STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDY LYNN HOWELL BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3605

) BOARD OF COUNTY COMMISSIONERS ) OF ORANGE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing in this cause was held on January 3 and 4, 1985, in Orlando, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

sex.

APPEARANCES

For Petitioner: Lawrence W. Solodky, Esquire

Law office of MARVIN E. NEWMAN

801 North Magnolia Avenue, Suite 301

Orlando, Florida 32803

For Respondent: Charles R. Fawsett Esquire

ROCK AND FAWSETT

25 South Magnolia Avenue Post Office Box 3149 Orlando, Florida 32802

ISSUE

Whether the respondent discriminated against the petitioner on the basis of

BACKGROUND

On March 31, 1983, petitioner filed an amended complaint charging

discrimination on the basis of sex. On April 3, 1984, a determination was made by the Florida Commission on Human Relations (Commission) that reasonable cause existed to believe that an unlawful employment practice had occurred. However, upon redetermination it was found that no reasonable cause existed to believe that an unlawful employment practice had occurred. Thereafter, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner alleged that she was unfairly treated by superior officers with respect to terms, conditions or privileges of employment because of her sex and was discharged from her employment because of her sex. On

October 12, 1984, the respondent filed an answer to the petition which denied the allegations of the petition and raised several affirmative defenses. On October 15, 1984, the petition was referred to the Division of Administrative Hearings.

At the hearing, petitioner called five witnesses: Judy Lynn Howell Brown, the petitioner; Brenda Hartpence, a former fire fighter/EMT with the Orange County Fire Department; William Burchfield, a fire fighter/paramedic, Orange County Fire Department; Frank Montes de Oca Battalion Chief, Orange County Fire Department; and John Jung, Administrative Assistant, Orange County Fire Department. Petitioner's Exhibits No. 1-4 were admitted into evidence. The respondent called seven witnesses: Michael Kelley, a fire fighter with the Orange County Fire Department; Robert Danks, Lieutenant Orange County Fire Department; William Dryburg, Battalion Chief, Orange County Fire Department; Antonie Brus, Jr., Lieutenant Orange County Fire Department; Gary Hall, Battalion Chief Orange County Fire Department; Gene Rivers, former Deputy Chief of Administrative Services for the Orange County Fire Department; and James G. Cragan, Fire Administrator, Orange County Fire Department. Respondent's Exhibits Nos. 1-7 were admitted into evidence.

The parties were given ten days after the filing of the transcript in which to file proposed findings of fact and conclusions of law. The time was extended by subsequent order. The respondent timely filed proposed findings of fact and conclusions of law; the petitioner failed to do so. 1/ The respondent's proposed order has been carefully considered, and each proposed finding of fact has been addressed, directly or indirectly, in this recommended order except those proposed findings that are cumulative, immaterial, or unnecessary. A proposed finding of fact has been specifically rejected if an inconsistent or contrary finding has been made in this order.

FINDINGS OF FACT

1. In the summer of 1981, petitioner took emergency medical technician (EMT) training and in the fall of 1981, attended Orange-Orlando Fire Training Academy. She received her emergency medical technician certification from the State of Florida in the fall of 1981, and on November 13, 1981, received a certificate of completion from the fire training academy. Thereafter, petitioner submitted applications for employment with several fire departments throughout Central Florida.

   
   

2. On December 16, 1981, petitioner submitted an application for employment with Orange County which reflected that petitioner was "studying paramedics." On January 6, 1982, petitioner supplemented her written application to the county with a Fire Fighter Data Questionnaire which indicated that she was "presently taking paramedics." On the questionnaire, the petitioner explained her reasons for wanting to become a fire fighter as follows:

   
   

   "I want to be a paramedic firefighter

   because I enjoy being trained to help people & save lives. I want to work emergency care in the streets rather than in the hospital."

   
   

3. In June, 1982, petitioner's name came to the top of the eligibility list, and she was contacted by Mr. John Jung, Administrative Assistant, Orange County Fire Department (OCFD or Department). By that time, petitioner had moved from Orlando to Medeira Beach, Florida, and was enrolled in a paramedic course

   offered by St. Petersburg Junior College. Mr. Jung offered petitioner the fire fighter position that was open and explained that the position would have to be filled by the middle of July. Petitioner indicated to Mr. Jung that she was currently enrolled in paramedic school, and therefore could not accept the position. Mr. Jung was aware that there was a critical shortage of paramedics within the Orange County Fire Department 2/, and therefore he asked petitioner if she would be willing to accept the position if it were possible to hold the position open until she graduated from school. The petitioner asked Mr. Jung if the Department would be in a position to reimburse her for her paramedic schooling.

