06-002837 Hillsborough County vs. David Moreda Status: Closed Recommended Order on Wednesday, April 11, 2007.

Summary: Petitioner`s whistle-blower complaint should be dismissed. Petitioner failed to prove that his dismissal from his job was because of a disclosure that he had made to the County administrator. The complaint was also not timely filed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID MOREDA, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2837

)

HILLSBOROUGH COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on October 25 and 26,

2006, in Tampa, Florida, before Carolyn S. Holifield,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Danielle R. Green, Esquire

Stephen M. Todd, Esquire

Hillsboro ugh County Attorney

Post Office Box 1110

Tampa, Florida 33601

For Respondent: Monica L. Strickland, Esquire

The Law Office of Monica L.

Strickland, P.A.

2312 West Waters Avenue, Suite 2

Tampa, Florida 33604

STATEM ENT OF THE ISSUES

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), Flo rida

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);

(4) whether Pet itioner provided above - referenced information to

Respondent's chief executive officer; and (5) whether Petitioner

timely filed a complaint of whistle - blower retaliation.

PRELIMINARY STATEMENT

By letter to Respondent, Hillsborough County (Hillsborough

Count y or the County), dated July 14, 2006, Petitioner, David

Moreda (Petitioner), requested a formal administrative hearing

before the Division of Administrative Hearing (DOAH). The

request alleged that Petitioner was a whistle - blower who was

retaliated again st by the County. On August 8, 2006,

Hillsborough County referred the matter to D OAH for assignment

of an A dministrative L aw J udge to conduct the formal hearing.

Prior to hearing, the parties filed a Joint Pre - Hearing

Stipulation in which they stipulated to facts that required no

proof at hearing.

At hearing, Petitioner testified on his own behalf and

presented the testimony of five witnesses: George Hahn,

Lori Krieck, John Wever, Robert Sheehan, and Richard Kirby, IV.

Also, Petitioner presented the pos t - hearing deposition testimony

of William Schill. Hillsborough County presented the testimony

of nine witnesses: Jodi Prieto ; Robert Williams, Jr. ; Joyce

Provenzano ; Dennis Cofield ; Dr. Carlos Fernandes ; Robert Gordon ;

Paul Vanderploog ; Jack Carlisle, Jr . ; and Wanda Dunnigan. The

parties stipulated to Joint Exhibits 1 through 45, all of which

were admitted into evidence. Joint Exhibit 45 is the deposition

testimony of Scott Cottrell. Petitioner's Exhibit 1 was also

admitted into evidence.

At the conclu sion of the hearing, Petitioner requested that

the record be left open to allow her to take and file the

deposition of William Schill, a witness who was unavailable on

the dates of the hearing. Th e undersigned granted that

unopposed request , and the recor d remained open until

December 12, 2006, when the deposition T ranscript of Mr. Schill

was filed.

The three - volume Transcript of the hearing was filed on

November 17, 2006. Petitioner and Respondent filed Proposed

Findings of Fact and Proposed Conclusio ns of Law on December 22,

2006. The post - hearing submittals have been carefully

considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. The County a dministrator, Patricia G. Bean, is the head

of the Hillsborough County administrative org anization and the

chief executive officer of Hillsborough County. As C ounty

administrator, Ms. Bean is responsible for carrying out all

decisions, policies, ordinances, and motions made by the Board

of County Commission ers . She is also responsible for ov ersight

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.

2. 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

ot her.

3. From approximately March 1986 through May 2006,

Hillsborough County employed Petitioner in Water Resource

Services .

4. Petitioner began working for Hillsborough County as a

senior groundskeeper. Thereafter, he became a landscape

gardener, whic h 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 lif t stations for Water Resource Services .

5. 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.

6. In or about October 2003, Petitioner was injured in a

nonwork - relate d 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.

7. Petitioner tried to return to work in April 2004, but

it was too soo n 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.

8. Initially, Petitioner was on short - term medical leave

for about six months, follo wed 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.

9. Some time prior to Janu ary 2005, in anticipation of

returning to work, Petitioner applied for a t ransportation

w orker position in Public Works .

