RACHELL A. BOOKMAN, )
vs. ) CASE NO. 94-1458
Respondent. )
Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on October 3, 1995.
The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
On September 7, 1993, the Petitioner filed a charge of discrimination claiming that she was sexually harassed at work and discharged in retaliation for not giving into the alleged harassment and/or for filing a sexual harassment complaint. The charge of discrimination also alleged discrimination due to handicap. The handicap charge related to a spinal injury which occurred during Petitioner's former employment. However, the allegations of handicap were not alleged in the Petition for Relief and the evidence submitted during the hearing did not demonstrate any handicap discrimination had occurred. On February 24, 1994, the Florida Commission on Human Relations issued a "Notice of Determination: No Cause" in this case. The Notice held that there was no reasonable cause to believe that an unlawful employment practice had occurred in
Petitioner's case. Petitioner disagreed with the Commission's determination and filed a Petition for Relief and requested a formal administrative hearing.
Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in her own behalf and offered the testimony of six (6) witnesses. Petitioner also offered nine (9) exhibits into evidence. Respondent offered the testimony of six (6) witnesses and introduced nine (9) exhibits into evidence.
After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on October 23, 1995 and October 17, 1995, respectively. The parties' proposed findings of fact have been reviewed and utilized in the preparation of this Recommended Order, except where the parties' proposals were subordinate, cumulative, irrelevant, immaterial or were not shown by the evidence. Rulings on the parties' proposed findings of fact are contained in the appendix to this Recommended Order.
Additionally, Petitioner filed a Motion to supplement the record with further evidence inadvertently not presented at the final hearing. However, the authenticity of the evidence has not been shown. Moreover, Respondent has had no opportunity to inquire into the evidence or to rebut the evidence. Therefore, Petitioner's motion to supplement the record is denied.
The Petitioner, Rachel Bookman, is a woman within a protected class as defined within Chapter 760, Florida Statutes.
Sometime prior to February 26, 1993, Petitioner discovered that Gulf Correctional Institution (GCI) was hiring correctional personnel to work at the facility. GCI was a new correctional facility and had recently opened the year before. At the time, GCI was progressively filling its facilities and dormitories as those facilities and dormitories were completed and opened to receive inmates.
Petitioner was then employed at the Bay County Jail which was being operated by a private corrections company. Petitioner was having some unspecified difficulty with her Bay County employer related to a work related back injury. She was interested in employment as a correctional officer at GCI and had a friend who knew the Chief of Security, Major Sermons, deliver an application to him for submission to the personnel department.
Petitioner was called for an interview before a three-person committee, consisting of Major Sermons, the personnel director, Jerry Keel, and one other supervisory officer. Petitioner was found to be qualified for a post at GCI and the committee unanimously recommended that she be hired as a Correctional Officer I. Neither before, during or after the committee's deliberations was there any opposition from any committee member concerning Petitioner's employment.
The committee's recommendation for employment of Petitioner was accepted by GCI's Superintendent, Ronald McAndrews, and Petitioner was hired as a Correctional Officer I at GCI on February 26, 1993.
Petitioner was hired to be a dormitory officer. However, the dormitory in which she was hired to work was still under construction when she began
employment. As a result, Petitioner was initially assigned to work in the control room during the day shift until such time as the new dormitories were completed. The day shift generally had weekends off. Because of the fluctuations in the correctional facilities needs, Petitioner, as well as other new employees, signed a willingness to work statement agreeing to work any post assignment and any shift assignment at the correctional facility.
There was absolutely no evidence which demonstrated that Major Sermons placed or requested that Petitioner be placed in the control room or on the day shift. In fact the evidence demonstrated that another administrative Lieutenant made the quarterly post assignments once the lieutenant received the names of the employees. Major Sermons signed off on those postings. Variations from the quarterly assignment schedule were assigned by the shift lieutenants or Officer in Charge (OIC). Again Major Sermons signed off on the daily changes. The evidence did not demonstrate that Major Sermons requested any assignment for Petitioner.