   
   

4. Mr. Jung discussed the telephone call with his superior, Chief Cragan. Mr. Jung explained that he had an applicant that was completing paramedic training and asked if it would be possible to hold an opening for that candidate. Mr. Jung also asked if the Department could reimburse the candidate for her paramedic educational training. Mr. Jung was told that the Department could not legally reimburse a non-employee, but that it would be permissible to hold an opening for the candidate contingent upon the person practicing as a paramedic. Thereafter, Mr. Jung called petitioner and informed her that, although she could not be reimbursed for her paramedic training, a position would be held open for her until completion of her paramedic training if she would agree to function as a paramedic. Petitioner accepted the position, and Mr. Jung informed her that the OCFD would contact her at the time she was completing school and make arrangements for her processing. 3/

   
   

5. On August 20, 1982, after successfully completing her paramedic training, the petitioner moved to Orlando. The petitioner's employment with the Orlando County Fire Department began on September 13, 1982. Petitioner's first working assignment was Station 30 under Lieutenant Hurd. Chief Dryburgh was the Battalion Chief for Station 30, but during most of the time that petitioner was assigned to that station, Norman Scholar was Acting Battalion Chief. On or about October 11, 1982, petitioner was transferred to Station 66 where she worked under Lieutenant Robert Danks. Shortly after her transfer, Chief Dryburgh delivered petitioner's 30 day evaluation to her. On the evaluation form the category "quality of work" had been changed from "needs improvement" to "acceptable", and "physical condition" had been changed from "acceptable" to "needs improvement". The petitioner testified that the changes were made after she had signed the evaluation and that Chief Dryburgh stated to her that he had made the changes. Chief Dryburgh testified that he saw Lieutenant Hurd make the changes on the form and that he then delivered the employment evaluation to petitioner and she signed it at that time. The dates next to the signatures of Lieutenant Hurd and petitioner show that both signed the evaluation on October 17, 1982. Petitioner was not assigned to the same station as Lieutenant Hurd at that time, and the only reasonable conclusion that can be made is that Lieutenant Hurd signed the form, gave it to Chief Dryburgh for delivery to petitioner, and then petitioner signed the form. However, the questions of whether the alterations were made prior to petitioner's signature and who made them are irrelevant. The evaluation was not related to the decision to terminate petitioner's employment. Further, the changes were not negative, petitioner's overall evaluation was good and the form indicates that petitioner was meeting probationary requirements.

   
   

6. While at Station 66, an unpleasant incident occurred between petitioner and Lieutenant Danks, her supervisor. When the incident occurred, the fire truck had just returned to the station. Petitioner, as the fire fighter in the jump seat, had the job of getting off the truck, going to the rear, and directing the driver in backing the truck into the garage. Petitioner did not

   get off the truck when she should have because she heard a radio call coming in and thought that the crew might be going out on another call. When Lieutenant Danks saw that the petitioner was still sitting on the truck, rather than being in position to direct the truck into the garage, he started yelling at her to get off the truck and back it in. He was shouting so loudly that the fire fighters inside the station could hear him. He then went into the station, and a few minutes later the petitioner approached him and asked if she could talk to him because she felt that he had reprimanded her in an inappropriate manner.

   Lieutenant Danks stated that he was busy at the moment and would talk to her later. About 15 minutes later Lieutenant Danks told petitioner that he was ready to talk to her and they went to the Chief's office. The focus of this conversation was petitioner's concern about the manner in which Lieutenant Danks reprimanded her rather than petitioner's failure to get off the truck as quickly as she should have. Again Lieutenant Danks raised his voice to the level where the other fire fighters could hear him even though the door to the Chief's office was closed. Lieutenant Danks had never before reprimanded a fire fighter under his command in the manner in which he reprimanded the petitioner.

