LYNDA D. WYNN,
vs.
Respondent.
) Case No. 03-2737
A hearing was held pursuant to notice in the above-styled case on October 1, 2003, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida.
For Petitioner: Lynda D. Wynn, pro se
For Respondent: Marshall G. Wiseheart, Esquire
Whether the Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes, in dismissing the Petitioner.
On or about November 8, 2001, the Petitioner filed a claim of discrimination with the Florida Commission on Human Relations. This claim was investigated in due course and a determination of cause was made by the Commission. Thereafter, the Commission forwarded the case together with the Petitioner's Petitioner for Relief to the Division of Administrative Hearings on or about July 28, 2003. On August 8, 2003, the matter was noticed for hearing on October 1, 2003, and heard as noticed.
At the final hearing, the Petitioner testified in her own behalf, and introduced into evidence Petitioner's Exhibits 1 through 5. The Respondent presented the testimony of Dianne Redd and Mary Spivey, and introduced the Respondent's Exhibits 1 and 2.
Both sides filed post-hearing briefs which were received on October 13 and 14, 2003, which coincided with the last illness of my father, who died October 21, 2003. This occasioned a delay in the consideration of the parties' briefs and the preparation of this order.
The Petitioner, Lynda D. Wynn, is an African-American female who was hired by the Office of Greenways and Trails (OGT), a division of the Department of Environmental Protection
(DEP), on September 21, 2001, as an Other Personnel Services (OPS) employee. She was paid $14.00 per hour.
OPS employees do not enjoy career service protection, and may be discharged without cause except that they cannot be discharged for a reason contrary to law.
The Petitioner had been employed by the DEP in another capacity in another division of the agency prior to her employment with OGT's public information office. She was discharged from the first position and re-employed in the Public Information Office (PIO) when Dianne Redd, the head of the PIO was out on leave. Redd had no input into the hiring of the Petitioner, and returned to find Wynn on her staff.
The Petitioner was employed as a Public Information Specialist. No evidence was received regarding the qualifications for this position. The Petitioner's previous position was as a planner and her education and experience is principally in this area.
Upon reporting for work, the Petitioner was assigned with other employees of OGT to clean up an area in the rear of the agency's headquarters' building to create a walking trail. This was outside, physical labor clearing brush, spreading wood chips, and preparing the trail. Many of the people in the office avoiding working on this project, but the Petitioner
worked on the project frequently in order to meet the dedication deadline. This was her welcome to OGT's PIO.
In addition to working on the project, she was tasked to solicit donations for a luncheon to accompany the opening to coincide with Green Way's Month in October.
Leading up the various activities for Greenway's Month, there were staff meetings. At one of these staff meetings, the head of the public information office, Dianne Redd, asked the Petitioner to pick a historic character, research the person's life, and role play that person in preparation for opening of the Palatka Visitor's Center to "see how you'll fit in."
The Petitioner choose Mary McLeod Bethune as her character. Bethune was famous African-American educator who was the first African-American woman to hold high office in the Federal government. She is famous in Florida as the founder of Bethune-Cookman College.
The Petitioner, along with others in the office, prepared displays and characters in keeping with historic characters like folk-healers or herbalists and historic personalities like Bethune. The Petitioner and others created displays and exhibits and developed costumes appropriate to their characters for their participation in the opening of the OGT office in Palatka. A master plan for the location of
various exhibits was prepared by Shelton Ansley, who did not go to Palatka.
Ms. Redd, the Petitioner, and many of the others in the office made the trip to Palatka to participate in the opening of the visitor's center. The group broke in two, and the Petitioner, Mary Spivey, and Susan Walker stayed at the visitor's center and Redd and some other employees went out to find some additional props for the opening which featured women in Florida history.
The master plan prepared by Ansley was not provided to the Petitioner and the others setting up the exhibits. They did not receive specific guidance from Redd on how to set up their displays, and they set them up inside the visitor's center. By the time Redd returned, their displays were nearly completely set up. Redd had determined previously, but had not communicated to the Petitioner and Spivey that the space inside the center was being reserved for local exhibitors.
