08-002487SED Sherry A. Blow-Beasley vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, November 18, 2008.

Summary: Respondent demonstrated that Petitioner`s position was properly reclassified from Career Service to Select Exempt Service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRY A. BLOW-BEASLEY, )

)

Petitioner, )

)

vs. ) Case No. 08-2487SED

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 30, 2008, by video teleconference with connecting

sites in Lauderdale Lakes and Tallahassee, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sherry A. Blow-Beasley, pro se

Post Office Box 1681

Hallandale, Florida 33008

For Respondent: Jacob C. Jackson, Esquire

Department of Children and

Family Services

201 West Broward Boulevard, Suite 502

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner’s

position was properly reclassified by Respondent under the

Service First Initiative from Career Service to Select Exempt

Service.

PRELIMINARY STATEMENT

Sherry A. Blow-Beasley, a/k/a Sherry A. Blow, a/k/a Sherry

A. Strange-Blow a/k/a Sherry A. Beasley, hereinafter

Ms. Blow-Beasley, was notified by the Department of Children and

Family Services, hereinafter DCFS, that her employment position

was reclassified under Service First from Career Service to

Select Exempt Service (SES). Ms. Blow-Beasley challenged the

classification and requested a hearing. 1 On May 21, 2008, this

matter was referred to the Division of Administrative Hearings.

Prior to the final hearing the parties filed a Revised

Joint Stipulation of Facts. At hearing, DCFS’ Motion to

Dismiss, which was filed prior to hearing, was heard. After

hearing the parties’ arguments, the motion was denied.

Ms. Blow-Beasley testified in her own behalf and entered no

exhibits into evidence. DCFS did not present the testimony of

any witnesses and entered two exhibits (Respondent’s Exhibits

numbered 1 and 2) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on October 20,

2008. The parties timely filed their post-hearing submissions,

which were considered in the preparation of this Recommended

Order. 2

FINDINGS OF FACT 3

1. Ms. Blow-Beasley was employed with DCFS, formerly known

as Department of Health and Rehabilitative Services, hereinafter

HRS, in Broward County, Florida from February 1, 1988 to June 7,

2002.

2. From August 3, 2000 to July 2001, as part of her

employment with DCFS, Ms. Blow-Beasley worked for Economic

Services.

3. On September 29, 2000, Ms. Blow-Beasley was hired as a

Public Assistance Specialist Supervisor by DCFS, which was a

Career Service position.

4. From September 29, 2000 to July 2001, a Public

Assistance Specialist Supervisor was a supervisory position with

HRS and/or DCFS.

5. From September 29, 2000 to July 1, 2001, in her role as

a Public Assistance Specialist Supervisor, Ms. Blow-Beasley

supervised two or more employees.

6. As part of her duties as a Public Assistance Specialist

Supervisor, Ms. Blow-Beasley reviewed and approved employee time

(work time, sick leave, annual leave, vacation, etc.) of

employees under her supervision.

7. Also, as part of her duties as a Public Assistance

Specialist Supervisor, Ms. Blow-Beasley reviewed the work and

performance of employees under her supervision.

8. Additionally, as part of her duties as a Public

Assistance Specialist Supervisor, Ms. Blow-Beasley was

responsible for ensuring that employees under her supervision

met certain DCFS’ performance standards and measures.

9. Further, as part of her duties as a Public Assistance

Specialist Supervisor, Ms. Blow-Beasley was responsible for

ensuring that employees under her supervision complied with

certain state and federal laws.

10. Furthermore, as part of her duties as a Public

Assistance Specialist Supervisor, Ms. Blow-Beasley conducted,

approved and/or executed performance evaluations for those

persons whom she supervised.

11. By letter dated June 15, 2001, Ms. Blow-Beasley was

notified by DCFS that her position in Career Service was being

“transferred” to SES, effective July 1, 2001. Her position in

Career Service was reclassified as a SES position.

12. Ms. Blow-Beasley informed her supervisor that she did

not want to remain in SES and would accept a demotion to be in

Career Service. Her request was not granted.

13. From July 2001 to June 7, 2002, as part of her

employment with DCFS, Ms. Blow-Beasley worked for the Economic

Self-Sufficiency, hereinafter ESS, Program.

14. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s

position title was, and she was employed as, ESS Supervisor

Specialist.

15. From July 2001 to June 7, 2002, an ESS Supervisor

Specialist was a supervisory position with DCFS.

16. As part of her duties as an ESS Supervisor Specialist,

Ms. Blow-Beasley reviewed and approved employee time (work time,

sick leave, annual leave, vacation, etc.) of employees under her

supervision.

17. Also, as part of her duties as an ESS Supervisor

Specialist, Ms. Blow-Beasley reviewed the work and performance

of employees under her supervision.

18. Additionally, as part of her duties as an ESS

Supervisor Specialist, Ms. Blow-Beasley was responsible for

ensuring that employees under her supervision met certain DCFS’

performance standards and measures.

