Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issue presented for determination are found: Customers who testified at the hearing and those who adopted the testimony of others had three major complaints as to the quality of water and sewer service received from the petitioner. These included the inconsistency of the quality of the water, billing procedures and practices, and plant and system management. The quality of the water which petitioner provides to its customers has not been consistent. While quality has greatly improved since November of 1980, the water does, on occasion, appear rusty, muddy or yellowish and does, on occasion, discolor laundry and ice cubes. No evidence was offered as to the frequency of such occasions. Some customers have received a bill for a vacant lot upon which there was no sewer connection or water meter. Another customer was billed at the wrong address after notifying the petitioner of a change in address. A customer who spent some eighteen months in Michigan continued to receive bills in full service amounts after he had requested that his water be disconnected. His correspondence on this problem was not responded to by Petitioner. Petitioner's main office is located in Orlando, approximately one hour away from Inverness. When major breakdowns in the water and sewer system occur, a crew can be dispatched from the Orlando area. Petitioner purchased the subject water and sewer operation in June of 1978. At that time the condition of the mechanical and electrical aspects of the operation was poor and the water was high in iron content, thus causing the water to have an almost constant rusty appearance. Petitioner installed a chemical called "aquamag" to hold the iron in suspension. Aquamag does not, however, remove the iron from the water, and petitioner is presently engaged in research concerning the possibility of a new water supply. It is possible that petitioner could have a new well in operation by June of 1981. Neither the water system nor the sewer system of petitioner are currently under any citations from local or state officials or agencies. Prior to November of 1980, petitioner employed three or four operators who were not able to provide the customers with the best quality of water possible. A new operator was employed in November of 1980 and service and the quality of water has greatly improved since that time. This operator is capable of handling routine operations. If major breakdowns occur, petitioner's mechanics and electricians in Orlando can be radio dispatched to the system for any type of repairs. Petitioner's Orlando office has had a toll-free 800 number for the convenience of customers for the past eight months to one year. The number is displayed at some of petitioner's plants, but is not presently printed on the bills which the customers receive. At the time of the hearing, the customer bills were being restructured to include the petitioner's toll-free number. Prior to the acquisition of the water and sewer system by the petitioner, the former owners had approval in their tariffs filed with the Public Service Commission to charge fees for vacant lots. Such charges were dropped in May of 1979, and the bills which the customers are presently receiving containing such a charge are actually past due bills from a time prior to May of 1979. During the 1979 test year, the annual average of customers served by petitioner was 166 for water service and 130 for sewer service. At the time of the hearing, petitioner estimates approximately 235 lots for water service and 159 or 160 active sewer service customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of service provided by petitioner to its customers in Citrus County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner as a result of the quality of its service. Respectfully submitted and entered this 16th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 East Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue The issues for determination are: (1) whether Hillsborough County took any adverse employment action against Petitioner, David Moreda; (2) whether Petitioner disclosed information in the nature specified under Subsection 112.3187(5), Florida Statutes (2006); (3) if yes to the foregoing, whether such adverse employment action against Petitioner was causally related to any disclosure Petitioner made of information specified in Subsection 112.3187(5), Florida Statutes (2006); whether Petitioner provided above-referenced information to Respondent's chief executive officer; and (5) whether Petitioner timely filed a complaint of whistle-blower retaliation.
Findings Of Fact The County administrator, Patricia G. Bean, is the head of the Hillsborough County administrative organization and the chief executive officer of Hillsborough County. As County administrator, Ms. Bean is responsible for carrying out all decisions, policies, ordinances, and motions made by the Board of County Commissioners. She is also responsible for oversight of all the departments under the County Administrator's Office and uses approximately 24 departments within the Hillsborough County organization to achieve the functions necessary to County government. The Public Works Department (Public Works) and the Water Resource Services Department (Water Resource Services), formerly referred to as the Water Department, are each stand-alone departments. Most of the functions of Public Works and Water Resource Services are separate and distinct from each other. From approximately March 1986 through May 2006, Hillsborough County employed Petitioner in Water Resource Services. Petitioner began working for Hillsborough County as a senior groundskeeper. Thereafter, he became a landscape gardener, which involved cutting grass and maintaining wastewater facilities. Petitioner ultimately became a Plant Maintenance Mechanic I and then a Plant Maintenance Mechanic II. As a Plant Maintenance Mechanic II, Petitioner's duties were to operate and maintain lift stations for Water Resource Services. As of October 2003, Petitioner was employed as a Plant Maintenance Mechanic II and was assigned to work at the County's South Pump Station. In or about October 2003, Petitioner was injured in a nonwork-related motorcycle accident which resulted in Petitioner's breaking both of his feet. As a result of his injuries, Petitioner requested and the County granted a medical leave of absence. Petitioner tried to return to work in April 2004, but it was too soon after his motorcycle accident. After Petitioner's attempt to return to work was unsuccessful, and apparently premature, his doctor placed him on another medical leave. Initially, Petitioner was on short-term medical leave for about six months, followed by a long-term disability leave for the next year or so. Hillsborough County preserved Petitioner's employment status while he was on these leaves of absence necessitated by injuries he sustained in the motorcycle accident. Some time prior to January 2005, in anticipation of returning to work, Petitioner applied for a transportation worker position in Public Works. In March 2005, the County sent Petitioner to have a doctor complete a "Fitness for Duty Report" form. Petitioner went to his orthopedic surgeon, who completed the form on March 16, 2005. The doctor noted on the form that Petitioner could return to work on April 4, 2005. As he prepared to return to