10. In March 2005, the County sent Petitioner to have a

doctor complete a "Fitness for Duty Report" form. Petitioner

went to his ort hopedic 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.

11. As he prepared to return to work after his one and

one - half years of medical leave, Petitioner began to re quest

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

grant ed, Petitioner was allowed to transfer to another work team

at his assigned work site.

12. 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 be fore 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

reque st.

13. By letter date d 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 requ est 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.

14. In addition to requesting the transfer from the

Central Pump Station, Petiti oner advised Mr. Vanderploog that he

was looking for another position in the County and had been

looking for the past six months.

15. Petitioner's March 29, 2005, letter stated , in part,

the following:

I pledge to you, right now, that I will

return to ful l - 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 up on 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.

16 . Vanderploog granted Petitioner's second transfer

request and transferred Petitioner from the Central Pump Station

to the Northwest Pump Station.

17. On April 4, 2005, the day Petitioner's physician had

stated Petitioner could return to work, Petitioner w as scheduled

to begin work at the Northwest Pump Station. However,

Petitioner called in sick that day and did not report to work.

18. When Petitioner returned to work, he reported to the

Northwest Pump Station and worked there about two weeks.

Meanwh ile, 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 assign ed. 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.

19. 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.

Petitio ner 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 wh om Petitioner did not get along, may have left that

location , and he (Vanderploog) did not consider this an

acceptable tradeoff.

20. Less than two weeks after Petitioner requested his

third transfer (from the Northwest Pump Station to the South

Pump Stati on) 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.

21. In the April 17, 2005, e - mail , Petitioner stated that

he believed it was inappropri ate 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 uns upervised

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.

22. At the time Petitioner wrote the e - mail to the County

a dministrator, 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 .

23. 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 Commission ers

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 wa s a County employee as of April 2005.

However, this testimony is not credible in light of Petitioner's

admission to a County investigator.

24. In the summer of 2005, Petitioner admitted to the

County, through Bob Sheehan , the chief investigator of the

Cou nty'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 .

25. 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 addre ss 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.

26. 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 .

27. Prior to accept ing the t ransportation w orker 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 j ob d escription 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 t ransportation w orker without

accommodations.

28. On or about May 4, 2005, Petitioner accepted the

position of transportation worker with Public Works . On a

County form, Petitioner acknowledged that he underst ood that his

new position with Public Works, c ounty - w ide, 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.

29. Petitioner was scheduled to start his new position as

transportation worker on May 23, 2005.

30. As noted above, Petitioner notified Mr. Vanderploog in

the March 29, 2005, letter that he was looking for another

position with the County. However, Petitio ner never notif ied

any manager in Water Resource Services that he had accepted the

t ransportation 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.

31. After learning from Public Works that Pe titioner had

acc epted 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 t ransportation w orker position and, t herefore,

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.

32. Prior to le arning 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 instruct ed 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 pre viously - 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 Petitione r that he (the section

manager) would not pursue any disciplinary action against

Petitioner since Petitioner was leaving Water Resource Services

and taking another job.

33. On May 10, 2005, Petitioner voluntarily resigned from

his position in Water Reso urce 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 .

3 4 . Before starting his new job with Public Works in

May 23, 2005 , Petitioner asked Water Resource Servi ces 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.

3 5 . After arrivin g 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. Petiti oner believed that the physical

requirements of this job could result in hi s re - injuring

himself. Given his concerns, Petitioner did not work the entire

day and left after only a few hours and never returned.

3 6 . After his first and only day working a s 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,

an d "running" mail. He worked in this temporary assignment four

or five months, including the summer of 2005.

3 7 . The County scheduled a F itness - for - D uty 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 restric tions was a permanent

condition .

3 8 . On August 8, 2005, Petitioner signed a County form,

indicating that he could not perform any of the functions of a

t ransportation w orker.

39 . A F itness - for D uty 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 I I

positions.

4 0 . Given the outcome of the F itness - for - D uty 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

employ ment. 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.

4 1 . On or about August 26, 2005, Petitioner began an

approved leave of absence in conjunction with his search for

another position.

4 2 . After Petitioner sent the e - mail discuss ed 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.

4 3 . On or about October 20, 2005, Peti tioner 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 .

