| Date: | Friday, May 28, 2021 |
| Time: | 3:42:47 PM |
| From: | Rick Johnson <rick@rej-law.com> |
| To: | John Scotese [mailto:John.Scotese@fchr.myflorida.com] |
| cc: | Kelly Thomas <kellyt@rej-law.com> |
| Subject: | 071: F.C.H.R. Case No. 202128179 |
Mr. Scotese:
Please accept this as the Amended Charge you requested, though we believe it could also (and perhaps more properly) be considered a response to an investigative inquiry arising from the original charge. We think investigations rather than amended charges are the proper vehicle for obtaining information that fills in the picture of a sequence of events described in a whistleblower charge.
You asked for more specifics on Michelle Wilson’s protected conduct. A good example came near the end of her tenure on August 18, 2020.
A five-member panel of the Commission consisting of Jay Pichard (Chair), Donna Elam, Derrick McGhee, Dawn Hanson, and Al McCambry had been commissioned to review the HUD issue described in our original charge. The panel, at this meeting, was tasked with recommending performance measures after a discussion of the Commission’s progress in meeting the HUD goals. FCHR had, by then, met HUD’s standards, but not much about HUD came up at the meeting. Mr. Pichard steered the discussion to meeting the 180-day compliance deadline for completing investigations of employment discrimination claims. As he had made clear throughout his tenure, he wanted the 180-day deadline met consistently by issuing “no-cause” determinations on charges at intake, rather than after investigation.
One of FCHR’s knowledgeable employees, Joe Cash, provided a breakdown of the 180 day issue and projected that the Commission would not only meet, but exceed, the performance goals if two additional positions were established.
After a lengthy discussion, Ms. Wilson passionately, but professionally, declared to the panel that she believed it was unfair to expect staff to meet performance measures without having the necessary staffing and resources. She pointed out that FCHR is bound by the Florida Statutes and the rules of the Florida Administrative Code to perform a fair and neutral investigation, not just go through the motions or dismiss cases at the very outset. She made it clear to the panel that she would not direct the staff to close an investigation prematurely just for the sake of meeting a 180-day standard. She specifically asked the panel to share with her exactly what their expectations were, given this challenging situation of not having the resources to process FCHR’s caseload within 180-days. The law has an answer: finish the investigation in a longer time. She also asserted that demanding an employee to close a case prematurely was unfair to both parties and that it could be detrimental to the agency's core value of providing fair and impartial investigations as well as exposing FCHR to consequences for unlawful conduct. She said the answer is to provide the resources FCHR needs to meet the 180-day deadline or change the law. Otherwise, FCHR will have to go on taking longer in some cases. It is not an option to just break the law.
Mr. Pichard, as was his custom, demanded that FCHR finish the investigations in 180 days and dismiss some without investigation. Derrick McGhee supported that view. A “no-confidence” vote immediately followed:
| 1. Elam | No |
| 2. McCambry | No |
| 3. Hanson | Yes |
| 4. Pichard | Yes |
| 5. McGhee | Yes |
Other protected conduct occurred on July 20, 2020, when Ms. Wilson called for compliance with the Governance Policy which called for establishment of performance measures. The Commission resisted compliance with that binding regulation. Ms. Wilson went unevaluated for several years and was fired without the existence of any current standards by which her performance could be measured. The commissioners wanted to fire her for not dismissing discrimination charges at the intake stage, but they obviously could not formalize that unlawful performance measure.
On 07/03/20, Jay Pichard specifically asked Ms. Wilson for “flexibility” to “save businesses.” By this he meant dismissing employment discrimination charges at intake, without investigation, issuing a “no cause” finding so charging parties could not go to court. Ms. Wilson declined, reiterating to Pichard and the board that the commission’s job, by law, was to investigate claims as a neutral fact finding agency and not to favor either party to a complaint. Pichard repeatedly asked the same question hoping to get a different response from the General Counsel. To our knowledge, he never did.
On 8/10/20, Ms. Wilson sought enforcement of the Governance Policy when she requested to know what evaluation process was being used to evaluate her so she could have an opportunity to meet/exceed expectations. Nothing was established during a panel discussion. Rule violations persisted despite these objections.
Please ask us specifically for any other information you need to process the charge.
Rick Johnson
Florida Bar Certified Labor & Employment Lawyer
Law Office of Richard E. Johnson
314 West Jefferson St.
Tallahassee, FL 32301
850-425-1997
850-561-0836 (fax)
rick@rej-law.com
http://employee-rights.net
