STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLORIA FRANCIS, )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF JUVENILE JUSTICE, )
)
Respondent. )
Case No. 05-2958
)
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on December 19, 2005, and February 13, 2006, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gloria Francis, pro se
6745 Northwest 14th Avenue Ocala, Florida 34475
For Respondent: Mary Linville Atkins, Esquire
Department of Juvenile Justice 2737 Centerview Drive, Suite 312
Tallahassee, Florida 32399-3100
STATEMENT OF THE ISSUE
Whether Respondent Employer has committed an unlawful employment practice against Petitioner by discrimination against
her on the basis of race, sex, handicap, or retaliation, in violation of Chapter 760, Florida Statutes.
PRELIMINARY STATEMENT
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on February 7, 2005, alleging that the Respondent Employer violated Chapter 760, Florida Statutes, the Americans With Disabilities Act and Title VII of the Federal Civil Rights Act. For the reasons set forth in the Conclusions of Law, this Recommended Order only addresses Chapter 760, Florida Statutes.
On July 5, 2005, FCHR issued a Determination: No Cause, concluding that reasonable cause did not exist to believe that an unlawful employment action had occurred. Petitioner timely filed a Petition for Relief, and the case was referred to the Division of Administrative Hearings on or about August 18, 2005.
A disputed-fact hearing was convened on December 19, 2005. At that time, Petitioner testified on her own behalf and had 12 out of 26 exhibits admitted in evidence. Respondent presented the oral testimony of Bruce Perry, James Darbin (also transcribed as “Darvin” and “Davin”) Graham, Richard Bedson, Patricia Newman, Genevieve Hazelip, Shirley Edmond, and Jill Bessette. Respondent had 12 of 17 exhibits admitted.
Due to a witness’s, Charles Parkins’ out-of-state residency, Respondent had timely moved for his live telephone
testimony to be presented at hearing. When it became apparent that the telephone testimony could not be accomplished in the location of the hearing or during the time remaining available for that location on December 19, 2005, the parties agreed to take Mr. Parkins’ deposition by telephone. The transcript of the December 27, 2005, telephone deposition of Charles Parkins was filed on January 11, 2006.
Petitioner was required to give notice, after the taking of Mr. Parkins’ deposition, whether she needed additional hearing time for rebuttal, and she gave that notice.
At the continued disputed-fact hearing on February 13, 2006, Mr. Parkins’ deposition transcript was admitted as Exhibit R-20. Petitioner presented her rebuttal evidence exclusively through her own testimony. Of 13 additional exhibits marked, Petitioner had eight exhibits admitted in evidence. In addition to Mr. Parkins’ deposition, Respondent had three more exhibits admitted in evidence.
Official recognition was taken of Sections 110.213(1) and 110.2135, Florida Statutes.
For the reasons appearing in a series of Orders in the record, a Transcript of the hearing(s) was not filed with the Division until May 31, 2006.1/
Petitioner filed a Proposed Recommended Order and a "Conclusion Statement" on June 12, 2006. These items together
have been considered as her Proposed Recommended Order. Respondent’s Proposed Recommended Order was filed the same date and likewise has been considered.
FINDINGS OF FACT
Petitioner is a Negro female. As of March 12, 2003, she was rated by the Veterans’ Administration (VA) as having a
30 percent disability, due to a knee injury which occurred while she was on active military duty. (Petitioner’s unrefuted testimony and Exhibit P-37.)
Petitioner specifically has alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, and that she was denied a reasonable accommodation for her alleged knee “handicap.” Her “disparate treatment” allegation was presented in two respects:
(1) that employees outside Petitioner’s protected racial class were not disciplined as harshly as Petitioner; and (2) that because Petitioner had worked for Respondent Employer for more than twelve months’ total, the State of Florida career service rules do not support her being terminated as a “probationary employee” from the position to which she was promoted and in which she had worked for less than twelve months at the time of her termination.
Petitioner was first employed by Respondent Employer on November 15, 2002, at St. Lucie Regional Juvenile Detention Center in the position of Juvenile Detention Officer (JDO).
After completing her twelve months’ probation in that position, Petitioner attained permanent State of Florida career service status. This meant that Petitioner was considered a permanent State of Florida employee, but it did not mean, as she has asserted, that she did not have to undergo a twelve months’ probationary period in each career service promotional position, if and when she attained one, or that she could never be terminated for cause. (See Conclusions of Law.)
On September 10, 2003, at Petitioner's request, she was transferred from St. Lucie Regional Juvenile Detention Center to a vacant JDO position at Alachua Regional Juvenile Detention Center (ARJDC or “the facility”). This transfer permitted her to pursue a higher education at Santa Fe Community College (SFCC) in Gainesville, via her VA benefits, while being employed fulltime.
When she transferred, Petitioner prepared a memo to all her supervisors at ARJDC stating that she needed to work the 11:00 p.m. to 7:00 a.m. shift so she could attend college classes in the mornings. However, at no time did the Employer guarantee that Petitioner would always be assigned to that shift. (P-35)
At all times material, Petitioner was a single parent, working full time, and taking college classes. As a single parent, she was the sole support of her child. Because she was going to college pursuant to VA guidelines, she had to attend her classes and successfully complete them in order to continue to receive VA tuition and assistance.
At all times material, Jill Bessette (Caucasian female) was employed in the position of ARJDC’s superintendent. As such, she was responsible for the overall functioning and operations at ARJDC, and for ensuring the safety and security of that facility’s juveniles and staff. Bessette relied on the facility's two assistant superintendents, Patricia Newman (Caucasian female) and Charles Parkins (Caucasian male), to assist her. Newman and Parkins oversaw daily operations, attended to personnel matters, and provided direct supervision of staff. In so doing, they regularly made written and oral reports to Bessette.
On February 13, 2004, as a result of good reports about Petitioner's performance as a JDO at the facility, Bessette promoted Petitioner to the position of Senior Juvenile Detention Officer (SJDO). (P-17).
On or about February 23, 2004, Petitioner complained to her superiors about Douglas Singleton (male) evaluating her, because she felt he had not observed her often enough. She was
also rated by a female officer, Cohen, and wanted Cohen’s rating retained. This may have been a departmental career service or a union grievance, but it appears to have had no discrimination overtones. (See Findings of Fact 31 and 34.) Assistant Superintendent Parkins, who was Petitioner’s direct line senior supervisor, denied Petitioner’s grievance about her rating as untimely, but Petitioner did not demonstrate any specific negative personnel action resulting directly from Singleton’s evaluation. There is no evidence that this rating reflected that Petitioner was ever tardy or had unexcused absences. (P- 24, 25).
After her termination in September 2004, Petitioner wrote the Governor stating that she had complained to Parkins in March 2004, about his attempt to switch her to a shift which would have interfered with her college classes and that Parkins was hostile about her going to college (P-36), but at hearing she presented no credible evidence that such an attempt by Parkins had ever occurred or that she had ever complained to anyone about such an attempt prior to her termination. Additionally, Petitioner was consistently assigned to the 11:00
p.m. to 7:00 a.m. shift she had requested until September 2004. (See Findings of Fact 31-35, 55, and 75, and Conclusion of Law 81.)
