STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAROLYN A. WINSTON, )
)
Petitioner, )
)
vs. ) CASE NOS. 90-6599
) 90-7094
FLORIDA DEPARTMENT OF LOTTERY, ) 90-7096
)
Respondent. )
)
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 13, 14, and 15, 1991, in Orlando, Florida.
APPEARANCES
For Petitioner: Anthony Gomes, Esquire
Authorized Representative, c/o Carolyn A. Winston
515 Polaris Loop #101 Casselberry, Florida 32707
For Respondent: Louisa H. Warren, Esquire
Senior Attorney Florida Lottery Capitol Complex
Tallahassee, Florida 32399-4011
STATEMENT OF THE ISSUES
Petitioner, Carolyn A. Winston, alleges that Respondent, Department of the Lottery, has discriminated against her on account of her race in violation of Section 760.10, F.S. The issue for resolution is whether the violation occurred, and if so, what relief is appropriate.
PRELIMINARY STATEMENT
Petitioner's allegations of discrimination are found in three complaints filed with the Florida Commission on Human Relations (FCHR). The first, filed on May 1, 1989, alleges discrimination in the terms and conditions of her employment; the second, filed (amended) on August 22, 1989, alleges discrimination when Petitioner was placed on administrative leave; and the third, filed on October 12, 1989, alleges discrimination and retaliation when Petitioner was terminated from her employment with the Department of Lottery.
After determinations of "no cause" were entered by the FCHR, Ms. Winston filed petitions for relief, reiterating her allegations. The cases were referred to the Division of Administrative Hearings (DOAH) for formal hearing, and were consolidated in an order dated December 4, 1990.
At the commencement of hearing, upon Petitioner's request and in accordance with Rule 22I-6.008, F.A.C., Anthony Gomes was approved as a qualified representative. He has a law degree, is admitted to the Indiana bar, and has experience in administrative law in Florida as an elected member of the City of Jacksonville Civil Service Board.
Petitioner testified in her own behalf and presented the testimony of fourteen witnesses. Twenty-seven exhibits were offered. These were received at the hearing with the exception of exhibit #26, a memo, which was rejected for lack of relevance and authentication; and exhibit #22, handwritten notes, objected to as privileged notes taken by the attorney for Respondent. The objection to Petitioner's exhibit #22 has been withdrawn in Respondent's proposed recommended order, and this exhibit is now admitted into evidence.
Respondent presented testimony from five witnesses, and exhibits #1-46.
Exhibit #15 was withdrawn; the remaining exhibits were received.
A transcript was filed, and the parties submitted proposed recommended orders on March 20 and April 2, 1991. The parties' proposed findings of fact are addressed in the attached appendix.
On March 29, 1991, a brief hearing was conducted, by telephone, on Respondent's motion to strike a letter of settlement offer dated March 14, 1991, a copy of which was filed at DOAH by the author of the letter, Alcee L. Hastings, Esquire on behalf of Ms. Winston. The motion was granted without objection by Mr. Hastings.
FINDINGS OF FACT
Carolyn A. Winston, a black female, commenced her employment with the Florida Department of Lottery, a newly-created agency, on November 2, 1987.
An active participant in Republican and minority organizations, Mrs.
Winston was recruited by the agency after she submitted her resume for employment with the Martinez administration to Jeannie Austin, Chairperson of the Florida Republican Party.
At the time that she was recruited, Ms. Winston was employed by AT&T and had approximately 9 1/2 years experience with AT&T as a manager/systems analyst. She had a BA degree in business administration/marketing from Rollins College in Winter Park, Florida.
After an interview in Tallahassee, Carolyn Winston was hired by Michele Hayes, Director of Sales and Marketing, to be the Regional Manager for the Orlando Regional Office of the Lottery. Her salary, $41,300.00, was the maximum for the class.
During the summer and fall of 1987, the Lottery was in the process of hiring approximately 700 employees. January 12, 1988 was targeted as the first date of sale of tickets and all sales staff were to be hired by November 16, 1987.
Ms. Winston and the five other regional managers from offices in Orlando, Tallahassee, Jacksonville, St. Petersburg, Ft. Lauderdale, and Miami, reported directly to regional coordinators in the agency's Tallahassee headquarters. The general duties of the regional managers were to plan, organize and direct the sales activity of regional sales staff and district managers; to implement and interpret agency policies and procedures; and to protect the integrity of the Lottery.
