STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CYNTHIA AUSBY,
Petitioner,
vs.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Respondent.
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) Case No. 01-1493
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RECOMMENDED ORDER
A formal hearing was conducted in this case on June 28, 2001, in Ocala, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.
APPEARANCES
For Petitioner: Cynthia Ausby, pro se
5 Hemlock Loop Lane Ocala, Florida 34472
For Respondent: Ralph McMurphy, Esquire
Department of Children and Family Services
1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
STATEMENT OF THE ISSUES
The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
PRELIMINARY STATEMENT
In September 1995, Petitioner Cynthia Ausby (Petitioner) filed a Complaint of Discrimination with her employer, Respondent Department of Children and Family Services (Respondent), formerly known as the Department of Health and Rehabilitative Services. On May 21, 1996, Respondent advised Petitioner that Respondent's investigation found no reasonable cause to believe that any violation of the department's equal employment opportunity policy had occurred.
By letter dated June 23, 1996, Petitioner allegedly requested the Florida Commission on Human Relations (FCHR) to investigate her Complaint of Discrimination against Respondent. The record here does not contain a copy of this letter showing the date that FCHR received it. However, FCHR's Determination: Cause - Adverse Inference dated October 21, 2000, indicates that Petitioner filed a Complaint of Discrimination against Respondent on either June 6, 1996, or June 26, 1996. FCHR's Determination: Cause - Adverse Inference dated October 21, 2000, contains a discrepancy as to this date.
On December 20, 1996, Petitioner filed a Charge of Discrimination with FCHR. Said charge alleged that Respondent had discriminated against Petitioner on the basis of race, color, sex, handicap, and retaliation.
FCHR's Determination: Cause - Adverse Inference dated October 21, 2000, establishes the following facts: (a) FCHR sent a letter dated August 11, 1998, to Respondent, requesting documents pertinent to Petitioner's Complaint of Discrimination;
On or about August 28, 1998, Respondent responded that it would not be producing the requested records, citing Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997); and (c) Subsequently, FCHR sent Respondent a letter dated September 25, 1998, advising Respondent of the possible adverse inference being drawn by FCHR due to Respondent's refusal to comply with the request to produce records.
On October 21, 2000, FCHR issued a Determination: Cause - Adverse Inference. That same day, FCHR issued a Determination: Cause.
On December 12, 2000, FCHR issued an Amended Notice of Determination: Cause.
Petitioner subsequently filed a Petition for Relief with FCHR. The petition bears a date stamp indicating that FCHR received it on January 11, 2001. The petition alleges that Respondent discriminated against Petitioner on the basis of race, disability, and retaliation.
On March 30, 2001, FCHR issued a Notice of Dismissal. This notice indicates that Petitioner had failed to file a timely Petition for Relief.
On April 16, 2001, FCHR issued a Rescission of Notice of Dismissal. This order rescinded the March 30, 2001, Notice of Dismissal and the December 12, 2000, Amended Notice of Determination: Cause. The Order indicates that Petitioner filed a Petition for Relief with FCHR on January 8, 2001, prior to the expiration of the 35-day period.
On April 18, 2001, FCHR referred the Petition for Relief to the Division of Administrative Hearings.
The Division of Administrative Hearings issued an Initial Order on April 19, 2001. Petitioner filed a response to this Order on May 1, 2001.
A Notice of Hearing dated May 1, 2001, scheduled the hearing for June 28, 2001.
On June 25, 2001, Petitioner filed a Motion to Strike.
This motion is moot because Respondent never offered the documents dated May 11, 1992, and September 27, 1993, which Petitioner's motion dealt with for admission into evidence.
During the hearing, Petitioner testified on her own behalf and offered Exhibit Nos. P1A-P1D, P2-P11, and P12A-P12B. After reviewing Petitioner's proposed exhibits and the hearing transcript, Petitioner's exhibits are accepted as evidence to the extent they have been properly authenticated and do not contain inadmissible hearsay. Respondent presented the
testimony of four witnesses and offered one exhibit, which was admitted into the record as evidence.