In late February 2004, Petitioner complained because Newman, the assistant superintendent most concerned with timesheets, had inquired of a middle-level supervisor why Petitioner had been absent on a specific day. The testimony about this incident is so sparse, disjointed, and inconclusive that the undersigned cannot determine whether Petitioner also filed any type of grievance about Newman’s inquiry, but again, Petitioner’s complaint does not seem to have had anything to do with discrimination. (See Findings of Fact 31, 34.) In any case, Newman was apparently satisfied when informed by Cohen that Petitioner had been on pre-approved leave, and Petitioner did not suffer any detrimental personnel action specifically as a result of Newman’s inquiry. (Cf. Findings of Fact 74-75.)
During the first week of April 2004, Petitioner tendered a letter of resignation to Bessette, which Bessette reluctantly accepted. Bessette testified that the only reasons Petitioner gave for this resignation were personal ones unrelated to discrimination. Petitioner did not testify otherwise. A short time later, Petitioner reconsidered her decision, and Bessette accepted Petitioner’s rescission of her resignation in such a way that Petitioner suffered no lapse in her career service. (R-5).
From April 13, through July 25, 2004, Bessette took extended medical leave. During Bessette's absence, Assistant
Superintendent Charles Parkins assumed the role of “Acting Superintendent.”
At all times material, Shirley Edmond (Negro female) and Bruce Perry (Negro male) were employed by ARJDC as middle level supervisors. They supervised the JDOs and SJDOs assigned to their shift(s).
At ARJDC, there are three shifts around the clock.
SJDOs and JDOs at the facility are assigned to work shifts. In order to maintain an appropriate minimum correctional officer- to-juvenile detainee ratio, and in order to ensure the safety and security of staff, juveniles, and the community, SJDOs and JDOs are subject to having their shift assignment rotated or changed. Also in order to prevent the facility from operating below minimum staffing levels, JDOs and SJDOs may be required to “holdover” or continue working into the next shift when asked to do so as a result of on-coming staff members’ tardiness or absence.
As a result of minimum staffing level requirements, ARJDC's operating procedures address the issue of tardiness and identify three instances of tardiness in any rolling 90-day period as “excessive.” (R-17).
ARJDC’s operating procedures also address absenteeism.
The required procedure for “calling in sick” requires employees seeking approved leave to contact the on-duty officer or acting
supervisor at least two hours in advance of the employee’s report time, and further requires that thereafter, the employee also speak to the shift supervisor and discuss the employee's return-to-work date. Medical verification may be required by the Employer for absences in excess of three consecutive days. (R-17).
Upon her hire, and again in June 2004, Petitioner was made aware of, and was provided with, a copy of the Employer’s policies and procedures with regard to absenteeism and tardiness. (R-3, 19).
From May through June or early July 2004, Petitioner, Perry, and Edmond all worked the 11:00 p.m. to 7:00 a.m. shift.
During these months, both Perry and Edmond observed that Petitioner frequently arrived late for her shift, that is: more than one minute after 11:00 p.m., which is the grace period allowed by the facility’s policies and procedures. (R-17). On one occasion, Perry spoke to Petitioner about her tardiness. Petitioner attributed her tardiness to problems with her babysitter.
At all times material, Petitioner was aware of the Employer’s policy against, and procedures for reporting, discrimination or sexual harassment. These procedures are given in numbered paragraphs, but are not referred to as “steps.”
They permit Petitioner to involve the internal EEOC officer and the Employer’s hierarchy outside the facility. (R-4).
On June 25, 2004, while he was her shift supervisor, Bruce Perry wrote Petitioner a counseling memo concerning her tardiness on June 1 and 25. She received the memo on July 13, 2004. (P-15).
Shirley Edmond testified that July 22, 2004, Petitioner threatened her as set out in greater detail in Findings of Fact 68-72 infra, concerning Bruce Perry’s counseling memo.
On or about July 16, 2004, Petitioner filed what was described as a “departmental grievance” against Perry’s counseling memo(s).2/ This grievance could have been brought pursuant to a union collective bargaining agreement or pursuant to Section 110.227(4), Florida Statutes. However, that statute provides a "two-step" grievance procedure only for career service employees who are no longer on probation in their current position, and it excludes consideration of both "discrimination" and "sexual harassment" issues, which are supposed to proceed through superiors and the EEOC officer. Due to her probationary status as SJDO, Petitioner would have been ineligible to pursue the statutory grievance. In any case, her grievance did not raise issues of sexual discrimination or
sexual harassment (P-38), nor was it directed to an internal EEOC officer.
On or about July 17, 2004, Petitioner sent an e-mail letter outside the facility to the Assistant Superintendent for Detention Services, Perry Turner. Respondent's discrimination and sexual harassment procedures permitted this. However, in the e-mail Petitioner complained in general terms that she was experiencing problems getting facility personnel, particularly Charles Parkins, to follow all the "steps," in appropriate sequence, of established grievance procedures. (P-39). Turner, who oversees all detention facilities and services statewide, and whose office is in Tallahassee, delegated responsibility for investigating Petitioner's complaint to Operations Manager Richard Bedson, who supervises all of the detention branches’ support services. Mr. Bedson had recommended Petitioner for her promotion to SJDO and for a raise in connection therewith, but they did not know each other. (P-17). He was not housed in her facility. He was entirely independent from ARJDC staff.
On July 19, 2004, Perry rescinded his counseling memo to Petitioner (P-12), because it had been shown to Parkins that Perry was not on the same shift with Petitioner on June 25, 2004 (P-13), and/or that on June 25, 2004, or the other date cited in Perry’s memo (June 1, 2004), Petitioner had prior permission from a different supervisor to “back down” her hours so as to
legitimately arrive late for her shift (P-39). Perry’s testimony herein confirmed that for one of the days cited in his counseling memo, he had relied on someone else’s observation of Petitioner’s tardiness, and that he, himself, had not seen that particular tardy arrival. In any case, a counseling memo is not considered a disciplinary memo, and Perry’s memo stated that fact. (P-15). A counseling memo does not begin the three-tier progressive discipline that could lead to termination of a permanent employee for cause, and Perry’s counseling memo was rescinded, anyway. Petitioner acknowledged that the offending memo was rescinded after she complained about it.
Despite the happy outcome for Petitioner of her grievance about Perry’s counseling memo, Petitioner claimed at hearing that everything that happened to her after February 2004, was the result of Parkins’ retaliation against her for filing the first evaluation grievance which Parkins had ruled was untimely (see P-12, 14, and Finding of Fact 10) and/or because Parkins and Perry were retaliating against her for grieving Perry’s alleged sexual harassment of her.