Two district managers reported to Carolyn Winston: Deborah Burkett (Orlando District) and Mike Steiber (Melbourne District). They had been hired prior to Ms. Winston and were engaged in hiring their sales staff in early November. In other regions, where district managers were not in place, the regional manager hired sales staff until the district managers could take over.
There was no formal training established for regional or district managers when Ms. Winston was hired. She reported to work on her first day, November 2, 1987, in Tallahassee, where she met Dick Lepanen, the Regional Manager for Tallahassee, and Pam Allen, Regional Coordinator. She was given a limited briefing on her duties and a handbook describing the Lottery history and organization.
Formal training for all regional and district managers, including Ms.
Winston, was conducted in a three-day session in Tallahassee in November 10, 11 and 12, and again on November 30, 1987. The managers were given notebooks containing operational information and guidelines for performance of their duties.
Ms. Winston was concerned about hiring qualified minorities for new positions with the Lottery and was able to assist her district directors, through the organizations with which she was connected, to locate applicants. In at least one instance Mike Steiber hired such an applicant after contacting Ms. Winston with his difficulty in recruiting through the local job services
office. At the hearing Ms. Winston expressed pride at having the most qualified Lottery employees and more minorities than any other region.
Despite the urgent need to train new employees and to meet the start up deadline, Ms. Winston's management concerns were related to form, rather than substance. She told the district managers that she wanted to conduct regional training and spent several hours of that training in Orlando explaining her background and management style and introducing staff and having them explain their backgrounds and styles. She then insisted that they all go to lunch together, with the result that substantive training was delayed until mid- afternoon.
The sales representatives from the Melbourne office expressed concern to their manager, Dick Steiber, and requested additional training that evening back in their Melbourne office.
On another occasion, in December 1987, Ms. Winston sent a memo to the district managers, without prior discussion, placing her own clerical assistant in charge of all clerical operations for the region and districts and stating that the regional manager would be conducting "skip level" meetings with subordinate district staff.
On the afternoon before the first delivery of lottery tickets was due in the Melbourne district, Ms. Winston directed Mike Steiber to send his lead storekeeper to Orlando the next morning to observe how the Orlando tickets were laid out. He agreed this would be a good idea, but suggested that she come later as she needed to handle the ticket delivery. Ms. Winston insisted that she come as directed.
Shortly thereafter, Mike Steiber requested a personal meeting with Ms. Winston to discuss his concerns. She gave him an 8:00 a.m. appointment in Orlando. Mr. Steiber travelled from Melbourne but Ms. Winston did not appear; she called her office about 30 minutes later to say that she would be unable to meet. The meeting was rescheduled for the next day and the same thing happened. After the third day and third unsuccessful trip to Orlando, the meeting was delayed indefinitely.
In response to concerns expressed by Pam Allen, Regional Coordinator and Mrs. Winston's immediate supervisor, and by Deborah Burkett and Mike Steiber, Michelle Hayes asked Ms. Winston to come to Tallahassee to meet for a performance review.
Feeling uncomfortable, Ms. Winston called Lt. Governor Bobby Brantley and told him she was being harassed. He replied that she should go to the meeting and consider it an opportunity to tell her story. Nonetheless, she sought legal counsel and brought an attorney with her to the meeting.
Discussion of Ms. Winston's performance included failing to meet with the district managers to resolve problems at the regional level, presenting conflicting instructions, holding correspondence, lack of interest in learning agency operations, abbreviated work hours, and failing to leave forwarding phone numbers with support staff when absent during the workday.
Ms. Winston considered the issues raised at the meeting to be lies generated by Deborah Burkett, and she responded to the meeting with a 6-page memorandum to Michele Hayes dated January 27, 1988. She also addressed a letter to the Lt. Governor the same day, enclosing her memorandum and stating, in part:
* * *
The lies can never be forgiven, but can be corrected. I suggest you remove the liar from my organization, District Manager Deborah Burkett, via termination not just for me; [sic] but for the good of the Orlando Region and encourage my Director to support the chain of command.
* * * (Petitioner's Ex. #6)
Copies were sent to Gov. Martinez, Jeannie Austin and Luther Smith, Esquire.