work after his one and one-half years of medical leave, Petitioner began to request work location transfers. Petitioner requested three such transfers within Water Resource Services, where he was employed. Two of the three work location transfers were granted. In the instance when Petitioner's work location transfer was not granted, Petitioner was allowed to transfer to another work team at his assigned work site. On January 24, 2005, while still on leave of absence, Petitioner requested a transfer of work location from the County's South Pump Station, where he was assigned before he went on medical leave, to the Central Pump Station. According to Petitioner, he requested this transfer because the Central Pump Station was closer to his home. The director of Water Resource Services, Paul Vanderploog, granted Petitioner's request. By letter dated March 29, 2005, about two months after Petitioner's first request for transfer of work location was granted, and while he was still on leave, Petitioner requested another transfer. This time Petitioner requested to be transferred from the County's Central Pump Station to the Northwest Pump Station.1/ When Petitioner requested a transfer from the Central Pump Station to the Northwest Pump Station, he told Vanderploog that if this request were honored, he (Petitioner) would not request another transfer. Petitioner specifically asked to be placed under either Wally Peters or Charlton Johnson, both of whom were team leaders at the Northwest Pump Station. In addition to requesting the transfer from the Central Pump Station, Petitioner advised Mr. Vanderploog that he was looking for another position in the County and had been looking for the past six months. Petitioner's March 29, 2005, letter stated, in part, the following: I pledge to you, right now, that I will return to full-duty under either Wally Peters or Charlton Johnson with NO other requests for movement. I promise you, as a gentleman, that I will accept the assignment at NW [Northwest] pump stations [sic] with no subsequent requests for lateral movement contingent upon my return. However, I will be looking for another position in the County, as I have done for the past 6+ months. I want to do something different with my life, and until the right opportunity comes along, I will "stick it out" in pump stations. Vanderploog granted Petitioner's second transfer request and transferred Petitioner from the Central Pump Station to the Northwest Pump Station. On April 4, 2005, the day Petitioner's physician had stated Petitioner could return to work, Petitioner was scheduled to begin work at the Northwest Pump Station. However, Petitioner called in sick that day and did not report to work. When Petitioner returned to work, he reported to the Northwest Pump Station and worked there about two weeks. Meanwhile, on or about April 6, 2005, two days after he was to report to work, Petitioner requested a third transfer of work location. This time he wanted to be transferred from the Northwest Pump Station to the South Pump Station, where he was initially assigned. According to Petitioner, he requested the transfer from the Northwest Pump Station because he was not comfortable working on the team lead by Charlton Johnson, to which Petitioner had been assigned. Mr. Vanderploog denied Petitioner's request to transfer from the Northwest Pump Station to the South Pump Station. The reason Mr. Vanderploog denied the request was that he knew Petitioner and the team chief at the South Pump Station had communication problems and did not get along very well. Petitioner had detailed his perception of these problems in his March 29, 2005, letter to Mr. Vanderploog, referred to in paragraph 13 and 15 above. Mr. Vanderploog believed that if he transferred Petitioner back to the South Pump Station, the team chief with whom Petitioner did not get along, may have left that location, and he (Vanderploog) did not consider this an acceptable tradeoff. Less than two weeks after Petitioner requested his third transfer (from the Northwest Pump Station to the South Pump Station) and Mr. Vanderploog denied the request, Petitioner wrote and sent an e-mail dated April 17, 2005, to the County administrator, Ms. Bean, and other upper management. In the April 17, 2005, e-mail, Petitioner stated that he believed it was inappropriate to employ Synrick Dorsett, a sexual predator, in Water Resource Services in an unsupervised capacity. Specifically, Petitioner stated: The problem is that an employee of the Water Department, who is a registered sexual predator, is allowed to roam unsupervised through out [sic] Brandon and Valrico (and anywhere he cares to go) as part of his job assignment in the Water Department. His name is Syndrick Dorsett. . . He is on FDLE's website as a sexual predator. He should NOT be allowed to roam freely in a County vehicle. At the time Petitioner wrote the e-mail to the County administrator, he had already known for ten years that there was a sexual predator working in Water Resource Services. In fact, Synrick Dorsett’s status as a sex offender was well known in Water Resource Services for many years. Petitioner testified that he wrote the April 17, 2005, e-mail, after he "had certain thoughts" about another County employee named Synrick Dorsett. Petitioner testified that he began to have these thoughts after the County Commissioners proposed putting photos of sexual predators in County parks. Petitioner claimed that Dorsett came to mind in light of those proposals, because he was under the impression that Dorsett was a "sexual predator" and was a County employee as of April 2005. However, this testimony is not credible in light of Petitioner's admission to a County investigator. In the summer of 2005, Petitioner admitted to the County, through Bob Sheehan, the chief investigator of the County's Professional Responsibility Section of the Consumer Protection and Professional Responsibility Agency, that he sent the April 17, 2005, e-mail to the County officials in order to better his leverage to obtain the position he wanted in Water Resource Services. In fact, about two weeks after Petitioner sent the April 17 e-mail, even though Mr. Vanderploog had denied Petitioner's third work location request (from the Northwest Pump Station to the South Pump Station), Vanderploog attempted to address Petitioner's concern that he (Petitioner) was uncomfortable working on the team to which he was assigned. In order to accommodate Petitioner, on or about May 2, 2005, Mr. Vanderploog moved Petitioner from the work team that he was initially assigned at the Northwest Pump Station to the other work team at that location. In or about April 2005, Petitioner interviewed with Public Works for a position as a transportation worker, the position he had applied for several months earlier. Prior to accepting the transportation worker position in Public Works, Petitioner indicated by his signature on two different County forms that he understood the job description for the position and could perform the functions of the job. Petitioner signed the County's pre-printed job description form on April 21, 2005, indicating that he read and understood the basic job description. A few days later, on May 2, 2005, Petitioner signed an Acknowledgement of Position Description Review form, in which he acknowledged that he "is able to perform the function" of the transportation worker