At hearing, Petitioner testified that from late May 2004 to June or July 2004, Bruce Perry made suggestive remarks to her about her lips and buttocks; made comments designed to make others infer that Petitioner and Perry were sexually involved; put his hands on her shoulders; and rubbed his
privates in her presence. She claimed that she rejected Perry and reported these unsavory and harassing activities to superiors Parkins (male), Singleton (male), Smith (female), and Cohen (female), and that thereafter, Perry created a hostile and retaliatory workplace for her. She also related that Freda Smith, a middle level supervisor, had promised to report Petitioner’s complaint of sexual harassment by Perry to Parkins. None of the foregoing supervisors Petitioner named corroborated that Petitioner had reported any sexual incident with Perry to them. Of the supervisors Petitioner named, only Parkins actually testified, and he denied that either Petitioner or Freda Smith, on Petitioner’s behalf, had made any such report to him. (R-20). Bruce Perry denied in writing, when the issue was first raised after Petitioner’s termination, and in his testimony herein that he had committed any of the acts of which Petitioner accused him. (R-7). Interestingly enough, although Parkins and Perry both denied any knowledge of Petitioner reporting Perry to Parkins, Petitioner personally testified that when she had reported Perry to Parkins, Parkins removed her from the area physically near Perry and later removed Perry from her shift altogether, so as to separate them. Perry confirmed that he only worked with Petitioner "a couple months" until he was removed from her 11:00 p.m. to 7:00 a.m. shift. When,
precisely, Perry was removed from that shift is not clear on this record.
Petitioner testified that she needed larger pants for her correctional officer’s uniform, to accommodate the knee brace she sometimes needed to wear for her prior military injury, and that Perry had remarked that her pants were all right, in connection with his comments about her buttocks. Perry denied making any suggestive remarks. No other witness noticed a problem with Petitioner’s uniform pants or that Petitioner was in any manner unable to do her job, due to her
knee or for any other reason, until she had a shoulder injury on August 4, 2004, as described infra. However, Petitioner testified that Parkins told her to get a doctor’s note stating that she needed the knee brace. Petitioner had admitted in evidence such a note from her doctor dated July 21, 2004, on which she had printed a note to Parkins requesting larger uniform pants and stating she had spoken to Parkins about the larger pants a month before July 21, 2004. This note said nothing about Perry or his alleged sexual comments. (P-11).
Petitioner's testimony is not entirely clear as to whether she believed that Parkins refused her request for larger uniform pants, or just ignored it, but since she admitted that she slipped the note under Parkins’ office door when she was told by another supervisor that Parkins would not be in, her delivery
system may have failed to get her doctor’s note to Parkins. Parkins testified that he recalled no requests, either oral or written, for bigger uniform pants, but if he had received such a request he would merely have passed it on to the person who was in charge of ordering/issuing property on a regular basis. It is probable the property officer only worked a standard day shift, while Petitioner worked the 11:00 p.m. to 7:00 a.m. shift.
On July 25, 2004, Bessette returned and resumed her duties as superintendent of ARJDC. Bessette testified that she knew nothing of any sexual harassment allegations until after Petitioner was terminated in September 2004, and the evidence as a whole shows that Petitioner first approached internal and external EEOC officers about sexual harassment only after she was terminated. (R-7, P-26,36)
Moreover, in late July, Petitioner had every opportunity to speak to the Employer’s non-facility personnel to resolve any alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, or problems concerning being denied a reasonable accommodation for her alleged knee “handicap,” but she did not do so.
In late July, Operations Manager Richard Bedson telephoned Petitioner at the facility and asked if he could
speak to her about the concerns she had expressed in her letter to Assistant Superintendent for Detention Services, Perry Turner. (See Finding of Fact 26.) Petitioner refused to speak to Bedson over the phone about her e-mail to Turner or her concerns, stating she did not know who Bedson was and she was not going to speak to him unless someone else on the phone vouched for him. Bedson then arranged to meet with Petitioner, personally. (P-39). Discrimination investigations, particularly those involving sexual matters, are best begun by a discreet meeting between the investigator and the complainant alone, but Petitioner had not told Mr. Bedson what her problems were, and her memos had referred to “step” grievance procedures which are a union device. The use of the word "step" could also have referenced the Section 110.227(4) procedure which, by its nature, could not deal with "discrimination" or "sexual harassment." (See Finding of Fact 25.) Petitioner also had declined, via e-mail, to come to Bedson's office in another city unless she received per diem travel pay, and had stated that she preferred to meet at ARJDC. (P-39). Therefore, Bedson held a meeting on July 30, 2004, with Petitioner, Bessett, Parkins, and Petitioner's union representative, Mr. Reeves, who is a teacher from outside the facility. Bedson chaired the meeting and asked Petitioner to relate her concerns regarding her treatment at ARJDC.
At no time during the July 30, 2004, meeting did Petitioner indicate she was being, or had been, sexually harassed; that she or anyone else was the subject of any type of disparate or preferential treatment; or that she had a knee injury that was not being accommodated. She did not state that she was entitled to preferential treatment by virtue of being a veteran. She did orally accuse Parkins of practicing undefined retaliation against her. However, she refused to discuss anything more and stated she would put her concerns in writing. Bedson informed Petitioner that he would request that an investigator meet with her as quickly as possible so that an investigation could occur. He then concluded the meeting.
After this meeting, Bedson telephoned Operations Management Consultant II James Darbin Graham, who is assigned to Respondent Department’s North Region Office. He directed Graham to meet with ARJDC staff and Petitioner to determine what Petitioner’s concerns were and to conduct an investigation as necessary. Bedson recounted to Graham his earlier meeting with Petitioner, her prior e-mail, her general allegation of "retaliation" by Parkins, and her refusal to provide any further explanation.
On August 4, 2004, while working the 11:00 p.m. to 7:00 a.m. shift, Petitioner injured her shoulder opening a door. She left the facility for the hospital. After treatment at the
hospital, she returned to the facility at approximately 5:00
a.m. with hospital paperwork for facility administrators so that she could obtain workers' compensation benefits, including medical care, disability pay, and leave.
On this same morning, Graham arrived, unannounced, at the facility at approximately 6:00 a.m. to meet with Petitioner. He was advised that she had left for the hospital, but then he spotted her in the ARJDC lobby. Petitioner was wearing a hospital gown, and her arm was in a sling. Graham introduced himself to Petitioner and advised that he needed to speak to her. Petitioner refused to speak to him, stating she was on medication and that he would have to make an appointment so that she could have her union representative at the meeting when she was not feeling the effects of the medication.
In order to be able to arrange such a meeting, Graham advised Parkins that he needed to speak with Petitioner upon her return to work from medical leave.
From August 4, 2004 onward, Parkins did not arrange such a meeting or notify Graham when such a meeting could occur. Graham concluded this was because of Petitioner’s extended absence and subsequent termination, effective September 8, 2004.
As a result of her on-the-job shoulder injury, Petitioner was immediately placed on workers’ compensation leave. The parties agree that Petitioner was entitled to all
workers’ compensation benefits, including medical care, leave, and pay, from August 4, through August 10, 2004. It is the two periods of August 10, to August 19, 2004, and August 20, to September 8, 2004, that drive this case.
Assistant Superintendent Newman maintains and processes paperwork related to workers' compensation for the facility.
On August 10, 2004, Petitioner’s medical physician released Petitioner to return to work with the following restrictions and medications:
Employee is to avoid all use of affected arm. . . . Avoid lifting, reaching, grasping with right arm only. Physical therapy ordered. Stop percocet and discontinue sling. The following medication(s) has (have) been prescribed:
Naproxen . . . Effects include . . . dizziness
Metaxalone . . . May cause drowsiness
Cyclobenzaprine . . . common side effects include drowsiness, decreased judgment, . .
. blurred vision . . . caution should be exercised when driving or operating dangerous equipment
Tramadol . . . May cause sedation . . . Use caution when driving or operating dangerous machinery. (Emphasis supplied) (R-2).
