STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEIGH A. BAIN, )
)
Petitioner, )
)
vs. ) Case No. 00-2656
)
ESCAMBIA COUNTY UTILITIES )
COMMISSION, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for formal proceeding, before
Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted on November 15, 2000, in Pensacola, Florida.
APPEARANCES
For Petitioner: R. John Westberry, Esquire
Holt & Westberry
1108-A North 12th Avenue Pensacola, Florida 32501
For Respondent: Rosa Carson, Esquire
Carson & Adkins
2958 Wellington Circle, North, Suite 2000
Tallahassee, Florida 32308-6885 STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concern whether the Petitioner has been retaliated against by the Respondent in violation of Chapter 760, Florida Statutes.
PRELIMINARY STATEMENT
This cause arose upon the filing of a Complaint of Discrimination with the Florida Commission on Human Relations (Commission) by the Petitioner Leigh A. Bain. The Petition in essence alleged, pursuant to Section 760.11(1), Florida Statutes, that the Escambia County Utilities Authority (ECUA) had discriminated against the Petitioner by retaliating against her for the previous filing of a claim for discrimination. The investigation was conducted by the Commission and a determination of "no-cause" was issued on November 24, 1999.
The Petitioner filed a Petition for Relief from an unlawful employment practice on January 3, 2000. On January 31, 2000, the Petition was dismissed by the Commission, and on
February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. On June 28, 2000, the Commission rescinded its previous dismissal order and transmitted the Petition to the Division of Administrative Hearings. The Respondent filed a Motion to Dismiss which was later amended. That motion was denied with leave to present evidence with regard thereto at the hearing.
The cause came on for hearing as noticed at which the Petitioner presented her own testimony as well as that of Jeffrey N. Bain, her husband. The Petitioner offered three exhibits which were admitted into evidence. The Respondent
presented the testimony of four witnesses and seven exhibits which were admitted into evidence. Respondent's Exhibit five, an Affidavit of Grant Holmes, was admitted only as corroborating hearsay. Judicial notice/official recognition was taken of Section 760.11, Florida Statutes, Chapter 60Y-4 and
Chapter 60Y-5, Florida Administrative Code and Florida Rules of Appellate Procedure 9.110, 9.190 and 9.20. Upon the conclusion of the proceedings, a Transcript was ordered and the parties were given the opportunity to submit Proposed Recommended Orders. Those Proposed Recommended Orders were timely submitted and have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioner, Leigh A. Bain, filed a Complaint with the Commission on May 16, 1997, alleging retaliation under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. The matter was investigated by the Commission and on
November 24, 1999, the Commission issued a Notice of Determination of "no-cause."
On January 3, 2000, the Petitioner mailed and faxed a Petition for Relief from an unlawful employment practice to the Commission. The Petition was served by mail on ECUA on January 3, 2000.
ECUA filed an Answer and a Motion to Dismiss on January 24, 2000. Thereafter, on January 31, 2000, the Commission issued a Notice of Dismissal stating that the Petitioner had failed to file a timely petition, pursuant to Rule 60Y-5.008, Florida Administrative Code, and that the Petitioner had taken more than thirty-five days from the date of service of the Notice of Determination to file a petition.
The Notice of Dismissal was filed with the Clerk of the Commission on January 31, 2000.
On February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. The Notice stated that it was being filed in accordance with Rule 9.110(d) and Rule 9.130(c), Florida Rules of Appellate Procedure, to appeal the Notice of Dismissal of the Petition. On June 28, 2000, the Commission rescinded its previous dismissal, re-opened the Complaint and transmitted the Petition to the Division of Administrative Hearings. In the rescission order the Commission stated that it had previously dismissed the Complaint because the Petition had not been filed within thirty-five days of service of the Notice of Determination. The Commission then found that the Petition had been timely filed on January 3, 2000, using the date of the post-mark of the Petition and adding three days to the thirty- five day time limit for mailing.
The Notice of Appeal had been filed with the Commission but not with the Appellate Court. Moreover, the Commission failed to transmit the record to the Appellate Court.
In the Petition for Relief Ms. Bain alleges that she was a victim of sexual discrimination or harassment by her supervisor, Steve Burgess. She reported the alleged discrimination to her personnel director on October 4, 1996. She contends that her supervisor retaliated against her on November 11, 1996, by giving her a poor performance rating.
Petitioner began employment with ECUA in January 1987, as Executive Secretary to Chuck Wigley, then Executive Director of ECUA. She worked in that position until 1989 and then began working for Steve Burgess who was then the Manager of Customer Relations. She worked for Mr. Burgess until she was transferred to the Engineering Department in June 1997. She was currently employed as an Office Assistant IV in the ECUA Engineering Department.
Steve Burgess is the current ECUA Field Services Administrator. He is in charge of the ECUA division that deals with the public. That division has two departments, the Regional Services Department and the Customer Service department. It has approximately 225 employees. Mr. Burgess reports to Van Van Dever, the current ECUA Executive Director. Mr. Burgess has worked for the Respondent for fourteen years.