   
   

7. A few hours after the meeting in the Chief's office, Lieutenant Danks informed the petitioner that she was being suspended because she had taken sick leave on an earlier shift. The petitioner had taken sick leave because she had injured her hand while on a prior shift and had not had the time to go to the doctor and obtain a medical release. However, the suspension was cancel led due to the Intervention of Chief Moody.

   
   

8. Although Lieutenant Danks' behavior on the day in question may have been inappropriate, there is nothing that would suggest that he reacted in the manner that he did due to petitioner's sex. The shouting incident was an isolated occurrence. Lieutenant Danks had never before reprimanded petitioner or any other fire fighter, male or female, in that manner. Further, petitioner's treatment at Station 66 was totally unrelated to the later events which led to petitioner's termination and is, therefore, irrelevant.

   
   

9. Subsequently, and in accordance with petitioner's request, petitioner was transferred to Station 80 where she worked under the immediate supervision of Lieutenant Brus. Lieutenant Brus had an interview with petitioner, as he did with all new personnel assigned to his shift, to advise her as to what would be expected of her and as to what she should expect from him. During the course of the interview, petitioner told Lieutenant Brus that she had gone to school to get her paramedic certification and that she had been hired by the OCFD with the understanding that she would function as a paramedic as soon as she got notification from the state that she had passed the state examination. Petitioner was proud of the fact that when the OCFD had contacted her instructor to find out how she was performing in school, the instructor told them that she was expected to graduate in the top of her class.

   
   

10. On December 4, 1982, while assigned to Station 80, petitioner received notification from the state that she had passed the paramedic exam and was state certified to practice. The next shift day Battalion Chief Brock asked petitioner if she had heard from the state regarding her exam, and she informed Chief Brock that she had passed.

    
    

11. On December 7, 1982, Battalion Chief Hall, second-in- command of the Emergency Medical Services unit under Chief Montes de Oca, called petitioner to find out when she would get her Orange County paramedic card. 4/ Petitioner informed Chief Hall that she did not intend to get her Orange County card

    because she did not want to work for the Orange County Fire Department as a paramedic. Chief Hall agreed to meet with petitioner later that day to discuss the situation.

    
    

12. On the afternoon of December 7, 1982, petitioner met with Chief Hall, Chief Montes de Oca, and Lieutenant Brus. Once again petitioner stated that she did not intend to get her Orange County card at anytime in the near future and stated that if she did obtain the card, it would not be to work as a paramedic for the OCFD but to work on her days off for a private ambulance service. She stated that since the OCFD had not paid for her paramedic education, she could not be required to function as a paramedic unless the OCFD reimbursed her for the cost of her schooling. She also stated that she did not want to work as a paramedic for the OCFD because she did not want to be transferred due to problems she had previously had. Chief Montes de Oca explained that the meeting was not to discuss a potential transfer but to discuss petitioner's obtaining an Orange County card. Chief Montes de Oca concluded the meeting by ordering the petitioner to obtain her county certification by Monday morning, December 13th, or face disciplinary action. Petitioner was told to show Lt. Brus proof of county certification on Friday, December 10th.

    
    

13. After Chief Montes de Oca and Chief Hall left the meeting, Lt. Brus talked with petitioner about her attitude toward ranking officers of the OCFD. Throughout the meeting petitioner had been disrespectful, outspoken, and argumentative. Lt. Brus advised petitioner that she would have to get the card on the following two days, which she had off, because Friday, December 10th, she would be on duty; the bureau that handles the cards would be closed on Saturday and Sunday; and she had to have the card when she reported to work at 7:30 a.m., Monday morning. Petitioner again stated that the OCFD should reimburse her for her schooling if they expected her to work as a paramedic. Lt. Brus told her that she was given an order and was expected to carry it out. Petitioner stated that she would get the card.