19. Further, as part of her duties as an ESS Supervisor

Specialist, Ms. Blow-Beasley was responsible for ensuring that

employees under her supervision complied with certain state and

federal laws.

20. Furthermore, as part of her duties as an ESS

Supervisor Specialist, Ms. Blow-Beasley conducted, approved

and/or executed performance evaluations for those persons whom

she supervised.

21. Ms. Blow-Beasley does not dispute that, from

September 29, 2000 to June 7, 2002, she was a supervisor and had

been in both Career Service and SES as a supervisor.

22. Ms. Blow-Beasley does not dispute that, when her

position was reclassified from Career Service to SES, her duties

and responsibilities did not change, but remained the same.

23. No direct evidence was presented to demonstrate that

Ms. Blow-Beasley had the authority to hire, transfer, suspend,

lay off, recall, promote, discharge, assign, reward, or

discipline subordinate employees. However, an inference is

drawn and a finding of fact is made that, based on her duties,

she had the authority to effectively recommend the action to

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

assign, reward, or discipline subordinate employees.

24. Approximately one year after the reclassification, on

June 7, 2002, Ms. Blow-Beasley was dismissed from employment

with DCFS. On the said date, she signed a letter acknowledging

receipt of the notice of dismissal from DCFS.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

26. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2008).

27. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). DCFS has the burden of proof to show by

the preponderance of the evidence that its reclassification of

Ms. Blow-Beasley’s position from Career Service to SES was

proper. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); J. W. C. Company, Inc. , supra .;

§ 120.57(1)(j), Fla. Stat. (2008).

28. In 2001, the Florida Legislature directed the

Department of Management Services (DMS) to restructure the

State’s personnel system and mandated DMS to create a position

classification system for Career Service and SES positions;

state agencies were responsible for the application of the

system and had the responsibility to reclassify established

agency positions within the classes established by DMS. See

Fuller v. Department of Education , 927 So. 2d 28, 29, 30 (Fla.

1st DCA 2006).

29. State employees were deemed to be in Career Service

positions unless positions were exempted. § 110.205(1), Fla.

Stat. (2001).

30. Section 110.205, Florida Statutes (2001), provides in

pertinent part:

(2) EXEMPT POSITIONS . --The exempt

positions that are not covered by this part

include the following:

* * *

(x) Managerial employees, as defined in s.

447.203(4), confidential employees, as

defined in s. 447.203(5), and 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, including all

employees serving as supervisors,

administrators, and directors. . . .

(emphasis in original)

31. The evidence demonstrates that Ms. Blow-Beasley’s

Career Service position was a supervisory position and that,

when the position was reclassified to SES, it remained a

supervisory position. The evidence further demonstrates that

her duties associated with her Career Service position did not

change when the position was reclassified to an SES position.

32. Additionally, the evidence demonstrates that Ms. Blow-

Beasley’s duties in her reclassified position did not differ

from, but remained the same as, the duties in her Career Service

position.

33. Moreover, the evidence demonstrates that

Ms. Blow-Beasley’s position met the criteria for an exempt

position. § 110.205(2)(x), Fla. Stat. (2001).

34. Hence, DCFS met its burden in demonstrating that

Ms. Blow-Beasley’s Career Service position was properly

reclassified as an SES position.

35. This Administrative Law Judge is without authority in

this proceeding to address Ms. Blow-Beasley’s position that she

did not wish to remain in the position that was reclassified and

requested a demotion to return to Career Service, but her

request was not granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order finding that Ms. Sherry A.

Blow-Beasley’s Career Service position was properly reclassified

as a Select Exempt Service position.

DONE AND ENTERED this 18th day of November 2008, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of November, 2008.

ENDNOTES

1/ The record in this matter reflects that DCFS’ letter,

notifying Ms. Blow-Beasley of her right to an administrative

hearing based on the reclassification, is dated July 22, 2003

and that Ms. Blow-Beasley’s Request for Hearing is dated May 3,

2008. No explanation was provided by DCFS regarding these two

documents.

2/ Ms. Blow-Beasley attached to and incorporated in her post-

hearing submission two letters, one notarized, which were not

admitted into evidence at hearing and were, therefore, not

considered. Additionally, DCFS attached and incorporated in its

post-hearing submission two exhibits, which were not admitted

into evidence at hearing and were, therefore, not considered.

3/ Findings of Fact numbered 1 through 10, 13 through 20, and 24

are facts stipulated to by the parties although not verbatim.

COPIES FURNISHED:

Sherry A. Blow-Beasley

Post Office Box 1681

Hallandale, Florida 33008

Jacob C. Jackson, Esquire

Department of Children and Family Services

201 West Broward Boulevard, Suite 502

Fort Lauderdale, Florida 33301

George Sheldon, Interim Secretary

Department of Children and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.