During Petitioner's first week of employment, she underwent forty hours of new hire training including a two hour training session on sexual harassment. Petitioner also received a copy of the Department's policy and procedures on sexual harassment. The Department's policy states that sexual harassment is strictly prohibited. The policy declares that anyone who feels sexually harassed should tell the person to stop immediately. If the undesired activity persists, the policy states that the situation is to be reported to the personnel manager.
As indicated, after training, Petitioner was assigned to work in the control room under a female supervisor, Sergeant Ima Millender.
Departmental policy requires a critical complement of staff be on hand to operate a prison facility. The control room was required to have a minimum of two officers present at all times. Often more than two officers would be assigned to the control room, depending on the work requirements.
Control room officers are responsible for maintaining a log of the activities occurring in the prison, people going in, out and around the prison and inmate activity. The control room is the heart of a prison and serves as the center of a prison's operation. The security gates are controlled from the control room and inmate counts are reported to the control room. Because of the central nature of the control room to a prison's routine, the control room is a good place to train new personnel in the operation of a correctional facility. Therefore it was not unusual for Petitioner, or any new hire to be placed in the control room for training.
In the beginning, Petitioner competently performed her control room duties and was complimented by Superintendent Ron McAndrew on her excellent phone manners. Later, however, problems began to surface.
From mid-March to late-April 1993, Petitioner had several conflicts with Sergeant Millender. On one occasion, Sergeant Millender instructed Petitioner to add a late entry to the control room log to include information that had been omitted by another employee. Petitioner refused to comply with Sergeant Millender's instructions insisting that the omission was not her fault and that she should not have to correct the omission. Eventually, Sergeant Millender typed the entry herself.
On another occasion after being instructed by Sergeant Millender that the overhead lights in the control room were to remain off, Petitioner went to
the light switch and turned the overhead lights on. The lights were turned off in the morning so that the control room personnel could see I.D.'s being held up to the window for a persons admission to and from the facility. The interior reflection when the lights were on prevented the control room personnel from adequately seeing such I.D.s. Petitioner insisted that the lights be turned on so that she could see her typing. However, Petitioner was not typing at the time and would not begin typing until later. Sergeant Millender told Petitioner her typing could wait until after the morning shift came on duty.
On several occasions, Petitioner exited the control room without seeking the approval of her supervisor. Other times she would receive permission to leave the control room momentarily to retrieve a document and would not return for an extended period of time. During those times she would sometimes have to be found and told to return to her duties. Superintendent McAndrew often saw Petitioner wandering outside of the control room and on the prison compound grounds where she was not supposed to be. At other times Petitioner would chit-chat at the control room window and have to be instructed to return to her duties.
On the other hand, Petitioner did not care for Sergeant Millender and accused her of not properly training her for the control room, not operating the control room in a professional manner and of treating her unfairly. Petitioner, also complained of Sergeant Millender carrying on conversations in the control room of a personal nature with occasional discussions of sex. However, the evidence did not demonstrate that Petitioner was shorted on her training or treated unfairly by Sergeant Millender. The evidence did demonstrate that Sergeant Millender operated the control room in a professional and efficient manner. The evidence did not demonstrate that these very casual conversations were in any way harassing or created a hostile work environment.
On one occasion, Sergeant Millender refused to allow Petitioner to exit the control room until proper relief arrived. When Petitioner was prevented from exiting she became distraught and cried. Eventually, Sergeant Millender was instructed by her supervisor to allow Petitioner to exit the control room.
In mid to late April 1993, the problems in the control room came to a head. The problems were brought to the attention of Petitioner's supervisors and a meeting was held between Petitioner, Sergeant Millender, Lieutenant Able Price and Major Horace Sermon to discuss various problems in the control room and try to clear the air. Additionally, Sergeant Millender was told not to discuss personal matters while on the job. Sergeant Millender complied with her instructions.