On October 1, 1992, the Petitioner's job title was changed from "Executive Secretary" to "Administrative Secretary." Her salary remained the same and the grade was changed from X10-6 to C18. This was part of a re-classification effort for ECUA positions and pay grades when the ECUA became part of Escambia County's Civil Service System. The re- classifications of ECUA positions, within the county Civil Service System, was approved by the county's Civil Service Board and the ECUA Board.
On October 1, 1996, the Petitioner's job title was changed to "Office Assistant IV." Her salary remained the same as it had been when she was an Administrative Secretary and her grade was changed from C18 to C20. This change was made in accordance with a wage and re-classification study and was approved by the county Civil Service Board.
The Petitioner describes her re-classification to Administrative Secretary as bringing her and all department secretaries to the same level so there was no longer a distinction between what she had been and the other secretaries. She viewed this action as a demotion for her or a promotion for the other secretaries, with the result that they were all at the same level after the re-classification. These re- classifications, however, were not demotions for any disciplinary or performance reasons.
The re-classifications of Ms. Bain's position in 1992 and 1996 occurred prior to the October 4, 1996, allegation of sexual harassment. The last re-classification to Office Assistant IV was effective on October 1, 1996, three days before the Petitioner decided to submit the October 4, 1996, memorandum concerning the harassment allegation. The Petitioner was upset over the re-classification decisions made as to her. In a
May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in reference to the re-classification of her position to Administrative Secretary:
. . . However, all positions previously classified as Secretary, Range 8, were also upgraded to Administrative Secretary, Pay Grade 18, which provided a substantial salary increase for those applicable employees. I was not pleased with the inequity of this situation. Through no fault or control of my own, my position was now considered to be equivalent with one that, for the previous five years, had been two pay grades lower. My qualifications had not changed; neither had those of the other employees, and yet somehow we were all considered to be equally qualified for the same position. When I raised this issue, I was told I had no reason to be upset as I had been placed in the highest level secretarial position that existed in the Civil Service System. . . .
Ms. Bain continued to be concerned about the re- classification of her position and requested that it be upgraded to an Administrative Assistant position. She also filed an appeal of her Civil Service position allocation and formally
requested that the Civil Service Board upgrade her position to Administrative Assistant.
The Petitioner wanted Mr. Burgess, her supervisor, to support the upgrade of her position but he would not do so. She was dissatisfied with Mr. Burgess because he did not support a higher classification for her. She felt that if Mr. Burgess supported the upgrade she would have received it. Mr. Burgess and Ms. Bain discussed her concerns and her request for a position upgrade on April 22, 1996. Mr. Burgess explained to the Petitioner at that time why he could not support the upgrade.
On one of her visits to see Mr. Van Dever, the Petitioner advised him that the relationship between her and Mr. Burgess had been tense over the re-classification issue.
That matter was an issue all during 1996, between the Petitioner and Mr. Burgess.
The Petitioner wrote in her comments on her 1996 evaluation that she believed that she was marked-down in attitude because of her classification appeal. She did not go to the committee that was conducting position audits, however, to speak with the committee about the re-classification of her position, even though this committee was to make recommendations on subjects such as the upgrade of Ms. Bain's position. There was an analogous Office Assistant IV position in the STR
Division. Like Mr. Burgess, however, Bernie Dahl, the STR Director, did not support a position upgrade for his own Office Assistant IV either.
Ms. Bain went to Mr. Van Dever to complain about three incidents involving Mr. Burgess. The first incident occurred in February 1993. She met with Mr. Van Dever and he seemed supportive. He said that he would speak with Mr. Burgess about the matter. He met with Mr. Burgess and Ms. Bain felt that things seemed to improve. The next incident with Mr. Burgess occurred a year later on January 20, 1994, when Mr. Burgess allegedly became upset when he discovered that a letter had gone out with a handwritten invoice attached to it. When Ms. Bain called Mr. Burgess' attention to the fact that he had signed the letter with the handwritten invoice attached he allegedly became agitated and angry. She went to see Mr. Van Dever about this incident. She felt that things improved once again after
Mr. Van Dever met with Mr. Burgess about this incident.
In September 1996, a third incident occurred about which Ms. Bain complained to Mr. Van Dever. This incident arose when Mr. Burgess asked Ms. Bain to forward his and her phone lines when they had to be away from their desks to someone other than Quanita Stallworth, who handled the ECUA switchboard. He did this because he was concerned that Ms. Stallworth had too many calls to handle when all the phone lines were transferred
to her at lunch and when employees were away from their desks. Ms. Bain was initially told to forward the phones to Linda Sutherland. When she objected to forwarding her phone to
Ms. Sutherland, Mr. Burgess told her that she could forward it to Linda Iverson or to someone other than Linda Sutherland
" . . . as long as its not going to Quanita "
After the Petitioner had been directed not to forward the phones to Quanita Stallworth, Mr. Burgess discovered that she had disregarded his instructions and forwarded her phone to Ms. Stallworth. When he reiterated to the Petitioner that they were not going to forward the phones to Ms. Stallworth, the Petitioner told Mr. Burgess that " . . . then I'm going to go see Van." Mr. Burgess told her to go ahead and see
Mr. Van Dever. The result of this incident was that
Mr. Van Dever allowed Ms. Bain to continue to forward her phone to Quanita Stallworth.
