STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HATTIE R. MATTHEWS, )

)

)

Petitioner, )

)

vs. ) CASE NO. 90-7298

) ALACHUA COUNTY BOARD OF COUNTY ) COMMISSIONERS/DEPARTMENT OF ) CORRECTIONS, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 4-5, 1992 in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Bruce M. Smith, Esquire

Post Office Box 450 Gainesville, Florida 32602

FOR RESPONDENT: Mary Marshall, Esquire

and

Robert C. Ott, Esquire Post Office Box 2877

Gainesville, Florida 32602-2877 STATEMENT OF THE ISSUES

The parties have stipulated that the sole issue herein is whether or not Petitioner was discriminated against on the basis of her sex by being required to work sixteen-hour shifts and weekends. (See, HO Exhibit A).

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Ida Rawls-Reynolds and Warren A. McCluney and testified on her own behalf. She had 12 exhibits admitted in evidence.

Respondent presented the oral testimony of Charles Scott Simmons, Betty A. Ervin, and James Santangelo, and had six exhibits admitted in evidence.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix hereto, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Petitioner is a black female. She was employed by Respondent Alachua County from April 20, 1984 to August 30, 1989, in the Metamorphosis Program as a Drug Counselor I.

   
   

2. At all times material, the Metamorphosis Program was a seven day a week, 24-hour per day residential drug treatment program which provided treatment and counseling for male and female adults. Organizationally, it is now under Respondent's Criminal Justice Services Department f/k/a the Department of Corrections.

   
   

3. The employees at the Metamorphosis Program consisted of, in descending rank, the Program Supervisor, a Program Coordinator, two Drug Counselor II's, two Drug Counselor I's, and two Drug Counselor Aides. Briefly, at some point in time, there was also a Case Worker position which was "lost" for lack of funding.

   
   

4. From 1984 to 1986, James Whitaker, a male, directly supervised Petitioner. From 1986 to 1988, Tootey Richey, a female, supervised her. The remainder of her employment, Petitioner was again supervised by James Whitaker.

   
   

5. Robin Robinette, a male, was a Drug Counselor Aide from 1984 to 1988. From 1988 on, the only other Drug Counselor I besides Petitioner was Robin Robinette. Another female Drug Counselor I was employed before that. There were also four female Drug Counselor Aides (Duncan, Johnson, Spence, and Goodman) who worked at various times from 1985 to 1989. There were two females (Hague and Richey) in different supervisory positions at various times from 1985 to 1988.

   
   

6. Petitioner testified that "generally" and "quite often" during the whole of her employment with Metamorphosis from 1984 to 1989 she was required to work weekends and a lot of midnight to 8 a.m. shifts and 16 hour shifts and that her male counterparts were not required to do so. Petitioner thought that sometimes she had only four hours off between two eight hour shifts. However, Petitioner's testimony with respect to her hours of work was vague and indefinite. For instance, Petitioner did not know the hours or days of the week she worked in 1984, except that she often worked more than 40 hours per week without being paid overtime. She also maintained that she had no steady or specifically assigned work hours in any week and never had an identical work week. She felt that in 1985 she had worked Saturday noon to midnight (which is

   12 hours) or eight a.m. until four p.m. (8 hours) or midnight to eight a.m. (8 hours) some days; that in 1986 she worked mostly Saturdays and worked some Sundays "as needed," but not half of all the Sundays in that year; that in 1987, she generally worked Monday through Saturday, not Sundays. For all of 1988, she would only state, "I cannot be specific on those dates and times."

   
   

7. Mr. Warren McCluney testified on Petitioner's behalf to the effect that while he had been employed as a Drug Counselor Aide at Metamorphosis between August 1986 and May 1988, Petitioner was the only Metamorphosis employee who was required to work a sixteen hour shift. He based his testimony in part on having heard Petitioner's oral complaints to supervisors in weekly staff meetings, read her requests for schedule readjustments in the program log books wherein all events of each shift were supposed to be recorded, and, he said, having relieved as many as three different white males who had had to split up Petitioner's

   sixteen hour shift when she was unable to come in on a weekend due to illness. Since he, a male employee, was never required to work a 16 hour shift, Mr.

   McCluney viewed Petitioner's schedule as discriminatory to her as a female.

   
   

8. Mr. McCluney conceded that he was hired to work only 30 hours a week in the first place.

   
   

9. Mr. McCluney's explanation of how he knew Petitioner regularly worked sixteen hour shifts or that three males often split up her sixteen hour shifts was vague and/or unconvincing.

   
   

10. Giving Mr. McCluney every benefit of the doubt and reconciling the contradictory portions of his testimony as much as possible, he relieved Petitioner at the Thursday p.m./Friday a.m. midnight shift change and at the Friday p.m./Saturday a.m. midnight shift change, and he thought that Petitioner was working some Saturdays from noon to midnight, which is actually 12 hours, not the 16 hours to which he testified. He thought she worked noon to midnight Saturdays, because Petitioner relieved him some Saturdays at noon and he knew she worked until the Saturday p.m./Sunday a.m. midnight shift change. None of these shifts, as described by Mr. McCluney, totalled over 12 hours. However, he also testified that when Petitioner did not come in at noon Saturday, he had to call for backup. Therefore, it would appear that any knowledge Mr. McCluney had about how Petitioner's subsequent shift was finally divided up in her absence depended on the logs he saw or something he had been told when he came back on duty several days later since he did not relieve Petitioner at the Saturday p.m./Sunday a.m. midnight shift change. Mr. McCluney admittedly relieved only one person each shift change.