Petitioner received a copy of the foregoing document, as quoted supra. It is probable that the Employer’s independent workers’ compensation contract carrier, “Covel”, also received a
copy, but there is no evidence this detailed document was presented to anyone at ARJDC. However, ARJDC was made aware of its medical restrictions on use of Petitioner’s arm.
“Master Control” is the only light duty available at ARJDC. It has always been used for situations such as Petitioner’s, and is the only “accommodation” Respondent has available. Master Control is a desk assignment away from juvenile detainees, which requires only monitoring cameras, answering telephones, and pushing buttons, but which has no potential for strenuous restraint of, or harm from, detainees.
Petitioner was advised on August 10, 2004, that the facility could accommodate her doctor's restrictions of modified duty by assigning her to Master Control. However, Petitioner did not report to work for nine more days, or until August 19, 2004.3/
Petitioner also did not obtain authorization for her absence August 10-19, 2004, using the methods required by the Employer’s policies and procedures. (See Findings of Fact 16- 18.) Instead, Petitioner reached Parkins by telephone on August 10, 2005, and told him that her medications were making her too drowsy and dizzy to drive. Parkins took what Petitioner told him at face value. He was concerned about Petitioner’s safety and the Employer’s liability. He told her not to come to work until she could drive or could see her doctor. Petitioner
followed up on their conversation by faxing Parkins, that same day, a written explanation that she was on four medications and that three out of the four medications, which she did not name, were causing her symptoms. (P-34). Petitioner’s next doctor’s appointment was not until August 19, 2004, so she did not report to work until after that appointment.
Although her physical restrictions diminished over time, from August 4, 2004, until October 20, 2004, Petitioner’s workers’ compensation physician continued to prescribe one or more medications for Petitioner which could have rendered her dizzy or drowsy. (P-10, 32). However, there is no evidence this information was sent to ARJDC, even though it probably was sent to the independent workers’ compensation contract carrier, Covel.
Petitioner did not work the full 11:00 p.m. to 7:00
a.m. shift in Master Control on August 20, 2004. Upon her placement in Master Control early, at about 10:30 p.m., on August 19, Petitioner immediately complained of pain in her shoulder and drowsiness from her medications. After she was observed with her head on the table, she was sent home by her supervisor. She had been present on the jobsite about an hour.
Petitioner called in on August 21, 2004, at midnight (an hour after she was due to report for her shift), to say she had just awakened, was in a lot of pain, and would not be
reporting to work. Petitioner did not follow proper procedures in reporting this absence. (See Findings of Fact 16-18.)
Petitioner's regular days off work fell on August 22, and 23, 2004.
On August 24, 2004, Petitioner still did not report to work and did not call the facility, as required by Respondent’s policies and procedures.
On August 24, 2004, Assistant Superintendent Newman received a call from Julie Bumgardner of Covel, who wanted to be sure that the facility was accommodating Petitioner’s workers’ compensation shoulder injury with an appropriately restricted work assignment. When Newman indicated that Petitioner continued to be absent due to drowsiness associated with her medication, Bumgardner advised Newman that the medications Petitioner was currently prescribed for her workers' compensation injury did not contain narcotics to make her drowsy and Petitioner should have returned to work on August 10, 2004, with the accommodation for her arm as previously stated.
Bumgardner faxed Newman either an incomplete copy of the August 10, 2004, physician's order, which did not mention the four drugs which could have been making Petitioner dizzy or drowsy between August 10-19, 2004, but which did say to discontinue percoset, and/or a separate document showing that the narcotic percocet had been discontinued by the physician on
August 10, 2004, and which listed the other four drugs, but not their side effects. (R-8). As a result of this incomplete and therefore misleading information, Newman and Bumgardner concurred that any of Petitioner’s absences after August 10, 2004, should be charged against Petitioner’s accrued sick and annual leave and should not be categorized as workers’ compensation leave.
Petitioner was credited with working eight hours on August 25 and eight hours on August 26, 2004.
On August 26, 2004, Newman wrote a memo to Petitioner advising her that effective Friday, September 10, 2004, Petitioner was being temporarily reassigned to the 7:00 a.m. to 3:00 p.m. shift in Master Control. The memo explained to Petitioner that Newman's purpose in this reassignment was to further accommodate Petitioner by assigning her to Master Control during the day shift when another employee, also assigned to this same station, could assist Petitioner if Petitioner needed assistance. By writing the memo on August 26, and not making the assignment change effective until
September 10, Newman intended to give the customary two weeks’ notice so that Petitioner could arrange her personal life to fit the change of shift. When she wrote this memo, Newman should have, but did not, realize that Petitioner was taking morning classes.
When she received this memo on August 26, 2004, Petitioner believed that she was entitled to never be reassigned to a shift that did not accommodate her college classes. She refused to sign, acknowledging receipt of the memo. Petitioner wrote the following on the bottom of Newman’s memo:
I am confused about this letter because of the last letter I received from D.S. Bessette. I cannot sign this at this time. You must have me confused with SJDO L. Green. She’s the one with the shift ch[ange].(R-10)
In her routine review of employee timesheets, Newman had noted that Petitioner had not signed her timesheet covering August 13, 2004, through August 26, 2004, and that Petitioner had claimed “leave without pay: code 60”, signifying that she expected to receive workers’ compensation disability pay and not be docked any sick or annual leave for that period of time.
On August 27, 2004, Newman issued a memo to Petitioner's immediate supervisor, Wilcox, requesting that Wilcox address with Petitioner the incorrect coding Petitioner had written into her timesheet covering the dates of August 13, through August 26, 2004. (P-33).
Ms. Newman also wrote across Petitioner’s first timesheet (see Finding of Fact 57), in red ink, advising Petitioner:
Ms. Francis you need to recode your leave to 52-sick and resubmit w/ signature.
According to your doctor’s note you should have assumed work duties on the 10th of August. (R-12)
Workers’ compensation pay does not begin until a specified time after the compensable accident. Many employers, including this one, have an elaborate system in place to pay an employee full salary and adjust leave categories of accrued sick and annual leave to make up the difference between the workers’ compensation rate and the regular pay rate, instead of paying the employee just the lesser amount permitted by the workers’ compensation statute. However, neither of those considerations was afoot here. Here, despite Newman’s testimony as to “the first 40 hours of workers’ compensation coverage,” the exhibits clearly reveal that Newman was attempting to get Petitioner to use her accrued sick leave to cover any time she had been absent from work after August 10, 2004. Because of her conversation with, and the incomplete materials supplied by, Bumgardner, Newman believed this was the correct way to code Petitioner’s timesheet. (See Findings of Fact 49-53.)
When she received Newman’s August 27, 2004, memo to Wilcox, that same day, Petitioner responded to it by writing a note on the bottom in which she stated that she was not going to use sick leave; that she had permission from Parkins for her August 10-19, absence; that she was on four different “meds”; that her arm became swollen when she did come in on August 19;
and again that she would not use sick time for an on-the-job injury that Newman refused to accommodate. Petitioner then finished with
I am so sick and tired of the inconsistency and lack of communication among the management team. . . . You all need to stop this please. (P-33)
Petitioner’s adamant and belligerent attitude did not sit well with Newman who, based on the information provided by Bumgardner, believed she was just doing her duty.