without accommodations. On or about May 4, 2005, Petitioner accepted the position of transportation worker with Public Works. On a County form, Petitioner acknowledged that he understood that his new position with Public Works, county-wide, is a voluntary demotion (in terms of the hourly pay rate) and that if he did not successfully complete the six-month probationary period, he would no longer be employed by Hillsborough County. Petitioner was scheduled to start his new position as transportation worker on May 23, 2005. As noted above, Petitioner notified Mr. Vanderploog in the March 29, 2005, letter that he was looking for another position with the County. However, Petitioner never notified any manager in Water Resource Services that he had accepted the transportation worker position in Public Works. Water Resource Services first learned that Petitioner had accepted the position of transportation worker on or about May 10, 2005, when Public Works contacted the interim section manager (section manager) of Water Resource Services' wastewater operations and requested that his office complete a change of status form for Petitioner. After learning from Public Works that Petitioner had accepted the transportation worker position, the section manager wrote an e-mail to Petitioner. In the e-mail, the section manger told Petitioner that he had been notified that Petitioner had accepted the transportation worker position and, therefore, Petitioner needed to resign from his current position as Plant Maintenance Mechanic II. The resignation was necessary in order to process the paperwork to effectuate Petitioner's move to his new position as transportation worker. Prior to learning that Petitioner had accepted the position with Public Works, the section manager was concerned that Petitioner had only worked one day after he received medical clearance to return to work. In light of this concern, the section manager had instructed Petitioner's supervisor to initiate a written reprimand for Petitioner's failure to come to work. However, after receiving notice from Public Works that Petitioner had accepted a job in that unit, the section manager decided he would not pursue the previously-planned disciplinary action. Petitioner was aware of the contemplated disciplinary action. However, in the e-mail referred to in paragraph 31, in which he asked Petitioner to submit a resignation letter, the section manager also advised Petitioner that he (the section manager) would not pursue any disciplinary action against Petitioner since Petitioner was leaving Water Resource Services and taking another job. On May 10, 2005, Petitioner voluntarily resigned from his position in Water Resource Services, after he received the e-mail from the section manager and after he had accepted the position as a transportation worker in Public Works. Before starting his new job with Public Works in May 23, 2005, Petitioner asked Water Resource Services to rescind his resignation. Water Resource Services declined Petitioner's request because of his refusal to show up for work and his behavior toward, and inability to appropriately interact with, people in the entire department. After arriving at the job site in Public Works on his first day of work as a transportation worker, Petitioner testified that he knew that taking this job was a mistake. His first assignment involved installing a guardrail, work which was very labor intensive. Petitioner believed that the physical requirements of this job could result in his re-injuring himself. Given his concerns, Petitioner did not work the entire day and left after only a few hours and never returned. After his first and only day working as a transportation worker, Petitioner indicated he could not perform the duties of that job. Thereafter, Public Works temporarily assigned Petitioner to the storm water unit in the County Center, where he performed duties such as filing, making copies, and "running" mail. He worked in this temporary assignment four or five months, including the summer of 2005. The County scheduled a Fitness-for-Duty examination for Petitioner that occurred on June 16, 2005. The health care professional who conducted the examination concluded Petitioner must observe a lifting restriction and must walk only on even ground; he could not walk on rough, uneven terrain. The health care provider also indicated that Petitioner's physical condition that required these restrictions was a permanent condition. On August 8, 2005, Petitioner signed a County form, indicating that he could not perform any of the functions of a transportation worker. A Fitness-for Duty meeting was conducted on August 11, 2005. During that meeting, Public Works reviewed all information regarding Petitioner's physical capabilities and the job tasks associated with the transportation worker position and other positions to which he requested a transfer, Plant Maintenance Mechanic I or II in the Storm Water section of Public Works. Public Works, in conjunction with the Human Resources Department, determined that Petitioner could not perform the essential functions of the transportation worker position or the Plant Maintenance Mechanic I and/or II positions. Given the outcome of the Fitness-for-Duty meeting, by letter dated August 23, 2005, the County notified Petitioner that he had 90 days from the date of the letter to find another position or Public Works would have to terminate his employment.2/ As the 90-day deadline was about to expire, Public Works determined that it needed to have a due process hearing on Petitioner's employment status. The time required for culmination of the hearing process resulted in the 90-day period Petitioner was given to find a job being extended by more than two additional months. On or about August 26, 2005, Petitioner began an approved leave of absence in conjunction with his search for another position. After Petitioner sent the e-mail discussed in paragraph 31, Petitioner was invited to interview for four positions with the County, including positions in the Library Services Department, Public Works, and the Parks, Recreation and Conservation Department. On or about October 20, 2005, Petitioner was interviewed for a position with the Library Services Department. However, he was not selected for that position because that position required that the person be bilingual, and Petitioner was not bilingual. The Parks, Recreation and Conservation Department attempted to interview Petitioner on two different occasions. In the first instance, Petitioner failed to show up for an interview scheduled for August 4, 2005, at a time agreed upon by Petitioner. On or about November 19, 2005, Petitioner declined an interview for a second position with the Parks, Recreation and Conservation Department because the salary was too low. On or about November 23, 2005, Public Works requested an extension of Petitioner's leave of absence. The Hillsborough County Civil Service Board (the Board) approved the extension. In December 2005, Petitioner was interviewed for one of three vacant positions as an inspector/spray/equipment operator in the Mosquito and Aquatic Weed Control Section of Public Works. That position required some degree of expertise in spraying for mosquitoes and handling chemicals used for controlling pests on grass. Most of the interview questions were designed to determine the interviewee's level of technical