STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMY B. KALMBACHER,

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

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) Case No. 00-3848

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on January 17, 2001, at the St. Johns County Administration Building, St. Augustine, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Amy B. Kalmbacher, pro se

600 Domenico Circle, A-10

St. Augustine, Florida 32086

For Respondent: Marshall G. Wiseheart, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahasee, Florida 32399-6515

STATEMENT OF THE ISSUE

Was Petitioner denied a promotion on account of her gender?

PRELIMINARY STATEMENT

Petitioner, an employee with the Florida Department of Environmental Protection (Department), filed a complaint on November 14, 1997, with the Florida Commission on Human Relations, alleging that she was denied a promotion to Field Biologist, Grade Level II in October 1996, because of her gender. More than 180 days elapsed after the filing of the complaint without an investigation being completed. On August 15, 2000, Petitioner requested that her claim be forwarded to the Division of Administrative Hearings for resolution.

At the formal hearing Petitioner's Exhibits 1, 3, and 5 were admitted into evidence. Petitioner testified on her own behalf. The Department offered no evidence. No transcript was prepared and no proposed recommended orders were received.

FINDINGS OF FACT

1. Petitioner has been employed by the Department since 1991.

2. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory.

3. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor.

4. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments.

5. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats.

6. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file.

7. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial.

8. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender

   feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated.

9. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including

   "dumb blonde" jokes.

   
   

10. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II.

    Pat O'Conner is a male and had less seniority in the Department than Petitioner.

11. The position upgrade was not advertised and was not open to competition.

12. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed.

13. Mr. Wright was removed from his position in March

    
    

    1997.

    
    

14. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward.

15. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

17. Petitioner is a "person" within the meaning of Section 760.02(6), Florida Statutes. Petitioner is an "aggrieved person" within the meaning of Section 760.02(10), Florida Statutes.

18. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes.

19. Petitioner claims that Respondent has unlawfully discriminated against her based upon her gender.

20. Section 760.11(1), Florida Statutes, provides that, "Any person aggrieved by a violation of Section 509.092 may file a complaint with the commission within 365 days of the alleged violation naming the person responsible for the violation and describing the violation."

21. Petitioner failed to file her complaint with the Florida Commission on Human Relations within the statutory period.

22. Section 760.10(1)(a), Florida Statutes, in relevant part, makes it an unlawful employment practice for an employer to discharge or to otherwise discriminate against a person because of the person's sex.

23. Chapter 760, Florida Statutes, entitled the Florida Human Rights Act (Act), adopts the legal principles and precedents set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000 et seq . . ., and the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq.

24. The Act affords no protection from discrimination unless the employer engages in an adverse employment action. Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985); Moriskey v. Broward County, 80 F.3d 445 (11th Cir. 1996). Respondent

    took adverse employment action against Petitioner by upgrading a co-worker's position without providing Petitioner the opportunity to compete for the position. The remaining issue is whether the adverse employment action was taken against Petitioner because of her sex or any other prohibited status.

25. The burden of proof is generally on the party asserting the affirmative of the issue. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st

    DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

26. Because there was no direct evidence of discrimination, Petitioner must prove her case through the use of circumstantial evidence. When circumstantial evidence is used to demonstrate an employer's intent, a framework of shifting burdens of proof applies. Texas Dept. of Community

    Affairs v. Burdine, 450 U.S. 248, 101 S.Ct., 1089, 67 L.Ed.2d

    
    

    207 (1981).

    
    

27. Petitioner has the initial burden of establishing a prima facie case of discrimination. Rosenbaum v. Southern Manatee Fire and Rescue District, 980 F. Supp. 1469 (M.D. Fla.

    1997); Andrade v. Morse Operations, Inc., 946 F. Supp. 979, 984 (M.D. Fla. 1996). Petitioner must show by a preponderance of evidence that: she is a member of a protected class; she suffered an adverse employment action; similarly situated non- protected individuals received dissimilar treatment; and

    sufficient evidence of bias to infer a causal connection between her sex and the disparate treatment. Id. The failure to establish the last prong of the foregoing conjunctive test is fatal to a claim of discrimination. Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996).

28. Insufficient proof was adduced demonstrating that Respondent was biased against Petitioner, and assuming some bias existed, there was no proof that it was the cause of Petitioner not having an opportunity to compete for an upgrade in her employment status.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is

RECOMMENDED:

That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender.

DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 16th day of February, 2001.

COPIES FURNISHED:

Azizi M. Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Amy B. Kalmbacher

600 Domenico Circle, A-10

St. Augustine, Florida 32086

Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-6515

Dana A. Baird, General Counsel 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.

Docket for Case No: 00-003848

Orders for Case No: 00-003848