On September 2, 2004, Newman came in at 6:00 a.m. to talk to Petitioner before Petitioner went off her shift at 7:00
a.m. Petitioner insisted on being confrontational with Newman in front of staff, instead of coming to Newman’s office as Newman requested. Petitioner adamantly refused to change the first timesheet or to sign it. (R-14). She stated to Newman that she had relied on Parkins’ oral authorization to be on workers’ compensation leave from August 10, to August 19, 2004. She later submitted a new, typed timesheet, still claiming “Code 60-workers’ comp. disability” for each of her scheduled work days between August 13, and 24. This version she signed. (R- 13).
Newman caught up to Petitioner as Petitioner was checking out at the time clock on September 2, 2004; handed her a copy of the August 26, 2004, memo (see Finding of Fact 55);
and inquired if Petitioner would be reporting as previously ordered to the 7:00 a.m. to 3:00 p.m. shift on September 10, 2004. Petitioner stated she could not make the change due to her babysitter and previous registration for college classes. She continued to rely on Parkins’ oral authorization for August 10-19, and apparently expected workers’ compensation considerations for her absences after August 19, 2004, as well. (R-14).
Newman never received corrected timesheets from Petitioner, despite explaining the situation to someone from Petitioner’s union who telephoned Newman and offered to act as an informal intermediary.
Finally, in order to get Petitioner paid on time, either Newman or Parkins filled out a timesheet covering August 13 through August 26, 2004, and signed for her. Petitioner ultimately was charged sick leave from August 10-20, 2004, and was declared absent without authorization for August
21 and 24, when she had not followed the prescribed procedures for an authorized absence. (See Findings of Fact 49 and 51.) This meant that Parkins had retroactively withdrawn his oral authorization for Petitioner to take workers’ compensation leave for August 10 through August 19/20, and that Respondent viewed Petitioner’s absences on August 21 and 24 as unexcused.
From the way this case was presented, it is difficult, if not impossible, to pinpoint when Petitioner did, and did not, report for duty after August 26, 2004. For instance, Petitioner insisted that she was not scheduled for duty on September 3, 2004, because that was the date of Hurricane Frances. She also claimed she could not work on September 3, 2004, because that was a day on which lack of accommodation the night before had caused her arm to swell. (See Finding of Fact 68.) Parkins confirmed that he did not schedule any “light duty” officers, of which Petitioner was one, for duty during Hurricane Frances, but he did not know the date of Hurricane Frances. Another witness thought Hurricane Frances had occurred in August 2004. If Hurricane Frances occurred on August 3, 2004, instead of September 3, 2004, then all such testimony is irrelevant because Petitioner's arm was not injured until August 4, 2004. There is documentation and testimony from Newman and Petitioner that Petitioner worked September 2, rolling into September 3, 2004. (See Finding of Fact 68.) Other dates Petitioner worked are equally confused or obscure, but Petitioner claims she worked August 25-28; was off on August 29-30; and contradicts herself that she was, or was not, scheduled to work on August 31, 2004; and was, or was not, scheduled to work on September 3, 2004. (See, infra.)
However, both Petitioner and Edmond agree that on September 2, 2004, Edmond assigned Petitioner to a regular duty post. Edmond claims the assignment was a pure mistake on her part. Petitioner complained, via a 6:05 a.m. September 3, 2004, e-mail to Bessette, Newman, and Parkins, that her arm was swollen because of Edmond’s mis-assignment. (R-18). Petitioner’s e-mail also asserted that the Employer was not accommodating her work restrictions from her workers’ compensation doctor and that she was unable to come in to work that night due to her swollen arm.
On September 3, 2004, at 11:35 a.m., about five-and-a- half hours after Petitioner’s complaint about Edmond’s assignment of her to regular duty on the 11:00 p.m September 2, to 7:00 a.m., September 3, 2004, shift, Edmond provided Bessette with a written statement, via e-mail, relating that on July 22, 2004, Petitioner threatened to "take her [Edmond] down."
Edmond testified that shortly after receiving Perry’s June 25, 2004, counseling memo, Petitioner had called Edmond into a courtyard area at the facility to discuss her tardiness and her belief that management was tracking her tardiness. Respondent had always tracked its employees’ tardiness but had recently added a new method of keeping track. Petitioner referred to management’s tracking of her tardiness as "foolishness." Petitioner told Edmond not to engage in such
behavior or Petitioner would “take her down" with the rest of management. Edmond claims to have acknowledged the incident to her immediate supervisor, Wilcox, on the same night it occurred. Wilcox was not called to corroborate Edmond’s testimony, and Edmond did not memorialize the event in writing until
September 3, 2004, when she felt her job was being threatened by Petitioner’s September 2, 2004, memo of complaint. (See Finding of Fact 68.)
Edmond testified that she also notified Bessette on September 3, 2004, about the July 22, incident because she believed that Petitioner was using codeine on the job. There is insufficient credible evidence to substantiate Edmond's testimony about codeine.
It is more likely that Edmond related the story about July 22, 2004, to Bessette in retaliation for Petitioner's complaining that her workers’ compensation injury was not being accommodated by Edmond. The fact that Edmond also kept the July 22, 2004, incident to herself for six weeks renders the truth of her whole testimony suspect. However, that does not mean that Edmond's superiors had reason to disbelieve her September 3, 2004, accusation.
Since August 24, 2004, Parkins and Newman, in reliance on Bumgardner, believed that Petitioner was using a narcotic drug (percocet) which her doctor had told her to discontinue on
August 10, 2004. They were unaware that some of the other drugs legitimately prescribed by Petitioner’s authorized workers’ compensation physician might have caused the drowsiness and dizziness that had kept Petitioner from reporting for work between August 10 and August 19, 2004, and sporadically thereafter. (See Finding of Fact 53.)
After Julie Bumgardner’s mis-information had been received on August 24, 2004, and continuing onward, Superintendent Bessette received reports from Newman, Parkins, and Edmond about Petitioner’s tardiness problems. It is not clear what instances of tardiness besides those occurring after August 10, 2004, were actually reported to Bessette. It is probable that both Newman and Parkins had an overall impression that Petitioner had frequently been tardy over the whole period of her employment at ARJDC, and it is possible, but not proven, that the rescinded Perry counseling memo (see Findings of Fact 23-27) was remembered or utilized. However, tardiness was only part of Bessette’s considerations. Bessette was also apprised of Petitioner's incorrectly coded timesheets and adamant attitude that she would not use sick leave to cover time off. Petitioner’s belligerency toward Newman and her attitude that everyone was “out to get her” aggravated the situation. Bessette considered Petitioner's refusal of Newman’s direct order to correct her timesheets to be insubordination. Parkins
and Newman believed, however erroneously, that Petitioner was taking the narcotic percocet, contrary to her doctor’s instructions. Parkins may also have believed and resented that his oral authorization to Petitioner for leave August 10-19, had been obtained by fraud. The report to Bessette of a threat against Edmond was the last straw.
Upon the mounting objections to Petitioner’s job performance, and based on a consensus of Newman, Parkins, and herself, Bessette determined that discipline was appropriate and requested authorization from her superiors to terminate Petitioner, which they granted. Petitioner was terminated by a September 8, 2004, letter, effective that date, stating that her termination was because of
. . . your failure to satisfactorily complete your probationary period . . . .