4 4 . The Parks, Recreation and Conser vation 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, Petitio ner declined

an interview for a second position with the Parks, Recreation

and Conservation Department because the salary was too low.

4 5 . On or about November 23, 2005, Public Works requested

an extension of Petitioner's leave of absence. The Hillsborou gh

County Civil Service Board (the Board) approved the extension.

4 6 . In December 2005, Petitioner was interviewed for one

of three vacant positions as an i nspector/ s pray/ e quipment

o perator 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 r equired 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.

4 7 . In a memorandum dated December 7, 2005, Scott

Cottrell, P.E., engineering d irector, Public Works, requested a

due process hearing for the purpose of seeking to terminate

Petitioner from the transportation worker position.

4 8 . Mr. Cottrell cited the following reasons for seeking

this action: (1) Petitioner's last active day o f 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 J ob

D escription form and indicated he understood th e duties of th at

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 th e August 11, 2005, F itness - for - D uty meeting

that Petitioner was unable to perform the essential functions of

his position as t ransportation w orker; 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 t he 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]."

49 . O n or about February 1, 2006, the Appointing Authority

conducted a due process hearing regarding Petitioner's

employment.

5 0 . 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 F itness - for - D uty meeting on August 11, 2005,

where it had been determined that Petitioner was unable to

perform the essential functions of the t ransportati on w orker

position for Public Works. The notice stated that the dismissal

was based on Civil Service Board Rule 11.2(27).

5 1 . Civil Service Board Rule 11.2(27) provides that an

employee in the classified service, such as Petitioner, may be

dismissed whe re 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.

5 2 . The notice of dismissal dated February 10, 2006,

specified that th e 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.

5 3 . Petitioner challenged his dism issal 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.

54. On June 5, 2006, the Board heard Petitioner's appeal

of his dismissal. During th is 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.

5 5 . On June 20, 2006, the Board entered a Final Summar y

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 d uties of t ransportation w orker. 3/

5 6 . On or about July 10, 200 6 , 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 th at 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 .

5 7 . Petitioner's statement in the July 10, 2006,

memorandum, that he began looking for a job because he was being

h arassed 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 s omething

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 becau se he wanted to do "something different with

[his] life."

58 . 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 h is 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 resign ation.

59 . 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

con sternation 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.

6 0. Notwithstanding Petitioner's July 10, 200 6 , memorandum

stating that he was forced to resign , Petitioner's resignation

was voluntary , and Water Resource Services was under no

obligation to accept Petition er 's offer to rescind his

resig nation and to rehire him .

6 1. By letter dated July 14, 2006, Petitioner filed a

complaint with the County a dministrator. The complaint

challenged t he Board 's Final Summary Judgment affirming

Petitioner's dismissal under the state's Whistle - b lower Act.

6 2. The sole reason the County terminated Petitioner's

employment was that he could not perform the functions of the

t ransportation w orker position in Public Works .

6 3. Civil Service Board Rule 11.2(27) provides that

employees in classified service, such a s Petitioner , may be

dismissed if a demonstrated physical impairment prevents the

employee from performing the essential functions of his

position.

6 4. T he 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.

CONCLUSIONS OF LAW

6 5. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 , 120.57 , 20.6 5(7) and 112.3187(8) Fla .

Stat . (2006) . 4/

6 6. Petitioner claims that Hillsborough County took

adverse action against him (i.e. , dismissing him from the

t ransportation w orker position and/or not allowing him to return

to a position in Water Resource Servic es ) in retaliation for his

disclosing information that a County employee was a sexual

predator.

6 7. The statutory basis for Petitioner's position is

Section 112.3187, Florida Statutes (2006) , which is part of the

Whistle - blower's Act. See § 112.3187(1), Fla . Stat . (2006) .

68. Section 112.3187, Florida Statutes (2006), provides in

relevant part , the following:

(4) ACTIONS PROHIBITED. --

(a) An agency or independent contractor

shall not dismiss, discipline, or take any

other adverse personnel actio n against an

employee for disclosing information pursuant

to the provisions of this section.

(b) An agency or independent contractor

shall not take any adverse action that

affects the rights or interests of a person

in retaliation for the person's disclo sure

of information under this section.

