STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY JOE OLIVER GREENWADE, Petitioner, vs. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
| ) ) ) ) ) ) ) ) ) ) ) | Case No. 09-3037 |
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on March 15, 2010, by video teleconference with sites in Daytona Beach and in Tallahassee, Florida.
APPEARANCES
For Petitioner: Beverly Joe O. Greenwade, pro se
106 Academy Avenue Sanford, Florida 32771
For Respondent: Jane Almy-Loewinger, Esquire
Lucy Goddard-Teel, Esquire
Department of Children and Family Services
210 North Palmetto Avenue, Suite 430 Daytona Beach, Florida 32114
STATEMENT OF THE ISSUE
The issue presented is whether the Department of Children and Family Services discriminated against Petitioner when it terminated her employment.
PRELIMINARY STATEMENT
On December 1, 2008, Petitioner Beverly J. O. Greenwade filed with the Florida Commission on Human Relations an Employment Complaint of Discrimination, alleging that Respondent Department of Children and Family Services had discriminated against her by demoting her based upon her race (black) and age (over 40). On April 30, 2009, the Commission issued its Notice of Determination: No Cause, determining that there was no reasonable cause to believe that an unlawful employment practice had occurred.
As a result of that preliminary decision, Petitioner filed her Petition for Relief with the Commission on June 3, 2009, and that Petition was transferred to the Division of Administrative Hearings on June 5, 2009.
After three continuances at Petitioner's request, this cause was scheduled for final hearing on March 15, 2010, by Order Re-Scheduling Hearing by Video Teleconference entered January 28, 2010. On March 15, Petitioner contacted the undersigned's secretary by telephone approximately two hours before the time the final hearing was scheduled to commence to
explain that she had transportation problems and to request that the final hearing again be postponed or that she be allowed to participate by telephone.
Because the final hearing had been continued on three previous occasions and because the Department had its attorneys and witnesses gathered at the Daytona Beach hearing site, along with a court reporter, the Department opposed another continuance. The parties agreed, however, that Petitioner could appear by telephone and be sworn by the undersigned.
Petitioner testified on her own behalf. The Department presented the testimony of Reginald Williams, Christine Henegar, William Boyd, Thomas Smith, and Rafael Bello. Petitioner's Exhibit numbered 1 was admitted in evidence, and Petitioner was given the opportunity to file post-hearing two additional exhibits. Petitioner timely filed Petitioner's Exhibit numbered 2, which was admitted in evidence, but failed to submit the document tentatively described as an additional exhibit.
Accordingly, only Petitioner's Exhibits numbered 1 and 2 have been admitted in evidence, as have been the Department's Exhibits numbered 1-4.
The Transcript of the final hearing was filed on March 22, 2010, and both parties thereafter filed their proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.
FINDINGS OF FACT
The Department agrees in its proposed recommended order that Petitioner is an African-American female. There is no evidence as to her age.
Petitioner began employment with the Department on June 15, 2007, as a child protective investigator (hereinafter "CPI"). As a new employee, she was subject to the requirement that she successfully complete a probationary period of one year.
CPIs receive extensive and structured training through the University of South Florida and subsequently by the Department. The training is expensive, so decisions to terminate a CPI are not made casually since the Department has invested time and revenue in training that CPI.
CPIs investigate reports of possible child abuse or neglect under strict statutory deadlines to ensure the safety of at-risk children. New reports received by the Department are assigned to individual CPIs on a rotating basis, and there are schedules so employees will know who is "on rotation."
From October 2007 through approximately mid-January, Petitioner was taken off rotation so as to not receive new cases and her existing caseload was distributed to other CPIs in her unit. Relieving her of her responsibilities was necessary because Petitioner was disqualified from her employment position
due to a felony conviction, and it was necessary for her to obtain an exemption from that disqualification. Petitioner was successful in obtaining that exemption and was able to resume her job duties.
By March 2008, it was necessary to take Petitioner off rotation again so that she could get current on her existing caseload rather than continuing to miss statutory deadlines. From that time until Petitioner was terminated from her employment as a CPI in June, it was necessary to take Petitioner off rotation for approximately one week every month so she could catch up. No other CPI has been taken off rotation due to performance deficiencies.