(P-9)
Petitioner proved that ARJDC SJDO Genevieve Hazelip (Caucasian female), Respondent’s employee since 2000, was disciplined in the position of SJDO on one occasion in January 2005, after Petitioner was terminated. This was an oral reprimand for “a conversation with racial undertones, regardless of intention". (R-15). The oral reprimand of Hazelip was only stage one of the Employer’s three-stage progressive disciplinary system, which could lead to termination of a permanent employee at the third step. If Hazelip was on probation in her SJDO
position, the Employer did not have to go through the three steps to terminate her, but it was not proven that Hazelip was on probation when she received the oral reprimand. Petitioner also proved that Hazelip was disciplined on two other occasions but was unable to establish whether these disciplinary actions occurred while Hazelip was a JDO or an SJDO or what level of discipline was imposed either time.
At hearing, Petitioner claimed that Caucasian officers at ARJDC regularly got weekends and other coveted days off and Negro officers did not. She submitted nothing to substantiate this allegation, but admitted that there were more Negro officers than Caucasian officers and that she had never complained about the shift assignments because she was not dissatisfied with her own days off. It also may be reasonably inferred that Petitioner was not privy to any requests by other officers, Caucasian or Negro, for what shifts or days they wanted to work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and 760.11, Florida Statutes. This forum is without jurisdiction to dispose of any other claims Petitioner has lodged, including but not limited to an appeal from, or a dispute concerning, an alleged
misapplication of Florida’s career service rules. Although cases decided under Title VII of the Federal Civil Rights Act may be instructive as to how Florida’s Chapter 760, is to be interpreted, this forum has no jurisdiction of Title VII claims, either. Petitioner’s assertion that the EEOC returned a Determination of Reasonable Cause in her favor was not proven, but even if it had been proven, that Determination would not be controlling of this action in this forum. Petitioner's assertion that the Unemployment Compensation process found her to have committed no “misconduct,” is also irrelevant and non- binding on this forum, for the same reasons.
It is conceivable, but not concluded, that an employer may be entirely correct, pursuant to the State of Florida career service rules, in dismissing a probationary employee with, or without, cause during that employee’s 12 months’ probationary period, and still be guilty of discrimination in one or more of the categories of discrimination prohibited under Chapter 760, Florida Statutes.4/ Again, it is conceivable, but not concluded, that an employer may also be entirely correct in its procedures, pursuant to Chapter 440, “The Florida Workers’ Compensation Act”, and still be guilty of discrimination in one or more of the categories charged pursuant to Chapter 760, Florida Statutes.5/ Moreover, it is conceivable, but not concluded, that an employer may comply with all collective bargaining and
statutory grievance procedures and still be guilty of discrimination in one or more categories covered by Chapter 760, Florida Statutes. Therefore, just as this case, before this forum, can only resolve the issues pertinent to Chapter 760, Florida Statutes, neither this case, nor this forum, is compelled to give deference to how the case was, or might be, decided under the career service rules, Chapter 110, Chapter 440, or a collective bargaining contract subject to review by the Public Employees Relations Commission.
This case, in this forum, can only resolve those issues appropriate to Chapter 760, Florida Statutes.
Synopsized, Petitioner’s Chapter 760, charges herein are that she experienced discrimination by sexual harassment, in that Bruce Perry made sexual comments to her, put his hands on her, and rubbed his privates in her presence, and this problem was not addressed by management; that after she reported Perry to Acting Superintendent Parkins, Perry retaliated by giving her a counseling memo for being tardy; that her grievance(s) against the counseling memo were not addressed; and that she was terminated, although she had no write-ups in her file except for what she terms, “one that was rescinded,” while Caucasian employee-comparators, with worse behavior and more write-ups, were not terminated; that Parkins retaliated against her for grieving a prior rating and for grieving Perry's counseling memo
and/or the sexual harassment; that Caucasians received overall more favorable treatment than Negroes; and that her military injury was not accommodated. Petitioner did not timely raise any allegation of discrimination against her status as a college student, but in an abundance of caution, it is here concluded that status as a college student is not a protected class under Chapter 760, Florida Statutes.
Herein, Petitioner bears the duty to go forward and the burden to establish a prima facie case. It is concluded that Petitioner, as a Negro female, has established one element of a prima facie case in respect to most of her allegations, because she falls into two protected classes (race and sex) for which Chapter 760, provides protection. See § 760.10(1)(a), Fla. Stat. Otherwise, she has largely not made a prima facie
case, nor otherwise borne her ultimate burden of proof and persuasion.
To establish a hostile-environment sexual harassment claim, an employee must show: (1) that she belongs to a protected group; (2) she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive
working environment; and (5) that there is a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999). “Establishing that harassing conduct was sufficiently severe or pervasive to alter an employee’s terms or conditions of employment includes a subjective and an objective component.” Mendoza v. Borden, Inc., supra at 1246. As to the subjective component, the employee must “subjectively perceive” the harassing behavior as being sufficiently severe or pervasive to alter the terms or conditions of her employment. As to the objective component, the work environment must be one that a reasonable person would find hostile or abusive, judged from the perspective of a reasonable person in the employee's position considering all of the circumstances. The four factors for making a determination of this hostility/abusive factor are “(1) the frequency of the conduct; (2) the severity of the conduct;
(3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.” Mendoza v. Borden, Inc., supra. Courts have held that generally speaking, offhand comments and isolated incidents (unless extremely serious) do not change the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Petitioner did not raise any claim of sexual harassment by Perry until after she was terminated. Her credibility is diminished now, by her failure to have raised the sexual harassment issue on numerous occasions in 2004, when she had the opportunity to raise it. Perry refuted Petitioner's allegations when he testified at hearing, thereby creating an equipoise of testimony from the two principals involved. Moreover, Petitioner's allegations that she reported Perry's behavior to Assistant Superintendent Parkins were refuted by Parkins. At hearing, Petitioner contended she contemporaneously told other co-workers and middle level supervisors about the alleged sexual harassment by Perry, but she failed to offer the testimony of these persons as corroboration at hearing. Management investigators at several levels testified that they tried to find out what was bothering Petitioner, and she would not cooperate, even to the extent of telling them anything more than that Parkins was retaliating against her. Since Petitioner seems to have saved every other piece of paper that could affect her case, the fact that she presented no paper trail to establish that she contemporaneously reported sexual harassment due to Perry’s actions speaks volumes to the effect that the sexual harassment charge was more of a “litigation after- thought,” than a contemporaneous condition of Petitioner's employment. Also, Petitioner has failed to demonstrate that the
Employer was ever made aware of any sexual harassment problem so that it could take corrective steps. Where, as here, an employer has a system in place for reporting such improper behavior of managers, and the harassed employee does not report it, the Employer is usually excused from liability.
Finally, even Petitioner admitted that, for whatever reason, Parkins moved Perry away from her and then to another shift, and it appears that a transfer of Perry ended any interaction between Petitioner and Perry. Assuming that Petitioner had established a prima facie case of a hostile work environment, she still needed to establish that the employer knew, or should have known, of the existence of continuing harassment and failed to take prompt action to end that harassment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000). Therefore, even if a prima facie case of sexual harassment had been established by accepting Petitioner's testimony over that of both Perry and Parkins, which it has not, this employer acted appropriately to avoid a hostile work environment by removing Perry from Petitioner's shift. See cases cited supra, especially Mendoza v. Borden, Inc. An employer cannot be held liable for an unlawful employment act where it has taken prompt and appropriate remedial action once it knows, or reasonably should have known, of the alleged
harassment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).