* * *

(5) NATURE OF INFORMATION DISCLOSED. -- The

information disclosed under this section

must include:

(a) Any violation or suspected violation of

any federal, state, or local law, rule, or

regulation c ommitted by an employee or agent

of an agency or independent contractor which

creates and presents a substantial and

specific danger to the public's health,

safety, or welfare.

(b) Any act or suspected act of gross

mismanagement, malfeasance, misfeasanc e,

gross waste of public funds, suspected or

actual Medicaid fraud or abuse, or gross

neglect of duty committed by an employee or

agent of an agency or independent

contractor.

(6) TO WHOM INFORMATION DISCLOSED. --

* * *

[F]or disclosures concer ning a local

governmental entity, including any regional,

county, or municipal entity, special

district, community college district, or

school district or any political subdivision

of any of the foregoing, the information

must be disclosed to a chief execu tive

officer as defined in s. 447.203(9) or other

appropriate local official.

(7) EMPLOYEES AND PERSONS PROTECTED. -- This

section protects employees and persons who

disclose information on their own initiative

in a written and signed complaint. . . .

(8 ) REMEDIES. --

* * *

(b) Within 60 days after the action

prohibited by this section, any local public

employee protected by this section may file

a complaint with the appropriate local

governmental authority, if that authority

has established by ordinance an

administrative procedure for handling such

complaints or has contracted with the

Division of Administrative Hearings under s.

120.65 to conduct hearings under this

section. The administrative procedure

created by ordinance must provide for t he

complaint to be heard by a panel of

impartial persons appointed by the

appropriate local governmental authority.

Upon hearing the complaint, the panel must

make findings of fact and conclusions of law

for a final decision by the local

governmental autho rity. Within 180 days

after entry of a final decision by the local

governmental authority, the public employee

who filed the complaint may bring a civil

action in any court of competent

jurisdiction. If the local governmental

authority has not establishe d an

administrative procedure by ordinance or

contract, a local public employee may,

within 180 days after the action prohibited

by this section, bring a civil action in a

court of competent jurisdiction. For the

purpose of this paragraph, the term "local

governmental authority" includes any

regional, county, or municipal entity,

special district, community college

district, or school district or any

political subdivision of any of the

foregoing.

* * *

(10) DEFENSES. -- It shall be an affirmative

defense to any action brought pursuant to

this section that the adverse action was

predicated upon grounds other than, and

would have been taken absent, the employee's

or person's exercise of rights protected by

this section.

69. For purposes of the Wh istle - blower Act, Subsection

112. 3 187(3) , Florida Statutes (2006), defines the following

terms as follows:

(a) "Agency" means any state, regional,

county, local, or municipal government

entity, whether executive, judicial, or

legislative; any official, of ficer,

department, division, bureau, commission,

authority, or political subdivision therein;

or any public school, community college, or

state university.

(b) "Employee" means a person who performs

services for, and under the control and

direction of, or contracts with, an agency

or independent contractor for wages or other

remuneration.

(c) "Adverse personnel action" means the

discharge, suspension, transfer, or demotion

of any employee or the withholding of

bonuses, the reduction in salary or

benefi ts, or any other adverse action taken

against an employee within the terms and

conditions of employment by an agency or

independent contractor.

7 0. Hillsborough County is an agency within the meaning of

Subsection 112.3187(3)(a), Florida Statutes (2006) .

7 1. Petitioner is an employee within the meaning of

Subsection 112.3187(3)(b), Florida Statutes (2006) .

7 2. Hillsborough County's dismissal of Petitioner from his

position as a t ransportation w orker in Public Works is an

adverse personnel action within the meaning of Subsection

112.3187(3)(c), Florida Statutes (2006) .

7 3. As a preliminary matter , an employee such as

Petitioner , who alleges an adverse personnel action under the

Whistle - blower Act , may file a written complaint with the

County's chief exe cutive officer, but must do so within 60 days

after the adverse personnel action is taken by the agency.

