STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTIE POWERS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 05-4360

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RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings held a formal hearing before Diane Cleavinger, Administrative Law Judge, on February 23, 2006, in Pensacola, Florida.

APPEARANCES

For Petitioner: Britte Powers, pro se

106 Lakewood Road Pensacola, Florida 32507

For Respondent: Eric D. Schurger, Esquire

Assistant District Legal Counsel Department of Children and

Family Services District Legal Office

160 Governmental Center, Suite 601 Pensacola, Florida 32502-5734

STATEMENT OF THE ISSUE

Whether Petitioner was retaliated against due to testifying by deposition in another employee’s employment discrimination lawsuit.

PRELIMINARY STATEMENT

On November 21, 2005, Petitioner, Brittie Powers, filed a Petition for Relief with the Florida Commission on Human Relations (FCHR), alleging that Respondent, Department of Children and Family Services (Department), laid her off work because she gave testimony by deposition in a discrimination lawsuit brought by a former employee, Linwood Scott. On October 19, 2005, FCHR entered a determination that reasonable cause existed to believe that an unlawful employment practice had occurred. On November 29, 2005, Petitioner filed her Petition for Relief. FCHR forwarded the Petition to the Division of Administrative Hearings.

The parties filed a Prehearing Stipulation dated February 14, 2006. The parties stipulated to the facts listed below and as outlined in the FCHR determination at paragraphs one through twelve in which Petitioner is designated as the Complainant:

1. Complainant began her employment with Respondent in February 1985. Complainant worked as an Economic Self Sufficiency Specialist (ESSSII).

   
   

2. On January 11, 2005, Complainant was deposed in connection with a lawsuit of Linwood Scott, a former co-worker, against Respondent.

   
   

3. During the deposition, Complainant stated under oath that she felt that Mr. Scott had been discriminatorily

   terminated by Respondent. Furthermore, Complainant explained how she had logged into her computer using her password and P number and then allowed another employee to use her computer to help her with a problem case. Complainant explained that other employees engaged in this practice and that she did not report this to management because she did not consider it to be a violation of policy.

   
   

4. Employees of Respondent are given a password and P number that they must enter into the computer when they log in. It is a violation of Respondent’s security policy for an employee to log in to his or her computer using their password and P number and then allow another employee to use the computer, if the first employee does not know what the second employee is doing on the computer.

   
   

5. Complainant was asked to provide documentation regarding password and P number violations and any other computer violation that she had knowledge of. Complainant needed to review her case monitoring sheets and list of names in order to do this. Complainant was told to request time off from her regular duties in order to compile the documents from Mamun Rashied, District Operations Manager. Complainant emailed Vickie Davis, Operations Program Administrator, on January 11, 2005 for advice as to what steps she needed to take.

1. On January 12, 2005, Complainant received notification from Ms. Davis that she was being placed on administrative leave, effective immediately. Complainant was directed to leave the facility with only her personal items, not any agency documents.

   
   

2. Meanwhile the implementation of the Economic Self Sufficiency (ESS) Services Program Reform made it necessary to reduce

   the number of the department’s authorized positions. A statewide team established the criteria used to assess ESS staff for retention. A list was developed according to the ranking of the staff that would be retained, as well as staff that would be the first to be laid off, if a lay off occurred. On January 20, 2005, the final list identifying staff to be laid off named Complainant as the first ESSSII that would be laid off.

   
   

3. Katie George, District Legal Counsel and the District Contract Attorney, informed Mr. Rashied, and Don Bell, Human Resources Specialist, that Complainant had admitted to violating Respondent’s security rules during her sworn deposition. On January 27, 2005, Mr. Rashied notified Complainant that she was being dismissed for cause for admitting to violating Respondent’s computer security policy. Complainant’s termination became effective February 7, 2005.

   
   

4. Complainant filed an appeal with the Public Employee Relations Commission (PERC), and on March 23, 2005, PERC issued a recommended order concluding that Respondent did not have cause to terminate Complainant.

   
   

5. In a letter dated April 1, 2005,

   Mr. Rashied notified Complainant that if the PERC ordered her reinstatement, the effective date of her layoff would be the date of the proposed reinstatement.

   
   

6. On April 5, 2005, the PERC adopted the hearing officer’s recommended order and directed Respondent to reinstate Complainant with back pay and benefits.

At the hearing, Petitioner testified in her own behalf and introduced two exhibits into evidence. The Department offered the testimony of four witnesses.

After the hearing, Respondent filed a Proposed Recommended Order on April 10, 2006. Petitioner filed a Proposed Recommended Order on April 3, 2006.

FINDINGS OF FACT

1. Amie Remington, Esquire, an attorney in private practice, was hired as a contract attorney by the State of Florida to represent the Department in an employment discrimination lawsuit brought by Linwood Scott involving computer security violations and lax enforcement of the Department’s computer security policy that resulted in loss of State funds due to employee fraud. As part of the discovery in the Scott case, Ms. Remington deposed Petitioner on January 11, 2005.

2. Prior to the deposition, Ms. Remington spoke with Katie George, Chief Legal Counsel for the Department, and obtained information as to all proposed witnesses, including Petitioner. At this time, Ms. Remington received information that Petitioner was identified for layoff.

3. Mamum Rashied, the Department’s former District Operations Administrator, who retired on February 2, 2006, managed the Department’s operations for the four counties in District One; Escambia, Santa Rosa, Okaloosa, and Walton. As District Operations Administrator, Mr. Rashied was the second person in charge of the district with purview over the Economic

   Self Sufficiency (ESS) Program. The ESS program was the program in which Petitioner was employed at a salary of $1215.00 bi- weekly.