Carolyn Winston viewed the meeting with her supervisor as an effort to get rid of her. She felt that both of her district managers were going over her head to get direction from Tallahassee or to report on her activity.
Friction between Ms. Winston and Ms. Burkett severely affected morale in the office, and the employees felt uncomfortable at being required to take sides. Ms. Burkett had an aggressive management style, but was considered by
her supervisors in Tallahassee to be very competent and knowledgeable about her job. Because she preceded Ms. Winston and had commenced hiring the staff on her own, some employees in the Orlando office perceived split loyalties. This was defined, in part, by race, as the black employees tended to "side" with Ms.
Winston.
Sometime in March 1988, Ms. Winston wrote to Secretary Paul requesting that Deborah Burkett be terminated for insubordination, stating that Ms. Burkett did not "respect the chain of command" and was unwilling to cooperate. (Respondent's Ex. #2) The request was denied, and Ms. Winston was offered a lateral transfer to a position in Tallahassee at no loss of pay. She declined.
At Secretary Paul's request, Dick Lepanen, who was promoted to Lottery Sales and Distribution Manager, and the Lottery Personnel Director, Sandra Koon, visited the Orlando office on April 7, 1988 to counsel the two managers. Both Ms. Winston and Ms. Burkett appeared at the meeting with notebooks full of documents to support charges or rebuttals of each other's management problems. The meeting became a contest on each issue. Ms. Koon and Mr. Lepanen told the women that they needed to work together and that a unified management team concept had to be presented to the subordinate staff. The meeting ended on a positive note of resolution to make the Orlando region the best in the state.
Ms. Koon's assessment of the problem was that both women were good managers and wanted to take control of the office.
Still, friction continued, and a decision was made to transfer Deborah Burkett to a district manager position in Ft. Myers. Dick Lepanen telephoned Carolyn Winston to inform her of the decision on May 6, 1988, with a follow-up confidential memorandum. He asked her to not discuss the matter with anyone, to allow Ms. Burkett a chance to talk with her staff, and he said he had already informed Jody Spicola, the regional manager who would be Ms. Burkett's new supervisor.
Jody Spicola called Ms. Winston on another matter the same day. Ms. Winston took the opportunity to discuss Ms. Burkett's work habits in unflattering and inflammatory terms, causing Mr. Spicola to call Mr. Lepanen to say that he was reconsidering his position on accepting Ms. Burkett in his region.
Dick Lepanen called Ms. Winston and asked if she discussed Deborah Burkett with Jody Spicola. She denied it, and continued to do so until Sandra Koon, Dick Lepanen and Jody Spicola arrived in the Orlando office several days later to confront her directly.
On May 16, 1988, Dick Lepanen issued Ms. Winston a written reprimand for insubordination, an infraction described in the Lottery personnel policies and procedures manual. Basis for the reprimand was her violation of the confidential information direction and her false denial.
Ms. Winston refused to sign the reprimand, countering with a two-page memorandum dated June 2, 1988, stating that she was being discriminated against, that Deborah Burkett's character was no secret and that Ms. Burkett had lied for months.
In the February 11-17, 1988, edition of the Daytona Times, a weekly newspaper addressing black readers, an article appeared with the headline, "Lottery Snubs Blacks". The article included a quote from Carolyn Winston,
identified as regional director of the Lottery office, stating that "...minority participation in Lottery sales is 'not as good as it should be'", and urging that potential vendors write to the retailer application department at the Lottery office in Tallahassee. (Petitioner's Ex. #10)
Secretary Paul addressed the regional managers and regional coordinators in a meeting on February 24, 1988, and made it clear that no one was to speak to the press about such matters except her and that further occurrences could result in termination.
Ms. Winston apologized to Secretary Paul, through Michele Hayes, and gave a copy of Michele Hayes' brief written reminder on unauthorized press comments to her district managers with this handwritten notation:
Please refer all press calls to Ed George. Any unauthorized comments to the press may well result in termination. Yes, she was serious. Will speak more on this at Wed's March 9th regional meeting.
