STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA R. DALLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4641

) UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly-designated Hearing Officer, P. Michael Ruff. The hearing began in Jacksonville, Florida, on February 17, 1994 and continued in Gainesville, Florida, on September 15, 1994.

APPEARANCES

For Petitioner: Pamela R. Dallis

8050 Arlington Expressway, Number C-401 Jacksonville, Florida 32211

For Respondent: Isis Carbajal de Garcia, Esq.

Associate General Counsel University of Florida

207 Tigert Hall Gainesville, Florida 32611

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding are whether the Petitioner was discriminatorily dismissed from her employment by the Respondent on the basis of race and whether she was retaliated against by the Respondent for filing a complaint of discrimination with the City of Jacksonville.

PRELIMINARY STATEMENT

On January 19, 1993, the Petitioner filed a charge of discrimination against the Respondent. The Petitioner alleged that the Respondent had terminated her from employment due to the Petitioner's race (African American). The Florida Commission on Human Relations entered a "Notice of Determination of No Cause" on July 13, 1993. The Petitioner filed a "Petition for Relief from an Unlawful Employment practice" on August 13, 1993 alleging race discrimination for dismissal and retaliation. That Petition was duly referred to the Division of Administrative Hearings and the undersigned Hearing Officer for a proceeding under Section 120.57(1), Florida Statutes (1993). The Respondent filed an answer to the Petition denying the allegations of discrimination, pursuant to Rule 22T-9.008(5), Florida Administrative Code. A hearing was duly scheduled and conducted.

The Petitioner presented the testimony of Vera Andrews, Brenda Young, Beverly D. Ramsey, Beverly Johnson, Ernest Stephens, as well as testifying on her own behalf. Eleven (11) exhibits were offered and admitted into evidence on behalf of the Petitioner. The Respondent presented the testimony of Deborah Patterson, Marilyn Halusky, Thomas Braddock, Jacquelyn D. Hart, Linda Cook and Grant Cochrane and offered 12 exhibits, which were admitted into evidence. At the conclusion of the hearing, the parties were advised of their right to submit Proposed Recommended Orders within 14 days of the conclusion of the hearing.

The Respondent submitted a Proposed Recommended Order within the allowable time.

FINDINGS OF FACT

1. The Respondent, the University of Florida, is a state university located in Gainesville, Florida. The Respondent, through its Institute of Food and Agricultural Sciences, operates a Cooperative Extension Service, which maintains a county extension office in each of the 67 counties in the State of Florida. Each of these offices is headed by a county extension director. On September 13, 1991, the Petitioner, Pamela R. Dallis, was hired by the University of Florida as a part-time secretary for the Expanded Food and Nutrition Education Program (EFNEP) in the Duval County Extension Office located in Jacksonville, Florida, which is headed by Mr. Thomas Braddock.

   
   

2. The Petitioner was hired in a temporary position known as Other Personal Services (OPS). The Petitioner was initially interviewed for a permanent position, but she did not meet the minimum qualifications for the position because she did not achieve the required score (35 c.w.p.m.) on the typing test. The Respondent changed the classification of the position from permanent to temporary in order to be able to hire the Petitioner despite her typing deficiency. As an OPS employee, she did not have permanent status in the position and was not subject to a probationary period or to periodic written evaluations concerning her performance.

   
   

3. The Petitioner's immediate supervisor, Ms. Deborah Patterson, provided the Petitioner training as to the policies and procedures applicable to her position. Specifically, the Petitioner received training concerning data entry, reimbursement of expenses incurred for EFNEP and travel reimbursement vouchers. The Petitioner was also provided assistance concerning computer data entry from another employee in EFNEP.

   
   

4. The Petitioner was provided oral counseling concerning deficiencies in her performance on several occasions beginning on January 7, 1992. By June 22, 1992, Respondent considered dismissing the Petitioner from her employment because of her performance deficiencies. Due to budgetary constraints, the decision was made to work more closely with the Petitioner because if she were dismissed, there was no assurance that her position could be filled by another individual.