During the hearing, the undersigned granted Petitioner an opportunity to make a post-hearing submission, showing that her Charge of Discrimination was based on alleged violations that occurred within 365 days prior to the filing of the Charge of Discrimination with FCHR.
On July 6, 2001, Petitioner filed a letter dated June 30, 2001, together with the following four attachments: (a) letter dated May 21, 1996, from Respondent's predecessor, Department of Health and Rehabilitative Services; (b) letter dated May 23, 1996, from Petitioner to the United States Equal Employment Opportunity Commission; (c) letter dated June 23, 1996, from Petitioner to FCHR; and (d) Determination: Cause - Adverse Inference in FCHR Case No. 96-1637.
On July 9, 2001, the undersigned issued a Post-hearing Order. Said Order included Petitioner's post-hearing submission as an attachment. It also provided Respondent with an opportunity to respond to the post-hearing submission. As of the date of this Recommended Order, Respondent has not filed such a response.
The Transcript of the proceeding was filed on July 20, 2001. The parties did not file proposed recommended orders.
FINDINGS OF FACT
Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position.
Petitioner's supervisor in Marion County was
Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing.
In 1994, Petitioner learned that she was diabetic.
From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job.
Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11,
1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal.
Ms. Bartsch wrote the following comment in the February 1994 performance appraisal:
During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall."
Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal.
Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed
Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no
competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal.
In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required
all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work.
On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and
signed by Ms. Bartsch and Petitioner contains the following
comments:
Strengths:
being perfectionist; works in timely manner
helps other people; always available
lot of knowledge re HRS/investigations
hard worker
organized
Areas Needing Improvement:
(1) personality problems with co-workers
The following changes will be made:
isolate and stay from others
letting Gloria speak in place
On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows:
Issues:
court problems.
calendar needs organization
getting not enough support from attorneys
doing better at getting along with people
continue not allowing others to lean too much
There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team.
Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May
1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs.
On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows:
Issues:
fantastic - no backlog
work on trying to UPS or petition without removing kids if not in imminent danger
interpersonal relations
ignore other's comments
say nothing to hurt people's feelings
Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw
On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees
switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch
"on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994.
Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993.
During some staff meetings, Petitioner felt that
Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that
Ms. Bartsch should have intervened on Petitioner's behalf during
a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that
Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson.
Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs.
Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is
persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements.
There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time.
There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff.
In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford.
The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing.
Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands.
Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to
sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class.
Regarding "failure to follow instructions,"
Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint.
This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements.
On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that
from that time forward she was only willing to help one other PI who appreciated her work.
On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file.
Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part:
Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit.
The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers.
Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child.
Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns.
There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works.
Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you.
You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue.
* * *
This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan.
There are two "core" standards which must be met on the new RAPP form. They are:
Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image.
Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization.
You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this.
They strongly take this as lack of respect towards them on your part.
Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also.
You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues.
Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file.
Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's
failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct.
Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help;
In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she
works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours;
(i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer.
On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file.
On January 19, 1995, Mr. Crawford complained to
Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS.
On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that
Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact,
Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin.
Anyway, it is too late now."
In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions.
Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel
vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations.
On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues
discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose.
On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida.
At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of
children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson.
On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her.
On July 20, 1995, Ms. Bartsch wrote Petitioner a
"Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP).
On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work
deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel."
When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that
Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred.
On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996,
Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996:
Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced
P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an
excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work.
At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 760.11, Florida Statutes.
Petitioner has the burden of proving that she has a cognizable claim of discrimination under Section 760.10, Florida Statutes, and if so, she bears the ultimate burden of persuasion that Respondent discriminated against her based on race, gender, disability, and retaliation. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
In this case, the Charge of Discrimination was filled with FCHR on December 20, 1996. None of Petitioner's alleged violations of Section 760.10, Florida Statutes, occurred within
365 days prior to that date as required by Section 760.11(1), Florida Statutes. However, FCHR's Determination: Cause - Adverse Inference dated October 21, 2000, states that Petitioner
filed her complaint of discrimination on June 6, 1996. This same document also states as follows in pertinent part:
The Complaint of Discrimination was filed in a timely manner pursuant to Section 760.11(1), Florida Statutes. The alleged violation last occurred on July 21, 1995, and Complainant filed the Complaint of Discrimination in this manner on June 26, 1996, a date within 365 days of the alleged violation.