In late April 1993, dormitory construction was completed and Petitioner was reassigned as a dormitory officer. Petitioner went to Superintendent McAndrew and protested her transfer. Petitioner cried while explaining that she did not want to transfer out of the control room because she did not want to work around inmates. Superintendent McAndrew told Petitioner that she would have to accept her post assignment as it was the position for which she was hired.
On May 2, 1993, Lieutenant Able Price received a complaint from Sergeant Anderson that Petitioner had been rude and uncooperative over the telephone. The incident occurred when Sergeant Anderson called the dormitory where Petitioner worked. The purpose of the call was to check on the dormitory since there was no experienced sergeant working with relatively new employees in
that dormitory. Petitioner refused to cooperate with the sergeant and told him she did not work for him and hung up.
On May 4, 1993 Lieutenant Price received another complaint from Officer Hayes. Officer Hayes stated that Petitioner had hung up on her twice on May 4, 1993 and did not provide her with all the information that Hayes had requested.
On May 10, 1993, a meeting was held with Petitioner, Major Sermon, and Lieutenant Price and Personnel Manager Jerry Keel. Petitioner was presented with incident reports from Sergeant Anderson and Officer Hayes regarding her unprofessionalism in responding to phone calls. Petitioner denied ever being rude and stated that the Department had waited too long to bring these problems to her attention. Petitioner did not voice any complaints about sexual harassment. Instead, Petitioner filed an incident report against Lieutenant Price for unfair treatment. Petitioner alleged that she had been experiencing headaches and loss of appetite for approximately a month due to Lieutenant Price's unfair treatment. Petitioner was counseled on the necessity for courteous, cooperative and professional conduct at work.
On May 12, 1993, Major Sermon called a meeting with Petitioner, Sharon Davis, Lieutenant Sam Smith, and himself. Major Sermon asked Petitioner if there was any truth to a rumor he heard that she was considering filing sexual harassment charges against him. Petitioner replied that his comments to her could be construed as sexual harassment. Major Sermon informed Petitioner that if she felt sexually harassed by him, she should report it to the Superintendent. Petitioner declined to speak with the Superintendent because she thought it would be useless.
Superintendent McAndrew was informed of the difficulties that the staff was having with Petitioner's performance, but was unaware that Petitioner was contemplating filing sexual harassment charges against any member of his staff. On May 19, 1993, due to Petitioner's unsatisfactory performance, Superintendent McAndrew dismissed Petitioner during the probationary period of her employment.
On May 25, 1993, Petitioner telephoned David Smith of the Department's Office of the Inspector General and complained of being sexually harassed during her employment at GCI. Even though Petitioner was no longer an employee of the Department, the Inspector General assigned an inspector to investigate the charges.
On May 27, 1993, Petitioner completed an affidavit in support of her complaint of sexual harassment. In her affidavit, Petitioner attributed the following incidents as sexual harassment:
Around February 26,1993, Major Sermons indicated that the personnel manager was against hiring her and that he had made him angry because he had gone Superintendent McAndrews to hire her. Major Sermons denied making such a statement. The evidence demonstrated the alleged statement was not true.
Around March 16, 1993, Major Sermons called her to his office and asked how things were going. He reiterated that he had made the personnel manager mad because he had hired her from Bay County and the personnel manager was friends with the "head guy down at the jail." She told Major Sermons that she appreciated getting the job because the Bay County Jail had said that "they would see to it that I never worked in this state again." Petitioner also
alleged that Major Sermons asked if she had filed sexual harassment charges against the jail. She told him no that it was workers' compensation related.
Around March 18, 1993, Major Sermons called the control room. Petitioner answered the telephone, "Good morning. Control room. Bookman." Major Sermons indicated that he liked the way she answered the phone.
On March 19, 1993, Petitioner attended a womans' day function at the prison wearing an over the knee black, multicolored dress with matching shoes. She went into the security headquarters. Major Sermons saw her and told her she looked like a million dollars and had nice legs. Major Sermons also inquired as to how things were going on the job.
