vs. )
Respondent. )
Case No. 06-2460
Upon due notice, a disputed-fact hearing was held in this cause on September 8, 2006, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Robert J. Sniffen, Esquire
Roger C. Salmonsen, Esquire Sniffen Law Firm, P.A.
Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
On December 28, 2005, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). This Charge alleged that Respondent, the Leon County Property Appraiser, had discriminated against her, based upon her race, which is African-American, and her sex [grammatically, her gender], which is female, because he did not promote her. On June 22, 2006, FCHR entered a Determination: No Cause.
Petitioner timely filed a Petition for Relief, and on or about July 14, 2006, the cause was referred to the Division of Administrative Hearings.
Respondent's Motion for Summary Final Order was denied by an August 18, 2006, Order.
At the disputed-fact hearing on September 8, 2006, Petitioner testified on her own behalf and presented the oral testimony of Beth Garrett and Shirley Eaton-Marks. Petitioner had five exhibits admitted in evidence. Respondent presented the oral testimony of Michelle Weathersby, Shirley Eaton-Marks, Bert Hartsfield, and Kathy Doolin and had four exhibits admitted in evidence. Joint Exhibits, A, B, and C, were also admitted in evidence.
The parties entered into stipulations of fact, which have been adopted.
A Transcript was provided on September 20, 2006.
Each party timely filed a Proposed Recommended Order, which has been considered in preparation of this Recommended Order.
Petitioner is an African-American female.
Respondent is a constitutional office of local government that appraises property for tax purposes.
At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/
At the commencement of the disputed-fact hearing,
Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions:
(1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/
Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University.
Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital.
During her employment with Respondent, Petitioner also worked part-time in a cleaning job.
Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance.
While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties.
In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for
this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance.
In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year.
From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee.
There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.)
Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position
was stressful. Petitioner consistently received excellent performance reviews.
In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/
In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from
September 28, 2005, through November 14, 2005.
Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee.
During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity.
While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front
counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position.
Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent.
The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female.
According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front
desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone.
Petitioner returned from sick leave on November 14, 2005.
On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser.
Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion.
She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems.
Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that
the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job.
The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history.
The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is
not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias.
Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile
work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause."
On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005.
On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems."
On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its
Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay.
Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position.
When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause,
pursuant to Sections 120.569, 120.57(1), and Chapter 760, Florida Statutes.
The Florida Civil Rights Act of 1992 (FCRA), Chapter 760, Florida Statutes, prohibits employers from discriminating against employees on the basis of race and sex.
Federal case law interpreting Title VII is applicable to cases arising under Chapter 760, Florida Statutes. See
Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); and Harper v. Blockbuster Entertainment Corp., 139 F.3rd 1385, 1388 (11th Cir. 1998), and cases cited therein.
Petitioner is a member of two specific protected classes (African-American and female). Respondent is an "employer," pursuant to Section 760.02 (7), Florida Statutes. However, to establish a prima facie case, Petitioner also must establish, by a preponderance of the evidence, that some arguably discriminatory employment action has occurred.4/
The shifting burdens of proof in disparate treatment cases are set out both cogently and briefly in Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991):
The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 93 S. Ct. 1817, 36 L.Ed. 2nd 668
(1973), which was then revisited in detail in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.
Ed. 2nd 207 (1981). Pursuant to the Burdine formula the employee has the initial burden of establishing a prima facie case of
intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate non-discriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderant of evidence that he or she has been the victim of intentional discrimination. (Citation omitted).
Id. at 1185-1186.
See also on point, Barron v. Federal Reserve Bank of
Atlanta, 129 Fed. Appx. 512 (11th Cir. April 19, 2005), citing Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001); Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004); and Ash v. Tyson Foods, Inc., 126 S. Ct. 1195 (2006).
Where Petitioner cannot establish each element of a prima facie case of discrimination, the burden of production never shifts to the Respondent Employer to articulate its
legitimate non-discriminatory reasons for taking the challenged action. See Pace v. Southern Railway System, 701 F.2d 1383, 1391 (11th Cir. 1983), "By definition, failure to establish a prima facie case means that the plaintiff has failed to proffer proof sufficient to impose even a burden of rebuttal on the defendant.” See Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253-54 101 S. Ct. 1089, 1093-94 (1981)).
At hearing, Petitioner identified two positions upon which her discriminatory “failure to promote” claim is based: a front-counter position and a sales qualifier position.
Disparate treatment claims require proof of discriminatory intent, either through direct or circumstantial evidence. See Harris v. Shelby County Board of Education, 99 F.3d 1078 (11th Cir. 1996).