Carolyn (Respondent's Ex. #4)
Ms. Winston took maternity leave from June through August 1988, but stayed in touch with the office. Mike Steiber was placed temporarily in her position, and later Jody Spicola was temporarily assigned to the Orlando region. Ms. Burkett's position was not filled, so the regional manager handled the Orlando district directly.
On December 14, 1988, Carolyn Winston received her annual performance evaluation from Dick Lepanen. Based on his personal observation of her responses to him and how she handled issues that he referred to her, he evaluated her as "exceeds at least one standard", on a scale that includes "below standards", "achieves standards", "exceeds at least one standard", "exceeds most standards", and "sustained superior performance". He evaluated all of the managers in the same manner, that is, based on individual characteristics rather than on ability to meet sales quotas or on management style.
Ms. Winston responded with a memorandum on her future goals and performance improvement plan which she asked to have appended to her evaluation. These goals included beginning her MBA, enrolling in workshops and seminars for advanced writers, and joining Toastmasters, as well as other general statements as to achieving "overall business objectives". (Respondent's Ex. #43)
In December 1988, in a meeting in Tallahassee, Carolyn Winston reported to Sandra Koon and Dick Lepanen that there was discrimination in the Orlando regional office in the form of sexual harassment and anti-semitic remarks made about employees. The person allegedly primarily responsible for the discrimination was Ron Broadway, the warehouse manager.
Ms. Winston was told that the behavior would not be tolerated by the department. She was given a video on sexual harassment to show at her normal weekly staff meeting and she was advised to have a frank discussion with the employees to let them know that sexual harassment was a serious concern. She was also counselled to meet individually with Mr. Broadway to assure that he understood that his comments and behavior would not be tolerated.
Ms. Winston showed the video and followed up on the counselling, but the sequence of events is confused by a series of memoranda authored by Ms. Winston and referring to actions she took to investigate the complaints and to meet with the offending employee. Throughout those memoranda she refers to "anti-semitic and sexual harassment remarks", yet attached to her memorandum dated December 20, 1988, to Dick Lepanen is a 3-page outline of statements made by employees, identified by initials as "A" through "F", who alleged hearing Ron Broadway make explicit and highly offensive racial remarks at work, at softball practice and while setting up a lottery display at a civic event. These remarks included the term, "nigger", and derogatory comments about a black employee's baby. (Respondent's Ex. #44)
Two memoranda from Carolyn Winston to Ron Broadway dated December 20, 1988, refer to an oral counselling session on December 12, 1988, regarding "anti- semitic and sexual harassment remarks". (Respondent's Ex. #5 and #6)
Curiously, a memo dated January 31, 1989, from Carolyn Winston to Dick Lepanen, states:
On January 30, 1989, I discussed and issued a copy of the December 20, 1988 memorandum entitled "Anti-Semitic and Sexual Harassment Remarks" to the employee Ron Broadway.
Hopefully the matter has been resolved. Thank you for your assistance.
(Respondent's Ex. #7) A copy was sent to Sandra Koon.
At some point Ms. Koon and Mr. Lepanen determined that the charges involved racial comments, not anti-semitic comments or sexual harassment. They interviewed employees in the Orlando office and Ron Broadway. Something regarding the issue was placed in Mr. Broadway's personnel file, although not the memoranda Ms. Winston had prepared, and he was transferred to the Gainesville office in May 1989.
Ms. Winston filed her first complaint of discrimination in May 1989, alleging that she was discriminated against in retaliation for reporting a white manager's "ethnic and sexual" remarks.
Also in May 1989, Sandra Koon was involved in investigatory allegations made by three employees who had filed EEOC suits against the Department when their work stations were moved to the back of the office. The Tallahassee office had received complaints in writing, and by telephone, of rude treatment of Lottery participants by the Orlando regional office, by employees sitting near the public counter and answering the telephone. Dick Lepanen directed these employees be moved from public contact after Ms. Winston was given an opportunity to resolve the problem with no success. Her assistant had investigated the complaints, but they continued.
These EEOC complaints were settled in July 1989, with a fact-finding conference at which the Department agreed that nothing would be placed in the employee's files, they would be considered for promotional opportunities and they would receive training in dealing with customers and other members of the public.
After the initial start-up of the Lottery in early 1988, employees began to learn their jobs and to perform more efficiently. By spring 1989, after the Department's administrative operating expenses were reduced by the Legislature, Secretary Paul decided to streamline the agency, particularly as it related to sales. Part of the decision involved reducing the number of regions from six to three, creating a northern, central and southern region.