    
    

11. The pass logs in evidence do not substantiate either Petitioner's or Mr. McCluney's testimony that Petitioner ever consistently worked sixteen hour shifts except on an emergency, "as needed," or rotational basis. See infra. All credible evidence shows that at least after February 8, 1988, Petitioner regularly worked approximately 4:00 p.m. Thursday to midnight, approximately 4:00 p.m. Friday to midnight, and then, after 12 hours off duty, she worked

    approximately noon Saturday to midnight, when she was relieved by Jaime Goodman. This schedule was part of a formal plan which went into effect February 8, 1988 and which is described in greater detail, infra.

    
    

12. Although characterizing the number of times Petitioner was called in on an "as needed" or "emergency basis" as an "excessive" amount over her male counterparts, Mr. McCluney was not able to specify when Petitioner was called in with any degree of accuracy. Again, giving him the benefit of the doubt, Mr. McCluney apparently meant that Petitioner was often called in "early" to cover the three or four hour period from Saturday noon to 3:00 p.m. or Saturday noon to 4:00 p.m., since he admittedly thought Petitioner's regular sign-in time was 3:00 or 4:00 p.m. Saturdays as well as on Fridays. However, he also had no way to judge how often this occurred. Mr. McCluney could also have been confused by an occasional rotational 16 hour shift spanning some Tuesdays and Wednesdays which was part of the formal plan (see infra.), but if so, he never made that clear.

    
    

13. Also, Mr. McCluney had been terminated by Respondent from his Drug Counselor Aide position for alleged misconduct. His candor and demeanor while testifying bespoke of considerable bias against his former superiors. For this, and for all the foregoing reasons, his testimony is not fully credible or convincing.

14. James Santangelo, a male, is currently Metamorphosis Program Coordinator. He assumed that position in September 1988. He was previously employed at Metamorphosis as a Drug Counselor II from 1985 to 1988. According to his testimony, prior to a reworking of the work hours schedule in early 1988 by Mr. Scott Simmons, no one's schedule regularly required working sixteen hour shifts. However, given the nature of the Metamorphosis program, which required staff coverage on a round-the-clock basis, every Metamorphosis employee, including but not limited to Petitioner and Mr. Santangelo, had been required to work some sixteen hour shifts in emergency situations or when another employee called in sick or was on pre-approved vacation. From 1985 to 1988, the schedule was done in a "helter-skelter manner at best" and all job classifications of employees worked interchangeably, with the big problem being weekends, which were "hit or miss." Although Mr. Santangelo "assumed that they [supervisors] tried to inconvenience everybody equally," employees who answered their phones on weekends were usually the ones required to fill in for emergencies. Mr. Santangelo also conceded that prior to 1988, people who had a regular shift of 4:00 p.m. to midnight might have had to stay an additional eight hours (totalling 16 hours on duty at a stretch) more frequently than employees in other shifts if a replacement could not be reached in an emergency or when someone was on vacation.

    
    

15. Mr. Santangelo recalled one three day period in 1988 when he had had to cover for Petitioner when she called in sick and many similar situations before 1988 when he had been called in to "cover" for her, although he, also, was vague on when those occasions occurred. Mr. Santangelo felt that Petitioner's outside activities, including child care and illness, scrambled the work schedule more, both before and after the 1988 schedule change, than did the outside activities of any other employee. However, he was not specifically familiar with Petitioner's schedule prior to the 1988 change by Mr. Simmons.

    
    

16. Charles Scott Simmons, a male, has had continuous supervisory oversight of Metamorphosis since August 1987. When Mr. Simmons came on board, he noted that the chain of command was cumbersome, redundant, and "messy". The work schedules of employees were also "messy." At that time, all employees reported directly to the Program Coordinator which resulted in supervision problems. To provide better supervision of employees by their direct supervisors and better interaction between employees and supervisors, Mr. Simmons implemented a new work schedule.

    
    

17. The new schedule provided for the two Drug Counselor I's to report to a Drug Counselor II and the two Drug Counselor Aides to report to the other Drug Counselor II. The individual employee work hours were scheduled to implement the reporting system. The new schedule allowed supervisors and those supervised to have regular interaction and the opportunity for supervision and input. It was also equitable in that the two Drug Counselor Aides split the weekend up evenly and the Drug Counselor I's split the week up evenly. The intent was to make mirror images of similar employees' schedules. One weekend out of every month someone would have to wear a beeper and be "on call" to go in to "cover" whatever emergency came up. Otherwise, no one was tied to the phone or likely to get haphazardly tapped for extra duty hours on the weekends.

    
    

18. The new work hours schedule was not implemented until after all employees had had an opportunity for input. Petitioner's written input or feedback came late (December 29 instead of December 21, 1987) on Mr. Simmons' proposed time line for discussion at the December 22, 1987 staff meeting. Petitioner's proposed alternative schedule allowed for some sixteen hour shifts, but it did not permit all employees to work regularly scheduled hours. It

    lacked clarity and was not "holistic" in that it had some full-time employees working more than 40 hours per week and other full-time employees working less than 40 hours per week, and it did not accommodate the weekly staff meetings which were central to Metamorphosis' therapeutic program. Therefore, all of Petitioner's suggestions were not included in the final schedule. However, the final standard work hours schedule did adopt Petitioner's request not to work Sundays on a regular basis due to her church activities.

    
    

19. The new standard work hours schedule was finally implemented only after posting, feedback, finalization of schedule, re-posting, and one month preparation time to allow employees to change around their personal affairs to accommodate the new schedule.