There is conflicting testimony about Redd's reaction; however, she had her employees strike their displays and prepare to move them outside. Regardless of whether she was angry with the Petitioner and Spivey, Redd was not happy.
Spivey, who portrayed an herbalist, pointed out that her exhibit contained leaves and light materials that were
subject to being blown away outside. Redd retained Spivey's exhibit inside.
The Petitioner was asked to move her exhibit to an area adjacent to a rustic, board and batten structure housing a large pump. This structure was the approximate size of a sharecropper's cabin. The Petitioner pointed out to Redd that putting the Bethune exhibit next to such a structure would send the wrong message about Bethune who was the antithesis of a sharecropper. The Petitioner told Redd that she rather not to display the exhibit than display it next to the "outhouse."1/
Redd permitted the display to be left in the van and not displayed; however, the local exhibitors did not materialize and the display was set up later inside the visitor's center. It is unclear who decided to display the exhibit and who set it up; however, it was setup inside the visitor's center.
Sherry Graves portrayed Marjorie Kinnan Rawlings, and prepared her costume; however, she did not complete her display. Julie Roberts elected to portray a farmer's daughter, and developed a costume which she wore to the event. No disciplinary action was taken regarding Graves' failure to complete her project. Some items were collected on the porch to provide the rustic farm atmosphere, but it was not developed whether Robert's was expected to do more and failed to.
The opening concluded on Saturday evening, and everyone loaded the vehicles to return to Tallahassee. As everyone was leaving, Redd thanked them for their efforts and told them that they could take a half-day off on Monday, but to call in and advise the office whether they would be taking the morning or afternoon. It is unclear whether this instruction was delivered directly to the Petitioner by Redd, or through one of the other employees.
The Petitioner called in on the following Monday.
There is a conflict about the message that was left by the Petitioner on Redd's answering machine. It was erased. The Petitioner stated that she said that she said she would not be in and if the office needed her, they could reach her at her home. Redd stated the Petitioner called her and left a message that she would not be in that Monday morning, but would call back. The Petitioner did not attend work on Monday.
OPS employees have regularly assigned hours of work, and do not earn leave. However, they do earn overtime, and the time worked on Saturday constituted overtime. Agencies develop internal policies for the payment of overtime, but generally employees must make prior arrangements to take time off from work.
Redd testified regarding the Petitioner's termination.
Redd terminated the Petitioner because she took all of Monday
off when Redd only authorized employees to take off half-a-day. Redd had had previous problems with the Petitioner and her attendance. The Petitioner claimed, among other things, that others in the office messed around with her "in and out" sign.
An Employment Termination Critique was completed by Redd on the Petitioner. This form reflects that the Petitioner failed to accomplish assignments, that her work product was below expectations, that her work was not accurate, and that she failed to report for work regularly and punctually. The Petitioner did not agree with the assessment as reflected in her comments on the form.
Redd pointed to the Petitioner's failure to type labels, tables, and invitations as examples of tasks that took too long to complete. Redd also stated that there were problems with the Petitioner failing to sign out three or four times. Redd indicated that Petitioner's display on Bethune was not very good. There was no specifics of the Petitioner's failure to be accurate, and no documentation of counseling on these failings.
The Petitioner was employed by the PIO for between five and six weeks. During the first couple of weeks, as stated above, the Petitioner was engaged in building the office trail.
The Petitioner was the only African-American employee of the six persons employed in the PIO.
There are only three other African-American employees employed state-wide by the office of OGT. There are thirty-five employees in the Tallahassee office of OGT.
African-Americans are not proportionally represented in the OGT.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to Chapter 760, Part I, and Section 120.57(1), Florida Statutes (2002).
The employee has the burden to establish a prima facie case of intentional discrimination by a preponderance of the evidence. If the employee makes this showing, a presumption is raised that the employer discriminated against the employee, and the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. See McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
The employer may show a legitimate, non-discriminatory reason for the adverse employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production and not of persuasion, it is not required to persuade the fact finder that its decision was actually motivated by the reason given. If the employer
shows a legitimate reason for the action worthy of credence, then the employee must persuade the fact finder that the proffered reason for the employment decision is a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason is not worthy of belief. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).