There is no direct evidence of racial or gender discrimination herein. The conversation and/or meeting relied upon by Petitioner as demonstrating racial or gender bias simply does not demonstrate such bias. At worst, there is only a "he said/she said" situation, which constitutes an equipoise of evidence. However, even if one accepts Petitioner’s version of what was said, the Property Appraiser’s statement does not demonstrate discrimination on the basis of race or sex. The comment, ". . . you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position,"
at worst may obliquely suggest some prejudice against Petitioner, personally, but it does not constitute direct evidence of discrimination on the basis of sex or race.
Petitioner’s discriminatory inference is unreasonable.
"[E]vidence of facially neutral remarks from which Petitioner infers discriminatory intent does not constitute direct evidence.” See Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356 (N.D. Fla. 2001), and cases cited therein. "Evidence that only suggests discrimination or that is subject to more than one interpretation does not constitute direct evidence of discrimination." Chambers v. Walt Disney World Co., supra. See also Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998), and Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997). Additionally, if such a statement was made by the incumbent Property Appraiser and even if Petitioner could reasonably have perceived the comment as evidence of an intent to discriminate against her, personally, she had made no application for a specific position; no employment decision was being made at the time the Property Appraiser made the comment; and, given the fact that no promotions had been available for the better part of two years preceding the comment, no prohibited discriminatory intent in this language can relate backwards in time to afford Petitioner
relief. (See the discussion on time-bar and lack of available promotions, infra.)
In the absence of direct evidence of discrimination or evidence of a mixed motive, which Petitioner also has not established in this case, the circumstantial evidence must be evaluated pursuant to the analytical framework established by the United States Supreme Court in McDonnell-Douglas Corporation
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
There had been no promotional opportunities available during the relevant limitations period, the 365-day period immediately preceding the filing of Petitioner's Charge of Discrimination on December 28, 2005. Therefore, any alleged discriminatory act of Respondent prior to December 28, 2004, is time-barred. See Section 760.11 (1), Florida Statutes; and Caraballo v. South Stevedoring, Inc., 932 F. Supp. 1462, 1464 (S.D. Fla. 1996); Sims v. Dept. of Children and Families, DOAH Case No. 05-3516 (RO: May 18, 2006; FO: August 1, 2006); Young
v. Dept. of Business and Professional Regulation, DOAH Case No. 03-1140 (RO: July 1, 2003; FO: February 26, 2004). Because the evidence as a whole, including Petitioner’s Exhibit 4, a list of promotions and transfers, shows that no promotions occurred between December 20, 2004, and December 28, 2005, it is not necessary to resolve whether or not Petitioner’s narrative (P- 5), constitutes her original charge of discrimination or whether
that item was “filed” with FCHR on December 20, 2005 or on another date between December 20, 2005, and December 28, 2005. Even if December 20, 2005, constituted the filing date of Petitioner’s charge of discrimination with FCHR, there still were no promotions at all during the period of time from December 20, 2004, to December 28, 2005.
Petitioner presented no credible evidence to show that moving from the switchboard operator position to the front- counter position or the sales qualifier position would constitute promotions. Respondent presented credible evidence that these moves would not constitute promotions. Petitioner’s subjective belief that transfers to these positions constituted promotions is not sufficient. Petitioner has not established a prima facie case of racial or sexual discrimination, because she has not shown the existence of an actual promotional opportunity. See Texas Department of Community Affairs v.
Burdine, supra.
Additionally, Petitioner presented no evidence establishing that she had applied for either the front-counter position or the sales qualifier position. To establish a prima facie case of discrimination by rejection of, or failure to, hire/promote, an employee must show that she actually applied for the position in question. See Sprague v. Thorn Americas,
Inc., 129 F.3d 1355, 1362 (10th Cir. 1997) (plaintiff cannot
establish a prima facie case of discrimination in a promotion context where the position to which she claims to be entitled does not exist); Clark v. Carolina Freight Carriers, 1989 U.S. Dist. Lexis 16838 (M.D. Fla. 1989) (failure to apply for position fatal to "failure to promote" claim).