    
    

20. The new schedule became effective on February 8, 1988 and continued in effect the remainder of the time that Petitioner was employed with Metamorphosis, except for some minor fine tuning of a half hour here or there, which is immaterial here.

21. Under the new work schedules, Petitioner's work hours were: Thursday 4:00 p.m. to 12:30 a.m. (midnight)

    Friday 4:00 p.m. to 12:30 a.m. (midnight) Saturday 12:30 p.m. (daylight) to 12:30 a.m. (midnight)

    
    

22. Under the new work schedule, on Wednesday, Petitioner, who was the female Drug Counselor I, rotated on a quarterly basis with Robin Robinette, the male Drug Counselor I, the hours of 12:30 a.m. (midnight) to 8:00 a.m. OR 4:00

    p.m. to 12:30 a.m. (midnight). [See Findings of Fact 25-29].

    
    

23. Under the new work schedule, Petitioner also was required to attend a staff meeting on Tuesday from 3:00 p.m. to 7:00 p.m. The staff meeting was mandatory for all Metamorphosis staff members.

    
    

24. Under the new work schedule, Petitioner had Sunday and Monday off.

25. Under the new work schedule, Robin Robinette's work hours were: Monday 4:00 p.m. to 12:30 a.m. (midnight)

    Tuesday 4:00 p.m. to 12:30 a.m. (midnight)

    Sunday 12:30 p.m. (daylight) to 12:30 a.m. (midnight)

    
    

26. Like all employees, Mr. Robinette was also required to attend the mandatory staff meeting from 3:00 p.m. to 7:00 p.m. Tuesdays.

    
    

27. Under the new work schedule on Wednesday, Mr. Robinette would rotate quarterly with Petitioner by working either the 12:30 a.m. (midnight) to 8:00

    a.m. shift OR the 4:00 p.m. to 12:30 a.m. (midnight) shift.

    
    

28. The midnight shift on Wednesday morning was an "odd duck" because Mr. Simmons was trying to split seven 24 hour periods equally between two people in each job description. The result was that when the quarterly rotation occurred, there would be a sixteen hour shift. This worked out to someone working Tuesday 4:00 p.m. to 12:30 a.m. (midnight) and then Wednesday 12:30 a.m.(midnight) to 8:00 a.m.

29. Mr. Simmons testified at one point that he never intended Petitioner to draw that quarterly sixteen hour shift on Wednesday (12:30 a.m. to 8:00 a.m.) following a Tuesday shift of 4:00 p.m. to 12:30 a.m. and that as he planned it, that should not have happened. However, his testimony is confused or contradictory on this issue in some places and some exhibits suggest that Petitioner did have to pull this sixteen hour shift, alternating with Mr. Robinette. Nonetheless, this discrepancy is largely irrelevant because either Petitioner (a female) did not regularly pull this "odd duck" shift or she pulled it no more frequently than did her male counterpart, Robin Robinette, the other Drug Counselor I. The fact that Drug Counselor Aides below her job classification and Drug Counselor II's above her job classification did not pull the same or similar shifts is immaterial because they were not similar male employees, that is, they were not her "job counterparts".

    
    

30. Respondent's witnesses testified credibly that on an "as needed" basis or "in an emergency," all employees, regardless of gender or job classification, had undoubtedly been required to pull some 16 hour shifts even after the new work schedule went into effect in 1988, but that these were rare occasions such as when another employee called in sick. Because Drug Counselor I's and II's were "exempt" (or salaried) positions, these positions, whether occupied by a male or a female, never drew overtime pay. Therefore, neither Petitioner nor her male counterpart, Mr. Robinette, nor any of their superiors, drew any overtime pay, ever. Also, every possible arrangement was utilized to avoid calling in those employees who were not exempt, such as Mr. McCluney, because if such employees were worked overtime, they would have to be paid overtime. All concerned, including Mr. McCluney, concur that Mr. McCluney was only scheduled for, and only actually worked, 30 hours per week.

    
    

31. Petitioner's claim herein was limited to the allegation that she was discriminated against by consistently having to work sixteen hour shifts and work on weekends when no similar male employee did so, but Petitioner and Mr. McCluney also advanced considerable information to the effect that Petitioner was frequently denied requests for sick leave for herself or her children's special care, that she was treated rudely on these occasions, and that she was derided by supervisors when she reiterated her requests and complaints in writing in the pass logs and orally in staff meetings. In response, Respondent submitted evidence of Petitioner's sick leave usage, showing that she used

    334.50 hours of sick leave for the period of January 26, 1988 to March 21, 1989. This amounted to Petitioner using twice as much sick leave as the next highest user in the Division. If anything, this evidence confirmed Mr. Santangelo's testimony that some employees had to work extra hours outside their standard work schedules to accommodate Petitioner's frequent absences, at least during that period of time. Although the format of this evidence does not readily convert into which genders and job classifications took up the slack for Petitioner or how long their shifts were, it may be reasonably inferred that Petitioner was reciprocally accommodated by others working extra hours at least as much as she accommodated them during that period of time.

    
    

32. While there is some evidence that Petitioner was subjected to a requirement of submitting doctors' excuses in some situations when other employees were not, this appears to have been a function of haphazard on-site management and on-going personality conflicts within the organization, not the result of any sexual bias. In fact, when Petitioner complained to the Respondent's internal Equal Employment Opportunity Office and upper management was made aware of the situation, efforts were made to adjust the problem. However, this also was not an issue under the terms of this case.

