminating the Respondent's continuing contract. By the end of the 1996-97 school year, the College decided to terminate the Respondent's continuing contract as of the end of the school year. On or about May 8, 1997, the College issued the President's Petition and Notice to Respondent of Hearing Rights. On the belief that it was improper or unnecessary after initiation of termination proceedings, the College never completed the Respondent's performance evaluation process for the 1996-97 school year. Due to the pendency of this proceeding, the Respondent has continued to teach during the 1997-98 school year. In June 1997, the Respondent began to take the position that, when she had to be out sick but had no more sick leave, she would not prepare lesson plans or otherwise do "work" at home to help prepare substitutes. When she invoked this new position, the College countered that it violated the requirement that instructors prepare lesson plans and prepare substitutes when necessary. Eventually, this dispute was resolved, and the Respondent receded from her position. It is not a continuing issue. In 1994, the Respondent filed a workers' compensation claim against the College alleging that she had multiple chemical sensitivity and related illnesses arising out of and in the course and scope of her employment. Both parties were represented by counsel in that proceeding, and they fully and fairly litigated the issue as to whether the Respondent was exposed to any chemical through her work environment at the College which caused, accelerated, or aggravated any physical or mental illness. On June 19, 1997, an Order was entered Judge of Compensation Claims ruling against the Respondent and in favor of the College on that issue and denying the claim. The Respondent presented no evidence at the hearing to support her claim that her absences were caused by genuine illness. No physician testified, and no medical evidence was introduced. Due to the long-standing problems beginning in January 1992, the evidence proved "good and sufficient reasons" to terminate the Respondent's continuing contract. Yet, the evidence also was that, when the Respondent is "on-the-job," physically and mentally, she can be a very effective instructor. Indeed, the evidence was that the Respondent's attendance at work and her work performance have been better since action was initiated to terminate her continuing contract. In January 1998, the Respondent was given an office and a classroom which she does not think affect her health adversely. (Ironically, they are the same office and classroom offered to the Respondent in 1994 and 1995; the Respondent believes that measures taken since then have ameliorated the environmental factors that allegedly were causing her health problems.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of St. Petersburg Junior College enter a final order terminating the Respondent's continuing contract and returning her to an annual contract for another three years. DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 5th day of June, 1998. COPIES FURNISHED: Board of Trustees St. Petersburg Junior College c/o Maria N. Sorolis, Esquire Allen Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 Maria N. Sorolis, Esquire Allen Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 John E. Tuthill, Esquire 3300 49th Street, North St. Petersburg, Florida 33710
Findings Of Fact Glen Sullivan is a Career Service employee with permanent status as a Youth Counselor II who was employed at the time in question in the Live Oak office of the Division of Youth Services in Suwannee County, Florida. In the summer of 1976 the Legislature of the State of Florida directed that the Department of Health and Rehabilitative Services adopt what was termed "single-intake counseling." This required that all juveniles being placed in the care of the Division of Youth Services be processed by a single subunit of that agency. Plans were instituted to create a new class of position to augment this legislative directive by the creation of a job position designated "Single Intake Counselor." The process of creating this new position was commenced by the submission of the appropriate documentation to the Department of Administration, Division of Personnel, in accordance with the applicable rules and regulations. The State Personnel Director as head of the Division of Personnel, Department of Administration, has sole authority to approve the creation of positions. In July, 1976, in order to comply with the legislative directive, Linwood Colson, Direct Services Supervisor of District III, developed plans which he presented to Teadie Tunsill, Service Network Manager for Region or Service Network I within District III of the Department of Health and Rehabilitative Services. This plan called for designated individuals already in existing positions to undertake single intake counseling and function as Single Intake Counselors. These individuals were to be assisted by other Youth Counselors as required. This plan was approved by Teadie Tunsill. Subsequently in July, 1976, Linwood Colson advised the various Youth Counselors in Network or Region I that this plan would be implemented. A Youth Counselor III in Live Oak, Florida, was designated as the individual responsible for single intake counseling, and all other Youth Counselors in Live Oak were directed by Linwood Colson to assist in this process as required. Special cross training sessions were organized and individuals concerned were notified to attend the sessions by a memorandum from Linwood Colson dated July 19, 1976. After training, in late summer or early fall, Glen Sullivan, Vic McDonald, Mike DeVane, and Tonia Gardner, working in the Live Oak area, were assigned single intake counseling duties during off duty hours. Phyllis Rosier, acting Supervisor, began preparing on call duty rosters for the Youth Counselor's concern. December 17, 1976, Glen Sullivan notified Linwood Colson by phone that he (Sullivan) felt that it was outside the duties of his job description and classification to perform these intake duties and that he would not perform them in the future. Colson