STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL MANZARO,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 05-0685

)

)

)

)

)

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on July 22, 2005, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Frank J. McKeown, Jr., Esquire

McKeown & Associates, P.A. Centurion Tower, Suite 1010 1601 Forum Place

West Palm Beach, Florida 33401

For Respondent: Carol A. Field, Esquire

Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human

Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On June 10, 2004, Petitioner Carol Manzaro filed a Charge with the Florida Commission on Human Relations ("FCHR") in which she claimed that Respondent Department of Children and Family Services had unlawfully "demoted" her in order to hire a younger worker to take her place as an investigator in the Office of the Inspector General. On January 26, 2005, the FCHR issued a "cause" determination, relying upon Florida Administrative Code Rule 60Y-5.003(4) to draw an adverse inference of culpability against Respondent, based on Respondent's failure to provide requested information to the FCHR in a timely manner.

Ms. Manzaro elected to pursue administrative remedies. She timely filed a Petition for Relief with the FCHR on or about February 18, 2005. The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on February 22, 2005, and an administrative law judge ("ALJ") was assigned to the case. The ALJ scheduled the final hearing for April 21, 2005, and later, at the parties' joint request, continued the final hearing until July 22, 2005.

At the hearing, Ms. Manzaro testified on her own behalf and called Gerald Justice and Gladys Hennen as additional witnesses. Ms. Manzaro did not offer any exhibits into evidence.

During its case, Respondent presented the testimony of Sheryl Steckler and also that of Julie Coleman. Respondent's Exhibits 1 through 7 were received in evidence.

The two-volume final hearing transcript was filed on August 11, 2005. Thereafter, the parties timely filed proposed recommended orders, which have been considered.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office.

2. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field

   office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee.

3. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding.

4. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be.

5. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of

   2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office.

6. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end.

7. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated.

8. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2

9. Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach

   County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job.

10. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote:

    I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale.

    
    

    As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003.

    
    

11. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I.

    Ultimate Factual Determinations

    
    

12. Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40.

13. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5

14. Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that

    people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed.

15. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7

16. The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely.

17. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The

    undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers.

18. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, and 120.57(1), Florida Statutes.

20. Under Section 760.11(1), Florida Statutes, any person aggrieved by an unlawful employment practice may file a complaint with the FCHR within 365 days after the alleged violation. Failure to do so bars the claim under state law. See Greene v. Seminole Elec. Co-op, Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997)(As a statute of limitations, Section 760.11(1) bars claims arising from acts that occurred more than one year before the charge was filed.); see also St. Petersburg Motor Club v. Cook, 567 So. 2d 488, 489 (Fla. 2d DCA 1990).9

21. The charge-filing period for a claim arising from a discrete act of alleged discrimination——e.g. termination,

    failure to promote, demotion, or refusal to hire——begins to run at the moment the act occurs, which is on the day it happens.

    See Maggio v. Department of Labor and Employment Security, 30 Fla. L. Weekly D1899a (Fla. 2d DCA Aug. 10, 2005); see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 2070-71 (2002)("A discrete retaliatory or discriminatory act 'occurred' on the day it 'happened.' A party, therefore, must file a charge within [the specified number of] days from the date of the act or lose the ability to recover for it.").10

22. Here, the conclusion is inescapable that any action of DCF that could have constituted the discrete act of "involuntarily demoting" Manzaro happened more than 365 days prior to June 10, 2004. Her last day of work in the OIG was, after all, some time in May 2003. Moreover, as was found above, Manzaro was in fact on notice of the possibility of age discrimination no later than January 31, 2003.

23. Thus, it is concluded that Manzaro's claim is time- barred and must be dismissed with prejudice for that reason.

24. Even if Manzaro's initial charge of discrimination were timely filed with the FCHR, she still would not be entitled to relief because her claim is without merit, for the alternative, and independently dispositive, reasons set forth below.

25. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973), the U.S. Supreme Court articulated a scheme for analyzing employment discrimination claims where, as here, the complainant relies upon circumstantial evidence of discriminatory intent. Pursuant to this analysis, the complainant has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. If, however, the complainant succeeds in making a prima facie case, then the burden shifts to the accused employer to articulate a legitimate, non- discriminatory reason for its complained-of conduct. If the employer carries this burden, then the complainant must establish that the proffered reason was not the true reason but merely a pretext for discrimination. Id.; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993).

26. To make a prima facie case of age discrimination, the claimant must prove that she was "(1) a member of the protected class [i.e. between the ages of 40 and 70]; (2) qualified for the position; (3) subjected to adverse employment action; and

    (4) replaced by a person outside the protected class or [made to suffer] from disparate treatment because of membership in the protected class." Kelliher v. Veneman, 313 F.3d 1270, 1275

    (11th Cir. 2002); see also Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1270 (Fla. 2d DCA 1986).

27. Manzaro offered proof sufficient to establish the first, second, and fourth elements of the prima facie case. With regard to the third element, however, the facts show that Manzaro suffered no "adverse employment action."

28. To be actionable, an adverse employment action must amount to "a serious and material change in the terms, conditions or privileges of employment." Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir. 2001)(emphasis in original). Further, "the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Id.; see also McCaw Cellular Communications of Florida, Inc. v. Kwiatek, 763 So. 2d 1063, 1066 (Fla. 4th DCA 1999).

29. The evidence fails to establish that DCF took such adverse action against Manzaro. While it seems that working conditions in the OIG were not as favorable for Manzaro under Ms. Steckler and Mr. Busch as they had been under the previous management, the undersigned is not persuaded, on this record, that DCF made the workplace so difficult for Manzaro that a reasonable person in her position would have felt compelled to resign. Cf. Webb v. Florida Health Care Management Corp., 804 So. 2d 422, 424 (Fla. 4th DCA 2001)(to prevail on constructive discharge claim, employee must show that employer made working

    conditions so difficult that a reasonable person would feel compelled to resign).