33. Both Petitioner and Mr. McCluney testified that their male supervisors and Robin Robinette abused sick leave and vacation time. Their testimony was so vague as to have proven nothing, but it was also irrelevant to the narrow issue of this cause--whether or not excessive weekend shifts and excessive work hours were imposed on Petitioner because of sexual discrimination.

    
    

34. It was, however, established that, having obtained prior approval from his superiors, Mr. Santangelo was permitted to take off time to teach a 2:00 to 3:00 p.m. class at Santa Fe Community College each Monday through Friday in 1986 and was further permitted to make up the work time. It was also established that Mr. Santangelo was allowed to come in late and work late to make up about fifteen minutes he missed each of his regularly scheduled work days by arriving late from teaching an 8:00 to 9:00 a.m. class Mondays through Fridays during 1987 and 1988. This does demonstrate some minor disruption of the work schedule by a male supervisor, but it falls short of establishing any disparate treatment between Petitioner and her male employee counterpart or any disparity of treatment of Petitioner by causing or requiring Petitioner to work extra hours or different hours on the weekend due to her sex.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

36. Under the provisions of Section 760.10(1)(a), F.S. it is an unlawful employment practice for an employer:

    
    

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with

    respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. [Emphasis supplied]

    
    

37. The United States Supreme Court set forth the procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411

    U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. The preeminent case at the present time in Florida is Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).

    
    

38. When an individual alleges she has been subjected to "disparate treatment," on account of sex, which is the sole claim here, (see the prehearing stipulation, HO Exhibit A; and P-1, a 2/9/89 internal investigation of discrimination report) the standards of proof require that the Petitioner show the existence of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." See, McCosh v. City of Grand Forks, 628 F.2d 1058 (8th Cir. 1980), and Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L. Ed. 2d 957 (1978), citing

    Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L. Ed. 2d

    396 (1977). Once a Petitioner establishes this prima facie case, the burden shifts to the employer to rebut the adverse inference by articulating "some legitimate nondiscriminatory reason for the employee's rejection." See, McCosh

    v. City of Grand Forks and McDonnell Douglas Corp. v. Green, both supra. But even if the employer meets this burden, the complaining party is given the opportunity to show that the proffered evidence is merely a pretext for discrimination, Id. at 804-05, 93 S. Ct. at 1025. See, generally, Kirby v. Colony Furniture Co., 613 F. 2d 696 (8th Cir. 1980)

    
    

39. Petitioner has not met her initial burden.

    
    

40. Petitioner's evidence in support of her claim of disparate treatment for the period prior to Mr. Simmons' rescheduling everyone's work hours in 1988 is so vague as to fail to establish a prima facie case. Mr. Santangelo's testimony was sufficient to establish that prior to 1988, people on the 4:00

    p.m. to midnight shift, regardless of job classification, might have had to stay an extra eight hours more frequently than other employees on other shifts, but there was insufficient evidence to securely place Petitioner on that shift during that period of time or to show that males were not also treated similarly or were not placed on those shifts. Even if Petitioner had been shown to be on that shift part of the week, the frequency with which she was asked to "hold over" or "come in early" was not based on her sex but was a function of when an emergency or vacation occurred in relation to her shift.

    
    

41. Assuming, arguendo, that Petitioner's and Mr. McCluney's testimony established that she worked some 16 hour shifts when Mr. McCluney was employed between August 1986 and May 1988, it has not been established that those 16 hour shifts were required of Petitioner any more frequently than of her male counterpart, that Petitioner was singled out for such shifts, or that either the new formal regular work schedule or the informal "as needed" or "emergency" work schedules in that period of time were motivated by gender discrimination. Moreover, Petitioner was clearly absent a lot of the time from January 26, 1988 to March 21, 1989, only a portion of which time Mr. McCluney was employed at Metamorphosis. Petitioner's absences contributed to irregularities of all scheduling during that period of time. Although Petitioner's theory of the case seems to be based in part upon her belief that all job classifications constituted her job description counterparts, that was never clearly the case. Certainly, after 1988, her only job classification counterpart was the male Drug Counselor I, Robin Robinette, whose week day, week end, and number of work hours were a mirror image of her own.

    
    

42. There is a modicum of evidence to show that both before and after formalization of the new work schedule in early 1988, Mr. Santangelo, an administrative and/or supervisory male did sign out early and come in late due to another job and that adjustments of the formal schedule were made for him. There is also evidence that other people who had emergency situations were accommodated informally even after posting of the formal schedule each week. However, this evidence falls short of establishing any patterned discrimination against females or against Petitioner for being female. The evidence also provides no nexus between Mr. Santangelo's job accommodation and Petitioner's schedule.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order that the Petition be dismissed.

DONE and ENTERED this 24 day of July, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 24_ day of July, 1992.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7298

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

1-3, 8-10 Accepted except for subordinate, unnecessary, or cumulative material

4-5, 11-13, Accepted as modified for clarity, to more

15 closely conform to the record and to address the issues raised herein.

76 [sic], 7, Accepted in substance, but modified for greater

14 accuracy and to eliminate legal argument.

Respondent's PFOF:

Respondent waived filing posthearing proposals.

COPIES FURNISHED:

Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602

Mary Marshall, Esquire

Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

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 consult with 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HATTIE R. MATTHEWS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7298

) ALACHUA COUNTY BOARD OF COUNTY ) COMMISSIONERS/DEPARTMENT OF ) CORRECTIONS, )

)

Respondents. )

)

CORRECTED RECOMMENDED ORDER

This cause came on for a corrected recommended order pursuant to Rule 22I-6.032, Florida Administrative Code.