Mr. Burgess and Ms. Bain had a meeting with
Mr. Van Dever after the phone forwarding incident. They were both told that they needed to try to work together in a professional way and they agreed that they would do so. There was discussion during that meeting about attempting to locate another position for Ms. Bain but there were no openings at the time.
When the Petitioner went to Mr. Van Dever about the incident concerning the phone on September 25, 1996, her Complaint involved that particular incident, the switching of the phones. She did not claim gender-bias discrimination in her conversation with Mr. Van Dever.
The Petitioner does not recall mentioning, in any conversation that she had with Mr. Van Dever, that she had filed a sexual harassment complaint against Mr. Burgess. In her conversations with either Mr. Van Dever or Mr. Burgess, the Petitioner did not tell either Mr. Burgess or Mr. Van Dever of filing any sexual harassment complaint against Mr. Burgess. She did not give Mr. Burgess or Mr. Van Dever a copy of her
October 4, 1996, memorandum which contained her allegations of sexual harassment against Mr. Burgess.
The issue she had taken to Mr. Van Dever in September 1996, was to the effect that she felt Mr. Burgess was a tyrant and that he mistreated employees. When she went to Mr. Van Dever to complain about him she raised a morale problem or a problem among several employees whom Mr. Burgess supervised. The morale issue due to Mr. Burgess was her whole reason for complaining at that time. The morale issue is what the Petitioner wanted Mr. Van Dever to look into and she identified
male and female employees for him to talk to in order to confirm her complaint that Mr. Burgess mistreated employees.
The Petitioner has at various time, identified several employees she believes have had significant problems with
Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and Glenn Johansen. Mr. Van Dever told the Petitioner that he had talked to everyone of the employees that she had identified and that none of them agreed with her.
Nettie Williams, the ECUA customer Service and Collections Manager, has worked for Mr. Burgess, her immediate supervisor, since 1989. Mr. Van Dever questioned Ms. Williams about an alleged morale problem in the customer service area in the fall of 1996. He asked her whether she had had any problems with Mr. Burgess and she told him that she did not and that any issue she and Mr. Burgess had they would be able to sit down and work out.
Kathy Gaut, the ECUA Internal Programs Coordinator, directs training and other employee-related programs, internal communications, the newsletter and any kind of employee activities. She has been employed with ECUA for about seven years. It is the nature of her job to be in touch with and interact with a lot of employees. Mr. Van Dever often asked Ms. Gaut about general employee issues because of her contact with ECUA employees.
In October 1996 Mr. Van Dever asked Ms. Gaut whether she was aware of any problems that employees might be having
with Mr. Burgess. She told Mr. Van Dever that she did not know any problems employees were having with Mr. Burgess and that she was not having any problems with him.
Mr. Van Dever asked her how she felt employees regarded Mr. Burgess and if he intimidated people. She responded that some people believed that he was abrupt or even rude at times. She advised that his personality was such that he could be very pleasant and convivial but when he had a problem or a particular situation to address, he could come across as being abrupt because he wanted to get right to the point and get the job done and go on to the next subject. She told Mr. Van Dever that she felt that some people may have a problem with Mr. Burgess being abrupt with them because he was so focused on getting his job done.
Ms. Gaut is aware of Mr. Burgess' management style and his manner of dealing with people because she has been around him in numerous director and staff meetings. She has observed his interaction with employees at all levels of the company.
Mr. Burgess' management style is to get to the point and not string out conversations about an issue when he is ready to get a problem resolved.
Ms. Gaut has observed Mr. Burgess and Ms. Bain interacting approximately 10 to 15 times over a five-year period. Ms. Gaut never witnessed Mr. Burgess treating females
unfairly as opposed to males and has never herself experienced gender bias from Mr. Burgess.
Ms. Nettie Williams was present when Mr. Burgess directed the Petitioner not to forward her phone to Quanita Stallworth. Ms. Williams has never witnessed what she felt was gender bias on the part of Mr. Burgess and has never been treated differently by Mr. Burgess because she was female.