The decision as to which of the six regional managers would be retained was based first on length of service in the class, and second on overall performance appraisals.
Two regional managers were hired in 1988 and they were clearly eliminated.
One regional manager, Jody Spicola, was hired October 21, 1987, and he was clearly retained. The remaining three managers, Carolyn Winston, Carlos Ribero and Edith Manning, were all hired effective November 2, 1987. Both Edith Manning and Carlos Ribero had annual performance appraisals in December 1988 of "exceeds most standards", one step above that of Ms. Winston.
In the reorganization, therefore, Ms. Winston was demoted to district manager of the Orlando office, reporting to Jody Spicola in the Tampa regional office. Because her salary exceeded the maximum for the new class, she received a reduction in pay of approximately $3,000.00. Even with the reduction, her salary exceeded that of the two other regional managers who were demoted, as they had been hired at a lower level. Edith Manning, a regional manager who was retained, had been hired at $28,000.00.
In the July 13-19, 1989 issue of the Daytona Times, Ms. Winston's photograph appeared on the front page with an article and headline, "Black Lottery Manager Claims Racial Bias". The article outlined Ms. Winston's allegations against the department with regard to herself, personally, but also included this statement:
* * *
One major issue raised by Winston, supported by other Blacks and minorities who play the lottery, had to do with the disproportionate ratio of Blacks winning the lottery when compared to the high rate of participation by Blacks, Hispanics and other minorities.
* * *
(Respondent's Ex. #9)
On July 18, 19 and 20, 1989, a three-part interview with Ms. Winston aired on Channel 6 Television in Orlando, on the evening news. The interview contained several statements that a person's color was the most important consideration of the Lottery and that the agency was racially biased.
On July 24, 1989, Ms. Winston was placed on administrative leave with pay in order to remove her from the office while the department assessed the impact of the publicity. She filed a second complaint with the Human Relations Commission.
Additional newspaper articles appeared in the Daytona Times and in the Orlando Sentinel with the racial bias allegations and the fact that Ms. Winston was placed on leave.
In a letter dated September 1, 1989, Michele Hayes notified Carolyn Winston that she was terminated effective 5:00 p.m. the same date, for the following reasons:
Disruptive behavior displayed during the course of your employment which resulted in low employee morale and had an adverse impact on the operations of the Orlando office;
Unsatisfactory work performance as a leader and manager of the Florida Lottery; and
Disloyalty in general to the Florida Lottery and executive level management.
(Respondent's Ex. #31)
Ms. Winston filed her third complaint with the Human Relations Commission after her termination.
Art Mobley, a black male was hired to replace Ms. Winston on December 1, 1989. He had originally been hired by Deborah Burkett, in November 1987, as a sales representative in the Orlando office. After several months he was promoted to an on-line coordinator in the on-line games unit in Tallahassee. When Ms. Winston's position was advertised he successfully applied and moved back to Orlando.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding pursuant to Section 120.57(1), F.S.
Respondent is an "employer", defined in subsection 760.02(6), F.S., as "...any person employing 15 or more employees for each working day in each of 20 or more calendar weeks...".
Subsection 760.10(1)(b), F.S., provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County
v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).
In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases.
Petitioner retains the burden of proof throughout the proceeding, although once a prima facia case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove that the reasons offered are not true, but rather a pretext for discrimination.
The prima facia case "...'raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'..." Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, supra.
From the outset of her employment, Carolyn Winston perceived that she was the victim of a conspiracy to cause her to fail because of her race. She was unable to prove that conspiracy. It was virtually uncontroverted that the atmosphere in the Orlando office was tense and unpleasant, but that was directly related to the intense competition between Ms. Winston and her immediate subordinate. When it became obvious that the conflict was not going to be resolved, the subordinate was removed.
It is also uncontroverted that crude and inappropriate racial remarks were made by another of Ms. Winston's employees. In spite of mixed and confusing communications from Ms. Winston to her supervisors regarding the nature of those comments, the problem was identified and the offending employee was transferred.