Around March 22, 1993, Major Sermons called the control room and complimented her on her phone technique. Major Sermons also indicated that Superintendent McAndrew also thought that she was doing a good job. Major Sermons indicated that she owed him for the job and the shift she was on and that he was proud of her. The evidence showed that the compliments regarding Petitioner's phone technique occurred. However, the evidence did not show that Major Sermons said she owed him.
Around March 25, 1993, she related the incident involving her refusal to make a late log entry for the inmate count.
Around March 29, 1993, Major Sermons called her to his office to inquire about the log entry incident. Petitioner said she thought Sergeant Millender preferred Ms. Hayes over a newcomer like her. She then complained that she was not being trained properly. Major Sermons indicated that she could move her out and that he would see what he could do. He was head of security and he made the decisions. Major Sermons told Petitioner to cheer up and that she was too pretty for her own good. The evidence did not show that this conversation was sexual or harassing in nature.
Around April 12, 1993, Major Sermons called to inquire about her training and was told she didn't know how to run the computer. Major Sermons also visited the control room and asked her to come by his office when she got off. Petitioner complied and stopped by Major Sermons office. He told her to stand so that he could look at her. They talked about Emma Wilson's application. Wilson was a friend of Petitioner. Major Sermons wanted Petitioner to tell Wilson to quit the Bay County Jail so that she could be hired at GCI. Major Sermons also asked how old Petitioner was and requested that she go to an upcoming softball game.
Around April 17, 1993, while Petitioner was in his office, Major Sermons told Petitioner that he was seeing a nurse who worked at GCI and asked if she ever went outside her marriage to get her needs satisfied. Petitioner objected to the conversation.
Around April 18, 1993, Major Sermons had a conversation with Petitioner regarding Superintendent McAndrews whether her pants were too tight. The conversation occurred because had put out a memo about the appropriate fit for officers clothes. The evidence showed that Petitioner asked Major Sermons about her pants while she and others were in the control room. Major Sermons indicated they were alright.
However, later, Petitioner alleged that Major Sermons told Petitioner that he kept trying to "put you and me on the outside together," and asked if
she was sure she didn't want to go outside her marriage. Petitioner asked Major Sermons to treat her like Shirley Davis, another employee at GCI. Major Sermons said that he couldn't because Davis was like his daughter and that Petitioner was a real woman. Major Sermons also indicated that his wife was leaving him and that they were not sleeping together. Petitioner told Major Sermons to buy his wife some flowers and not to break up his marriage. Major Sermons' said he was disappointed and that he couldn't sleep at night because she was on his mind. Major Sermons also indicated that he had helped her get the control room job. Emma Wilson's resignation from Bay County Jail was also discussed. Major Sermons denies the conversation. Moreover, the evidence did not show that the details of this conversation occurred.
Around the same date, Major Sermons indicated that Petitioner could help solve her problems with Sergeant Millender if she would play by his rules. She refused to "screw her way to the top." Major Sermons said that he would no longer talk to Petitioner unless someone else was present. Major Sermons also denies the sexual attributes of this conversation.
After Petitioner was terminated, she was asked to return the uniforms she had been issued and which remained the property of GCI. Eventually, Petitioner was sued for the return of the uniforms. In sworn testimony, Petitioner stated that she had mailed all of the uniforms to GCI and that she no longer had any GCI uniforms in her possession. The statement was shown to be untrue since Petitioner was wearing a GCI jacket and had a GCI hat under the chair from which she was testifying. Clearly, Petitioner's credibility is in doubt and she is not believed in her accounts of private conversations between her and Major Sermons.