On October 4, 1996, the Petitioner met with ECUA Human Resources Director Grant Holmes and submitted a memorandum dated that day in which she complained about Mr. Burgess' conduct toward her. In that memorandum she recites three incidents which allegedly involved inappropriate behavior by Mr. Burgess: the February 1993 incident, when Mr. Burgess had interrupted an attorney in an interview of the Petitioner to tell her to take care of the mail; the January 1994 incident over the handwritten invoice and the September 24, 1996 incident over the forwarding of the phones. In the October 4, 1996 memorandum, Ms. Bain states that she believed Mr. Burgess' conduct towards her was a form of sexual harassment in that Mr. Burgess allegedly engaged in intimidation of her and tended to view a certain type of behavior by males as acceptable, while the same type of conduct by a female he viewed as unacceptable.
The basis for her belief that Mr. Burgess treated males differently from her was an incident involving Gabe Brown.
Mr. Burgess had an incident with Gabe Brown when an ECUA board member reported that a male customer service representative had been rude to a customer. The board member told Mr. Burgess that he needed to investigate it right away. Mr. Burgess went to the customer service department and called the only two male customer service representatives out of the office and talked with them in the hallway to find out which one had talked with a customer who had complained to the ECUA board member. Mr. Brown was not the one who had the conversation with the complaining customer. Upset, Mr. Brown later came to
Mr. Burgess and complained to him that he was embarrassed because Mr. Burgess had singled him out in front of all the other employees as if he had done something wrong.
Mr. Burgess thought about the incident and felt that Mr. Brown was right about his handling of the situation.
Mr. Burgess therefore apologized to Mr. Brown.
Mr. Burgess has apologized to the Petitioner as well.
Once when he called a meeting with the Petitioner and the meeting deteriorated, he apologized to her because he felt he was responsible for the conduct of the meeting as the supervisor. He also apologized after the February 1993 incident when he interrupted the Petitioner and called her out of a meeting with an attorney. On that occasion, Mr. Van Dever
instructed him to apologize. However, Mr. Burgess accepted the responsibility for his conduct and was sincere in his apology.
Mr. Holmes asked the Petitioner, during the meeting with her on October 4, 1996, whether she was claiming that Mr. Burgess had engaged in unprofessional and sexual conduct toward her and she told Mr. Holmes that Mr. Burgess had not done so. The substance of the claim that the Petitioner made was gender bias, although she called it sexual harassment. In the October 4, 1996 memorandum the Petitioner stated that she could only assume that her Civil Service appeal in May of 1996 had something to do with the way Mr. Burgess treated her.
In an October 8, 1996, meeting with Mr. Holmes and
Mr. Van Dever, the Petitioner requested that she be removed from Mr. Burgess' supervision. This was also discussed at a later meeting on that same day with Mr. Burgess and Mr. Van Dever.
Shortly after the October 8, 1996, meeting, Mr. Holmes discussed with Ms. Bain his efforts in attempting to relocate her in another Office Assistant IV position. Mr. Holmes had asked the other employees in the same classification if they would agree to be moved from their current positions and exchange work assignments and locations with Ms. Bain. All elected not to do so. Mr. Holmes also sent Ms. Bain information on other open positions county- wide. Ms. Bain met with Mr. Holmes and Linda Walen. Mr. Holmes met with Ms. Bain again in January 1997 to
discuss the job search for the Petitioner and to tell her that he had been unable to find anything for her.
After she filed her retaliation complaint with the Commission, Ms. Bain was transferred to the Engineering Department in the same position. She has the option to apply for position openings throughout the ECUA organization and is not restricted only to promotions within the Engineering Department. ECUA employees, including those in the same position as Ms. Bain, can be promoted to positions anywhere within the ECUA organization. Employees in the Petitioner's position, Office Assistant IV, have gone from the ECUA STR Department to the Purchasing Department and from an Office Assistant IV position to a Purchasing Agent position.
Ms. Bain's assignment to the Engineering Department does not preclude her from promotional opportunities that may open up anywhere in the ECUA organization. The Petitioner has had no problems with perceived bias or other difficulties in her employment in the Engineering Department.
Mr. Burgess, as Ms. Bain's supervisor, did her performance evaluation in 1996. He gave what he thought was an overall good evaluation. In the ECUA ratings scale a "good" rating is not an "average" rating but is a rating that can be from 70% to 95% out of a possible 100%. For those areas where Mr. Burgess marked her evaluation "good," he felt that Ms. Bain
was in that range and that she had indeed done a good job in those areas. Her performance rating in 1996, which she signed on November 12, 1996, was a total weighted score of 3.4 with a "good" rating in the following five categories: "Attitude," "Communication," "Human Relation Skills," "Initiative/ Creativity" and "Safety." The Petitioner received an "Excellent" rating in the areas of "Quality," "Productivity" and "Care of Facilities & Equipment." There were no negative ratings in any category. The 3.4 score was almost half-way between a "good" and an "excellent" overall rating. As shown by Mr. Burgess' rating comments on the 1996 evaluation, depicted in Petitioner's Exhibit 2, he felt that, due to the problems
Ms. Bain had with the Civil Service re-classification of her position, she did not go the "extra mile" during 1996. She did her job and did what was asked of her but did not take the initiative to do anything other than what was asked of her.