See § 112.3187(6) and (8)(b), Fla . Stat . (2006) . An almost

identical provision is in Hillsborough County Board Policy

Section 07.09.01.00. 5/

7 4. The parties have taken different views on the

following issues related to requirements for filing complaints:

(1) whether the County a dministrator is the agency's chief

executive officer for purpose of the Whistle - blower Act; and

(2) when the time begins to run for purposes of calculating the

60 days.

7 5. As to the first preliminary issue, the evidence

established that the County a dministrator is the chief executive

officer of the County within the meaning of Subsection

447.203(9), Florida Statutes (2006) . 6/ Therefore, disclosures

covered by Subsection 112.3187(5), Florida Statutes (2006) , must

be made to the County a dministrator, as the chief executive

officer. See § 112.3187(6), Fla . Stat . (2006) . In this case,

the evidence established that Petitioner pr operly filed the

subject complaint with the County a dministrator.

7 6. The second issue, when the 60 days "after the action

prohibited by this section [112.3187]" begin to run, determines

whether Petitioner timely filed his Whistle - blower complaint or

wheth er the complaint is time - barred.

7 7. The evidence established that Hillsborough County

dismissed Petitioner from his position as t ransportation w orker

on February 10, 2006. The evidence also established that

Petitioner exercised his right to appeal his di smissal to the

Board and that appeal, which affirmed the dismissal, was final

on June 20, 2006. Finally, it is undisputed that Petitioner

filed his complaint with the County a dministrator on July 14,

2006.

78. The County asserts that the 60 days beg a n to run on or

about February 10, 2005, the date the dismissal notice wa s

issued. Based on this interpretation of Subsection

112.3187(8)(b), Florida Statutes (2006), and the related

Hillsborough County Board Policy Section 07.09.01.00,

Petitioner's complaint should have been filed on or about

April 11, 2006. The County contends that since Petitioner did

not file the complaint until July 14, 2006, the complaint is

untimely and should be dismissed.

79. On the other hand, Petitioner's position seems to be

that t he 60 - day time for filing a Whistle - blower complaint began

to run on June 20, 2006, the date Petitioner's appeal of the

dismissal was final. Under Petitioner's interpretation of

Subsection 112.3187(8)(b), Florida Statutes (2006) , and the

related Hillsboro ugh County Board Policy Section 07.09.01.00,

Petitioner's complaint was timely, as it was filed about 24 days

after the final decision on appeal.

80. A review of relevant cases provides guidance in

determining the issue of whether the complaint in this cas e was

timely filed.

8 1. The statute of limitations provision in Subsection

112.3187(8)(b), Florida Statutes (2006) , has been construed

liberally in favor of granting access to employees who "blow the

whistle." Martin County v. Edenfield , 609 So. 2d 27, 29 ( Fla.

1992).

8 2. The court in Harris v. District Board of Trustees of

Polk Community College , 9 F. Supp. 2d 1319 ( M.D. Fla. 1998 ) ,

construed the statute of limitations in Subsection

112.3187(8)(b), Florida Statutes (2006) , which provides that

"within 180 days after entry of a final decision by the local

governmental authority, the public employee may bring a civil

action in any court of competent jurisdiction." The court

summarizes its interpretation as follows:

After a careful review of the statute and

t he aforementioned cases, this Court is

convinced that the statute of limitations of

Fl. St. § 112.3187(8)(b) , when construed

liberally in favor of granting plaintiff

access to the remedy sought, accrues at the

time the plaintiff has knowledge of the

allege dly wrongful act.

9 F. Supp. 2d at 1328.

8 3. Pertinent to this case is the provision in Subsection

112.3187(8)(b), Florida Statutes (2006) , that states "within 60

days after the action prohibited . . ., any local public

employee may file a complaint w ith the appropriate local

government authority." Applying the interpretation quoted in

Harris , to a similar statute of limitations provision in that

subsection relevant to this case , it is concluded that the

60 - day time period begins to accrue on the day the affected

local employee has knowledge of the wrongful act, or prohibited

act (i.e. , the adverse personnel action).

8 4. Based on the foregoing, Petitioner had 60 days from

the date he had knowledge of the alleged adverse personnel

action to file his com plaint. Here, the evidence established

that Petitioner noted on his appeal request filed on

February 20, 2006 , that he received the dismissal notice on

February 13, 2 006 . Therefore, unlike the plaintiffs in Harris ,

9 F. Supp. 2d at 1319, there is no ques tion of fact as to when

Petitioner had knowledge of his dismissal.

