03-004715SED Mark A. Semone vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, May 25, 2004.

Summary: Respondent failed to prove that it properly reclassified Petitioner from Career Service status to Select Exempt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK A. SEMONE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4715SED

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice, a final hearing was held in this

case on February 23, 2004, in St. Petersburg, Florida, before

William R. Pfeiffer, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary F. Aspros, Esqui re

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

For Respondent: Maria N. Sorolis, Esquire

Allen, Norton & Blue, P. A.

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

STATEMENT OF THE ISSUES

The issues in this matter are whether Petitioner was a

supervisory employee as defined by Subsectio n 110.205(2)(x),

Florida Statutes (2001), and was, therefore, properly

reclassified from Career Service to Selected Exempt Service

effective July 1, 2001.

PRELIMINARY STATEMENT

The Petitioner, Mark Semone, timely filed a petition to

request a review in acc ordance with Florida Administrative Code

Rule 28.106 concerning the reclassification of his position of

employment with the State of Florida from Career Service to

Selected Exempt Service in accordance with the Service First

initiative (Chapter 2001 - 43, La ws of Florida). Respondent

forwarded the case to the Division of Administrative Hearings,

and a hearing was held on February 23, 2004, in St. Petersburg,

Florida.

At the hearing, Respondent presented the testimony of Brian

Bennett, Department of Transpo rtation, Maintenance Engineer who

was Petitioner's supervisor before and after Petitioner was

transferred from Career Service to Selected Exempt Service and

Frances M. Brooks, Department of Management Services, whose

testimony was taken telephonically. Re spondent presented

Exhibits 1 through 4, 6 through 8, 14, 15, 18 through 36, 39

through 41, 47, 49, 54, and 55, which were admitted into

evidence. Petitioner testified in his own behalf and presented

the testimony of Ahmed Nawab (Mr. Nawab), a former empl oyee of

the Department of Transportation. Petitioner presented one

exhibit which was admitted into evidence. The parties timely

filed their respective Proposed Recommended Orders, which were

carefully considered.

FINDINGS OF FACT

1. The 2001 Florida Leg islature enacted a substantial

revision of the Florida Civil Service system referred to as the

"Service First" initiative. ( See Chapter 2001 - 43, Laws of

Florida). This revision, which became effective on July 1,

2001, substantially expanded the parameter s of the Selected

Exempt Service classification to include many positions which

had previously been identified as Career Service positions.

2. Generally, Selected Exempt Service employees serve at

the pleasure of the agency head and are considered at - wi ll

employees; whereas, Career Service employees have greater

employment rights and job security.

3. Petitioner was employed by Respondent at the Pinellas

Maintenance Yard from December 15, 1997, to September 19, 2002.

Initially, Petitioner held the pos ition of Office Support III,

but was eventually promoted to Office Support V in June 2001,

both Career Service classifications. Following the enactment of

the Service First initiative, Respondent reclassified

Petitioner's Career Service position to Select ed Exempt Service

status in July 2001. On September 19, 2002, Petitioner was

terminated from employment without explanation. His annual

salary was $32,500.

4. Following the decision in Reinshuttle v. Agency for

Health Care Administration , 849 So. 2d 4 34 (Fla. 1st DCA 2003),

Respondent notified Petitioner of his rights to seek an

administrative hearing and challenge the reclassification.

Petitioner timely challenged Respondent's action.

5. During his tenure working for Respondent, Petitioner,

pursuant to his written position description, was responsible

for various administrative functions, including personnel,

records, and fiscal matters, as well as supervisory

responsibilities, including the supervision of a few

administrative staff. Specifically, h is position description

provides in part:

20% of time: Supervises and/or

participates in the daily administrative

activities . . . . Ensuring the reception

telephone and radio are fully staffed at

all times. . .

15% of time: Supervises and/or partic ipates

in the personnel activities for Pinellas

Maintenance Office. Counsels employees in

matters of retirements, benefits,

grievances, discipline and other personnel

and work related problems. . .