Upon due notice, this cause came on for formal hearing

on February 4-5, 1992 in Gainesville, Florida, before Ella Jane

P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce M. Smith, Esquire

Post Office Box 450 Gainesville, Florida 32602

For Respondent: Mary Marshall, Esquire

and

Robert C. Ott, Esquire Post Office Box 2877

Gainesville, Florida 32602-2877 STATEMENT OF THE ISSUES

The parties have stipulated that the sole issue herein is whether or not Petitioner was discriminated against on the

basis of her sex by being required to work sixteen-hour shifts and weekends. (See, HO Exhibit A).

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Ida Rawls- Reynolds and Warren A. McCluney and testified on her own behalf. She had 12 exhibits admitted in evidence.

Respondent presented the oral testimony of Charles

Scott Simmons, Betty A. Ervin, and James Santangelo, and had six exhibits admitted in evidence.

A transcript was filed in due course, and all timely- filed proposed findings of fact have been ruled upon in the appendix hereto, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Petitioner is a black female. She was employed by Respondent Alachua County from April 20, 1984 to August 30, 1989, in the Metamorphosis Program as a Drug Counselor I.

   
   

2. At all times material, the Metamorphosis Program was a seven day a week, 24-hour per day residential drug

   treatment program which provided treatment and counseling for male and female adults. Organizationally, it is now under Respondent's Criminal Justice Services Department f/k/a the Department of Corrections.

   
   

3. The employees at the Metamorphosis Program consisted of, in descending rank, the Program Supervisor, a

   Program Coordinator, two Drug Counselor II's, two Drug Counselor I's, and two Drug Counselor Aides. Briefly, at some point in time, there was also a Case Worker position which was "lost" for lack of funding.

   
   

4. From 1984 to 1986, James Whitaker, a male, directly supervised Petitioner. From 1986 to 1988, Tootey Richey, a female, supervised her. The remainder of her employment, Petitioner was again supervised by James Whitaker.

   
   

5. Robin Robinette, a male, was a Drug Counselor Aide

   from 1984 to 1988. From 1988 on, the only other Drug Counselor I besides Petitioner was Robin Robinette. Another female Drug Counselor I was employed before that. There were also four female Drug Counselor Aides (Duncan, Johnson, Spence, and Goodman) who worked at various times from 1985 to 1989. There were two females (Hague and Richey) in different supervisory positions at various times from 1985 to 1988.

   
   

6. Petitioner testified that "generally" and "quite

   often" during the whole of her employment with Metamorphosis from 1984 to 1989 she was required to work weekends and a lot of midnight to 8 a.m. shifts and 16 hour shifts and that her male counterparts were not required to do so. Petitioner thought that sometimes she had only four hours off between two eight hour shifts. However, Petitioner's testimony with respect to her hours of work was vague and indefinite. For instance, Petitioner did not know the hours or days of the week she worked in 1984, except that she often worked more than 40 hours per week without being paid overtime. She also maintained that she had no steady or specifically assigned work hours in any week and never had an identical work week. She felt that in 1985 she had worked Saturday noon to midnight (which is 12 hours) or eight a.m. until four p.m. (8 hours) or midnight to eight a.m. (8 hours) some days; that in 1986 she worked mostly Saturdays and worked some Sundays "as needed," but not half of all the Sundays in that

   year; that in 1987, she generally worked Monday through Saturday, not Sundays. For all of 1988, she would only state, "I cannot be specific on those dates and times."

   
   

7. Mr. Warren McCluney testified on Petitioner's

   behalf to the effect that while he had been employed as a Drug Counselor Aide at Metamorphosis between August 1986 and May 1988, Petitioner was the only Metamorphosis employee who was required to work a sixteen hour shift. He based his testimony in part on having heard Petitioner's oral complaints to supervisors in weekly staff meetings, read her requests for schedule readjustments in the program log books wherein all events of each shift were supposed to be recorded, and, he said, having relieved as many as three different white males who had had to split up Petitioner's sixteen hour shift when she was unable to come in on a weekend due to illness. Since he, a male employee, was never required to work a 16 hour shift, Mr. McCluney viewed Petitioner's schedule as discriminatory to her as a female.

   
   

8. Mr. McCluney conceded that he was hired to work only 30 hours a week in the first place.

   
   

9. Mr. McCluney's explanation of how he knew

   Petitioner regularly worked sixteen hour shifts or that three males often split up her sixteen hour shifts was vague and/or unconvincing.

   
   

10. Giving Mr. McCluney every benefit of the doubt and reconciling the contradictory portions of his testimony as much as possible, he relieved Petitioner at the Thursday p.m./Friday

    a.m. midnight shift change and at the Friday p.m./Saturday a.m. midnight shift change, and he thought that Petitioner was working some Saturdays from noon to midnight, which is actually 12 hours, not the 16 hours to which he testified. He thought she worked noon to midnight Saturdays, because Petitioner relieved him some Saturdays at noon and he knew she worked until the Saturday p.m./Sunday a.m. midnight shift change. None of these shifts, as described by Mr. McCluney, totalled over 12 hours. However, he also testified that when Petitioner did not come in at noon Saturday, he had to call for backup. Therefore, it would appear that any knowledge Mr. McCluney had about how Petitioner's subsequent shift was finally divided up in her absence depended on the logs he saw or something he had been told when he came back on duty several days later since he did not relieve Petitioner at the Saturday p.m./Sunday a.m. midnight shift change. Mr. McCluney admittedly relieved only one person each shift change.