advised Sullivan that he should take the matter up with Phyllis Rosier, his supervisor, and present his position in writing. Sullivan did this in a memorandum to Rosier dated the same day he spoke with Colson. See Exhibit 4. On December 22, 1976, Phyllis Rosier sent a memorandum to Linwood Colson regarding Sullivan's memorandum. See Exhibit 13. Rosier's memorandum outlined that Sullivan had stated to her that he would not perform single intake duties on call and his refusal to do so created scheduling problems for her. The memorandum further stated that in assigning Sullivan to these duties she was following instructions given to her by Linwood Colson and Teadie Tunsill, and therefore she did not feel she personally had the authority to exempt Sullivan from these duties. She requested Colson to resolve this issue. These events led to a meeting on December 29, 1976, between Glen Sullivan; Phyllis Sarra, the Employee Relations Specialist for District III; and John Roberts, Assistant District Personnel Officer. This meeting was to clarify and explain to Sullivan that he would be required to carry out his assigned duties as an on-call intake counselor, and that if he refused to do so, he would be disciplined. The thrust of the agency's position stated in the letter of Richard Dilliard, Subdistrict Administrator, to Sullivan dated December 30, 1976. See Exhibit 8 and its attachments. This letter also states that Phyllis Rosier had been directed to assign Sullivan on-call duty for the dates January 4 through 9, 1976. Sullivan responded to Dilliard by letter date January 4, 1976, (see Exhibit 12) which sets out Sullivan's position and argument for asserting that he was not and could not be required to do intake counseling. The positions of Youth Counselor II and Youth Counselor III were exempt from any wage and hour limitations as set out in the personnel regulations all times involved in his case. On January 9, 1977, Mallory Daniels, the jailor on duty in Hamilton County, received a juvenile for intake to youth services and attempted to contact the Youth Counselor on duty as indicated by the roster prepared by Phyllis Rosier. Daniels could not reach Sullivan at. the telephone number listed for Sullivan. Therefore, following existing operating procedures, Daniels contacted Beryl Mayo, Chief Jailor at Suwannee County. Mayo was asked to locate Sullivan and had him call Daniels in Hamilton County. It was the procedure for the Youth Counselor on duty to leave a telephone number at which he or she could be reached if the Youth Counselor was away from his or her regular telephone number with the Suwannee County jail. Mayo again attempted to call Sullivan at his home because Sullivan had not let another number with the Suwannee County Sheriff's Department and Mayo received no answer. However, Mayo indicated in his testimony that it was not unusual for him to have problems reaching individuals by phone in the Live Oak area. He stated that frequently the phones indicated to the caller that the phone was ringing at the number called but that the phone called would not ring. Mayo stated that it was the practice in the Suwannee County Sheriff's Department because of frequent telephone malfunctions to back up urgent calls to its personnel by dispatching a radio car to the individual's home. Mayo advised Daniels that he had been unsuccessful in attempting to contact Sullivan, and Daniels called Phyllis Rosier in accordance with existing operating procedures. Rosier made arrangements for DePree to handle the intake of the juvenile, and the following day recommended disciplinary action be taken against Sullivan. Rosier did not call Sullivan and no one ever questioned Sullivan, prior to or after taking disciplinary action, as to whether he was on duty on the night in question. The agency has filed a pleading styled "Recommended Order". This pleading has been read by the Hearing Officer and it contains no proposed findings of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the disciplinary action was for good cause and should be sustained by the Career Service Commission. DONE and ORDERED this 25th day of July, 1977, in Tallahassee, Florida STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. E. Hodges, Esquire Department of Health and Rehabilitative Services 2002 N. W. 13th Street Gainesville, Florida 32601 Glen Sullivan 627 Darrow Avenue Live Oak, Florida 32060
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of August, 2006.
The Issue Whether the respective bid protests should be upheld.
Findings Of Fact Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program". In 1982, Congress passed the Job Training Partnership Act (JTPA), 29 U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance " The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990, Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed. DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners): The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being argument. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument. The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent: The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. COPIES FURNISHED: David J. Bush, Senior Attorney Florida Department of Labor and Employment Security The Montgomery Building Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32399-0657 Sara Bravo Executive Director Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135 Shelton Kemp Chief, Bureau of Job Training Florida Department of Labor and Employment Security Division of Labor Employment and Training The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667 Nan Griggs Executive Director Treasure Coast Private Industry Council, Inc. 3405 Northwest Federal Highway Suite 101 Jensen Beach, Florida 34957 Lee Ann Pendergrass Director Center for Independent Living in Central Florida, Inc. 720 North Denning Drive Winter Park, Florida 32789 Cherie Johnson Director of Rehabilitation Development Goodwill Industries of Central Florida, Inc. 6400 S. Orange Avenue Orlando, Florida 32859-0557 Hugo Menendez, Secretary Berkely Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658