15% of time: Supervises and/or participates

in the fisc al activities for the Pinellas

Maintenance Office. Supervises the

maintenance of ledgers and Journals

associated with local Purchase Orders, local

Charge Accounts and Purchase Requisitions,

Utility Invoice Transmittals, Contract

Invoice transmittals, Part ial Payments,

etc. . .

10% of time: Directs purchasing for the

Pinellas Maintenance Office. . .

10% of time: Serves as representative of

the Pinellas Maintenance Engineer at

meetings. . .

10% of time: Receives incoming mail,

reviews and distributes to appropriate

personnel. . .

5% of time: Participates in the selection

process for entry level Field Operations

Unit positions. . .

5% of time: Directs and coordinates the

maintenance and use of records storage. . .

5% of time: Trains employees in m ethods for

performing an efficient and effective job.

5% of time: Performs other related duties

as required.

6. Petitioner admits that he was responsible for and

routinely engaged in many activities that were supervisory in

nature. The evidence suppo rts the fact that Petitioner

performed these duties, and his performance evaluations reflect

his activity.

7. Petitioner's position description allocated specific

time frames to the written duties and responsibilities. Upon

careful review, the position description provides that the

Office Support, Level V position employee shall "supervise

and/or participate" in administrative, personnel, and fiscal

matters 50 percent of the work - time. The remaining 50 percent

of work - time is allocated to other duties, including purchasing,

attending meetings, mail distribution and inquiries, assisting

with the selection process of certain entry level positions,

coordinating records storage, training certain employees, and

performing other "related duties as required."

8. While Petitioner admits that he performed supervisory

activity, he contends that it consumed a small percentage of his

work - time. He further argues that he was authorized and

required to spend 50 percent of his time "supervising and/or

participati ng in" certain activities. Petitioner alleges that

he spent little time "supervising" and most of his time

"participating" and actually performing the activities. The

evidence demonstrates that among the 80 to 100 people employed

at the yard, Petitioner supervised a personnel technician, a

financial clerk, a clerical employee, and a receptionist, all of

whom required limited supervision. Petitioner primarily served

as the personnel liaison for all of the employees, maintained

their files, researched pers onnel matters, and responded to

inquiries. He handled the personnel paperwork related to hiring

and firing, leave, pay adjustments, travel reimbursements, and

employee benefits.

9. In addition, Petitioner investigated and processed

workers' compensatio n claims and handled the yard's safety and

training records. He worked on special projects including

ferreting out overtime abuse, installing a security system, and

handling certain maintenance issues.

10. In addition to his administrative personnel

resp onsibilities, Petitioner admittedly supervised, trained,

directed, and evaluated four subordinates and was responsible

for improving their performance via counseling and corrective

action. He initiated disciplinary action and issued a written

reprimand to one employee with poor attendance.

11. On occasion, Petitioner conducted staff meetings with

his subordinates and also met with them individually. He

managed attendance and approved leave for his staff of four. He

participated in interviewing and sele cting candidates for open

positions under his supervision and determined the appropriate

criteria, created the interview questions, and was a member of

the interview panel.

12. Petitioner was evaluated, in part, upon his

supervision of subordinates. On e evaluation noted that he

needed to improve follow - up with assignments made to others and

another indicated that he capably initiated change, but

occasionally required assistance to effectuate it. Petitioner's

evaluations also assessed his leadership and delegation skills,

and one noted that he delegated well, but needed to work to

regain better control of his areas.

13. Although some of Petitioner's time was spent

supervising, the evidence demonstrates that the vast majority of

his work - time was spe nt performing non - supervisory activities.

The facts show that Petitioner actually performed the noted

activities the majority of the time and supervised those

activities on occasion.

14. Furthermore, Mr. Nawab, who periodically served as

Petitioner's s upervisor, provided credible evidence that

Petitioner's primary responsibilities and the majority of his

work - time involved non - supervisory activities.