8 5. In light of Petitioner's failure to file the Whistle -

blower complaint within 60 days of knowing of the County's

adverse personnel action (i.e. , his dismissal), his complaint is

time - bar red and should be dismissed.

8 6. Even if Petitioner had timely filed his complaint for

the reasons below , he failed to meet the burden of proof

necessary to establish a retaliation claim under Section

112.3187, Florida Statutes (2006) , of the Whistle - bl ower Act.

8 7. To establish a prima facie case under Florida's

Whistle - blower Act, the requisite elements set forth under a

Title VII retaliation claim are applied. Those elements are as

follows:

[A] [ p etitioner] must show that (1) he

engaged in statutoril y protected expression;

(2) he suffered an adverse employment

action; and (3) there is some causal

relation between the two events. . . Once

the prima facie case is established, the

employer must proffer a legitimate non -

retaliatory reason for the adverse

employment action. The [petitioner] bears

the ultimate burden of proving by a

preponderance of the evidence that the

reason provided by the employer is a pretext

for prohibited, retaliatory conduct.

Rice - Lamar v. City of Ft. Lauderdale , 853 So. 2d 1125,

1132 - 33 ( Fla. 4th DCA 2003), citing Olmsted v. Taco

Bell Corp. , 141 F. 3d 1457, 1460 (11th Cir. 1998).

8 8. In order to establish a prima facie case of

retaliation, Petitioner must prove all three elements described

above.

89. It is undisputed that Hill sborough County dismissed

Petitioner from his position as a transportation worker in

Public Works . Moreover, this action constitutes adverse

employment action within the meaning of Subsection

112.3187(3)(c), Florida Statutes (2006) .

9 0. In addition to his dismissal, Petitioner contends that

other adverse employment action was taken against him. He

argues , but provides no competent and substantial evidence that

Water Resource Services demanded his resignation, forced him to

take the job as a transportation worker, and then refused to

rehire him after he resigned. Finally, Petitioner suggests that

the County refused to hire him in any of the positions for which

he applied after it was determined that he could not perform the

job duties of the transportation worker. All of these claims

are without merit and do not constitute adverse employment

action by the County.

9 1. The evidence established that Petitioner's resignation

was voluntary and was requested by Water Resource Services ,

after being notified that Petitioner had accepted a position in

another department. Thus, it was Petitioner's acceptance of

another position that required him to resign. While the

evidence showed that Petitioner wanted to rescind his voluntary

resignation and be rehired by Water Resource Services , that

department declined to rehire him. However, the failure to

rehire Petitioner or any employee who voluntarily resigns from a

position is not an adverse employment action within the

Whistle - blower Act. Finally, the County's failure to hire

Petitioner for open positions for which he was not the most

qualified candidate/applicant does not constitute an adverse

employment action.

9 2. Petitioner failed to establish that the information he

disclosed in the April 2005 e - mail to the County a dministrator,

that a C ounty employee was a sexual predator and was allowed to

roam freely and unsupervised in a County vehicle, constituted

protected expression or a disclosure under Subsection

112.3187(5), Florida Statutes (2006) .

93. In order to be pr otected expression or a disclosure

under the Whistle - blower Act, the information disclosed must be

a violation or suspected violation of a federal, state, or local

law, rule, or regulation committed by an employee or agent of

the agency which creates and p resents a substantial and specific

danger to the public's health, safety, and welfare.

See § 112.3187(5)(a), Fla . Stat . (2006) . The information

disclosed by Petitioner alleged no actual or suspected violation

of any law or rule which presents a substanti al and specific

danger to the public's health, safety or welfare.

94. Assuming arguendo that the information disclosed

constituted information protected under Subsection 112.3187(5),

Florida Statutes (2006) , Petitioner must still prove the third

element r equired to establish a prima facie case. That element

requires that Petitioner show that there was some causal

relation between the disclosure and his dismissal, not merely

that the two events occurred. Here, Petitioner failed to

establish that there was a connection between these two events.