Additionally, Petitioner did not establish any connection between her termination and the alleged sexual harassment. The evidence was clear that Petitioner did not get along with some of her co-workers and supervisors, was over-emotional, had poor work practices, unprofessional behavior and insubordination. All of the foregoing problems are legitimate reasons to terminate a probationary employee. Superintendent McAndrews was unaware of any sexual harassment complaints Petitioner may have had. Petitioner did not demonstrate that the above reasons were pretextual. Therefore, Petitioner has not established she was the victim of an unlawful employment practice and the Petition for Relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(I), Florida Statutes (1987).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258,25 FEP Cases 113 (1981), the U. S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases.
In essence, McDonnell Douglas provides for three (3) steps which create a series of shifting burdens of proof that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n. 8. However, the burden of proof, in sex discrimination cases, at all times remains with the Petitioner and the employer's burden is only that of producing evidence to rebut any prima facie
showing of discrimination made by a Petitioner. McWilliams v. Escambia County School Board, 658 F.2d 326,331 5th Cir. 1981).
In the first step under McDonnell Douglas, the Petitioner must prove the existence of facts that establish a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. To establish such a prima facie case in a discharge situation, the Petitioner must show:
He/she is a member of a protected class;
He/she was qualified and able to perform his/her duties and did perform such duties satisfactorily; and
He/she was treated differently than other similarly situated individuals not within his/her protected group.
The Petitioner's burden is discharged only if he or she establishes such facts by a preponderance of the evidence. Burdine, 450 U.S. at 252-53. The type of factual showing that will suffice to carry this burden will vary with the circumstances of each individual claim, McDonnell Douglas, 411 U.S. at 802
n. 13; however, more is required than a mere showing that the Petitioner is a member of a protected group and was adversely treated. Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir. 1982). The Petitioner must prove facts from which a nexus can be inferred between the alleged adverse action and the Petitioner's protected group status. See Stock v. Horsman Dolls. Inc., 27 FEP Cases 1423, 1425 (D.S.C. 1981); Ortiz v. Ciba-Geigy Corp., 87 F.R.D. 723, 234-35 (N.D. Ill. 1980). Failure of the Petitioner to produce evidence from which this causal connection can be inferred precludes the Petitioner from making out a prima facie case. Bobbitt v. PBA. Inc., 31 FEP Cases 366, 367 (D. Minn. 1983).
If a Petitioner establishes a prima facie case, then the burden of coming forward with sufficient evidence to rebut a prima facie case shifts to the defendant. To meet this burden, the defendant needs only to articulate a legitimate, nondiscriminatory reason for its action through the introduction of admissible evidence. "[T]he employer's burden is satisfied if he simply explains what he has done or produce(s) evidence of legitimate, nondiscriminatory reasons. Board of Trustees of Keene State College v. Sweeney,
439 U.S. 24, 25 n. 2 (1978) (quoting language of dissent with approval).
However, the ultimate burden of proof does not shift to the defendant. As the U.S. Supreme Court has explained:
The defendant need not persuade the court that it was actually motivated by the proffered reasons . . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. Texas Dept. of Comm.
Affairs V. Burdine, 450 U.S. 254-56 (citations omitted).
These federal standards have been adopted by the Florida Commission on Human Relations and the Florida courts and are applicable to cases arising under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103, 108 (Fla. 1st DCA 1981); Kilpatrick v. Howard Johnson Co., 7 F.A.L.R. 5468, 5477 (1985); JoNnees v. Deichamps Inc., 8 F.A.L.R. 4389 (1986).
In this case, Petitioner has failed to establish a prima facie case. There was no evidence of a nexus between the Respondent's termination of Petitioner and Petitioner's sex or sexual harassment. Additionally, Petitioner did not establish that she adequately performed her employment duties during her period of employment or that the reasons for her termination were pretextual. Since Petitioner did not establish-at she was the subject of an unlawful employment practice, Petitioner's charge of discrimination should be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a Final
Order dismissing Petitioner's complaint.
DONE and ORDERED this 7th day of December, 1995, in Tallahassee, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1995.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 94-1458
Richard A. Krause, Esquire 1234 Airport Road, Suite 123
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.