Mr. Burgess felt that the re-classification issue affected her output at work and her overall attitude on the job so that he could not give her a higher evaluation like he had done in 1995 when he rated her as "Excellent."
Ms. Bain submitted a memorandum dated November 12, 1996, in response to the 1996 evaluation. Ms. Bain states, in that memorandum, that she and Mr. Burgess were "beyond the point of talking about this (see my memorandum to Grant Holmes dated
October 4, 1996) . . .." While the Petitioner references her October 4, 1996 memorandum in the November 12, 1996 memorandum in response to her evaluation, she does not reference sexual harassment or the fact that she had filed a discrimination complaint against Mr. Burgess.
Mr. Burgess did not counsel Ms. Bain during 1996 about a deterioration in her attitude because overall he rated her as having a good attitude. He did not feel that her attitude warranted counseling. He felt that Ms. Bain was doing her job and did not feel that she was doing bad things. Further,
Ms. Bain was not happy with the re-classification situation and Mr. Burgess did not want to "stir anything up." The 1996 rating did not indicate a significant deterioration in the Petitioner's attitude. Her attitude was not excellent in terms of the rating scale, so Mr. Burgess did not feel that he could give her a 4 rating as he had done in 1995.
In the previous year, 1995, Mr. Burgess had given her Superior ratings in four categories because he felt that she had gone out of her way to do extra things and to take on extra tasks. In 1995, he evaluated Ms. Bain, giving her a total weighted score of 4.1 with a "Excellent" rating in all categories except for a "Superior" in a category of "Care of Facilities & Equipment." He made comments on her 1995
evaluation to the effect that Ms. Bain continued to do excellent high-quality work.
In 1992, the Petitioner received a total weighted score of 3.6 with a "good" rating in "Attitude," "Communication," and "Human Relation Skills." She received an "Excellent" in "Quality," "Productivity," "Initiative/ Creativity," "Safety," and "Care of Facilities & Equipment." In 1993 she received a total weighted score of 3.7 with good or excellent ratings in all categories.
In 1994, Mr. Burgess rated her with a total weighted score of 4.0 with an "Excellent" rating in all categories.
In 1997, Bill Johnson, the Director of the Engineering Department, gave Ms. Bain a total weighted score of 3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996, the evaluation which she alleges is retaliatory. Mr. Johnson gave her a "good" in all categories. There is no evidence that she has had any friction since transferring to the Engineering Department.
In 1998 Mr. Johnson gave her again a total weighted score of 3.2 and a "good" rating in all categories except for "Quality" for which she was given a "Superior" rating. In 1999, Mr. Johnson gave her a total weighted score of 3.5 and gave her a "good" in all categories except for "Communications,"
"Quality," and "Productivity" for which she was given "Superior" ratings.
In the year 2000, Mr. Johnson gave her a total weighted score of 3.5 with a "good" in all categories except for "Communication," "Quality" and "Productivity" for which she was again given "Superior" ratings. Mr. Johnson's ratings of
Ms. Bain were not adverse actions or discriminatory and such has not been claimed by her.
Since 1992, the Petitioner has received a "good" rating in "Attitude" on all evaluations except for the 1994 and 1995 evaluations when she received "Excellent" ratings in that category by Mr. Burgess. Her current supervisor, Bill Johnson, has never rated her higher than "good" in the "Attitude" category. Thus, in the nine-year period, she has received a "good" rating in "Attitude" on seven out of nine ratings.
Mr. Burgess was not aware that Ms. Bain had filed a sexual harassment complaint or any kind of discrimination complaint against him at the time he completed the 1996 evaluation. Although he knew that Ms. Bain had gone to
Mr. Van Dever concerning his directive to her that she should not forward her phone to Quanita Stallworth at the switchboard, and although he was later told that Mr. Van Dever was investigating whether there was a morale problem in his division, he did not actually know that a sexual harassment
complaint had been filed regarding him. He learned of it when the Petitioner filed her retaliation complaint with the Commission and referenced a previous "sexual harassment" complaint that she had filed on October 4, 1996, with the ECUA.
Mr. Burgess found that she had submitted the
October 4, 1996, memorandum when she made reference to it in a November 12, 1996, memorandum which she wrote in response to the November 11, 1996, performance evaluation. However, he did not learn that she claimed to have filed a sexual harassment complaint against him until the ECUA was notified of her retaliation charge by the Human Relations Commission.
Mr. Holmes never told Mr. Burgess that the Petitioner had called her complaint a sexual harassment complaint or gender-based discrimination complaint. Neither Mr. Holmes or Mr. Van Dever told Mr. Burgess about the contents of the October 4, 1996, memorandum.