Petitioner made a general inquiry of her supervisor, Ms. Eaton-Marks, regarding where Respondent would advertise the front counter position. However, generalized inquiries by employees regarding future employment opportunities are insufficient to establish that the employee applied for the challenged position. See Brown v. Coach Stores, Inc., 163 F.3d 706, 709-710 (2nd Cir. 1998) (employee who made general request for promotion during annual review failed to establish that she applied for a specific position as required for a prima facie
case under Title VII; if generally requesting a promotion was sufficient, employers would be unfairly burdened in their promotional efforts). At hearing, Petitioner conceded that she never applied for the sales qualifier position and never even made anyone aware that she was interested in that position, specifically. Therefore, she cannot now prevail on the theory that she was not promoted due to racial or sexual discrimination. Due to the resolution of this aspect of the case on its merits, it is not necessary to address Respondent’s
argument that Petitioner never put the position of sales qualifier in issue by her Charge of Discrimination.
Petitioner also cannot prevail because the evidence shows that Ms. Scott was transferred to the front-counter position, and Ms. Scott, like Petitioner, is an African-American female. Petitioner has not shown that a person from outside her protected class(es) was placed into this challenged position. Assuming, arguendo, but not ruling, that the failure to consider Petitioner for the front counter position constituted a prima facie case of discrimination, Respondent has rebutted that prima
facie case.
The transfer of Mr. Nichols into the vacant sales qualifier position may have been, as Petitioner asserted, “in the works” before she even talked to the Property Appraiser on December 20, 2005, but with respect to the sales qualifier position, Petitioner did not present any evidence establishing that she applied for it; was qualified for it; or was better qualified to fill it than was Mr. Nichols, the Caucasian male who was transferred there on December 23, 2005, because of his background as presented by Respondent. She also did not establish that she was on the job at the time the position was actually filled. Assuming arguendo, but not ruling, that the failure to transfer Petitioner into the vacant sales qualifier
job constitutes a facially discriminatory action, then Respondent has rebutted that prima facie case.
Petitioner’s Charge of Discrimination and Petition for Relief did not allege that she was terminated. In fact, her superiors sought her out to return to work and she resigned.
Petitioner’s Charge of Discrimination did not allege a hostile work environment, and although her Petition for Relief suggests that her single confrontation with the Property Appraiser on December 20, 2005, constituted such a hostile work environment, the Petition for Relief was too late a date to raise that issue, and that issue was, in effect, waived at the commencement of final hearing. Assuming arguendo, but not ruling, that the issue of a hostile work environment was properly and timely framed by the July 6, 2006, Petition for Relief, the evidence adduced does not support any construction that Petitioner worked in a hostile work environment. An employee’s feelings and perceptions of being discriminated against are not evidence of discrimination. See Bickerstaff v. Vassar College, 196 F. 3d 435 (2nd Circuit 1999), and the conduct at issue was not so extreme as to amount to a change in the terms and conditions of Petitioner’s employment. See
Farringer v. City of Boca Raton, 524 U.S. 775 (1988).
Petitioner’s Charge of Discrimination, Petition for Relief, and claims at hearing did not allege any failure to
accommodate a handicap. Indeed, Petitioner’s own doctor’s note (P-1) indicated she could return to her regular work on
January 2, 2006, and she affirmatively chose not to return.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination.
DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2006.
1/ Given the rest of the chronology to which Petitioner testified and which has been found as fact herein, her testimony that she actually filed this written narrative, (Exhibit P-5), with FCHR on December 20, 2005, is not entirely credible, but if
believed, this filing date would entitle her to a comparison of her situation with that of other similarly situated employees from December 20, 2004, through December 20, 2005. See Section
760.11 (1), Florida Statutes.
2/ Respondent contends that Petitioner raised the issue of the sales qualifier position for the first time at the disputed-fact hearing. Indeed, that position was not specifically listed in her December 28, 2005, Charge of Discrimination or the supporting documentation placed in evidence, including the allegedly previously-filed narrative, (Exhibit P-5). (See Endnote 1.)
3/ This “vague” response was neither confirmed nor denied by Ms. Eaton-Marks. The undersigned has considered that Ms. Eaton- Marks’ response, as testified-to by Petitioner, could raise the inference that the front-counter position was subject to being filled from outside of Respondent’s existing staff. A possible inference upon that possible inference might lead to the conclusion that if the front-counter position were filled from outside, it could not simultaneously be an internal transfer- type position. However, there is no clear evidence that Ms.
Eaton-Marks had any advertising or hiring authority or knew what she was talking about when she responded to Petitioner as she reportedly did concerning advertising. Also, the greater weight of the credible evidence established that there was no hire from outside Respondent’s office for this position and that, in fact, an internal transfer occurred. (See infra. the body of this Recommended Order).
Robert J. Sniffen, Esquire Roger C. Salmonsen, Esquire Sniffen Law Firm, P.A.
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.