   
   

5. On July 6, 1992, in order to provide closer supervision to the Petitioner, the Respondent moved the Petitioner's work station to a location close to her supervisor's office. Prior to this time, the Petitioner's immediate supervisor had requested to Mr. Braddock that this move be made. Mr. Braddock did not approve the request and recommended that the Petitioner be counseled concerning her work performance. In July, 1992, Mr. Braddock agreed to the move because the Petitioner's performance had not improved despite the performance counseling provided.

6. On July 24, 1993, a few weeks after the Petitioner's work station was moved, she reported to Mr. Braddock an incident that had occurred with a white co-worker, Rachel Fleming. Mr. Braddock spoke separately with each employee and asked for their written description of the incident. There were no other witnesses to the incident. Mr. Braddock received conflicting reports from the Petitioner and Ms. Fleming. The Petitioner stated that on July 24, 1992, after informing Ms. Fleming of her dislike for "chain letters" while talking in the printing room, Ms. Fleming placed a chain letter on the Petitioner's desk with her name on it. The Petitioner scratched her name, placed Ms. Fleming's name on the letter and taped it on Ms. Fleming's desk drawer. The Petitioner stated that she later went to the restroom, and as she was exiting, Ms. Fleming came in, blocked her exit, pushed and grabbed her, and said, "I don't like you no more than you like me, bitch!" Ms. Fleming then allowed her to exit. Ms. Fleming acknowledged in her statement that she had an exchange of words with the Petitioner concerning a chain letter that she had given the Petitioner. Ms. Fleming stated that the Petitioner told her, "This is stupid and so are you." Ms. Fleming also stated that about 15 minutes later, she saw the Petitioner as she was leaving the restroom, asked to speak with her, but the Petitioner "brushed past her" saying nothing. Ms. Fleming grabbed the Petitioner, turned to face her and told her that they did not like each other and to "leave me the hell alone". Ms. Fleming denied pushing the Petitioner or calling her a "bitch". She said she called the Petitioner "a biddy". Based upon the unsubstantiated conflicting reports given by each employee, Mr. Braddock determined that no disciplinary action was warranted and counseled each employee.

   
   

7. A few weeks after the incident with Ms. Fleming, the Petitioner filed a complaint of discrimination with the Equal Employment Opportunity Office of the City of Jacksonville on the basis that Ms. Fleming had not been disciplined. After having learned of the complaint, the Petitioner's second level supervisor, Ms. Halusky, advised the Petitioner that the proper avenue for her to file a complaint was through the University's Office of Equal Employment Opportunity, not the City of Jacksonville. The City of Jacksonville did not proceed with the Petitioner's complaint because she was not an employee of the City of Jacksonville. The Petitioner never filed a complaint with the University of Florida.

   
   

8. Despite the performance counseling and assistance provided to the Petitioner, her performance did not improve. The deficiencies concerning the Petitioner's data entry skills continued. Two reports that were due in September, 1992 at the main EFNEP office in Gainesville were late because the work done by the Petitioner had to be redone. The Petitioner's supervisor decided that the Petitioner's continuing performance deficiencies were causing additional work for the EFNEP staff and, even without the assurance of a replacement, it was better to have the position vacant rather than having to redo the Petitioner's work to correct the mistakes.

   
   

9. By letter dated September 10, 1992, the Petitioner's immediate supervisor advised her of her termination effective at the close of business that day. The reason given for her dismissal was that she had not developed in her job as expected and because of performance deficiencies.

   
   

10. Sixty-six percent of the employees in EFNEP in the Duval County Office are African American. They serve a clientele that is 75 percent African American. Thus, EFNEP is interested in hiring and retaining African American employees for the program. Three of the individuals who testified at the Petitioner's request are African Americans who work at the Duval County

    Extension Office. They testified that they had not experienced discrimination in their employment at the Duval County Extension Office. Two of those three employees are in EFNEP. One has been an employee in the office for 23 years, and the other has been an employee for 14 years.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Petitioner filed a petition for relief with the Florida Commission on Human Relations alleging that the Respondent discriminated against her on the basis of her race, in violation of the Florida Human Rights Act of 1977, Section 760.01, et. seq., when it terminated her employment on September 10, 1992. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or to fail or refuse to hire or otherwise to discriminate against any individual because of race.