Mr. Burgess did not know until early June 1997 that the Petitioner had alleged that he had sexually harassed her because when he found out about the sexual harassment complaint, he had just been nominated to be president of the local Chapter of the American Cancer Society, in late May 1997. When he received notification that Ms. Bain was claiming sexual harassment, he went to the leaders of the American Cancer
Society and offered to resign or have them not name him as president so as not to cause the Society any embarrassment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
The Motion to Dismiss
The Respondent filed an Amended Motion to Dismiss contending that the Commission was without authority to rescind its previous Order of Dismissal. It appears that the Commission failed to transmit the Notice of Appeal to the District Court of Appeal nor did it transmit the record to the District Court of Appeal. It is true, however, that jurisdiction vests in the appellate court upon the timely filing of a Notice of Appeal either in the lower tribunal or in the appellate court. Frank Edelen Buick Company v. Calvin, 389 So. 2d 649 (Fla. 1st DCA 1980). Before the record is transmitted, however, the lower tribunal has concurrent jurisdiction to render orders on procedural matters, other than extensions of time. See Florida Rules of Appellate Procedure 9.600(a). The Commission's action in rescinding and re-opening the case was akin to the type of action contemplated by Rule 9.600 to correct an obvious Commission error. The Commission misinterpreted its own rule and miscounted the time that had elapsed for the filing of the
Petition for Relief and issued the Notice of Dismissal. In its order rescinding the Notice of Dismissal, it then interpreted its rule differently so as to allow as timely the filing based on the post-mark date, as being within the rule's and the statute's time limit. The court in Taylor v. Department of
Business and Professional Regulation, 520 So. 2d 557 (Fla. 1988), recognized that an agency has inherent authority to correct clerical errors and errors arising from mistake or inadvertence in its own orders. The court stated in the Taylor
case that:
It makes not sense to us that, when an administrative order does not reflect the clear intention of the agency because of an inadvertent error, the only way the error can be corrected is for the aggrieved party to file an appeal and request the reviewing body to relinquish jurisdiction to allow the agency an opportunity for its order to speak to the truth.
Taylor at p. 560. Thus it would seem that because of more mistakes, the failure to transmit the Notice of Appeal and the record to the District Court of Appeal, that the Commission, inadvertently or otherwise, retained authority to rescind its Final Order and re-open the case on the basis that the original Final Order or Notice of Dismissal was based upon an inadvertent error or mistake. Thus, the Amended Motion to Dismiss should be denied.
The subject alleges retaliation, in alleged violation of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. Florida employers are prohibited from discriminating against employees on the basis of sex. Section 760.10(1)(a), Florida Statutes. Employers are further prohibited from discriminating against employees for opposing any practice which is violative of Chapter 760, Florida Statutes, or because an employee has made a charge of discrimination. Section 760.10(7), Florida Statutes.
Chapter 760 is modeled after Title VII of the Federal Civil Rights Act of 1964. Florida courts have accordingly held that Federal case law will be persuasive guidance on issues arising in cases under Chapter 760, Florida Statutes. See
Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1981).
The Petitioner has the ultimate burden of proof as determined by the court in Texas Dept of Community Affairs v.
Burdine, 450 U.S. 248 (1981). Therefore, the Petitioner must either present direct evidence of discrimination or must prove a prima facie case. See Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999). No direct evidence of retaliation was presented in this case.
In order to make out a prima facie case of retaliation, the Petitioner must show: (a) that she engaged in
statutorily protected activity; (b) that she suffered an adverse employment action and (c) that the adverse employment action was causally related to the protected activity. See Harper v.
Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir.
1998).
The Petitioner failed to establish a prima facie case.
She failed to show that she was engaged in statutorily protected activity. In order to do so she would be required to show that the October 4, 1996, memorandum complaining of sexual harassment, was based on a good faith, reasonable belief that ECUA had engaged in employment practices in violation of Chapter 760, Florida Statutes. Harper supra, at 1388.
The Petitioner was required to show that her belief that ECUA had engaged in unlawful practices was objectively reasonable in light of the facts and record presented. It is not enough for her to allege her belief to be honest and
bona fide. The record evidence must show that her belief was objectively reasonable. Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956, 959-60 (11th Cir. 1997). The Petitioner is charged with substantive knowledge of the law when judging the reasonableness of her belief that ECUA had engaged in unlawful employment practices. Harper supra, at 1388, FN2. (the 11th Circuit rejected the plaintiff's argument that they should not be charged with substantive knowledge of the law and
stated, "We reject the plaintiff's argument because it would eviscerate the objective component of our reasonableness inquiry. [citation omitted] If plaintiffs are free to disclaim knowledge of substantive law, the reasonableness inquiry becomes no more than speculation regarding their subjective knowledge."). Although the Petitioner claimed that Mr. Burgess had sexually harassed her, she could not and did not have a good faith, reasonable belief that he had actually sexually harassed her. On the day she submitted the memorandum in which she accused him of sexual harassment, she acknowledged to Mr. Holmes that he had not made sexual advances toward her nor engaged in any sexually offensive behavior and that was not the substance of her claim. While the Petitioner continued to refer to the Complaint as "sexual harassment," even in her Petition for Relief, she stipulated at the hearing that the complaint was based on gender bias and not on sexual harassment. There is no evidence that any conduct she complained of constituted sexual harassment and she did not have a reasonable belief that Mr.