Petitioner’s claim that Perry retaliated against her reporting his sexual harassment of her to Parkins by unfairly writing her up for coming to work late also fails for all the foregoing reasons. The testimony of Parkins, Newman, Perry, and Edmond is to the effect that Petitioner was frequently tardy, but on the one occasion Perry wrote her up for tardiness, Petitioner established that she was not tardy on the only two days he named. Perry’s memo of counseling represented no disciplinary threat to Petitioner when it was made, and even so, it was rescinded.
To establish a prima facie case of retaliation, Petitioner must prove that: (1) she participated in a protected activity (making the sexual discrimination complaint); (2) she suffered an adverse employment action; and (3) there is a causal connection between her participation in the protected activity and the adverse employment decision. Gupta v. Florida Bd. Of
Regents, 212 F.3d 587 (11th Cir. 2000). Even assuming that she reported Perry’s behavior to Parkins, Petitioner could not satisfy the third prima facie element, because the counseling memo was rescinded. “A non-threatening written reprimand, which is later removed from an employee’s personnel file, is not an adverse employment action.” Fowler v. Sunrise Carpet
Industries, Inc., 911 F. Supp. 1560 (N.D. Ga. 1996) citing Coney v. Dep’t of Human Resources of State of Georgia, 787 F. Supp.
1434 (M. D. Ga. 1992). See also Fortner v. Kansas, 934 F. Supp. 1252, 1267 (D. Kan. 1996). The fact that Perry's counseling memo was rescinded by a second memo signed by Perry and that both memos were retained in Petitioner's personnel file would seem to be sufficient, pursuant to this case law. Cf.
Conclusion of Law 97, for any peripheral effect of this counseling memo.
Petitioner’s allegation that she is the victim of racial discrimination because Caucasian officers who engaged in worse behavior than she engaged in were not dismissed, whereas Petitioner was dismissed, also does not meet the prima facie threshold. Petitioner demonstrated that one Caucasian female officer (Hazeslip) of equal rank to her own (SJDO), received an oral reprimand, the first step in progressive discipline. She did not establish that this officer was still on probation as either a JDO or as an SJDO at the time of this discipline. She further established that the same Caucasian female officer was twice disciplined for other offenses, but she did not demonstrate the type of discipline received by Hazeslip, or that those other two offenses and the discipline in response to those offenses occurred while the Caucasian officer was a JDO or an SJDO or that they occurred while Hazeslip was still on probation
in either rank. More importantly, Petitioner did not establish that the offenses for which SJDO Hazeslip was disciplined were similar to the reasons for which Petitioner was terminated. No prima facie case of racial discrimination was established upon this evidence. In evaluating whether a petitioner has identified a similarly situated employee, the comparator's misconduct must be “nearly identical” to her own so that courts will not second-guess employers’ reasonable decisions and “confuse apples with oranges.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253 (11th Cir. 2001).
With regard to Petitioner’s more general allegation that work assignments were inequitably assigned between Negro and Caucasian employees, there simply is no evidence from which such a conclusion can be reached. Petitioner claimed that Caucasian officers at ARJDC were given the weekends off, while Negro officers were required to work weekends, but she did not provide the names of Negro officers who worked weekends and the dates they worked, or the names of Caucasian officers and the dates they worked. All other witnesses questioned about this matter denied that such a practice occurred. Given that the majority of officers were Negro and that no complaints by Petitioner or anyone else were documented, the prima facie case threshold for racial discrimination has not been met.
In order to establish a prima facie case of handicap discrimination, Petitioner must establish (1) that she has a disability; (2) that she is a "qualified individual," which is to say that she is able to perform the essential functions of the employment she holds, with or without accommodation; and (3) that the employer unlawfully discriminated against her because of her disability. Hilburn v. Murata Electronics of North America, Inc., 181 F.3d 1220 (11th Cir. 1999); Gordon v. E.L. Hannin & Assoc. Inc., 100 F.3d 907 (11th Cir. 1999).
Petitioner alleged that she experienced handicap discrimination when she requested larger uniform pants to accommodate a knee brace worn for a knee injury incurred while she was in the military. She proved that she had a military injury with a 30 percent disability, and she established that her superiors knew she was a veteran; but she did not establish that she had made her superiors aware of her veteran’s disability rating. She also did not prove that she made her superiors aware in any reasonable way of her need for larger uniform pants. All witnesses who testified indicated that they had no knowledge of any problem with Petitioner's knee or pants They clearly did not perceive her as handicapped. Petitioner’s testimony that she requested an accommodation of bigger uniform pants from Parkins was denied by Parkins, who testified that he had no knowledge Petitioner suffered from a knee injury and was
unaware of any request on her part for larger pants. In an effort to refute Parkins, Petitioner produced a July 21, 2004, medical report showing that she needed to wear a knee brace and her note to Parkins on that report requesting the pants. She had slipped this item under his door, despite being told he would not be in that day. Assuming, but not ruling, that Petitioner clearly expressed herself to Parkins by this method on July 21, 2004, the facts that her doctor’s note was dated July 21, that she did not raise the handicap/pants issue at the meeting on July 30, that she was injured on August 4, and that she remained out of the facility for most of the time thereafter until she was terminated on September 8, 2004, render the Employer’s failure to accommodate her knee condition with bigger uniform pants between July 21, and September 8, 2004, reasonable, under the circumstances.
Because Petitioner was a probationary employee in her promotional position of SJDO, Respondent could, pursuant to a career service rule, terminate Petitioner at any time for cause or no cause. See § 110.213, Fla. Stat. and Fla. Admin. Code R. 60L-33.003(2)(d)1. Petitioner's legal theory that by reading Sections 110.213(1) and 110.2135, Florida Statutes, together, there would be no new probation period upon promotion for any employee, and particularly not for veterans, is rejected. However, simply complying with career service rules does not
absolve Respondent from charges of discrimination, and Respondent's reasons for terminating Petitioner must be examined in light of her charge of retaliation.
This brings us to an analysis of whether or not Respondent Employer’s reasons for termination of Petitioner on September 8, 2004, constituted retaliation for her filing the untimely grievance against Singleton’s rating or retaliation for her alleged sexual harassment complaint against Perry and/or her proven grievance against Perry for his counseling memo on tardiness.
The untimely grievance against Singleton’s rating and the grievance against Perry’s counseling memo are both minor in nature and so remote in time from Petitioner’s termination, that no nexus between or among them can be logically drawn. Moreover, Bessette allowed Petitioner to rescind her resignation after the Singleton grievance. Bessette's action militates against there being any plan to retaliate against Petitioner on the basis of her complaint about Singleton's rating.6/ Furthermore, it was apparently Parkins who caused Perry’s counseling memo to be rescinded and who reassigned Perry to another shift. Even after Petitioner accused Parkins of retaliating against her for an unspecified reason at the
July 30, 2004 investigator’s meeting, Parkins took Petitioner at her word on August 10, 2004, by telling her to stay at home
until her medicines permitted her to drive or the doctor changed them. This scenario also does not have the ring of retaliation by Parkins, either for Petitioner grieving the Singleton matter, grieving the Perry memo, reporting sexual harassment by Perry, or accusing Parkins of retaliation for an unspecified reason.