Ms. Winston also failed to prove that any personnel actions taken against her were in retaliation for her having filed discrimination complaints or engaging in some other protected activity. She went to the press not simply to advance her own personal cause, but to impugn the integrity of the Lottery, as reflected in the Daytona Times article. She was terminated in part for that, and not for filing a complaint with the Human Relations Commission, an appropriate forum established expressly to resolve complaints of discrimination.
Ms. Winston's prima facie case as to her termination also falls short:
She is a member of a protected class; was qualified for her position, at least at time of employment; and she was fired. However, she was replaced with another member of the same protected class.
Assuming that she had succeeded in making her prima facie case, the evidence reflected in the findings of fact above establish that the bases for her termination were legitimate and not mere pretext.
Based on the foregoing, it is hereby, RECOMMENDED:
That Carolyn Winston's petitions in these three consolidated cases be dismissed.
DONE AND RECOMMENDED this 23rd day of May, 1991, in Tallahassee, Leon County, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1991.
APPENDIX TO RECOMMENDED ORDER
The following constitute specific rulings on the findings of fact proposed by the parties.
Neither party complied with the requirement of Section 22I-6.031(3), F.A.C., that proposed findings of fact be supported by citations to the record. This has made the task of accepting or rejecting proposed findings virtually impossible.
Petitioner's Proposed Findings
Adopted in paragraphs 1 and 3.
Adopted in part in paragraph 5, otherwise rejected as unsupported by competent evidence.
3 - 5. Adopted in paragraph 5.
Adopted in paragraph 6.
Rejected as irrelevant or contrary to the weight of evidence, except for reference to the racial epithet, which is adopted in summary in paragraph 22.
8 - 10. Rejected as irrelevant or contrary to the weight of evidence.
Adopted in part in paragraph 11; the "insubordination" conclusion is unsupported by the record.
Rejected as statements of Ms. Winston's position rather than findings of fact. That she felt discrimination does not prove the fact of discrimination.
13 - 15. Rejected as summary of testimony rather than findings of fact.
16 - 17. Adopted in paragraph 17.
18 - 19. Adopted in paragraph 20, except for the conclusion that the process deviated from "formal evaluation standards."
20. Rejected as contrary to the weight of evidence.
21 - 22. Adopted in substance in paragraphs 21 and 22.
23 - 28. Rejected as summary of testimony rather than findings of fact.
29 - 36. Rejected as contrary to the evidence.
37. Rejected as irrelevant.
38 - 40. Rejected as contrary to the evidence.
Respondent's Proposed Findings
Adopted in paragraphs 1 and 5.
Adopted in paragraphs 5 and 26.
Adopted in paragraph 5.
Adopted in paragraph 6.
Adopted in paragraph 4.
Adopted in paragraph 5.
Adopted in paragraphs 8 - 10.
Adopted in paragraphs 11 and 12.
Adopted in paragraph 18.
10 - 11. Adopted in paragraphs 13 and 15.
Adopted in paragraphs 16-17.
Rejected as unnecessary.
Adopted in substance in paragraph 20.
Adopted in paragraph 21.
Adopted in paragraphs 22 and 23, except that the memorandum was removed from Mr. Broadway's file and was replaced by another.
Adopted in part in paragraph 23; otherwise rejected as immaterial.
Adopted in substance in paragraph 24.
19 - 20. Adopted in part in paragraph 23; otherwise rejected as unnecessary.
Adopted in summary in paragraph 24.
[no numbered paragraph 22.]