knowledge about the required job duties. Petitioner's score on the interview rating was lower than any of the other candidates. Therefore, the more qualified applicants were offered the positions. In a memorandum dated December 7, 2005, Scott Cottrell, P.E., engineering director, Public Works, requested a due process hearing for the purpose of seeking to terminate Petitioner from the transportation worker position. Mr. Cottrell cited the following reasons for seeking this action: (1) Petitioner's last active day of work was August 25, 2005, and he had been on medical leave since August 26, 2005; (2) at the interviews for the transportation worker position, Petitioner had read and signed a Job Description form and indicated he understood the duties of that position; (3) after reporting to work the first day, Petitioner advised the unit that he could not finish the day's work activities due to his physical condition; (4) Petitioner had worked only part of one day as a transportation worker; (5) the determination at the August 11, 2005, Fitness-for-Duty meeting that Petitioner was unable to perform the essential functions of his position as transportation worker; and (6) the determination that Petitioner could not perform the duties of Plant Maintenance Mechanic I or II positions in the Stormwater Section of Public Works due to his medical restrictions. The memo randomly noted that Petitioner had been given 90 days to seek and secure other employment, but had been unable to do so. Finally, Mr. Cottrell wanted to fill the position with someone who could perform the job. According to Mr. Cottrell, "[d]ue to our [Public Works] mission, it is imperative that we keep our positions actively filled; therefore, it has become necessary to proceed with further action to seek the termination of [Petitioner]." On or about February 1, 2006, the Appointing Authority conducted a due process hearing regarding Petitioner's employment. On February 10, 2006, Hillsborough County dismissed Petitioner from his position with Public Works. The notice of dismissal stated that Petitioner's dismissal was based on a determination at a Fitness-for-Duty meeting on August 11, 2005, where it had been determined that Petitioner was unable to perform the essential functions of the transportation worker position for Public Works. The notice stated that the dismissal was based on Civil Service Board Rule 11.2(27). Civil Service Board Rule 11.2(27) provides that an employee in the classified service, such as Petitioner, may be dismissed where the employee demonstrates a mental or physical impairment that prevents such employee, with or without accommodation, from performing the essential functions of his or her position. The notice of dismissal dated February 10, 2006, specified that the dismissal was effective on that date. The notice also advised Petitioner that he could appeal the dismissal to the Board by filing a request for hearing within ten calendar days from the date of receipt of the notice. Petitioner challenged his dismissal and filed an appeal request on February 20, 2006. On the appeal request form, Petitioner indicated that he received the notice of dismissal on February 13, 2006. On June 5, 2006, the Board heard Petitioner's appeal of his dismissal. During this proceeding, at which both parties were represented by counsel, the Board considered the County's Motion for Summary Judgment, the opposition thereto, exhibits in the record, and argument of counsel. On June 20, 2006, the Board entered a Final Summary Judgment in the case affirming Petitioner's dismissal, after finding certain material facts to be undisputed. Among the undisputed material findings was Petitioner's admission at the February 1, 2005, due process hearing, that he could not perform the duties of transportation worker.3/ On or about July 10, 2006, Petitioner sent a memorandum to Camille Blake, the County's Equal Employment Opportunity manager, and Robert Sheehan requesting an investigation. In the memorandum, Petitioner alleged that Water Resource Services harassed and retaliated against him for reporting and exposing to the media "a register [sic] sexual predator on the payroll." According to the memorandum, Petitioner began looking for another position in the County as a result of the alleged harassment and retaliation, and this job search resulted in Petitioner's being offered and accepting the job in Public Works. Petitioner's statement in the July 10, 2006, memorandum, that he began looking for a job because he was being harassed and retaliated against by persons in Water Resource Services is not credible contrary to Petitioner's March 29, 2005, letter to Mr. Vanderploog. In that letter, Petitioner stated he had been looking for another position in the County for the "past 6+ months," because he "want[ed] to do something different with [his] life." Based on the foregoing, Petitioner returned to work in April 2005 and took the transportation worker position, not because he was being harassed or retaliated against, but because he wanted to do "something different with [his] life." In the July 10, 2006, memorandum, Petitioner also stated that although he accepted the job in Public Works, he really wanted to stay in Water Resource Services so he did not immediately submit his resignation. In fact, Petitioner stated that he was "about to" call Public Works and rescind his acceptance, but before he could do so, he received the May 10 e-mail from the section manager, referred to in paragraph 31, "demanding" Petitioner's resignation. Petitioner's July 10, 2005, memorandum stated that the only reason he submitted the resignation letter to Water Resource Services was because he had been previously told he was "insubordinate and facing charges," and he wanted to "avoid more consternation and strife and to not be insubordinate." According to the memorandum, Petitioner attempted to rescind his resignation letter the day after it was submitted, but the manager in Water Resource Services rejected Petitioner's attempt to rescind his resignation. Notwithstanding Petitioner's July 10, 2006, memorandum stating that he was forced to resign, Petitioner's resignation was voluntary, and Water Resource Services was under no obligation to accept Petitioner's offer to rescind his resignation and to rehire him. By letter dated July 14, 2006, Petitioner filed a complaint with the County administrator. The complaint challenged the Board's Final Summary Judgment affirming Petitioner's dismissal under the state's Whistle-blower Act. The sole reason the County terminated Petitioner's employment was that he could not perform the functions of the transportation worker position in Public Works. Civil Service Board Rule 11.2(27) provides that employees in classified service, such as Petitioner, may be dismissed if a demonstrated physical impairment prevents the employee from performing the essential functions of his position. The evidence does not support Petitioner's claims that after he filed a Whistle-blower claim on April 17, 2005, he was forced to transfer to Public Works, and then was dismissed from that job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County Board of County Commissioners enter a final order finding that Petitioner did not timely file his Whistle-blower complaint and dismissing the Petitioner's complaint. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 April, 2007.
Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
The Issue Whether Petitioner is eligible for certification as a Minority/Woman Business Enterprise pursuant to Chapter 40E-7, Part VI, Florida Administrative Code.
Findings Of Fact Petitioner, Mathews Consulting, Inc. (MCI), is a Florida corporation, incorporated on January 28, 1998, by Rene L. Mathews, a female, and David L. Mathews, a white male. Rene and David Mathews are and were married at the time MCI was incorporated. Ms. Mathews owns 55 percent of the stock of MCI, and Mr. Mathews owns the remaining 45 percent of the stock. Ms. Mathews is the President and Treasurer of MCI, and Mr. Mathews is the Vice President and Secretary. Ms. Mathews has a bachelor of science degree in civil engineering and has been a professional engineer licensed with the State of Florida since 1995. Her primary engineering practice areas are water and waste water treatment, industrial pretreatment, civil engineering, regulatory compliance, odor control/air quality assurance, and construction management. Prior to becoming employed full time with MCI, Ms. Mathews was employed for 8 years as a civil engineer with Hazen and Sawyer. Mr. Mathews is a professional engineer employed full time by Hazen and Sawyer. He specializes mainly in underground pipeline work and landfills. MCI has a board of directors consisting of two people: Rene and David Mathews. The ByLaws of MCI provide at Article Three, Section 3: Except as provided in the Articles of Incorporation and by law, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, its Board of Directors. MCI is in the business of providing engineering consulting services in the areas of water and waste water treatment, industrial pretreatment, civil engineering, regulatory compliance, odor control/air quality assurance, and construction management. MCI obtained a $30,000 loan and a $20,000 line of credit from Barnett Bank (collectively referred to hereafter as the Loan) to be used as start-up capital for MCI. The Loan was evidenced by a promissory note and guaranteed by a security agreement. The bank required both Rene Mathews and David Mathews to individually guarantee the Loan jointly and severally because they were the owners and officers of the corporation. David Mathews is an authorized signatory on MCI's bank account. Mr. Mathews is not authorized on the company credit card or ATM card and has not signed any checks for the company. MCI submitted an application dated June 4, 1998, to Respondent, South Florida Water Management District (District), for certification as a Minority/Woman Business Enterprise (M/WBE). By letter dated June 10, 1998, the District denied MCI's application, stating the following reasons: Documents do not support real and substantial ownership by the minority or woman applicant(s). Rule 40E-7.653(2) Documents do not support that the day-to- day operations are controlled by the minority/woman, nor is there evidence that the minority possess (sic) the authority to direct the management and policy of the business. Rule 40E-7.653.4(4)(a) The composition of the Board of Directors, regardless of percentage of ownership, is not made-up of a majority of minority/woman directors. If the applicant business is a corporation and the business and affairs of the corporation are managed under the direction of a board of directors as provided in the Articles of Incorporation or ByLaws of the corporation or Section 607.0824, Florida Statute, a majority of the directors must be minority/woman, not withstanding whether the directors are required to be elected by a majority vote of the outstanding shares of the corporation. Rule 40E-7.653.4(4)(b) The June 10, 1998, letter provided that if an applicant believes that it has been wrongly denied certification that the applicant may request an administrative hearing or do the following: Submit any information or documentation which clarifies the documentation submitted with the original application and/or request the opportunity to meet with the Office of Supplier Diversity & Outreach within fifteen (15) calendar days of receipt of this notice. The District will only consider information that clarifies the documentation in your original application. Changes occurring after the submission of your original application (i.e., any changes in corporate structure) will not be accepted as clarifying documentation. This office, after its review of any clarifying information will notify the applicant business by certified mail of its final decision to either uphold or overturn its decision to deny the application for certification. If the denial decision is upheld, you may petition for an administrative hearing in accordance with Rule 40E-1.521, Florida Administrative Code. The Petition must be received by the District's Office of Counsel within fifteen days of actual receipt of notice of decision to uphold the denial of certification. On June 15, 1998, after the District had denied MCI's application, Rene Mathews had a telephone conversation with Candice Boyer, a business operations analyst with the District. Ms. Boyer explained to Ms. Mathews the decision for denial was based on the composition of the board and David Mathews' guarantee of the Loan from Barnett Bank. After the telephone conversation with Ms. Boyer, Rene Mathews contacted her lawyer, who is also her sister. Her attorney drew up a Shareholders Agreement which reflected an effective date of January 28, 1998, and a Guarantee and Indemnification Agreement which reflected an effective date of March 6, 1998. The two documents were not in existence either at the time MCI submitted its application to the District or at the time the District initially denied MCI's application for certification. The minutes of the meeting to incorporate MCI on January 28, 1998, neither reflect nor reference the Shareholders Agreement or the Guarantee and Indemnification Agreement. The Shareholders Agreement stated: Rene and David desire to set forth in a written agreement the understanding and agreement they made at the time of incorporation of the Corporation as to the authority of Rene to exercise all corporate powers and direct the management of the business and affairs of the Corporations.... The agreement further provided: Rene, as one of the Directors of the Corporation, shall have the sole authority to exercise all corporate powers and direct the management of the business, policy and affairs of the Corporation. This authority includes, without limitation, the control of the day-to-day operations of the Corporation. Any authority given to David as one of the Directors of the Corporation to exercise corporate powers and direct the management of the business and affairs of the Corporation, including without limitation, his voting power as a Director of the Corporation, has been transferred to Rene. It is the intention of Rene and David that the Corporation be for all intents and purposes a Minority/Woman Business Enterprise, notwithstanding any authority, rights, or powers that may be given to David by virtue of the provisions of the ByLaws of the Corporation or the provisions of the Florida Business Organization Act F.S. Chapter 607. It is understood and agreed that because this Agreement limits the discretion and powers of David as a Director, David is relieved of all liability for acts or omissions imposed by law on directors and all such liability is imposed on Rene. This Agreement shall not restrict the ability of David to sign documents on behalf of the Corporation under the authority and direction of Rene, as she may so determine from time to time. . . . The Guaranty and Indemnification Agreement stated that the agreement was "entered into as of this 6th day of March, 1998, by and between" Rene and David Mathews. The agreement dealt with their liability for the Loan from Barnett Bank and provided: Rene and David agree that Rene shall be solely liable under the Guaranties for repayment for the Loan in the event of a default. To the extent that any action is taken by Barnett Bank against David under the Guaranties, Rene shall indemnify David in