    
    

11. The pass logs in evidence do not substantiate

    either Petitioner's or Mr. McCluney's testimony that Petitioner ever consistently worked sixteen hour shifts except on an emergency, "as needed," or rotational basis. See infra. All credible evidence shows that at least after February 8, 1988, Petitioner regularly worked approximately 4:00 p.m. Thursday to midnight, approximately 4:00 p.m. Friday to midnight, and then, after 12 hours off duty, she worked approximately noon Saturday

    to midnight, when she was relieved by Jaime Goodman. This schedule was part of a formal plan which went into effect February 8, 1988 and which is described in greater detail, infra.

    
    

12. Although characterizing the number of times

    Petitioner was called in on an "as needed" or "emergency basis" as an "excessive" amount over her male counterparts, Mr. McCluney was not able to specify when Petitioner was called in with any degree of accuracy. Again, giving him the benefit of the doubt, Mr. McCluney apparently meant that Petitioner was often called in "early" to cover the three or four hour period from Saturday noon to 3:00 p.m. or Saturday noon to 4:00 p.m., since he admittedly thought Petitioner's regular sign-in time was 3:00 or 4:00 p.m.

    Saturdays as well as on Fridays. However, he also had no way to judge how often this occurred. Mr. McCluney could also have been confused by an occasional rotational 16 hour shift spanning some Tuesdays and Wednesdays which was part of the formal plan (see infra.), but if so, he never made that clear.

    
    

13. Also, Mr. McCluney had been terminated by Respondent from his Drug Counselor Aide position for alleged

    misconduct. His candor and demeanor while testifying bespoke of considerable bias against his former superiors. For this, and for all the foregoing reasons, his testimony is not fully credible or convincing.

    
    

14. James Santangelo, a male, is currently

    Metamorphosis Program Coordinator. He assumed that position in September 1988. He was previously employed at Metamorphosis as a Drug Counselor II from 1985 to 1988. According to his testimony, prior to a reworking of the work hours schedule in early 1988 by Mr. Scott Simmons, no one's schedule regularly required working sixteen hour shifts. However, given the nature of the Metamorphosis program, which required staff coverage on a round- the-clock basis, every Metamorphosis employee, including but not limited to Petitioner and Mr. Santangelo, had been required to work some sixteen hour shifts in emergency situations or when another employee called in sick or was on pre-approved vacation. From 1985 to 1988, the schedule was done in a "helter-skelter manner at best" and all job classifications of employees worked interchangeably, with the big problem being weekends, which were "hit or miss." Although Mr. Santangelo "assumed that they [supervisors] tried to inconvenience everybody equally," employees who answered their phones on weekends were usually the ones required to fill in for emergencies. Mr. Santangelo also conceded that prior to 1988, people who had a regular shift of 4:00 p.m. to midnight might have had to stay an additional eight hours (totalling 16 hours on duty at a stretch) more frequently than employees in other shifts if a replacement could not be reached in an emergency or when someone was on vacation.

    
    

15. Mr. Santangelo recalled one three day period in

    1988 when he had had to cover for Petitioner when she called in sick and many similar situations before 1988 when he had been called in to "cover" for her, although he, also, was vague on when those occasions occurred. Mr. Santangelo felt that Petitioner's outside activities, including child care and

    illness, scrambled the work schedule more, both before and after the 1988 schedule change, than did the outside activities of any other employee. However, he was not specifically familiar with Petitioner's schedule prior to the 1988 change by Mr. Simmons.

    
    

16. Charles Scott Simmons, a male, has had continuous supervisory oversight of Metamorphosis since August 1987. When Mr. Simmons came on board, he noted that the chain of command was cumbersome, redundant, and "messy". The work schedules of employees were also "messy." At that time, all employees reported directly to the Program Coordinator which resulted in supervision problems. To provide better supervision of employees by their direct supervisors and better interaction between employees and supervisors, Mr. Simmons implemented a new work schedule.

    
    

17. The new schedule provided for the two Drug

    Counselor I's to report to a Drug Counselor II and the two Drug Counselor Aides to report to the other Drug Counselor II. The individual employee work hours were scheduled to implement the reporting system. The new schedule allowed supervisors and those supervised to have regular interaction and the opportunity for supervision and input. It was also equitable in that the two Drug Counselor Aides split the weekend up evenly and the Drug Counselor I's split the week up evenly. The intent was to make mirror images of similar employees' schedules. One weekend out of every month someone would have to wear a beeper and be "on call" to go in to "cover" whatever emergency came up. Otherwise, no one was tied to the phone or likely to get haphazardly tapped for extra duty hours on the weekends.

    
    

18. The new work hours schedule was not implemented until after all employees had had an opportunity for input.

    Petitioner's written input or feedback came late (December 29 instead of December 21, 1987) on Mr. Simmons' proposed time line for discussion at the December 22, 1987 staff meeting.

    Petitioner's proposed alternative schedule allowed for some sixteen hour shifts, but it did not permit all employees to work regularly scheduled hours. It lacked clarity and was not "holistic" in that it had some full-time employees working more than 40 hours per week and other full-time employees working less than 40 hours per week, and it did not accommodate the weekly staff meetings which were central to Metamorphosis' therapeutic program. Therefore, all of Petitioner's suggestions were not included in the final schedule. However, the final standard work hours schedule did adopt Petitioner's request not to work Sundays on a regular basis due to her church activities.

    
    

19. The new standard work hours schedule was finally implemented only after posting, feedback, finalization of schedule, re-posting, and one month preparation time to allow employees to change around their personal affairs to accommodate the new schedule.

