MOTION FOR DISMISSAL
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,RECEIVED
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ocr 10 1989
CITY OF CLEARWATER,
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Petitioner, )
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Respondent, )
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CITY; CLERK
vs.
CASE NO.
89-3063
ROGER BRENNAN,
MOTION FOR DISMISSAL
The petitioner has stated that the reasons for the respondent's
suspension was for the good of the service, to promote the
efIiciency of the Public Works Department and for the following
reasons.
CHARGE 1
Roger C. Brennan violated Rule 14, section 1, paragraphs (b) (e)
and (k) of the Civil Service Rules and Regulations of the City of
Clearwater.
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CSR 14, sec. 1, para. (b) states:
"Is incompetent or inefficient in the performance of the duties of
his position."
The key point here is duties of his position. Duties being plural
means more than one. However, the petitioner is basing its charge
solely on one memorandum. One memorandum does not support the
weight of sufficiency to constitute incompetency or inefficiency.
"Inc0mpetency" as a grounds for removal or discipline of a Public
Officer, has reference to any physical, moral, or intellectual
quality, lack of which incapacitates the officer to perform his
duties, and criticism of a Public Official does not constitute
"Incompetency" LAWS 1921, C669 ~ 30. Sausbier v Wheeler, 299 N.Y.S.
466, 473, 252, App. Div. 267.
"Inefficiency" as used in the st.atute is synonymous with "Incompetency"
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Therefore, the respondent argues that the rule does not apply.
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CSR 14, sec. 1, para. (e) states:
"Has been offensive in his conduct or language towards his fellow
employees, City Officers or the Public."
The phrase"Offensive Conduct" in public disturbance statute is
defined as conduct under contemporary community standards which is
so grossly offensive to the person who actually overhears or see
it as to amount to a nuisance. state v Lo Sacco, 531 A. 2d 184, 189,
12 Conn. App. 481.
Statements made by the 'respondent in this one memorandum cannot
and should not be considered as to have violated this Civil Service
Rule.
The respondent also argues that Civil Service Rule 14, section 1,
paragraph (e) is unconstitutionally vague and overbroad on its
face and as it is applied. (~SCA Const. Amend. 1) The omission of
an adjective before offensive, such as Wontonly, Recklessly or
Abusely would suggest that any action or conduct could be offensive,
depending on who is applying it, without-benefit of any standardization
[ For the value of the sword of Damocles is that it hangs - Not that
it drops ]
Because employees faced with the standard of "such cause as will promote
the efficiency of the service" one can only guess as to what utterences
may cost them their jobs. There can be little question that they will
be deterred from exercising their Forst Amendment rights to the fullest
extent.
In order to determine whether government employers mayor may not
regulate speech of an employee, the courts must arrive at a balance
between the interests of the Public employee as a citizen, in commenting
upon/matters of public concern, and the interest of the State as an
employer in promoting efficiency of the public services it performs
through its employees. (Const. Law 90.1 (1), Thompson v City of
Minneapolis 300 NW 2d 763, Pickering v Board of Education, 391 u.S.
563, 568, 88 S. ct 1731, 1734, 20 L.Ed 2d 811 Treating' Pickerin~ not
as an employee, but as a member of the general public, the courts went
on to say that Pickering could only be disciplined by the School Board
only if his speech consisted of "False statements knowingly or
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recklessly made by him"id at 514 88 S.ct at.1737 the constitutional
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standard for defamation action.
The petitioner through its representative Miles Lance, Assistant
City Attorney sta~ed in our first telephone conference call
( Donald Conn, Hearing Officer - Miles Lance, for the petitioner -
Roger Brennan, the respondent ) that the petitioner does not
question whether the statements made by the respondent in the March
30, 1989 memorandum are true or false, but simply that the respondent
cannot say them. Officer and Employees ~ 137 Free Speech - NY
Rodriquez v Percell (1975) 391 F Supp 38
Therefore the respondent argues that the rule does not apply.
III
CSR 14, sec. 1, pa:r;a. (k)
"Has violated any lawful and reasonable official regulation or order
or failed to obey any lawful and reasonable direction made and given
to him by his superior officer when such ~iolation or failure to
obey amounts to insubordination or serious breach of discipline
which may reasonably be expected to result in a lower morale in the
department or to result in loss, inconvenience, or injury to the City
or the Public."
The respondent argues that his reply was to that of an unlawful order.