any threatened, pending, or completed action, suit, or proceeding against any expenses (including attorney's fees), judgments and amounts paid in settlement, actually or reasonably incurred by him in connection with such action, suit, or proceeding, including any appeal thereof. . . . On June 19, 1998, Ms. Mathews submitted the Shareholder's Agreement and the Guaranty and Indemnification Agreement to the District. On July 31, 1998, Ms. Mathews and MCI's counsel met with representatives from the District to discuss the initial denial of MCI's application. By letter dated August 4, 1998, the District advised MCI that the information submitted after the application did not support a reversal of the District's decision to deny the application. Although the District reviewed the additional information, the District deemed the Shareholders Agreement and the Guaranty and Indemnification Agreement to be new documentation rather than clarifying information originally submitted in the application. The changes which the documents reflect occurred after the application was submitted and the notice of intent to deny certification was issued. Carolyn Williams, the Director of the Office of Supplier Diversity and Outreach at the District, explained the rationale for not allowing changes after a denial has been issued and why firms which have been denied remain ineligible to reapply for certification for one year after denial pursuant to Rule 40E-7.655, Florida Administrative Code. According to Ms. Williams, to allow MCI to change its application and essentially restructure the firm would be inconsistent with the District's past practices and would violate the integrity of the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Mathews Consulting, Inc.'s application for certification as a M/WBE. DONE AND ENTERED this 25th day of February, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 25th day of February, 1999.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992. Prior to his termination he had an unblemished disciplinary record. Petitioner was initially hired by the District as a Construction Representative. In January of 1989, he assumed the duties of a Regulatory Professional I. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities. Petitioner was assigned a District vehicle for official use during the workday. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered. Petitioner worked an eight-hour day. His normal work hours were 7:30 a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination. The Employee Handbook The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows: NORMAL WORK HOURS All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director. WORK BREAKS All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed 15 minutes. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty. All employees shall take a minimum of one half hour lunch break each workday. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:" Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution. The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . . The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are: Gifts- No public employee shall solicit or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991). Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec. 112.313(4), Fla. Stat. (1991). Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991). Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla. Stat. (1991). Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply. Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla. Stat. (1991). Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others. Sec. 112.313(8), Fla. Stat.(1991). More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority. The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows: The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the requirements inherent in the employment relationship. 1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her job. . . . 5. Absence Without Authorized Leave: Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval; Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day; Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division office. . . . Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . . 11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . . 24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety equipment. . . . Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of assigned duties and responsibilities. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D). In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows: This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables: The severity of the specific act of misconduct. The circumstances under which the violation occurred. The consequences of the employee's actions in regard to its affect on the District operation and on other employees. The guidelines on severity of corrective action outlined in Section H. of this policy. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803: 1. Unbecoming conduct: 1st occurrence- WR, S or D . . 5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . . Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . . 11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . . 24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . . Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . . Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D The Accident and Related Events In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat. After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch. The vehicle was damaged and it was towed to West Palm Beach for repairs. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred. Petitioner also prepared an accident report in which he made the same misrepresentation. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/ The Speeding Ticket and Related Events On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry. The Loan and Related Events Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit. Petitioner was actively involved in the investigation that led to the issuance of the NOV. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/ At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/ Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days. The loan was repaid in full within three weeks. Petitioner's Personal Circumstances During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101 The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders: Petitioner's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-7. Accepted and incorporated in substance. 8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 9-11. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 15-16. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 20-22. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of legal argument. Accepted and incorporated in substance. Rejected because it is not supported by persuasive competent substantial evidence. 25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance. 25c.-26a. Accepted and incorporated in substance. 26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance. 26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. 26d. Accepted and incorporated in substance. 26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 26f. Accepted and incorporated in substance. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence. 27a. Accepted and incorporated in substance. 27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence. 27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17, 1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony. 30-32d. Accepted and incorporated in substance. 32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 10/ Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/ 33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination. 33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Petitioner's Proposed Findings of Fact Accepted and incorporated in substance. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual, amounting to "conduct unbecoming a ECUA employee" and "sexual harassment."