20. The new schedule became effective on February 8, 1988 and continued in effect the remainder of the time that

    Petitioner was employed with Metamorphosis, except for some minor fine tuning of a half hour here or there, which is immaterial here.

    
    

21. Under the new work schedules, Petitioner's work hours were:

    
    

    Thursday 4:00 p.m. to 12:30 a.m. (midnight) Friday 4:00 p.m. to 12:30 a.m. (midnight) Saturday 12:30 p.m. (daylight) to 12:30 a.m. (midnight)

    
    

22. Under the new work schedule, on Wednesday,

    Petitioner, who was the female Drug Counselor I, rotated on a quarterly basis with Robin Robinette, the male Drug Counselor I, the hours of 12:30 a.m. (midnight) to 8:00 a.m. OR 4:00 p.m. to 12:30 am. (midnight). [See Findings of Fact 25-29].

    
    

23. Under the new work schedule, Petitioner also was required to attend a staff meeting on Tuesday from 3:00 p.m. to 7:00 p.m. The staff meeting was mandatory for all Metamorphosis staff members.

    
    

24. Under the new work schedule, Petitioner had Sunday and Monday off.

    
    

25. Under the new work schedule, Robin Robinette's work hours were:

    
    

    Monday 4:00 p.m. to 12:30 a.m. (midnight) Tuesday 4:00 p.m. to 12:30 a.m. (midnight) Sunday 12:30 p.m. (daylight) to 12:30 a.m. (midnight)

    
    

26. Like all employees, Mr. Robinette was also required

    to attend the mandatory staff meeting from 3:00 p.m. to 7:00 p.m. Tuesdays.

    
    

27. Under the new work schedule on Wednesday, Mr. Robinette would rotate quarterly with Petitioner by working either the 12:30 a.m. (midnight) to 8:00 a.m. shift OR the 4:00

    p.m. to 12:30 a.m. (midnight) shift.

    
    

28. The midnight shift on Wednesday morning was an "odd duck" because Mr. Simmons was trying to split seven 24 hour periods equally between two people in each job description. The result was that when the quarterly rotation occurred, there would be a sixteen hour shift. This worked out to someone working Tuesday 4:00 p.m. to 12:30 a.m. (midnight) and then Wednesday 12:30 am.(midnight) to 8:00 am.

    
    

29. Mr. Simmons testified at one point that he never intended Petitioner to draw that quarterly sixteen hour shift on Wednesday (12:30 a.m. to 8:00 a.m.) following a Tuesday shift of 4:00 p.m. to 12:30 a.m. and that as he planned it, that should

    not have happened. However, his testimony is confused or contradictory on this issue in some places and some exhibits suggest that Petitioner did have to pull this sixteen hour shift, alternating with Mr. Robinette. Nonetheless, this discrepancy is largely irrelevant because either Petitioner (a female) did not regularly pull this "odd duck" shift or she pulled it no more frequently than did her male counterpart, Robin Robinette, the other Drug Counselor I. The fact that Drug Counselor Aides below her job classification and Drug Counselor II's above her job classification did not pull the same or similar shifts is immaterial because they were not similar male employees, that is, they were not her "job counterparts".

    
    

30. Respondent's witnesses testified credibly that on an "as needed" basis or "in an emergency," all employees,

    regardless of gender or job classification, had undoubtedly been required to pull some 16 hour shifts even after the new work schedule went into effect in 1988, but that these were rare occasions such as when another employee called in sick. Because Drug Counselor I's and II's were "exempt" (or salaried) positions, these positions, whether occupied by a male or a female, never drew overtime pay. Therefore, neither Petitioner nor her male counterpart, Mr. Robinette, nor any of their superiors, drew any overtime pay, ever. Also, every possible arrangement was utilized to avoid calling in those employees who were not exempt, such as Mr. McCluney, because if such employees were worked overtime, they would have to be paid overtime. All concerned, including Mr. McCluney, concur that Mr. McCluney was only scheduled for, and only actually worked, 30 hours per week.

    
    

31. Petitioner's claim herein was limited to the allegation that she was discriminated against by consistently having to work sixteen hour shifts and work on weekends when no similar male employee did so, but Petitioner and Mr. McCluney also advanced considerable information to the effect that Petitioner was frequently denied requests for sick leave for herself or her children's special care, that she was treated rudely on these occasions, and that she was derided by supervisors when she reiterated her requests and complaints in writing in the pass logs and orally in staff meetings. In response, Respondent submitted evidence of Petitioner's sick

    leave usage, showing that she used 334.50 hours of sick leave for the period of January 26, 1988 to March 21, 1989. This amounted to Petitioner using twice as much sick leave as the next highest user in the Division. If anything, this evidence confirmed Mr.

    Santangelo's testimony that some employees had to work extra hours outside their standard work schedules to accommodate Petitioner's frequent absences, at least during that period of time. Although the format of this evidence does not readily convert into which genders and job classifications took up the slack for Petitioner or how long their shifts were, it may be reasonably inferred that Petitioner was reciprocally accommodated by others working extra hours at least as much as she accommodated them during that period of time.

32. While there is some evidence that Petitioner was subjected to a requirement of submitting doctors' excuses in some situations when other employees were not, this appears to have been a function of haphazard on-site management and on-going personality conflicts within the organization, not the result of any sexual bias. In fact, when Petitioner complained to the Respondent's internal Equal Employment Opportunity Office and upper management was made aware of the situation, efforts were made to adjust the problem. However, this also was not an issue under the terms of this case.