The Petitioner raises in her post-hearing brief a claim pursuant to Section 760.10(7), Florida Statutes, based upon alleged discrimination because the claimant has opposed a practice which is an unlawful employment practice, or because the person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
This claim is related to the Petitioner being asked to move her exhibit outside to a rustic looking building which the Petitioner considered inappropriate for the purposes of the display, and the Petitioner being treated differently than her colleagues. The Petitioner claims a causal relationship between this controversy and her discharge.
Assuming for a moment a controversy regarding the placement of the exhibit, there is no factual basis to place the
Petitioner's opposition to Redd's decision within "a practice which is an unlawful employment practice." Redd had a non- discriminatory reason for her decision to place the exhibits outside; and, while there may have been a disagreement about where the display should have been placed, it was resolved before the opening by moving the Bethune display back indoors. Lastly, there is no evidence that this incident was a basis for the termination decision.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge an employee because of race.
The Petitioner must show that she is a member of a protected class; she was qualified for the position; suffered an adverse employment action; she was treated less favorably than similarly situated employees outside her protected class; and there is a causal connection between the adverse treatment and her being a member of a protected class.
The Petitioner proved two elements of the four part test. The Petitioner showed that she is an African-American, a protected class, and that she was discharged. The Petitioner did not show she was qualified for the position she held,2/ and she did not show that she was treated differently from others who similarly situated in a non-protected class (Disparate Treatment).
Regarding qualifications for her position, the Petitioner did not present evidence about the job criteria for her position. However, the issue is the Petitioner's discharge, and none of the reasons given for the Petitioner's discharge related to her lack of qualifications. The reasons for the Petitioner's discharge relate to how she performed her duties in terms of timeliness, and her accountability for her time, i.e., properly signing in and out and requesting absences from work. The Petitioner's failure to establish her qualifications for her position is not a bar to her claim under the factual predicate for this case.
DISPARATE TREATMENT
The Department presented testimony that it discharged the Petitioner because she took additional, unauthorized time off on Monday following working overtime Saturday. The Department introduced a termination critique which mentions other issues, to include late and incomplete projects and failing to properly account for attendance.
The Department did not establish what the Petitioner's working conditions were; however, regarding that Monday, the Department asserts that the Petitioner was only authorized four hours of compensatory time off. No evidence was presented by the Petitioner that this was not the requirement or that she was excused from the requirement by any other rule. No evidence was
presented by the Petitioner regarding whether any of the employees who were at the opening of the visitor's center took more than four hours off from work on the following Monday.3/ No evidence was introduced by the Petitioner regarding any misunderstandings or miscommunications of the work requirements for that Monday.
When questioned about the stated grounds for termination as reflected in the critique, Redd's references were vague or general and there was no documentation of any of the alleged incidents of late work or incomplete work. However, the Petitioner introduced no evidence of others who had not completed projects or were late with projects and who also had problems with attendance. In sum, the Petitioner did not introduce evidence to rebut the putative reason for her discharge or to show that she was treated differently from similarly situated employees who were not members of a protected class.
The Petitioner is obligated to demonstrate that her treatment was different from similarly situated employees who were not members of a protected class, and to demonstrate that stated reasons for her termination were pretextual. This later showing involves not only showing that the reasons were not true, but that the real reason for termination was discriminatory. Having failed to make these required proofs,
the Petitioner has not carried her burden of proof of her claim of discrimination.
That the Petitioner's Claim for Relief be dismissed. DONE AND ENTERED this 11th day of December, 2003, in
Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003.
1/ The building, as stated, was a pump house, and, as such, an outbuilding; however, it was not an "outhouse."
2/ Although the Petitioner's Proposed Recommended Order recites some facts about the Petitioner's personnel qualifications, the record does not reflect presentation of this evidence or stipulation to this material.
3/ The Petitioner's Proposed Recommended Order asserts that some employees took off six hours on that Monday; however, the record does not reflect this evidence as being presented at hearing.
Marshall G. Wiseheart, Esquire Department of Environmental Protection Office of the General Counsel
Lynda D. Wynn
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