Therefore, he cannot be guilty of violating CSR14, sec. 1, para. (k).
The utilities accounts Manager, George Fasching, verbally admitted
to Betty Deptula, the Director of Administrative Services and others
present that pranks occur in the utilities Accounts Division all the
time, yet William Tedder has been the only employee singled out and
disciplined for his involvement in such a prank. The respondent was
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asked to make inquiries and to investigate the matter and refer his
recommendation to the utilities Accounts Manager, George Fasching.
Although the respondent vehemently.expressed his opinion to Mr.
Fasching, his supervisor that any action taken against Mr. Tedd~r
would be outright retaliation. The City of Clearwater through its
agents ignored State and Federal~Laws which prohibits discrimination
and or retaliation. Mr. Tedder who had filed several E.E.O.C.
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charges for retaliation and who accumulated many documents to
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support his charges, was suspended without pay for two days on May
3rd and 4th, 1989. Mr. Tedder, grieved the matter with the union Loca]
379 of the CWA, and on September 27, 1989 the City of Clearwater
withdrew its charges against Mr. Tedder and reimbursed him for two
days pay. (Section 704 (a) of the Civil Rights Act of 1964 [42 USCS ~
2000e-3 (a)] (See articles 1 thru 5 attached).
In balancing the interest of the employee as a member of the general
public and balancing the interest of the State as an employer let us
apply CSR 14, sec. 1, para. (k) as it applies to this case.
1. Has the City or the Employee violated "any lawful and reasonable
official regulation or order or failed to obey any lawful and
reasonable direction made and given to him by his superior officer .
One can only assume that the City had evaluated its position,
recognized that it had retaliated against Mr. Tedder and rescinded
its order.
2. Can this action be expected to lower morale in the department?
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Certainly it can, because now Mr. Tedder can support another
Charge of retaliation, complaining that the actions taken by the
City of Clearwater, publicly embarrassed and humiliated him in
front of his peers.
3. Can we say there was inconvenience or injury to the City or the
Public?
Certainly we can, if E.E.O.C. investigates the matter and finds
cause for Mr. Tedder, the City will then have to defend a
potential law suit and endure much public embarrassment.
The respondent has presented ample evidence that the charges against
him are a mere pretext to cover up his non-support of an unlawful
disciplinary action. This statement is also supported by the City
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Manager, removing the utilities Accounts Division from the supervision
of Robert Brumback and placing it with Betty Deptula, the Director
of Administrative Services, Finance.
The respondent also requests
along with relief to include
section 6 (b).
that an order to Dismiss be granted
costs pursuant to F.S. 1987 120.59
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
(Motion for Dismissal) was mailed by regular United States Mail,
postage prepaid this 10th day of October, 1989 to:
Donald D. Conn, Hearing Officer
Rita Garvey, Mayor City of Clearwater
William Nunamaker, Commissioner City of Clearwater
Richard Fitzgerald, Commissioner City of Clearwater
Donald Winner, Commissioner City of Clearwater
Lee R~gulski, Commissioner City of Clearwater
Ron Rabun, City Manager City of Clearwater
Miles Lance, Assistant City Attorney City of Clearwater
City Clerks Office, Cit f rwater
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STATE OF FLORIDA
COUNTY OF
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CITY
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BEFORE ME, the undersigned authority, personally appeared
(Roger C. Brennan), well known to me and known by me to be the
person described in and who executed the foregoing instrument
and acknowledged to and before me that he executed said instrument
in the capacity and for the purpose therein expressed.
WITNESS my hand and official seal this 10 day of ~
1989 in the County and State first above written.
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NO~BLIC .
MY COMMISSION EXPIRES:
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.SERVICE LIST
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Donald D. Conn
Div. of Administrative Hearings
The DeSoto Bldg. . I
1230 Apalachee Parkway
Tallahassee, FI 32399-1550
Rita Garvey, Mayor
City of Clearwater
112 Osceola Av.
Clearwater, FI 34616
William Nunamaker, Commissioner
City of Clearwater
112 Osceola Av. :
Clearwater, Fl 34616
Richard Fitzgerald, Commissioner
City of Clearwater
112 Osceola Av. .
Clearwater, FI 34616-
.