Burgess had engaged in sexual harassment. Thus, the submission of the memorandum of October 4, 1996, was not statutorily protected activity, at least as a protest of sexual harassment, for purposes of the later retaliation claim involved in this case.
That memorandum also does not support a conclusion that she had a good faith, reasonable belief that ECUA had engaged in gender bias or had permitted a hostile work environment based on gender bias. The Petitioner complained about three incidents which allegedly took place in February 1993, January 1994 and September 1996. Although she testified that other similar incidents occurred between the 1994 incident and the 1996 incident, she did not present any evidence probative of them.
The three cited incidents allegedly involved
Mr. Burgess reacting in an upset manner to something that the Petitioner had done or failed to do. The Petitioner claims that his conduct constituted intimidation and discriminatory behavior. However, the only basis for her conclusion that the conduct was discriminatory was that on one occasion she heard Mr. Burgess apologize to a male subordinate, Gabe Brown, who was upset with Mr. Burgess' handling of a matter and how it reflected on him. The Petitioner felt that this was evidence of discriminatory bias because she allegedly could not have confronted Mr. Burgess in the same way and because Mr. Burgess had not apologized to her, except only after being ordered to apologize. This conduct on the part of Mr. Burgess, if true, does not demonstrate gender bias and does not support an objective, reasonable belief that the employer engaged in gender
bias. Especially because the employer, upon learning of the incident, directed Mr. Burgess to apologize to Ms. Bain.
The Petitioner also admitted that she believed
Mr. Burgess mistreated subordinate employees whether they were male or female. Further, the Petitioner complained to the Executive Director about Mr. Burgess on at least three occasions and did confront him and speak-up to him as Mr. Brown had done. The result was that Mr. Burgess apologized on at least two occasions to her. After her meetings with the Executive Director she admits that Mr. Burgess' conduct toward her improved. Thus, there is established no significant difference in how Mr. Burgess treated Mr. Brown and how he treated
Ms. Bain. She therefore, could not have an objectively reasonable belief that his conduct was discriminatory based on gender bias since he engaged in similar conduct with both males and females. There is also no showing that she had an objective, reasonable belief that ECUA condoned or permitted gender bias against her since she did not notify ECUA of any claim of discriminatory bias or conduct until after the September 1996 incident. Further, by her own testimony, when she voiced complaints about Mr. Burgess to the Executive Director even before that time, the Executive Director counseled with Mr. Burgess and on two occasions he apologized and she acknowledged that "things" improved. This supports the
conclusion that ECUA, irrespective of the cause of the conduct or notice of a claim of gender bias, readily attempted to render the situation in Ms. Bain's favor. Thus, it cannot be concluded that the ECUA condoned or permitted gender bias or a hostile work environment.
The alleged conduct the Petitioner complains of, three incidents over a period of three and one-half years in which
Mr. Burgess allegedly yelled, fumed, glared at her or hit his finger on the desk, is not sufficiently severe or pervasive to constitute a hostile work environment. See Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). In order to maintain an action for a hostile work environment, the alleged conduct must be extreme and pervasive. A hostile work environment is one that is "permeated with discriminatory intimidation, ridicule and insult." Oncale v. Sundowner Offshore Svcs., Inc., 118 S.Ct. 998, 1001 (1998). Thus,
Ms. Bain could not have had an objectively reasonable belief that Mr. Burgess or ECUA engaged in or permitted a hostile work environment. Therefore, she could not show that she engaged in statutorily protected activity in filing the discrimination complaint and complaining of discrimination. Thus, she cannot show that ECUA retaliated against her for engaging in protected activity.
The Petitioner also failed to show that she suffered an adverse employment action as a result of engaging in statutorily protected activity. She claims that her annual performance rating for 1996 was adverse to her because it was lower than the previous year's evaluation and lower than what she typically received. The November 1996 performance evaluation is, however, not an adverse employment action. The total weighted score of 3.4 was between a "good" rating and an "excellent" rating. Compared to all of her other ratings between 1992 to the year 2000, her 1996 ratings in the categories are not significantly lower or atypical so as to constitute an adverse employment action.
The Petitioner did not offer persuasive evidence that she suffered adverse consequences because of the rating. Although she testified that she would have received "more leave days and possibly more salary, depending on how it was computed," had she been rated higher, she failed to explain how she felt this would have occurred and failed to support that assertion with preponderant evidence.