Rather, the evidence demonstrated that Petitioner was dismissed

months after the disclosure and only after it was determined

that he was unable to do the job of a transportation worker

because of his physical limita tions.

95. Petitioner established that the County took adverse

employment action against him by dismissing him from his

transportation worker position, but failed to establish the

other two elements. He did not establish that the information

disclose d came within the purview of Subsection 112.3187(5),

Florida Statutes (2006) , and that there was a causal connection

between his dismissal and that information. Having failed to

establish all three elements, Petitioner did not establish a

prima facie case of retaliation under the Whistle - blower Act.

Therefore, he did not meet his initial burden of proof.

96. In absence of Petitioner's establishing a prima facie

case, the County did not need to proffer a legitimate

non - retaliatory reason for the adverse e mployment action.

Nonetheless, the County presented undisputed evidence that the

sole reason Petitioner was dismissed from his position as a

transportation worker was that due to a physical impairment, he

could not perform the job duties. Furthermore, th e evidence

established that this was a basis for dismissal under the Civil

Service Board Rule 11.2(27).

97. Again, assuming arguendo that Petitioner established a

prima facie case of retaliation under Section 112.3187, Florida

Statutes (2006) , Petitioner failed to prove that the reason

provided by Hillsborough County for dismissing him is a pretext

for prohibited, retaliatory conduct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Hillsborough County Board of County

Commissioner s enter a f inal o rder finding that Petitioner did

not timely file his Whistle - blower complaint and dismissing the

Petitioner's complaint.

DONE AND ENTERED this 1 1 th day of April , 2007, in

Tallahassee, Leon County, Flori da.

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 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 1 th day of April , 2007 .

ENDNOTES

1/ Petitioner testified that he had two reasons for requesting a

transfer from the Central Pump Station. The first reason

r elates to a telephone call that Petitioner made to the Central

Pump Station. After the transfer was granted, Petitioner called

a supervisor at the Central Pump Station and asked the

supervisor if he (Petitioner) had to be immediately placed on

the rotatio n for "on - call status" when he reported to work.

According to Petitioner, the supervisor told him that he did not

have time to talk to Petitioner and then hung up. Based on this

brief telephone conversation, Petitioner "had a problem" with

that superviso r and believed that the supervisor had "total

hostility" toward him. The second reason Petitioner did not

want to work at the Central Pump Station was that Mr. Dorsett

worked at that location. Petitioner testified, "I wasn't going

to work with him [Dorse tt] because I didn't want to work with

him, because I felt he shouldn't even be there."

2/ This was in accordance with County policy and was necessary

because since the effective day of his employment with Public

Works , Petitioner was encumbering a trans portation worker

position , even though by his own admission and the County's

determination, he was physically unable to perform the job

duties.

3/ Paragraph 11, under Undisputed Material Facts of Final

Summary Judgment, Docket No. 06 - 575, dated June 20 , 2006.

4/ Hillsborough County Board Policy Section 07.09.01.00 requires

the County a dministrator or designee to refer complaints under

the S tate Whistle - blower Act to the DOAH .

5/ Hillsborough County Board Policy Section 07.09.01.00 provides

in pertin ent part the following: "Any public employee . . . who

alleges an adverse personnel action in violation of the State

Whistle - blower Act may file a written complaint within sixty

(60) days of the alleged violation with the Hillsborough County

Administrator or designee. "

6/ Subsection 447.203(9), Florida Statutes (2006), states that a

"'[c]hief executive officer ' , for the state shall mean the

Governor and for other public employers shall mean the person,

whether elected or appointed, who is responsible to the

legislative body of the public employer for the administration

of the governmental affairs of the public employer."

COPIES FURNISHED :

Danielle R. Green, Esquire

Hillsborough County Attorney

Post Office Box 1110

Tampa, Florida 33601

Stephen M. Todd, Esquire

Hillsborough County Attorney

Post Office Box 1110

Tampa, Florida 33601

Monica L. Strickland, Esquire

The Law Offices of Monica L.

Strickland, P.A.

2312 West Waters Avenue, Suite 2

Tampa, Florida 33604

Patricia G. Bean, County Administrator

Hillsborough County

Post Office Box 1110

Tampa, Florida 33601

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.