Donald Winner, Commiss~oner
City of Clearwater
112 Osceola Av.
Clearwater, FI 34616
Lee Regulski, Commissioner
City of Clearwater
112 Osceola Av.
Clearwater, FI 34616
Ron Rabun, City Manager
City of Clearwater
112 Osceola Av.
Clearwater, FI 34616
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Miles Lance, Assistant City Attorney
City of Clearwater
112 Osceola AV.
Clearwater, Fl 34616
Cyndie Goudeau
City Clerk's Office
City of ylearwater
. .112 Osce6la Av. .
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Clearwa~er, FI 34616
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. Communi'Catlons
Workers of AmerlC3
AFL-GIO
P.O. ~l149488 ,;:?
Orlando, Florida 32814-9488
407 -894-9781
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September 14, 1989
FROM:
William .(Bill) Patterson
CWA President Local 3179
~mas.A. Diekman
W:~:, Representative
Mark. Tedder Gr}evance
TO:
RE:
Bill,
Rice.
I discussed the attached letter with both Tedder and
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Tedder agreed to sign it.
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Rice agreed, when she received the signed letter, to remove his
suspension and points and pay the time.
I think we have a winner here.
Regards.
TAD-hjm
opeiu #2
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Encloshre
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cc: Gene Head
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September 18, 1989
Ms. Kathy S. Rice
Assistant City Manager
City of Clearwater
P. o. Box 4748
Clearwater, FL 34618-4748
Dear Ms. Rice:
.
This letter is to try and explain my involvement in a situation that
resulted in my suspension in May 1989.
Because of numerous incidents there was Imlch tension ~n our office. On
March 4, 1989, I played a prank on Pat Meri.. It was intended to break this
tensio}1. To me, it was, at that time, funny. I had Ms. Meri sign a blank
inter-office cormumicatidns form, ~en typed a note aOOve her signature.
This was done si..nply as a' joke and no~ intended to cause any problems for
either Ms. Meri or myself.
The incident was blown out of proportion. There. were several interviews
conducted by various people and many questions as~ed.. of many people.
On March 21, 1989, I was interviewed by Mr. E.J. Robinson. During th3.t
session I tried to answer each question asked in an honest manner. However,
I did not admit to preparing a document shown to me by Mr. Robinson. I did
admit to preparing a note over ~1s. Meri' s signature as a joke.
In retrospect,
that the City
prank, lightly.
I wish new that I had not played this prank. I al so regret
fel t I was taking their interview process, concerning this
I realize it's important to co-operate fully in work related investigations
so any action that may result would be fair and reasonable. I recognize
that there needs to be a management team to identify problems, provide
, direction and to wake the final decision in the work place. I'C understand
the need. for all errployees of the City, to carry out management directives
to complete their assigned tasks.
I hope this letter is the end of this incident.
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cc :Wn. (Bill) Patterson
. Thanas A. Diekman
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CITY OF CLEARWATER
Interdepartment Correspondence Sheet
TO:
Dan I::eignan, Assistant Director of Administrative Services/Finance
K~thy S. Rice, Ass~stant City Manager/Administration & 1<i>~.-
Clty Manager I s Deslgnee _ f'. .
COPIES: William M. Tedder, Accounting Clerk I
William C. Baker, Public Works Director
Robert M. Brumback, Assistant Utilities Director/Utilities
H. Michael Laursen, Personnel Director
E.J. Robinson, Affirmative Action Officer
Miles Lance, Assistant City Attorney
ERCM:
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SUB.:JEX:r: Restoration of Two Day's pay--William M. Tedder
~: September 27, 1989
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Pursuant to the resolution of the above referenced grievance, as
agreed by the City and the CWA, the two day suspension without pay
imposed on William M. Tedder on May 3 and 4, 1989, has been
resciiided .
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Please coordinate the necessary paperwork with the Public Works
I::epartrnent to restore the two days' pay to Mr. Tedder as soon as
possible. \
By copy of this same merro to Affirmative Action, the Affirmative
Action Office is directed to remove the 20 disciplinary action
points assessed to Mr. Tedder for this suspension.