Findings Of Fact The Petitioner, ECUA, is an agency of local government, established pursuant to an enabling act of the Florida Legislature at Chapter 81-376, Laws of Florida, as amended. It is a "regional water supply authority" for purposes of Sections 163.01 and 373.1962, Florida Statutes (2008). It is thereby given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water and wastewater utility service. It is authorized in that act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That manual was adopted in accordance with Part III, Chapter 112, Florida Statutes. The Petitioner also has promulgated an "Employee Handbook," in evidence as ECUA Exhibit Two. Page 32 of that Handbook addresses "rules of conduct" and Rule 4 of those rules of conduct precludes an employee from engaging in "conduct unbecoming a ECUA employee." Sexual harassment is also prohibited, by Employee Handbook Rule 24, at page 32. Sexual harassment is then defined at Section A- 4, page 4 of the Human Resources Policy Manual, in evidence as ECUA Exhibit 1. Ms. Deni Deron was hired as a "Utility Worker I" beginning on June 1, 2008. Nathan Thomas, a witness in this case, was hired as a Utility Worker I on a permanent basis on June 16, 2008. He had been a temporary worker before that time. The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was the supervisor of Ms. Deron and Mr. Thomas. Both were probationary employees for six months after their hiring date. The Respondent's job title was "Lead Worker," which is a sort of foreman. He was assigned responsibility for a "camera truck," a work truck carrying a television camera projection apparatus, designed to use a television camera to observe inside waste water mains, accessible at manholes, in order to determine sources of leakage, breakage or other issues related to wastewater main repair and maintenance. Sometime in early October 2008, Ms. Deron, the complainant, was assigned to the Respondent's camera truck, to be supervised by him in the duties performed through the use of that truck. Early in her period of assignment to the truck and the company of the Respondent, probably on the first day, while they were alone in the truck, the Respondent began kissing her without her permission. This made her uncomfortable, although she did not take any particular overt action about it at the time. Later in that day, however, she told the Respondent that it had made her feel uncomfortable and that he should leave her alone and "be just friends." The Respondent behaved in a normal fashion for the next couple of days and engaged in no harassment of her. Thereafter, however, he began inappropriately touching her on one occasion or another, principally while they were riding in the work truck, on almost a daily basis. He engaged in vulgar, sexually related conversation with her. This was without her invitation, although she admittedly engaged in some of such conversation with him as well. Such talk on her part, however, was in a joking vein and was usually in a situation where several employees were together at lunch, or on occasions of that nature, when such joking conversation would begin, in which she admittedly participated. This was not the situation when the Respondent and Ms. Deron were alone in the work truck and elsewhere on the job. The Respondent engaged in inappropriate touching of Ms. Deron on a frequent basis. He touched her by unclasping her bra through her shirt, by unexpectedly running his hand beneath her shirt and grabbing her breast, and at various times grabbing her breast and crotch. All this activity was uninvited and uninitiated by Ms. Deron. She was upset by it and did not enjoy it, as her testimony shows, as corroborated by that of her co- worker, Nathan Thomas, who observed much of the conduct. Nathan Thomas, in fact, observed such conduct make her cry on a number of occasions. The Respondent alluded to his close relationship with the director of their department and intimated to both Ms. Deron and Mr. Thomas that he and the director fished together, were good friends, and that he could get them fired if he chose. Ms. Deron told Nathan Thomas about the Respondent's conduct about two weeks after they had been assigned to his truck (and he observed much of it as well). She told him that she was going to try to video his conduct when it happened again. Mr. Thomas described her demeanor as being upset and crying at the time. In fact, Ms. Deron did use her video cell phone to video some of the Respondent's inappropriate touching and conduct, both physical and verbal. This was stored on an ECUA computer and displayed to the undersigned, and all parties, at the hearing. This tends to corroborate the testimony of Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified that he observed the Respondent touch Ms. Deron inappropriately, in one way or another, approximately every other day. Ms. Deron admitted that she did some flirting when she first came to work at ECUA. She described it as being a function of being single and was flirting mostly as a mechanism to "fit in, in an all male staff." That fact, however, does not obviate the clear import of her testimony, that of Nathan Thomas, and that of Sharon Griffin. Ms. Griffin is a Human Relations Generalist II, working in employee relations for ECUA. She does recruiting, knows Ms. Deron and helped her get hired and "processed-in" to her job. Just before Thanksgiving in November 2008, she observed Ms. Deron outside her office and had a conversation with her. She noticed Ms. Deron appeared somewhat nervous and asked her how she was getting along with an all male crew. At that point they agreed to have a private talk within Ms. Griffin's office. Ms. Deron at that point tearfully told her of the conduct of the Respondent. Ms. Deron also gave Ms. Griffin access to the video made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's testimony is that Ms. Deron clearly appeared sincere and genuinely upset about the matter and this helped to convince Ms. Griffin that it was a truthful account of what had happened. Nathan Thomas, in his testimony, stated that the Respondent made him afraid for his job so he did not report what he had observed. He testified that he felt, at first, that it was not his place to report the Respondent's conduct. When he saw how upset Ms. Deron was he apologized to her for not reporting it, and realizes that he should have. The Respondent's testimony, and that of his witnesses, was to the general effect that Ms. Deron was not a "quiet person" and freely engaged in sexually suggestive joking conversation with them, and other workers, regarding sexual matters such as "penis size" and how long it had been since one had sex. The Respondent and his witnesses described Ms. Deron as being flirtatious. The Respondent, for