    
    

14. On December 10, 1982, petitioner reported to work without the Orange County card. She told Lt. Brus that she did not have the time to get the card because she was taking or studying for final exams in school on December 8th and 9th. Lt. Brus contacted Chief Hall and informed him that petitioner did not have her card and Chief Hall notified Chief Rivers, head of personnel, whose initial reaction was to suspend petitioner immediately. However, since petitioner was officially given until December 13th to get her card, it was decided that petitioner would be given time off from duty on December 10th in order to get the card. Chief Montes de Oca instructed Lieutenant Brus that petitioner could have time off, without pay, to get the card, and Lieutenant Brus relayed that information to petitioner. Later in the discussion with petitioner, Lieutenant Brus exercised his authority as petitioner's immediate supervisor and offered her time off with pay. Petitioner explained that she did not have transportation available because her boyfriend, now her husband, had driven her to work. Lieutenant Brus then offered petitioner the use of his personal car, which she refused. She was not offered transportation by the OCFD, which petitioner felt she was entitled to. Petitioner testified as to her demand for transportation from the Department as follows:

    
    

    I said to them, if it is that important and it really does have to do with my job and you want to transport me down there, I'll get my card, and I'll go down there.

    * * *

    So that's why I figured if it was really that

    important for them to have it, then they could certainly -- if they had to have it that day and couldn't wait and wanted to do it on my work day, then they could provide the trans- portation.

    (T-117, 118)

    
    

    Because the Department did not provide transportation, the petitioner did not get her card. 5/

    
    

15. On Monday morning petitioner attended a meeting with Chief Rivers, Chief Montes de Oca, Chief Hall, and Lieutenant Brus. The petitioner was asked if she had obtained her Orange County card as she had been ordered to do. She said she had not. She was asked if she intended to get it, and she said no. Chief Rivers then informed the petitioner that he had no alternative but to discharge her for failing to obey a direct order of a superior officer and for insubordination. The petitioner was notified of her termination by certified letter dated the same day.

    
    

16. Evidence was presented that certain male fire fighter/paramedics had been allowed to stop functioning as paramedics. However, the evidence also showed that the reassignments of those fire fighters from paramedic duties to other duties were sound management decisions and were not unilateral decisions of the fire fighters. In two of the cases the individuals showed signs of stress which demonstrated itself in the form of inadequate decision making and inadequate skills. In one case the individual lost his certification due to incompetency. In another case the individual was promoted to inspector, and the last case involved a situation where all the engineer/paramedics had to commit to either paramedic or engineer so that the county could determine whether they had engineer slots open or paramedic slots. 6/ Obviously, not one of the situations involving the male fire fighter/paramedics is similar to petitioner's situation. 7/

    
    

17. Petitioner's termination from her employment had nothing to do with her sex. A position on the Orange County Fire Department was held open for the petitioner solely because of her paramedic training and her expressed desire to serve as a paramedic. The Orange County Fire Department had a desperate need for paramedics and had every reason to expect that the petitioner would take all the steps necessary to become certified to function as a paramedic in Orange County. Prior to her hiring, the petitioner was told that she could not be reimbursed for her paramedic training. Yet when her superior officers inquired about her county certification, the petitioner informed them that she would not obtain it without the county paying her $4,000 to reimburse her for her schooling. When, as a last resort, she was ordered to get her Orange County card, she refused to obey the order. Petitioner's continued insubordination and her refusal to comply with a direct order of her superior officer, justifiably caused her to be dismissed from her position with the Orange County Fire Department.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. 8/ Section 120.57(1), Florida Statutes.

    
    

19. Section 760.10, Florida Statutes, provides, inter alia:

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compen- sation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely af- fect any individual's status as an employee, because of such individual's race, color, re- ligion, sex, national origin, age, handicap,

          or marital status.

          
          

          Florida's employment discrimination statute, Section 760.10, is patterned after Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). School Board of Leon County v. Hargis, 400 So.2d 103, 108, n. 2 (Fla. 1st DCA 1981).

          In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established the burden of proof that must be met by a Title VII plaintiff alleging discrimination in hiring.

          
          

          The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial dis- crimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants;

          (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

          
          

          411 U.S. at 802

          
          

          If the complainant proves a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. If the employer carries this burden, the complainant must prove that the reason given by the employer is merely a pretext for discrimination.

          
          

20. In McDonnell, the Court recognized that the elements required to prove a prima facie case, as set forth in McDonnell, would not be applicable in every respect in every case because of differing factual situations. In Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir. 1982), the court, adapting the elements of a prima facie case as set forth in McDonnell, stated that a prima facie case of discrimination in a termination case is established when "the plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was replaced by a person outside of the protected class or was discharged while a person outside the class with equal or lesser qualifications was retained."