    
    

13. The portions of Section 760.10, Florida Statutes, which apply to this case are as follows:

    
    

    760.10 Unlawful employment practices; remedies; construction.

    1. It is an unlawful employment practice for an employer:

       1. 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.

    * * *

    (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor- management committee, or a labor organization

    to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person had made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

14. The legal principles and precedent established in the federal anti- discrimination laws, specifically Title VII of the Civil Rights Act of 1964, 42

    U.S.C. Section 2000, et. seq., are to be accorded great deference when applying Chapter 760, Florida Statutes. See School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); and Pasco County School Board v. P.E.R.C., 353 So.2d 108 (Fla. 1st DCA 1979).

    
    

15. The Supreme Court of the United States established, in McDonnell- Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII. This analysis was recently reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742 (1993). Pursuant to this analysis, the Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful

    discrimination. If a prima facie is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the action taken against the Petitioner. The Petitioner must then prove that the reasons offered by the Respondent are not true but are, rather, a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination "the fact finder must believe the plaintiff's explanation of intentional discrimination". 113 S.Ct. at 2754.

    
    

16. The Petitioner failed to meet her burden of proof as required by the above analysis concerning either discriminatory discharge or retaliation.

    
    

17. To establish a prima facie case, the Petitioner was required to prove that (1) she is a member of a protected group; (2) she was discharged; (3) she was replaced by a person outside the protected class; and (4) she was qualified to do her job. See Lee v. Russell County School Board of Education, 684 F.2d 769 (11th Cir. 1982); and Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

18. The Petitioner demonstrated that she is a member of a protected class and that she was discharged by the Respondent. Absolutely no evidence was presented during the formal hearing concerning whether the Petitioner was replaced. Additionally, the Petitioner presented no evidence to establish a prima facie case of retaliation. The Petitioner has, therefore, failed to establish a prima facie case of discrimination based on race. Even if the Petitioner had established a prima facie case of discrimination based on race, the weight of the evidence supports the conclusion that the Respondent had a nondiscriminatory rationale and business-related reason for discharging the Petitioner. The Petitioner's performance was below the level necessary to fully carry out her duties and responsibilities. The Petitioner failed to prove that the Respondent's reasons for discharging her were pretextual.

    
    

19. The Petitioner is required to prove by a preponderance of the evidence that the proffered reason for discharge was not the true reason and that race was a determining factor in the decision. The evidence established that the proffered reason for discharge was a valid one and was the true reason for the discharge.

    
    

20. Accordingly, no discriminatory motive in the discharge decision has been demonstrated. The reason given for the discharge was not shown to be pretextual during any phase of the supervisory decision-making process. Thus, the Petitioner did not meet her burden to show unlawful discrimination. See Arnold v. Burger Queen System, Inc., 509 So.2d 959 (Fla. 2d DCA 1987).

    
    

21. In summary, the Petitioner's position that her employment was terminated on the basis of her race and that she was retaliated against for filing a complaint of discrimination with the City of Jacksonville is unsupported by a preponderance of the evidence. The incident in the restroom did not result in any differential treatment between the Petitioner and her co- worker. This incident, which was the only evidence offered by the Petitioner related to race, is insufficient to find either discrimination or retaliation on the part of the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief.

DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 2nd day of December, 1994.

APPENDIX TO RECOMMENDED ORDER

The Respondent's proposed findings of fact are all accepted. The Petitioner filed no proposed findings of fact.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Pamela R. Dallis

8050 Arlington Expressway #C-401 Jacksonville, FL 32211

Isis Carbajal de Garcia, Esq. Associate General Counsel University of Florida

207 Tigert Hall Gainesville, FL 32611

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 93-004641

Orders for Case No: 93-004641