15. While Petitioner, during his testimony, diminished the

time he spent engaged in supervisory work , the credible evidence

demonstrates that he spent the minority of his work - time

communicating with, motivating, training, and evaluating

employees and planning and directing employees' work. Although

Petitioner may have demonstrated mediocre supervisory skills,

which does not make the position any less supervisory, neither

Petitioner's supervisor nor his position description required

him to spend the majority of his work time engaged in those

supervisory activities.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

17. In general, the burden of proof "apart from statute,

is on the party asserting the affirmative of an is sue before an

administrative tribunal." See Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

1977). In this case, Respondent reclassified Petitioner's

employment position and, therefore, has the burden to prov e by a

preponderance of the evidence that it fell within the definition

of an exempt supervisory employee as set forth in

Subsection 110.205(2)(x), Florida Statutes (2001).

18. Pursuant to Subsection 110.205(2)(x), Florida Statutes

(2001), certain emplo yees shall be outside the Career Service

classification including:

. . . supervisory employees who spend the

majority of their time communicating with,

motivating, training, and evaluating

employees, and planning and directing

employees' work, and who have the authority

to hire, transfer, suspend, lay off, recall,

promote, discharge, assign, reward, or

discipline subordinate employees or

effectively recommend such action. . . .

19. The plain language of the statute creates a dual -

pronged test in determi ning whether reclassification is

appropriate. Beginning with the latter, the second prong

requires exempt supervisory employees to have the authority to

"hire, transfer, suspend, lay off, recall, promote, discharge,

assign, reward, or discipline subordina te employees or

effectively recommend such action. . . ." It is clear that

Petitioner, at minimum, had the authority to effectively

recommend discipline and did so.

20. The first prong however, has not been satisfied. It

requires that supervisory employ ees exempt from Career Service

spend the "majority" of their time communicating with,

motivating, training, evaluating, planning, and directing

employees' work. Petitioner admittedly engaged in all of those

activities. His position was not purely routine , clerical, or

ministerial in nature. He supervised four employees and was

required to apply his judgment. He had a role in personnel

administration. He was entrusted to approve leaves of absence,

attendance, to discipline, to adjust workload and work f low, to

evaluate quality and quantity of work performed, and to evaluate

performance.

21. However, the plain language of the statute exempts

only those supervisory employees who spend the "majority" of

their time engaged in those activities. Petitioner did not

spend the majority of his time engaged in those activities.

22. Respondent argues that even if Petitioner did not

spend the majority of his time supervising, it was required of

him, and he failed as a supervisor. Respondent's argument is

incon sistent with the evidence and lacks merit.

23. The determination of whether reclassification is

authorized depends upon the specific nature of the job and the

amount of supervisory work - time the incumbent in that position

was expected to perform. It is determined by the evidence in a

case - by - case manner and does not and cannot hinge upon the

success or failure of the incumbent at executing the

expectations or responsibilities.

24. In this case, Respondent failed to prove by a

preponderance of the evi dence that Petitioner spent a majority

of his time communicating with, motivating, training, and

evaluating employees and planning and directing his subordinate

employees' work. Furthermore, the credible evidence proves that

Petitioner spent the clear min ority of his time engaged in those

activities.

25. Finally, regardless of Petitioner's skills or success,

the evidence demonstrates that the successful performance of the

position's duties did not obligate or hinge upon the incumbent

spending the majori ty of his/her time engaged in supervisory

activities. In fact, to the contrary. Neither his supervisor

nor the position description recommended or required it.

26. Petitioner's position does not qualify for Select

Exempt classification. Respondent im properly reclassified

Petitioner out of Career Service status.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that:

1. The position of Office Support V for the Pinellas

Maintenance Yard for the State of Florida Department of

Transportation was not exempt from Career Service classification

as defined in Subsection 110.205(2)(x), Florida Statutes (2001);

2. Respondent improperly reclassified the position as

Selected Exempt Service; and

3. Petitioner sh ould be reinstated with the full benefits

accrued since his termination on September 19, 2002.

DONE AND ENTERED this 25th day of May, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

Administrative Law Ju dge

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 Hear ings

this 25th day of May, 2004.

COPIES FURNISHED :

Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 B lairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

Hyde Park Plaza, Suite 350

324 South Hyde Park Boulevard

Tampa, Florida 33606

James C. Myers, Clerk of Agency Proceedings

Departm ent of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.