21. In the instant case, the petitioner failed to present a prima facie case. Although she established that she was a member of a protected class, she failed to prove that she was replaced by a male or that a male employee, similarly situated, was retained whereas she was discharged. Further, due to her refusal to get her Orange County card, it is questionable whether she established that she was qualified for the position she held. Without the Orange County card, she could not function as a paramedic, and although the petitioner established that she was qualified as a fire fighter, it was also established that she was hired, and a position specifically held open for her, solely because of her paramedic qualifications.

23. However, even assuming that petitioner established a prima facie case of discrimination in termination, the respondent articulated a legitimate, nondiscriminatory reason for the petitioner's discharge, which petitioner failed to prove was pretextual. The petitioner has the "ultimate burden of establishing by a preponderance of the evidence that a discriminatory intent motivated the employer's action." Perryman v. Johnson Products Co., 698 F.2d 1138,1142 (11th Cir. 1983). This petitioner failed to do. The evidence presented establishes that petitioner was discharged due to insubordination and her refusal to comply with a legitimate direct order of a superior officer, not because of her sex.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for relief filed by the petitioner.

DONE and ENTERED this 30th day of August, 1985, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1985.

ENDNOTES

1/ Petitioner filed an untimely proposed recommended order with a cover letter which set forth the reason why the proposed order was late. The cover letter was treated as a motion to accept for consideration the untimely proposed recommended order. After hearing the argument of the parties, the motion was denied.

2/ In June of 1982, there was no separate classification for paramedics within the Orange County Fire Department. All paramedics were classified as fire

fighters. A separate classification for paramedics was not established until September of 1982. At the time of the call to petitioner, there were no qualified paramedics left on the fire fighter eligibility list.

3/ The petitioner testified that the only conversation or conversations with Mr. Jung she could remember occurred approximately five days prior to August 20, the day she graduated from her paramedic course. However, I accept Mr. Jung's testimony that there were earlier conversations held in June and his testimony concerning the substance of those conversations for the following reasons: (1) Due to his positions with the OCFD, Mr. Jung was aware of the needs of the Department and the time for filling positions that opened; (2) Mr. Jung recalled the conversation with the petitioner in detail; (3) Mr. Jung took certain actions to follow through on the first conversation which would not have been taken had the conversation not occurred; (4) Mr. Jung's testimony concerning the substance of the conversation is supported by the testimony of Chief Cragan; and

(5) If the only contact had been five days before petitioner's graduation, there would have been no need to "hold open" the position offered.

4/ Before an individual could function as a paramedic within Orange County, the individual had to obtain an Orange County paramedic card, which indicates county certification. According to petitioner's testimony it would have taken her two hours to get the card. To get the card one had to prove state certification, complete some forms, and have a picture taken. There were no written or physical tests.

5/ William Burchfied, a fire fighter/paramedic and president of the fire fighter's union, testified that the unwritten rule was that administrative personnel got to use the cars. He specifically stated that combat personnel had to get their paramedic cards on their days off-duty and in their own vehicles.

6/ A problem developed because the Department only had budgeted slots for engineers (drivers) in relation to the pieces of apparatus in the Department. The number of engineers exactly equalled the number of fire apparatus times three, which would provide a driver or engineer on each shift. However, if the engineer was practicing as a paramedic, it meant that there was an engineer slot that was filled, but there was nobody functioning as an engineer. By requiring the engineer/paramedics to choose one or the other, it opened up some engineering slots and allowed the Department to better assess its personnel needs.

7/ The evidence presented at the hearing also failed to support a finding that the OCFD had a practice or policy of assigning personnel to paramedic duties or fire suppression duties based on sex.

8/ As an affirmative defense, respondent contended that the Notice of Redetermination of No Reasonable Cause was final agency action that could not be further litigated. This assertion is clearly without merit. See Rule 22T- 9.08(1), F.A.C.; Commission on Human Relations v. Bentley, 422 So.2d 964 (Fla.

1st D.C.A. 1982).

COPIES FURNISHED:

Albert C. Eaton, Esquire

Law office of MARVIN E. NEWMAN 801 North Magnolia Avenue Suite 301

Orlando, Florida 32803

Charles R. Fawsett, Esquire ROCK AND FAWSETT

25 South Magnolia Avenue Post Office Box 3149 Orlando, Florida 32802

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Aurelio Durana General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003605

Orders for Case No: 84-003605