his part, testified that "me and Deni did fool around" but the Respondent contends that it was just flirting, was not forced and was consensual. In considering the testimony of Ms. Griffin, Ms. Deron and Mr. Thomas, versus that of the Respondent and the Respondent's witnesses, it is observed that the Respondent's witnesses are his co-workers, in a relationship that pre-dates Ms. Deron's employment. Their testimony may cast Ms. Deron in a less favorable light by inferring that the activity may have been consensual. It does not establish that fact, however, and does not refute the Respondent's perpetration of the above- described conduct. They did not observe the conduct. Ms. Deron and Mr. Thomas did observe it and the manner of its occurrence is corroborated by Ms. Griffin's testimony. The testimony of Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible and worthy of belief and is accepted. It is thus established that the inappropriate touching and other sexually-related behavior, inflicted by the Respondent on Ms. Deron occurred in the manner described above. It was not consensual. Even if Ms. Deron attracted such behavior, or seemed to invite it, based upon being somewhat flirtatious, the behavior of the Respondent was still not appropriate and, by any measure, constitutes sexual misconduct and harassment, occurring in the course of employment. This is particularly so since the Respondent occupied a position of superior power, as the supervisor of Ms. Deron and Mr. Thomas, and in fact threatened their employment, at least implicitly, if they revealed the subject conduct. Moreover, even if the Respondent's version were somewhat true (which is not accepted), and Ms. Deron invited this conduct, and was a willing participant in it, it is still a violation of the above-referenced rules applying to ECUA employees. Engaging in such conduct, even if consensual, on the employer's truck, when attention should be paid to duties, and with all the negative circumstances that such sexually-related conduct can cause, displays extremely bad judgment on the part of the Respondent. Such a lavish display of poor judgment, even if the conduct did not amount to sexual harassment, clearly is conduct unbecoming a ECUA employee within the meaning of the Petitioner's above-referenced rule.
The Issue The issue for determination is whether Sea World violated section 760.10, Florida Statutes by imposing stricter dress codes on males than on females and by laying off John Graziano because of his sex, male.
Findings Of Fact Sea World of Florida, Inc. (Sea World), is a theme park in Orlando, Florida, which provides marine life exhibits and shows to the public and conducts marine life research. John Graziano was hired on March 11, 1986, as a gardener in the landscape department, which department is responsible for landscaping, planting and pest and rodent control in the park. Sea World's landscape department has grooming standards for its employees. A memorandum from the President of Sea World referencing the standards in the employee handbook and urging a positive image, was posted on the employee's bulletin board. John Graziano was one of many employees who signed a form stating that he had received and read a copy of the dress and grooming standards. In February 1987, Dan Trausch, the Vice-President in charge of the landscaping department noted that a lot of the landscape staff in the park were out of uniform. Bob Vidler, Director of Horticulture met with his supervisors and circulated a memo to all employees reminding them to wear hats and regulation belts. The company provided uniforms for the employees. On March 20, 1987, John Graziano was given a written counselling report and was suspended for refusing to wear his hat. He had been orally warned at least three times prior to the suspension. On March 27, 1987, John Graziano was written up again on a counselling report for his negative attitude and "resentment." He was placed on 30 days probation. In July 1987, Bob Vidler was still having problems with his staff's compliance with grooming standards and he issued a memo, dated July 31st to all landscape employees: This is the final warning in relation to maintaining grooming standards. This includes hair, name tags, caps and visors. I do not want to be told by Administration that we are not adhering to the rules. PLEASE SIGN BELOW TO INDICATE YOU HAVE SEEN THIS. (Respondent's Exhibit 5) John Graziano claims that he never saw this memo, but included among the other purported signatures of the employees is a notation, "Graziano refused to sign." On August 18, 1987, Graziano was given a written counseling report for failure to comply with grooming regulations, violation of company or department procedures, insubordination and failure to obey orders. The report was characterized as a "final warning" and Graziano was told if the behavior continued, he would be discharged. During this time, Sea World's owner, Harcourt, Brace, Jovanovich (HBJ) was the target of an "unfriendly" corporate takeover attempt. All departments were under pressure to find ways to reduce costs. Bob Vidler submitted a series of recommendations for the landscaping department, including the reduction of payroll. He determined that $177,943.00 per year could be saved by reducing the permanent full-time staff by eight people and substituting seasonal temporary employees. John Graziano was an obvious choice for layoff. In Vidler's view, he and several others were "deadwood," carried by the remaining employees. Vidler felt that Graziano was rebellious and did not like following the rules. He spent a lot of time standing around talking. Graziano was the only employee Vidler consistently observed without a hat and he was the only employee suspended for the infraction. Graziano claims that the dress code policies were only enforced against males and that he was singled out for discipline and layoff because he was a male. He presented no evidence to support that claim. The individuals who made the layoff decisions are male; thirty-one out of thirty-nine landscape department employees are male; and five of the six temporary employees hired were male. Sea World established that the action taken with regard to this employee was a legitimate business decision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Petitioner's Petition for Relief be DENIED. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Office Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1989. COPIES FURNISHED: John Graziano Apartment 231 9100 Meadowcreek Drive Orlando, Florida 32821 Harvey D. Rumeld, Esquire Dow, Lohnes & Albertson 1255 - 23 Street N.W., Suite 500 Washington, D.C. 20037-1194 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2018.
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
