STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEATHERINE LEON )

)

Petitioner, )

)

vs. ) CASE NO. 90-4270

)

FLORIDA DEPARTMENT OF )

LAW ENFORCEMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 8 and 10, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Leatharine Leon, pro se

1751 Centerville Road

Tallahassee, Florida 32317

For Respondent: Elsa Lopez Whitehurst, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

P.O. Box 1489 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.

PRELIMINARY STATEMENT

On June 8, 1989, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that Respondent reassigned her to different employment duties as the result of Petitioner's race.

On April 30, 1990, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

Thereafter, Petitioner filed a Petition for Relief with the Commission, requesting a redetermination of her discrimination charge. The Petition alleged that Respondent had committed an unlawful employment practice with respect to compensation, conditions and privileges of Petitioner's employment on the basis of Petitioner's race in violation of Sections 760.01-760.10, Florida Statutes.

Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

By answer dated July 25, 1990, Respondent denied all allegations of the Petition For Relief.

At the final hearing, Petitioner presented the testimony of one witness, herself, and nine evidentiary exhibits. Respondent presented the testimony of two witnesses and one evidentiary exhibit. Upon request of Respondent, official recognition is taken of the Final Order entered in Public Employees Relations Commission (PERC) Case No. CS-89-238, involving the parties to this action.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on December 5, 1990. Proposed findings of fact submitted by Respondent are addressed in the appendix of this recommended order. No proposed findings were timely filed by Petitioner and none had been received on her behalf at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years.

   
   

2. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau.

   
   

3. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau.

   
   

4. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis.

   
   

5. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade.

   
   

6. As established by the Final Order of the PERC Commission in Case No.

   CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest.

   
   

7. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau.

   
   

8. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female.

9. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects.

   
   

10. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger.

    
    

11. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head.

    
    

12. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989.

    
    

13. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date.

    
    

14. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision.

    
    

15. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes.

    
    

16. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.

    
    

18. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

19. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for Petitioner's termination. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason for termination is pretextual. School Board of Leon County v. Harris, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

20. In this case, Petitioner has not shown a prima facie case of employment discrimination. Further, as previously established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest.

    
    

21. Allegations of Petitioner that her subsequent demotion from the administrative assistant position to the technician position constituted discriminatory treatment on the basis of race are not supported by adequate proof in view of the race and sex of her replacement, a black female, and the fact that Petitioner's salary was not reduced.

    
    

22. Petitioner's argument that she was reassigned on the basis of her race is unpersuasive and unsupported by a preponderance of direct admissible evidence.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result.

49. Adopted by reference.

PETITIONER'S PROPOSED FINDINGS

None submitted.

COPIES FURNISHED:

Dana Baird, Esq..

Acting Executive Director

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Leatharine Leon

1751 Centerville Road

Tallahassee, FL 32317

Elsa Lopez Whitehurst, Esq.

P.O. Box 1489 Tallahassee, FL 32302

Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Docket for Case No: 90-004270

Orders for Case No: 90-004270