KSR/deb
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I CITY OF CLEARWATER
Interdepartment Correspondence Sheet
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TO: William. M. Tedder, Accounting Clerk I
OJPIES :
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DATE:
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Kathy S.~- Rice, Assistant City Manager/Administration &
City Manager's Designee
Ron H. - Rabun, City Manager
Charles A. Hunsicker, Assistant City Manager/Operations
H. Michael Laursen, Personnel Director
E.J. RObinson, Affirmative Action Officer
Miles Lance, Assistant City Attorney
William C. Baker, Public Works Director
Robert M. Brumback, Assistant: Public Works Director;tJtilities
William Patterson, ~ President, Local #3179
Thomas A. Diekman, .~ Representative
,
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Wi thdr awa 1 of Grievance #890508.lmt
September 27, 1989
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On May 3 and 4, 1989, you served a two day suspension
wi thout pay. This suspension was based on an incident in
which you were involved in a prank~n a co-worker in the
Utilities Office and the official investigation that
followed by the City's Affirmative Action Officer. After
conversations with 0iIA and your Department Director ,it
. was determihed that the Ci ty will rescind the two day
suspension.
My office will initiate the necessary paperwork to Payroll
to reimburse you for two days pay for May 3 and 4, 1989,
and any disciplinary points assessed for the suspension
will be withdrawn.
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Kathy S. Rlce, Asslstant Clty MBnager/Adminlstratlon &
City Manager's Designee
KSR/deb
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CIT'II OF CLEARWATER
Inte;~epartment Correspondence' Sheet
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Department and Division Heads
FROM:
H. M. Laursen and E. J. Robinson
COPIES: City Manager aQd Assistant City Managers
SUBJECT: Affirmative Action Pol icy and Program
DATE: January 15, 1987
By the official adoption and administration of affirmative action policies and programs,
the City of Clearwater has implemented its policy to provide equal employment oppor-
tunity for all persons on the basis of their merit and fitness.
Copies of the Declaration of Policy and Affirmative Action Program have been previously
distributed to departments. If a copy of this policy is not posted on each of your
bUlletin"boards, one should be posted. The continued success of our equal employment
opportunity program require9 continuing ~ol11Tlitment with visible manifestations of that
commitment by all managers, supervisors and employees.
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The signature of Anthony L. Shoemaker, City Manager, on the Declaration of Policy
establishes the total commitment of the administration'to equal employment opportunity.
It would be appropriate for each department director to again review the Affirmative
Action Program and pledge their commitment to the Program's objectives while monitoring
those persons under their jurisdiction for complia~ce.
~~ Action
Officer
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CITY OF CLEARWATER
DECLARATION OF POLICY ON
OPPORTUNITY EiMPLOYiMENT AND AFFIRMATIVE ACTION
EQUAL
The dearwater City Commission:, the dearwater Civil Service Board and the City Manager are committed
to the concept of equal employment opportunity as a fundamental element of the City's civil service and
personnel systems. In afflrnlation of this commitment, it is declared that the policy of the City of
dearwater is:
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1. To prohibit discrimination in employment, employee development or employment
advancement because of religious or political opinions or afflliaclons, race, color,
national origin, sex, age, physical handicap or other non-merit factor except where
such factor is a bona fide occupational qualification or is required by state and/or
federal law.
2. To insure equal employment opportunities for all persons based solely on their
qualifications when seeking employment and on the basis of their merit and fitness
when employed.
3. 'ro promote and achieve equal employment opportunity through the development
and continuous administration of an Afflf"mative Action Program as a:
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a. Tool for implementing prograins for h~g minorities and
women;
b. Yardstick for .setting goals and timetables for,!TIeasuring
success or failure in reaching established g~alSj-~
c. Conscious, deliberate and dynamic commitment to results-
oriented programs which. will accelerate fuller utilization
and development of previously under-utilized human re-
sources.
4. To inform all officials and employees of the City of dearwater, as well as employee
and labor organizations, contractors, vendors, employment agencies and other
organizations dealing with the City of this Policy.
This co~itment and policy will be supported by positive practices and practical efforts to insure equal
opportunity employment for the employment disadvantaged both in securing municipal employment
and promotional opportunities at all levels. The City Manager shall appoint or designate an AffIrmative
Action Officer to direct the Program and to interpret the policies and goals of the program to manage-
mployees and to other groups and agencies.
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C I T Y 10 F C LEA R W ATE R
Interdepartment Correspondence" Sheet
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TO:
Department and Division Heads
E. J. Robinson, Affirmat;~ficer
G. B. Weimer, H~ oM. Laursen
FROM:
COPIES:
SUBJECT: Documentation - Employee's Perfonnance
DATE: January 15, 198~
Supervisors have a serious responsibility when supervising employees and not just because
of affinnative action. It must be realized that employees have rights which when exercised
could bring an EEOC charge, grievance or appeal action taken against the City.