30. Manzaro's failure to make out a prima facie case of age discrimination ended the inquiry. Because the burden never shifted to DCF to articulate a legitimate, non-discriminatory reason for its conduct, it was not necessary to make any findings of fact in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination.

DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 13th day of September, 2005.

ENDNOTES

1/ There is no persuasive evidence suggesting that Mr. Busch's behavior was motivated by discrimination against older workers generally or Manzaro in particular. It should also be mentioned here that Manzaro's theory is not that Mr. Busch created a hostile work environment which led to her constructive discharge.

2/ The evaluation is not in evidence. There is, further, no evidence regarding the reasons that Manzaro's performance was rated below-average.

3/ Manzaro claims that Mr. Scholz grew impatient waiting for her to leave, asking at one point why it was taking her so long to find a new job, and letting Manzaro know that the only reason she had not been fired was that she was actively seeking other employment. While the undersigned has no reason to disbelieve Manzaro's account of these comments, he does not infer discriminatory animus from Mr. Scholz's statements. For one reason, the comments are not inherently discriminatory, and the evidence affords insufficient context to interpret them as such. For another reason, Manzaro had made it known that she was looking for another job. Experience and common sense teach that employers generally prefer not to keep such employees around for long——for obvious reasons.

4/ The actual date of the Fort Lauderdale meeting is not available in the record.

5/ Manzaro has alleged and argued that her "involuntary demotion" occurred on May 27, 2003, when she started working as an Economic Self Sufficiency Specialist I. The problem with this position is that, assuming Manzaro was forced to resign, as she alleges, the pressure to resign would necessarily have preceded her "involuntary" decision to resign, which latter occurred in January 2003, some four months before May 27, 2003. Another problem with Manzaro's position is that neither Manzaro's resignation from the OIG (in April 2003) nor her commencement of employment as an Economic Self Sufficiency Specialist I (in May 2003) was an action of DCF. Rather, viewed in the light most favorable to Manzaro, each was a harmful

consequence of DCF's unlawful (i.e. discriminatory) coercion, which caused her to leave the OIG. The undersigned again notes that Manzaro has not argued that DCF created a hostile work environment which led to her constructive discharge——a theory that seems better suited to Manzaro's version of the historical facts.

6/ The undersigned rejects as unpersuasive the argument that Manzaro should not reasonably have been on notice of the possibility of age discrimination until learning that her replacement in the OIG was a younger employee. This discovery might reasonably have confirmed her worst suspicions——but Manzaro should already have been alerted to the possibility of age bias if (as she claims) she was being pressured to quit for no apparent legitimate reason. See endnote 7.

7/ It is not found, nor does the undersigned believe, that Mr. Busch's comment betrayed a discriminatory intent. His comment, appearing as it does in this record without any context whatsoever, is simply too general in nature to support a reasonable inference of discriminatory animus. Indeed, as an abstract statement, it is undeniably true that, generally speaking, people do sometimes "miss a step" when they get older; age takes its toll on a body, after all, as every adult knows.

That reality does not authorize or excuse unlawful discrimination, of course, but neither does stating the obvious amount to evidence of intent to discriminate. That said, if (as she claims) Manzaro decided in January 2003 to resign against her wishes in response to the threat of termination, and further if (as Manzaro implicitly claims) DCF had no legitimate reason to terminate Manzaro's employment, then Manzaro should have given some thought to the reasons for DCF's otherwise inexplicable behavior, and in doing so she should have viewed Mr. Busch's "older [people sometimes] miss a step" remark as a clue worth pursuing. In short, while the undersigned does not consider Mr. Busch's remark, on this record, persuasive proof of discriminatory intent, he does consider the remark to be sufficiently "eye-brow raising" to have put Manzaro on notice that her forced resignation (as she viewed it) might possibly have been motivated by age bias.

8/ The undersigned finds it difficult to discuss this case in terms of discrete-act discrimination because the evidence does not support the notion that DCF "demoted" Manzaro. That, however, is the term Manzaro uses to describe the action taken

against her, and the undersigned has attempted to analyze her claim accordingly.

9/ Although Section 760.11(1) "states that a complaint 'may' be filed with the [FCHR], it is clear that such a complaint must be filed either with the [FCHR] or its federal counterpart by anyone who wishes to pursue either a lawsuit or an administrative proceeding under the act." Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 315 (Fla. 2d DCA 2004).

10/ The U.S. Supreme Court apparently has left open the question whether, in some circumstances, the charge-filing period might commence not at the moment when the adverse employment action is taken, but rather when the employee should have discovered that the adverse action was discriminatory. See Morgan, 536 U.S. at

115 n.7, 122 S.Ct. at 2073 n.7. Justice O'Connor believed that some form of discovery rule should apply to discrete-act claims, so that the charge-filing period would not begin until the employee "had, or should have had, notice of the discriminatory act." 536 U.S. at 123-24, 122 S.Ct. at 2078 (emphasis added). It is not necessary in this case to decide whether some version of the discovery rule applies, for Manzaro's charge was untimely filed even under Justice O'Conner's view.

COPIES FURNISHED:

Frank J. McKeown, Jr., Esquire McKeown & Associates, P.A. Centurion Tower, Suite 1010 1601 Forum Place

West Palm Beach, Florida 33401

Carol A. Field, Esquire Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 05-000685

Orders for Case No: 05-000685