4. During calendar year 2005, the ESS program underwent a statewide reorganization resulting in the elimination of approximately 42 percent to 43 percent of ESS positions through layoffs in District One.

5. Petitioner, then an Economic Self-Sufficiency Specialist II (ESSSII), was on the list for layoff. Placement on the layoff list was made based on a top-to-bottom ranking of employees. Each employee was to be rated by the unit supervisors and placed on the list in terms of their retainability. The rating list was forwarded to the Operations Manager for the Service Center. Each Service Center compiled a ratings list which was then forwarded to the District Program Office to be combined into one district list. Mr. Rashied received a copy of the district list which contained the Petitioner’s name sometime in December 2004.

6. The layoff listing process took approximately two months and was in existence prior to the Petitioner giving her deposition in the Linwood Scott case on January 11, 2005.

7. Prior to the layoffs, Department personnel conducted general sessions at the Service Center for all interested employees to gain information as to the potential layoff

   situation. However, Petitioner was unaware of these meetings and apparently did not participate in them.

8. During her deposition in the Scott case, Petitioner testified that she had logged into her computer using her password and P number and then allowed another employee to use her computer to help her with a problem case. Petitioner had permitted the use of her computer in an effort to help the employee process the information her center was required to handle. Such aid and supervision was part of her duties as an ESSSII. Petitioner did not believe that her actions violated the security policy of the Department. However, such action was a violation of the Department’s computer security policy. Petitioner’s testimony related to the fact that such activity occurred often in her Department.

9. After her testimony, Petitioner was terminated on January 27, 2005, effective February 7, 2005, prior to her being laid off. The termination was the result of the Petitioner’s violation of the Department’s computer security policy.

10. Petitioner was subsequently reinstated on April 5, 2005, following a ruling by the Public Employee Relations Commission (PERC) in favor of Petitioner, including payment of back pay and benefits. The ruling did not find that Petitioner had been retaliated against.

11. Immediately following reinstatement, Petitioner was laid off effective April 5, 2005, pursuant to the prior layoff list which was still on-going. Importantly, if Petitioner had not been terminated she would have been laid off.

12. Petitioner was subsequently rehired by the Department as an Economic Self-Sufficiency Specialist I (ESS-I) on September 2, 2005. The Petitioner’s personnel file indicated that she had been laid off and was subject to rehire. Based on a position opening and Petitioner’s qualifications, Petitioner was rehired and continues in the ESS-I position to date.

13. Petitioner testified in her own behalf at the hearing.

    
    

    She asserted that she thought she was retaliated against because of her testimony in the Linwood Scott case. However, she offered no other evidence to show such retaliation and such supposition is insufficient to support a claim of retaliation.

    Likewise, Petitioner did not offer any evidence that Petitioner’s reasons for her initial termination and later layoff were pretexts to cover unlawful retaliation. Since there was insufficient evidence to support Petitioner’s claim of retaliation, her Petition for Relief should be dismissed.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over both the parties to and subject matter of this case. §§ 120.57(1) and 760.11(40(b), Fla. Stat. (2005).

15. Section 760.10(7), Florida Statutes (2005) provides as follows:

    It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

16. The burden of proof is on Petitioner to establish a prima facie case of retaliatory discharge. Russell v. KSL Hotel

    Corp., 887 So. 2d 372, 379 (Fla. 3rd DCA 2004). If Petitioner is able to establish a prima facie case, then the burden shifts to the Department to proffer a legitimate, non-retaliatory explanation for the termination and eventual layoff. Id. Guess

    v. City of Miramar, 889 So. 2d 840, 846 (Fla. 4th DCA 2004). The burden then returns to Petitioner “to prove by a preponderance of the evidence that the “legitimate reason” was merely a pretext for the prohibited, retaliatory conduct.” Russell at 380. However, Petitioner, at all times, bears the ultimate burden of proving by a preponderance of the evidence that the Department unlawfully retaliated against her. Guess at 846.

17. In this case, Petitioner failed to meet her burden of proof to establish a prima facie case of retaliatory discharge.

    The only evidence she offered was that she thought she had been retaliated against and had not been told about being on the layoff list prior to her termination. Such supposition is insufficient to support a claim of retaliation. Moreover, the evidence regarding both the reason for her initial termination and reinstatement demonstrate she was not terminated for a pretextual reason. The Department had legitimate concerns regarding computer security and had a strict security policy.

    The Scott case involved computer security violations and lax enforcement of the Department’s computer security policy. Even though Petitioner did not think her actions violated the Department’s security policy, those actions did violate that policy. The fact that the termination was not sustained by PERC does not refute the legitimacy of the Department’s rationale for her termination.

18. Likewise, the evidence did not demonstrate that Petitioner’s layoff was retaliatory. The evidence was clear that the determination to lay Petitioner off was made before her testimony in the Scott case. That decision was made as part of a program reorganization that affected 42 percent to 43 percent of employees in that program. The timing of these events does not establish either a prima facie case of retaliatory discharge or pretext to cover a retaliatory discharge. Therefore the Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 16th day of May, 2006, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2006.

COPIES FURNISHED:

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

Brittie Powers

106 Lakewood Road Pensacola, Florida 32507

Eric D. Schurger, Esquire

Department of Children and Family Services

160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734

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: 05-004360

Orders for Case No: 05-004360