When Petitioner was taken off her regular duties until she obtained an exemption and during each of the time periods she was taken off rotation, the other CPIs in her work unit had to absorb her caseload and all of the new cases. There was, understandably, some dissatisfaction among her co-workers who had to do her work in addition to their own. Further, Petitioner had the lowest caseload of all the CPIs in her unit.
Christine Henegar, Petitioner's immediate supervisor and the person who hired her, assigned an experienced CPI to be Petitioner's mentor due to Petitioner's performance deficiencies both as to her investigations and as to her documentation.
Although Petitioner was directed to meet with her mentor weekly, she did not.
When her mentor attempted to assist her, Petitioner responded with resistance. Petitioner's mentor reported to Henegar frequently regarding Petitioner's poor performance, her resistance, her lack of comprehension, and the need for her co- workers to absorb Petitioner's caseload. Both he and Henegar shared an ongoing concern regarding the safety of the children whose cases were assigned to Petitioner. They were concerned that children were being left at risk due to Petitioner's inadequate or inaccurate assessment of risk factors.
Once Petitioner had received her exemption and resumed handling a caseload, it became apparent by February or March that her performance was deficient in a number of ways. E-mails between Petitioner and Henegar between March 26, 2008, and
June 10, 2008, reflect the same concerns regarding Petitioner's deficiencies throughout that time period. In May, Henegar held two formal conferences with Petitioner to address her continued deficiencies, but no improvement was noted.
As Petitioner approached the end of her probationary period without adequate improvement, Henegar consulted with her supervisors regarding Petitioner's continuing deficiencies. As required for all employees, Henegar prepared a written performance evaluation of Petitioner on the required form. She
gave Petitioner a rating of l.8, although she testified that she was generous in her scoring of Petitioner and scored Petitioner higher than Petitioner deserved. A score of "1" means the employee's performance is consistently below expectations, and a score of "2" means the employee's performance sometimes meets expectations and needs improvement.
The Department terminates employees who do not successfully complete their probationary period rather than allowing them to become permanent employees. However, the Department did not terminate Petitioner; rather, it gave Petitioner a position with ACCESS, a different program under the Department's jurisdiction. When Petitioner did not successfully complete her one-year probationary period in that program, she was terminated. Petitioner affirmatively states that she was not discriminated against relative to her employment in or dismissal from the ACCESS program.
Janet Stott is a white female who started her probationary period as a CPI at the same time as Petitioner. She is not a similarly-situated employee. Although she and Petitioner assumed the same job duties at the same time, her performance improved over the course of her probationary period while Petitioner's deteriorated. By the end of her probation, Stott was a very good investigator.
Petitioner's termination as a CPI was not based upon any single incident or her handling of the two cases that she attempted to focus on during the final hearing. Rather, it was based solely upon her over-all performance, which was reviewed during three meetings among her supervisors over a period of two months. Petitioner's race and/or her age were not considered by those decision-makers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569, 120.57(1), and 760.11(6), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the bases, inter alia, of race or age. Petitioner asserts that she was discriminated against by the Department when she was terminated for these reasons. Petitioner has failed to present any evidence in support of her allegations.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v.
Green, 411 U.S. 792 (1973), and in Texas Dept of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well- settled case law, Petitioner bears the initial burden of establishing by a preponderance of the evidence a prima facie
case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
In order to establish a prima facie case, Petitioner must prove that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than similarly-situated employees who were not members of her protected class. Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997). Petitioner has failed to establish even a prima facie case of discrimination by failing to prove the elements of the analysis as to her allegation of discrimination based upon either her age or her race.
As to Petitioner's claim that she was treated unfairly due to her age, Petitioner offered no evidence as to her age and, therefore, failed to prove that she is a member of a protected class. The only evidence is this record is Henegar's testimony that she is older than Petitioner and Petitioner's testimony that Stott is younger than Petitioner, apparent perceptions which may or may not be accurate. Petitioner has,
accordingly, failed to prove that she is a member of a protected class due to her age.
As to Petitioner's claim of discrimination based upon her race, Petitioner's only proof of her race is her testimony that she is "a person of color." However, since the Department, in its proposed recommended order offers as a finding of fact that Petitioner is an African-American, the Department's statement is accepted as a stipulation that the Department is not contesting that Petitioner is a member of a protected class on the basis of race.