    
    

33. Both Petitioner and Mr. McCluney testified that

    their male supervisors and Robin Robinette abused sick leave and vacation time. Their testimony was so vague as to have proven nothing, but it was also irrelevant to the narrow issue of this cause--whether or not excessive weekend shifts and excessive work hours were imposed on Petitioner because of sexual discrimination.

    
    

34. It was, however, established that, having obtained prior approval from his superiors, Mr. Santangelo was permitted to take off time to teach a 2:00 to 3:00 p.m. class at Santa Fe Community College each Monday through Friday in 1986 and was further permitted to make up the work time. It was also established that Mr. Santangelo was allowed to come in late and work late to make up about fifteen minutes he missed each of his regularly scheduled work days by arriving late from teaching an 8:00 to 9:00 a.m. class Mondays through Fridays during 1987 and 1988. This does demonstrate some minor disruption of the work

    schedule by a male supervisor, but it falls short of establishing any disparate treatment between Petitioner and her male employee counterpart or any disparity of treatment of Petitioner by causing or requiring Petitioner to work extra, hours or different hours on the weekend due to her sex.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

36. Under the provisions of Section 760.10(1)(a), F.S. it is an unlawful employment practice for an employer:

    
    

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. [Emphasis supplied]

    
    

37. The United States Supreme Court set forth the procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d

    668 (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. The preeminent case at the present time in Florida is Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).

    
    

38. When an individual alleges she has been subjected to "disparate treatment," on account of sex, which is the sole claim here, (see the prehearing stipulation, HO Exhibit A; and P-1, a 2/9/89 internal investigation of discrimination report) the standards of proof require that the Petitioner show the existence of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is bore likely than not that such actions were "based on a discriminatory criterion illegal under the Act." See, McCosh v. City of Grand Forks, 628 F.2d 1058 (8th Cir. 1980), and Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L. Ed. 2d 957 (1978), citing Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977). Once a Petitioner establishes this prima facie case, the burden shifts to the employer to rebut the adverse inference by articulating "some legitimate nondiscriminatory reason for the employee's rejection." See, McCosh v. City of Grand Forks and McDonnell Douglas Corp. v. Green, both supra. But even if the employer meets this burden, the complaining party is given the opportunity to show that the proffered evidence is merely a pretext for discrimination, Id. at 804-05, 93 S. Ct. at 1025. See, generally, Kirby v. Colony Furniture Co., 613 F. 2d 696 (8th Cir. 1980)

    
    

39. Petitioner has not met her initial burden.

    
    

40. Petitioner's evidence in support of her claim of disparate treatment for the period prior to Mr. Simmons' rescheduling everyone's work hours in 1988 is so vague as to fail to establish a prima facie case. Mr. Santangelo's testimony was sufficient to establish that prior to 1988, people on the 4:00

    p.m. to midnight shift, regardless of job classification, might have had to stay an extra eight hours more frequently than other employees on other shifts, but there was insufficient evidence to securely place Petitioner on that shift during that period of time or to show that males were not also treated similarly or were not placed on those shifts. Even if Petitioner had been shown to be on that shift part of the week, the frequency with which she was asked to "hold over" or "come in early" was not based on her sex but was a function of when an emergency or vacation occurred in relation to her shift.

    
    

41. Assuming, arguendo, that Petitioner's and Mr. McCluney's testimony established that she worked some 16 hour shifts when Mr. McCluney was employed between August 1986 and May 1988, it has not been established that those 16 hour shifts were required of Petitioner any more frequently than of her male counterpart, that Petitioner was singled out for such shifts, or

    that either the new formal regular work schedule or the informal "as needed" or "emergency" work schedules in that period of time were motivated by gender discrimination. Moreover, Petitioner was clearly absent a lot of the time from January 26, 1988 to March 21, 1989, only a portion of which time Mr. McCluney was employed at Metamorphosis. Petitioner's absences contributed to irregularities of all scheduling during that period of time.

    Although Petitioner's theory of the case seems to be based in part upon her belief that all job classifications constituted her job description counterparts, that was never clearly the case.

    Certainly, after 1988, her only job classification counterpart was the male Drug Counselor I, Robin Robinette, whose week day, week end, and number of work hours were a mirror image of her own.

    
    

42. There is a modicum of evidence to show that both before and after formalization of the new work schedule in early 1988, Mr. Santangelo, an administrative and/or supervisory male did sign out early and come in late due to another job and that adjustments of the formal schedule were made for him. There is also evidence that other people who had emergency situations were accommodated informally even after posting of the formal schedule each week. However, this evidence falls short of establishing any patterned discrimination against females or against Petitioner for being female. The evidence also provides no nexus between Mr. Santangelo's job accommodation and Petitioner's schedule.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order that the Petition be dismissed.

DONE and ENTERED this 11th day of August, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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

11th day of August, 1992.

APPENDIX TO CORRECTED RECOMMENDED ORDER CASE NO. 90-7298

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Respondent's PFOF:

1-3, 8-10 Accepted except for subordinate, unnecessary, or cumulative material

4-5, 11-13, Accepted as modified for clarity, to more

15 closely conform to the record and to address the issues raised herein.

76 [sic], 7, Accepted in substance, but modified for greater

14 accuracy and to eliminate legal argument.

Petitioner's PFOF:

Petitioner waived filing posthearing proposals.

COPIES FURNISHED:

Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602

Mary Marshall, Esquire

and Robert C. Ott, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

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 consult with 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.

Docket for Case No: 90-007298

Orders for Case No: 90-007298