Petitioner testified at hearing that she had presented no exhibits and was not alleging any violations of Section 750.10, Florida Statutes, after October 1, 1996. To the extent that Petitioner filed her initial complaint with FCHR on December 20, 1996, her claim is time-barred in its entirety and should be dismissed accordingly.
In the alternative, if Petitioner preserved her claim by filing her complaint in June 1996, she is entitled to present evidence of unlawful employment acts allegedly committed by Respondent from June 1995 to July 21, 1995. Any alleged acts of unlawful conduct by Respondent prior to that time would be
time-barred by Section 760.11(1), Florida Statutes.
The only alleged acts of discrimination or retaliation that occurred from June 1995 through July 21, 1995, include the following: (a) Respondent's refusal to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file pursuant to Petitioner's request in her June 20, 1995,
memorandum to Don Dixon; (b) Ms. Bartsch's assignment of a co-worker to visit the schools to instruct teachers on child abuse and neglect pursuant to Petitioner's suggestion;
(c) Petitioner's resignation from Respondent's EEOC committee because she felt she had been a victim of discrimination and retaliation as alleged in her letter of resignation dated June 14, 1995; (d) Ms. Bartsch's July 20, 1995, "Letter of Counsel" advising Petitioner that failure to properly claim
mileage reimbursement in the future could result in dismissal; and (e) Ms. Bartsch's preparation of the PIP dated July 21, 1995, stating that Petitioner had not filled out her travel vouchers properly and outlining the corrective action to be taken.
Because Petitioner alleged in her Charge of Discrimination dated December 20, 1996, that Ms. Bartsch's discriminatory acts began in 1994 and terminated on July 21, 1995, and because background facts dating back to 1994 are necessary to determine whether Petitioner's timely claims are meritorious, Petitioner was permitted at hearing to develop a record of facts dating back to 1994.
Review of the entire record indicates that Petitioner has not presented a prima facie case of discrimination, harassment, or disparate treatment based on her race, gender, or handicap. Likewise, Petitioner has not presented a prima case
of retaliation. To the extent that Petitioner has presented a prima facie case of the alleged violations, the testimony presented by Respondent, together with the exhibits offered by both parties, clearly show that Respondent had a legitimate reason for every action taken by Respondent.
Petitioner may not have been comfortable with Ms. Bartsch's management style. Nevertheless, the most
persuasive evidence indicates that Petitioner admittedly felt the effects of job stress and had difficulty getting along with her co-workers. Ms. Bartsch appropriately worked with Petitioner to resolve these problems, looking for ways to make it possible for Petitioner to continue to work effectively and efficiently.
Petitioner was dissatisfied with her rating on the 1994 performance appraisal. Respondent, on the other hand, gave Petitioner the rating of "achieves" because of Petitioner's admitted lack of professional demeanor. Petitioner was not required to change Petitioner's rating just because it changed a white male's rating under unknown circumstances.
In May 1994, Petitioner was unhappy that she had to revert to a five-day work schedule. The record indicates that the unit voted as a group to make the change.
There is no credible evidence that Ms. Bartsch assigned Petitioner more cases and "on-call" weekend duty or
that Ms. Bartsch made such assignments showing favoritism to white and/or male employees. Instead, the more persuasive evidence indicates that cases and weekend duties were assigned on a rotating basis unless someone in the unit was sick or was experiencing other work-related problems.
Everyone in the unit was required to keep their cases updated on the computer. Petitioner had to meet this requirement even if she only had one case that she was unaware of to update.