23. | Adopted in paragraphs 25 and 26. | |
24. | Rejected as unnecessary. | |
25 - | 26. | Adopted in part in paragraph 27. |
27. | Adopted in paragraph 28. | |
28. | Adopted in part in paragraph 29. | |
29. | Rejected as unnecessary. | |
30. | Adopted in paragraph 31. | |
31 - | 32. | Adopted in paragraphs 28 and 29. |
33 - | 40. | Rejected as argument, or unnecessary. |
COPIES FURNISHED:
Anthony Gomes, Esquire Authorized Representative c/o Carolyn A. Winston
515 Polaris Loop #101 Casselberry, FL 32707
Louisa H. Warren, Esquire Senior Attorney
Florida Lottery Capitol Complex
Tallahassee, FL 32399-4011
Dr. Marcia Mann, Secretary Department of Lottery
250 Marriot Drive Tallahassee, FL 32301
General Counsel Department of Lottery
250 Marriot Drive Tallahassee, FL 32301
Dana Baird, General Counsel
Fla. Commission on Human Relations
325 John Knox Road Bldg. F, Suite 240
Tallahassee, FL 32399-1570
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
CAROLYN WINSTON, EEOC Case Nos. 15D900581 15D900581
Petitioner, 15D890454
FCHR Case Nos. 89-4877
89-7920
FLORIDA DEPARTMENT OF THE 89-9625
LOTTERY, DOAH Case Nos. 90-6599 90-7094
Respondent. 90-7096
/ FCHR Order No. 90-036
FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL
EMPLOYMENT PRACTICE
Preliminary Matters
Petitioner Carolyn Winston filed three complaints of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1989). Petitioner alleged Respondent Florida Department of the Lottery unlawfully discriminated against her on the bases of race (black) and retaliation.
The allegations of discrimination set forth in the complaints were investigated. On September 5, 1990, the Interim Executive Director found no reasonable cause to believe unlawful employment practices had occurred.
On October 9, 1990, Petitioner filed three Petitions for Relief from Unlawful Employment Practices, requesting that formal proceedings be conducted on the claims. The petitions were referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(l). The cases were consolidated at DOAH and on May 23, 1991, DOAH Hearing Officer Mary Clark entered a Recommended Order of dismissal.
Public deliberations were held on September 26, 1991, in Orlando, Florida before this panel of Commissioners
Exceptions to the Recommended Order
Respondent entered the following exceptions to the Recommended Order:
Exception is taken to the statement in Finding of Fact 5 that regional managers report directly to regional coordinators in the Lottery Department's Tallahassee headquarters.
Exception is taken to the statement i Finding of Fact 11 that Pam Allen was Carolyn Winston's immediate supervisor.
Exception is taken to the statement in Finding of Fact 15 that Dick Lepanen was promoted to Sales and Distribution Manager.
Exception is taken to the statement in Finding of Fact 23 that the memorandum Ms. Winston had prepared was not placed in employee Ron Broadway's personnel file.
Exception is taken to the hearing officer's rejection of paragraphs 33-40 in Respondent's Proposed Recommended Order.
Although Respondent's exceptions appear to be strictly "housekeeping", exceptions 1-4 are granted as the hearing officer's findings are not supported by competent substantial evidence (Dee transcript pages 211, 472, 646 and 666) 1/
Regarding Respondent's exceptions to the hearing offier's failure to include paragraphs 33-40 in her Recommended Order, the Panel finds that the hearing officer did not commit error by failing to make such findings. It is the hearing officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent substantial evidence by resolving conflicts, judging the credibility of' witnesses and drawing permissible inferences therefrom. If the evidence presented supports
two inconsistent findings, it is the hearing officer's role to decide between them. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957). As such, Petitioner's fifth exception is denied.
Findings of Fact
We have considered the hearing officer's Findings of Fact and are mindful of the record in this cause. Except as previously discussed herein, the hearing officer's findings are supported by competent substantial evidence and are hereby adopted. Section 120.57(l)(b)10, Fla. Stat. (1989).
Conclusions of Law
Except as previously discussed herein, we agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions.
Dismissal
The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.
The parties have the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110(b) (c).
DONE AND ORDERED this 24 day of October 1991. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Whitfield Jenkins, Panel Chairperson;
Commissioner Marc Curtis Little, Commissioner Stella M. Lewis.
FILED this 29 day of October 1991 in Tallahassee, Florida.
Margaret A. Jones
Clerk of the Commission
ENDNOTE
1/ At the deliberations, Petitioner requested that the Panel find that there were two memoranda prepared and also that it was the second memo that was placed in Ron Broadway's file while the first memo was not. Respondent agreed and the Panel now so finds.
Copies Furnished:
Carolyn Winston, Petitioner
Louisa H. Warren, Attorney for Respondent Mary Clark, DOAH Hearing Officer
Danica W. Parker, Legal Advisor for Commission Panel
| Issue Date | Proceedings |
|---|---|
| May 23, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1991 | Agency Final Order | |
| May 23, 1991 | Recommended Order | Employee fired for good cause-not race discrimination or unlawful retaliation |