In most cases, our ability to defend our position or action depends on the actions of
supervision. Therefore, appropriate documentation with precise and clear infonnation many
times is the key to the City1s defense. The importance of documentation cannot be over-
emphasized.
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Documentation is the Supervisor1s Responsibility and Key Line of Defense: Many charges of
discrimination filed with the Equal Employment Opportunity Commission are upheld simply
because the employee making t~e complaint~presents a carefully documented record of each
alleged act of discriminatioh while the imployer or the employer's representative offers
no documentation. Instead, the employer's only defense against the charge is the super-
visor1s hazy recollection of what might have happened weeks or even months earlier. Faced
with a carefully documented complaint on the one hand, and a vague, uncertain rebuttal
on the other, the EEOC has little choice but to conclude" that "reasonable cause exists
to believe that employer engaged in an unlawful, employment practice." It is easy to see,
then, why documentation is such a vital responsibility. Not only does proper documentation
help in the above situation, it can also become an important item when an employee files
a grievance under the provisions of Civil Service or one of the contracts. For these
reasons, documentation is very important.
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What it is and How it Helps: Documentation means writing a description of any incident
that might reflect negatively or positively upon an employee1s job performance. While
it involves some extra time and effort, collected documentation is invaluable in helping
supervisors and directors make the tough decisions involving promotions or recommendations
for disciplinary action or discharge. And after the decision is made, collected docu-
mentation serves to back it up. The six key ways to produce effective, nondiscriminatory
documentation are:
1. COMMUNICATE. You may know that documentation can be a great help to both
you and employees, but that is not enough. If you want it to be successful, make certain
employees know it too. Tell them what documentation is and how it is going to work.
Explain that you keep a record of every aspect of each employee1s job perfonnance and
anything that seems to affect it positively or negatively. Tell them you are interested
only in har,d facts that will insure the absolute impartiality of future evaluations and
promotions/as well as any disciplinary actions or discharges and, most important, explain
privately to the effected employee every entry that is made into his or her personnel
file. Do not keep it secret from the employee. Finally, make sure that you direct this
kind of communication to all employees.
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Documentation - Employee's Performance
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2. PUT IT IN WRITING. Describe every incident involving any employee __
black, white, male, female, old, young -- that reflects positively or negatively upon
that employee's performance. It is critically important to include all employees in
the process of documentation. Documenting only minority or female employees is in
itself a discriminatory act and undermines the legitimacy of the facts collected in the
documentation. For each incident you document, be specific about when it happened (date
and time), where it happened, and what happened.. Describe the event as simply, factually,
and objectively as possible.
3. BE SELECTIVE. Most supervisors readily recognize outstanding performance.
But, incidents of a negative nature present a greater challenge. The trick is to dis-
tinguish between the small but significant incident and one that might fall into the
category of "nitpicking." For example, in most organizations, getting to work even five
minutes late is a definite infraction. Coming back from a lunch hour five minutes late,
however, may not be considered as serious unless it is a chronic problem. To help decide
which incidents are important, consider such factors as past practice, department or
division policy, and whethe~ or not you are demanding the same standards of all employees.
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4. BE OBJECTIVE. All documentation should be based upon objective standards
of behavior applied objectively to all employees. In other words, performance should be
evaluated according to the demands and standards of the job, not according to the demands
and standards of your personal tastes or preferences. ,~or example, is Alice really
uncooperative or do you find it hard to accept the idea of a woman doing a"man's work"?
Is Tom really hostile or do you react personally to his afro? Does Sam lack initiative
or do you identify older workers with a lack of aggressiveness? A supervisor can express
discriminatory feelings in two ways: First, by overt hostile behavior toward minority or
female employees, and second, indirectly by implication.
S. ACT PROMPTLY. Put the facts in writing as soon as possible while your
memory of the incident is still fresh.
6. TELL THE EMPLOYEE WHAT YOU HAVE WRITTEN. If your documentation is
objective and fair, most employees will accept it even if they do not like it. If they
say it is unfair or inaccurate, do not let yourself be pulled into a personal argument.
Instead, ask them for their version of what happened and include some of their remarks
in the documentation.
Because of the seriousness of documentation, some form of disciplinary action may be
considered for those who willfully neglect to provide timely and clear documentation
when it is necessary.
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If you need' assistance or clarification in regard to the above, please contact E. J.
Robinson, Affirmative Action Officer or Janice King, Affirmative Action Aide.
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