There is no question but that there was friction between staff members in the unit. It is clear that one or more co-workers hurt Petitioner's feelings on one or more occasions.
It is also clear that Petitioner sometimes offended her
co-workers. Ms. Bartsch appropriately handled the situation by sending out her October 13, 1994, memorandum, encouraging the staff to work as a team.
Ms. Bartsch's December 19, 1994, memorandum states on the second page that Petitioner is to consider it a "Letter of Counsel" even though the memorandum was not titled as such. Competent evidence indicates that a document designated as a "Letter of Counsel" should not be placed in an employee's personnel file because it does not constitute formal discipline. However, the personnel office may place various other documents containing relevant personal information in a personnel file.
In this case, the presence of the document in the file and Respondent's failure to remove it upon Petitioner's several written requests does not mean that Respondent considered the document as anything else but relevant personal information or that Respondent's employees had a discriminatory intent against Petitioner. There is no evidence in the record that the presence of the document in the file had any adverse impact on Petitioner's personal or professional reputation. Petitioner never suffered any demotion or decrease in salary during or after her employment in Marion County.
When Mr. Crawford was overworked with court cases he requested relief, which Ms. Bartsch tried to provide by encouraging the staff to provide help. By the time Mr. Crawford sought help in January 1995, Petitioner had already advised
Ms. Bartsch that she would no longer handle the court cases of other staff members. In a January 24, 1995, memorandum,
Ms. Bartsch expressed her dissatisfaction with the staff for failing to help Petitioner and Mr. Crawford with the court cases. Ms. Bartsch did not show any racial or gender discrimination, or any retaliatory acts in this regard.
There is no competent evidence that Ms. Bartsch singled Petitioner out from the group when Ms. Bartsch audited Petitioner's travel vouchers. The rules relating to travel vouchers apply to all employees. Petitioner disagreed with the
way that she was required to request mileage reimbursement but made the corrections anyway, even if under protest. Ms. Bartsch was justified in writing her July 20, 1995 "Letter of Counsel" and the July 21, 1995, PIP as long as some, if not all of Petitioner's travel vouchers, needed to be corrected.
Petitioner did not dispute the need for all corrections. Petitioner's May 24, 1995, memorandum indicates that Petitioner submitted her travel vouchers covering two or three months at a time whereas other employees submitted theirs on a monthly basis.
There is no credible evidence that any of Respondent's employees told Petitioner that she might be blackballed if she represented another employee in a grievance proceeding or if she personally filed a civil rights action. There is no competent evidence that Petitioner suffered any adverse impact as a result of her representation of another employee in a grievance proceeding or for personally filing a civil rights suit. Petitioner resigned from the EEOC committee voluntarily.
Petitioner is to be commended for making a suggestion that someone from the office visit schools to talk about child abuse and neglect. Having made that suggestion, Ms. Bartsch was not required to designate Petitioner as the unit's spokesperson to the community. Moreover, there is no evidence that Petitioner ever requested that position.
In regard to the alleged racial or gender-biased slurs, Petitioner presented no evidence that anyone in a position of authority with Respondent was aware of Petitioner's allegations during the relevant time period. Petitioner did not raise the issue of Ms. Bartsch's alleged racial slur until Petitioner testified at the hearing. The greater weight of the evidence indicates that Respondent would never have tolerated such remarks.
Petitioner has not met her ultimate burden of proving that Respondent discriminated against her or took any retaliatory action against her.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That FCHR enter an order dismissing the Petition for Relief with prejudice.
DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
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 28th day of August, 2001.
COPIES FURNISHED:
Dana A. Baird, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Azizi M. Dixon, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Cynthia Ausby
5 Hemlock Loop Lane Ocala, Florida 34472
Ralph McMurphy, Esquire Department of Children and
Family Services
1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
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 |
|---|---|---|
| Jul. 26, 2002 | Agency Final Order | |
| Aug. 28, 2001 | Recommended Order | Petitioner did not prove discrimination based on race, gender, handicap, or retaliation. Respondent had legitimate reasons for every action taken. |