Moreover, subsequently she received lower evaluations than the 1996 evaluation, which is the only one she claims is retaliatory. She received these later evaluations from
Bill Johnson in 1997 and 1998. She testified, however, that she had not been mistreated or discriminated against by
Bill Johnson. Thus, she does not claim that Bill Johnson's evaluation or adverse employment actions are discriminatory. If the lower evaluations in 1997 and 1998 (3.2) are not adverse employment actions, then certainly the higher evaluation rating in 1996 by Mr. Burgess (3.4) cannot be an adverse employment action.
The Petitioner requested that she be removed from Mr. Burgess' supervision. Ultimately she was, by being transferred to the Engineering Department. She does not claim that her transfer to that department, where she remained in the
same position of Office Assistant IV, was retaliation. She does allege that being moved to the Engineering Department deprived her of promotional opportunities. However, the evidence showed that ECUA employees can apply for and receive promotions throughout the ECUA organization and are not restricted to promotions only within their current department.
Even if the 1996 evaluation could be deemed to be an adverse employment action, she failed to show a causal connection between Mr. Burgess' rating and the October 4, 1996, memorandum claiming sexual harassment. At the time he completed the 1996 evaluation, Mr. Burgess did not know that she had filed a sexual harassment complaint or any kind of discrimination complaint against him. The Petitioner offered no credible evidence to contradict Mr. Burgess' testimony on this point and
she agreed that the October 4, 1996, memorandum and her allegations of sexual harassment were not mentioned or discussed in any of the meetings that she had with Mr. Burgess or
Mr. Van Dever. It was not until after she received the 1996 evaluation that she wrote a memorandum which referenced the October 4, 1996 memorandum.
The evidence shows that the complaint she made to Mr. Van Dever about Mr. Burgess was to the effect that
Mr. Burgess was a tyrant and mistreated his employees and that a morale problem existed in his division. When Mr. Van Dever conducted an informal investigation of her complaint, he inquired whether there was a morale problem with Mr. Burgess.
The Petitioner acknowledges that these were the issues that she took to Mr. Van Dever and that she did not discuss gender bias or any allegations of sexual harassment with Mr. Burgess or Mr. Van Dever. While she alleged sexual harassment in the October 4, 1996, memorandum to Mr. Holmes, she told Mr. Holmes on that same day that she was not claiming sexual harassment.
In order for the 1996 evaluation to be an act of retaliation, Mr. Burgess would have to have had knowledge that Ms. Bain had filed a complaint against him grounded in discrimination which he did not have. See Assily v. Tampa General Hospital, 814 F.Supp. 1069 (M.D. Fla. 1993).
Even if it was determined that a prima facie case of
retaliation had been established, the ECUA demonstrated a legitimate, non-retaliatory basis for the performance evaluation given by Mr. Burgess in 1996. The evidence shows that
Mr. Burgess based that rating on Ms. Bain's performance.
Mr. Burgess felt that the Petitioner, while still doing a good job, did not put forth extra effort that it takes to receive an "Excellent" or "Superior" rating as she had in the past. He attributed this to her disappointment about her position being re-classified and because she did not get the position upgrade she desired.
The evidence supports the conclusion that the rating is not pretextual. The Petitioner's performance and attitude were affected by the disappointment and concern over the re- classification and Mr. Burgess' lack of support for her requested position upgrade. The memorandum that she authored concerning the re-classification shows that she resented the fact that other secretaries were now considered her equal and received substantial pay increases (although not to levels above hers). She viewed that situation as a demotion. The tone of her memorandum shows hostility and resentment towards
Mr. Burgess. Her memorandum says that she basically felt that she had been mistreated as a result of the re-classification and that her main objective was a position upgrade.
The fact that Mr. Johnson rated her even lower in two subsequent years to the last rating by Mr. Burgess also supports the conclusion that Mr. Burgess' articulated reasons for why he gave Ms. Bain the rating he did in 1996 were legitimate and not pretextual.
In summary, it cannot be concluded that the Petitioner established a prima facie case of discrimination through retaliation. Moreover, the Respondent established a legitimate, non-discriminatory reason for the rating made in 1996, and, indeed, in the subsequent years. The Petitioner failed to adduce persuasive evidence that that legitimate, non- discriminatory reason demonstrated by the Respondent was pretextual.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED:
That a final order be entered by the Florida Commission on Human Relations finding that the Petitioner failed to establish that she was the victim of discriminatory retaliation and dismissing the Petition in its entirety.
DONE AND ENTERED this 8th day of March, 2001, in
Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2001.
COPIES FURNISHED:
R. John Westberry, Esquire Holt & Westberry
1108-A North 12th Avenue Pensacola, Florida 32501
Rosa Carson, Esquire Carson & Adkins
2958 Wellington Circle, North, Suite 2000
Tallahassee, Florida 32308-6885
Dana A. Baird, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 01, 2001 | Agency Final Order | |
| Mar. 08, 2001 | Recommended Order | Petitioner failed to prove prima facie case; no adverse employment event in context of cases interpreting Chapter 760, Florida Statutes. In any event, legitimate non-discriminatory reason existed and proven. |
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