Respondent's decision to terminate Petitioner also did not occur until more than a month after the July 30, 2004, meeting. In reaching the group decision to terminate Petitioner for tardiness, absenteeism, and refusing to amend her timesheet during that interim period, Bessette, Newman, and Parkins had formed some negative opinions of Petitioner on the basis of incomplete, and thus erroneous, information provided by the workers’ compensation carrier through Brumgardner.
As a result of this mis-information about drug use, Parkins could have believed that Petitioner had lied to him on August 10, and for that reason retroactively withdrawn his permission for her to use workers’ compensation leave August 10- 19, 2004. Bessette, Parkins, and Newman also formed a negative opinion of Petitioner on the basis of Edmond’s report that Petitioner had threatened her, which report may or may not have been true. However, even if Edmond was retaliating against Petitioner’s September 3, 2004, e-mail complaint of a failure to accommodate her workers’ compensation injury, Edmond was not the one who made the decision to terminate Petitioner, and Bessette,
Parkins, and Newman had no reason to doubt Edmond’s veracity or motivation at the time they considered her report. It is also possible, but not proven, that Petitioner’s complaint of retaliation at the July 30, 2004, meeting with the outside investigator played some part in the supervisors’ thinking, but based on their attempts to work with Petitioner concerning her workers’ compensation injury restrictions, including Parkins’ readiness to accept Petitioner's word and grant her leave over the phone on August 10, Newman’s attempts to accommodate the medical restrictions on use of Petitioner's arm, and all the attempts to ensure Petitioner got a paycheck on time, any retaliation component on the basis of a prior complaint or grievance Petitioner had made was non-existent or de minimus.
It is also possible that, given Edmond’s memo about being threatened, Bessette’s, Parkins’ and Newman’s memories peripherally picked up Perry’s rescinded counseling memo or picked up other past experiences all supervisors had experienced with Petitioner’s tardiness prior to the period of August 4, to September 3, 2004, but again, if these matters were considered at all, they were a de minimus consideration for terminating Petitioner in September 2004.
Petitioner expressed concern that people suspected her of misusing her prescribed medications, but the credible evidence does not support that Petitioner misused any type of
medication. It also does not support that she was terminated for that reason. Petitioner was terminated because of her failure to report to work on August 21 and 24 and for failing to call in timely on several occasions, in accord with the Respondent’s policies and procedures; because of her tardy arrivals on other days; because of her refusal to change her timesheet in response to a direct order of a superior; because she acted out when Newman tried to counsel her about timesheets and a shift change in August; and because her superiors believed she had threatened another officer.
Her superiors could have listed all these reasons as termination "for cause" in Petitioner's termination letter, but by only stating therein that Petitioner had not successfully completed her probationary period as an SJDO, they left open the door to her being hired in a JDO position when one opens up. At the time of her dismissal, Petitioner’s status was "probationary" by virtue of her February 2004, promotion from the position of JDO into the position of SJDO. However, upon the evidence as a whole, including the wording of her termination letter, there appears to be no impediment to her being rehired when a JDO position opens up, or to her proceeding up the promotion ladder again. She retains her permanent career service status in the JDO position.
Once Petitioner establishes a prima facie case, the burden then shifts to the Respondent to show that the employment decision was motivated by legitimate, non-discriminatory reasons. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). If the Respondent articulates some legitimate, nondiscriminatory reason for the adverse employment action, then the employee must be given the chance to demonstrate that Respondent’s reason is pretextual, i.e., that it is “not the true reason for the employment decision.” Texas Dept. of
Community Affairs v. Burdine, supra. Assuming arguendo, but not ruling, that Petitioner has established a prima facie case of retaliation herein, she has not proven that the reasons offered by the Employer for its termination action were merely pretextual, and therefore she has not carried her burden of ultimate persuasion.
In closing, it is worth mentioning that Respondent may be susceptible to some repercussions under Chapter 440, for not further accommodating Petitioner's workers' compensation shoulder injury in September 2004, but that injury was never shown to constitute a “handicap” as contemplated under Chapter 760, Florida Statutes, or under the similar federal legislation. In the context of Chapter 760, Florida Statutes, and similar federal legislation, temporary and non-chronic impairments of
short duration with little or no long-term or permanent impact are not protected "handicaps."
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 1st day of September, 2006.
ENDNOTES
1/ The Transcript contains phonetic spellings. Its table of contents and the references to exhibits thereon is also perplexing. However, the body of the Transcript with regard to which exhibits were, and were not, admitted appears to be accurate. It should also be noted that many exhibits marked for identification were never offered in evidence; many exhibits
admitted under a higher number are duplicates of items marked with lower numbers which were never offered; and on occasion, a party had admitted duplicates of other exhibits. In all, Petitioner had admitted Exhibits P-9, 10, 11, 12, 13, 14, 15,
17, 18, 24, 25, 26, 32, 33, 34, 35, 36, 37, 38, and 39. In all,
Respondent had admitted Exhibits R-2, 3, 4, 5, 7, 8, 10, 12, 13,
14, 15, 16, 17, 18, 19, and 20. For these reasons, and because the parties have each proposed facts directly contrary to one or more exhibits in evidence, the undersigned has adopted the unusual practice of including citations to exhibits in the text of this Recommended Order. However, the undersigned has not deemed it necessary to also cite specific pages of the Transcript or the deposition (R-20).
2/ It is possible, but unproven, that there were two identical Perry memos covering the same dates of alleged tardiness (June 1 and 25, 2004), but herein “they” are referred to as one memo.
Only one such memo is in evidence.
3/ Because her 11:00 p.m. to 7:00 a.m. shift spans the midnight hour when dates change, this date may have been August 20, 2004, and some other dates hereafter may be “off” by one day, either direction, due to the way in which various witnesses testified.
4/ See Conclusion of Law 92.
5/ For instance, Chapter 440 provides an incentive for employers to continue to accommodate an injured employee, because it may be cheaper to do so than to pay full workers' compensation disability benefits if, after testing the job market, the employee cannot obtain restricted employment (light- duty) elsewhere, but Chapter 440 does not necessarily require the employer to continue to employ someone who cannot do his or her job. Chapter 440 also provides a cause of action in Circuit Court for damages outside that Act if an injured employee can prove he was terminated because he filed a workers' compensation claim. See also Conclusion of Law 99.
6/ Since the complaint against the Singleton rating did not involve a protected activity under Chapter 760, retaliation therefor would not support this claim, anyway.
COPIES FURNISHED:
Cecil Howard, General Counsel Florida Commission on Human Relations
2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Gloria Francis
6745 Northwest 14th Avenue Ocala, Florida 34475
Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 312
Tallahassee, Florida 32399-3100
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 |
|---|---|---|
| Feb. 14, 2007 | Agency Final Order | |
| Nov. 13, 2006 | Remanded from the Agency | |
| Sep. 01, 2006 | Recommended Order | College student status is not a protected class. Discrimination on that basis and multiple categories were not proven. |