The second element, that Petitioner was qualified for her position, presents a little more difficulty. The evidence indicates that she was not qualified for her position when the Department hired her, since she was legally precluded from holding the position of CPI. However, the Department removed her duties from her for several months while she obtained an exemption from her disqualification. At approximately the half- way point of her one-year probation, Petitioner did become qualified for her employment position, and at the point where she was dismissed from her position as a CPI, she was, technically, qualified for her position.
The third element is that she suffered an adverse employment action. Petitioner was given a different position rather than being terminated in accordance with the Department's
practice and policies when she was unsuccessful in fulfilling her duties in a timely and accurate manner. It is arguable that since she was given a different position rather than being terminated, she did not suffer an adverse employment action. No evidence was presented, however, as to the duties, salary, and other employment conditions of Petitioner's position in the ACCESS program. Since Petitioner testified that she was either dismissed or demoted from her position as a CPI, and since the Department offered no evidence to dispute that she was dismissed or demoted, Petitioner has established a prima facie case that she was either dismissed or demoted, although those terms are, factually, mutually-exclusive.
As to the fourth element, that she was treated less favorably than similarly-situated employees who were not members of her protected class, Petitioner asserts the comparison should be between her and Janet Stott, because they were hired at the same time. That fact standing alone does not establish that Stott was a similarly-situated employee, and Petitioner has failed to establish a prima facie case as to this element. Further, the evidence reveals that Stott did not demonstrate the continuing deficiencies which Petitioner had. As summarized by one witness, Stott's performance improved during her probationary period while Petitioner's deteriorated.
Assuming arguendo that Petitioner had established a prima facie case as to either of her alleged bases of discrimination, which she has not, her claim still fails because the Department has articulated a legitimate, non-discriminatory reason for its actions, and Petitioner has failed to meet her burden of showing that the reason the Department gave is a pretext for discrimination.
The evidence in this cause is clear that the Department, instead of discriminating against Petitioner, gave her preferential treatment. The Department chose to not terminate Petitioner when it discovered that she was legally prohibited from being employed in the position of CPI. The Department re-assigned her caseload to other CPIs and then helped her obtain an exemption from her disqualification. Petitioner exhausted approximately one-third of her probationary period without having to perform the duties of a CPI. The Department repeatedly took her off rotation in order to allow her to bring her existing caseload current, but she failed to do that even though she had the lowest caseload of all the CPIs in her unit. The Department assigned her a mentor to assist her in fulfilling her job duties, but she refused to meet with him or allow him to assist her. Finally, instead of terminating her employment when she was unable to meet the expectations for everyone in the position of CPI, the Department found her a
different position and did not terminate her until she was unable to fulfill the duties of that position by the end of her probationary period of one year.
This record is devoid of any evidence that anyone made a negative comment, in writing or verbally, about Petitioner's age or race. This record is devoid of any evidence that any decision-maker made any decision regarding Petitioner's employment with consideration of her age or race. Petitioner seems to assume that so long as she is a member of a protected class, she cannot be made to suffer an adverse employment action. Petitioner is in error.
An employer may terminate an employee for a good reason, for a bad reason, for a reason based upon erroneous information, or for no reason at all, as long as the termination was not based upon a discriminatory reason. See Dept. of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), and the cases cited therein. The Department has articulated a good reason for Petitioner's termination, and Petitioner has not shown by any direct evidence, statistical evidence, or even circumstantial evidence, that the reason was pretextual or discriminatory.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause.
DONE AND ENTERED this 21st day of April, 2010, in Tallahassee, Leon County, Florida.
S
LINDA M. RIGOT
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2010.
COPIES FURNISHED:
Jane Almy-Loewinger, Esquire
Department of Children and Family Services
210 North Palmetto Avenue, Suite 430 Daytona Beach, Florida 32114
Beverly Joe O. Greenwade
106 Academy Avenue Sanford, Florida 32771
Larry Kranert, 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
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 |
|---|---|---|
| Jun. 25, 2010 | Agency Final Order | |
| Apr. 21, 2010 | Recommended Order | Petitioner failed to present any evidence that the Department discriminated against her based on race or age when it terminated her position in one program and transferred her to another program, in which new position she also failed to meet expectations. |
