STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEAREATHER B. GROSS, )

)

Petitioner, )

)

v. ) CASE NO. 85-2965

) CITY OF LARGO, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on October 22, 1985 in Largo, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Cleareather B. Gross (pro se)

915 North Garden Avenue Clearwater, Florida 33515

For Respondent: Thomas M. Gonzalez, Esq.

Post Office Box 639

201 East Kennedy Boulevard Suite 838

Tampa, Florida 33601 ISSUE

The issue for determination at the final hearing was whether the Respondent, City of Largo, as employer of Petitioner, Cleareather B. Gross, committed an unlawful employment practice by discriminating against Petitioner on the basis of race.

PROCEDURAL BACKGROUND

On December 27, 1982, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations,

alleging that Respondent committed an unlawful employment practice by terminating Petitioner's employment on the basis of race. On August 13, 1985, the Florida Commission on Human Relations rendered its proposed notice of determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. By petition filed with the Division of Administrative Hearings on August 30, 1985, Petitioner requested an administrative hearing on her charge of race discrimination against Respondent, City of Largo, Florida.

This cause came on for final hearing on October 22, 1985 Petitioner's exhibits 1-47 were duly offered and admitted into evidence. In addition, the Petitioner testified in her own behalf and called one witness, Darlene Trowell, a secretary in the Largo City Clerk's Department. Respondent's exhibits 1, 4, 9, 12, 13, 14 and 16 were duly offered and admitted into evidence. In addition, the Respondent called the following witnesses: Worthington E. Hubbard, Personnel Director for the City of Largo, and Patricia Catalano, Personnel Analyst for the City of Largo. Neither party submitted posthearing proposed findings of fact.

FINDINGS OF FACT

Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. The Petitioner, a black female, was hired as a Clerical Assistant I for the City of Largo's City Clerk's Office on September 21, 1981 and was assigned to the mail room. The Petitioner was hired for the position by City Clerk Kay Klinsport, a white female. The interview went well and, although there were other candidates for the position, the Petitioner was hired. Shortly after commencing work with the City Clerk's Office, the relationship between the Petitioner and her supervisor, Kay Klinsport, began to turn sour.

   
   

2. Ms. Klinsport utilized very strict management and supervisory techniques and was not considered a very good personnel manager by many of her subordinates. The Petitioner is an extremely assertive person and takes pride in her willingness to "speak her mind" in all situations.

   
   

3. Ms. Darlene Trowell, a white female, worked as a secretary in the City Clerk's Department during the time in question. Ms. Trowell also had trouble with Ms. Klinsport's

   management and supervisory techniques, but decided that the best way to deal with her was by keeping quiet and having limited contact. Ms. Klinsport antagonized several of her subordinates, both white and black. Ms. Klinsport decided that the Petitioner should be watched especially close and asked Ms. Trowell to "keep an eye on her (Petitioner)." This occurred as a result of Ms. Klinsport's management techniques, the Petitioner's overall assertive attitude and several complaints that were received regarding the Petitioner.

   
   

4. Ms. Klinsport no longer works for the City of Largo. Darlene Trowell frequently complained to the City Manager regarding Ms. Klinsport's managerial techniques.

   
   

5. The City of Largo has written guidelines governing employee conduct and discipline; those guidelines are titled "Code of Conduct and Disciplinary Measures" and a copy is provided to all employees. The guidelines require that supervisors pursue a philosophy of "progressive discipline" by administering gradually increasing disciplinary actions for each successive instance of employee misconduct. Possible disciplinary actions include oral reprimand, written reprimand, suspension, and ultimately, dismissal.

   
   

6. Kay Klinsport received several complaints regarding the Petitioner, at least one of these complaints came from the Fire Chief and one complaint came from an employee of the Police Department. In her position with the City Clerk's Office, the Petitioner had occasion to come into contact with employees of the Police and Fire Departments. One of the complaints about Petitioner came from a black employee of the Police Department. On December 3, 1981, J. G. Knight, Fire Chief, sent an interoffice memorandum to Kay Klinsport complaining of the Petitioner's behavior. Specifically, the complaint alleged that Mr. Knight had received numerous verbal complaints and at least two written complaints of confrontations and harrassments by the Petitioner when it becomes necessary for fire department clerical employees to conduct business in or around the mail room. In addition, the complaint alleged that the Petitioner wrongfully opened a sealed envelope addressed to an employee of the fire department concerning the death of a member of his immediate family.

   
   

7. On January 29, 1982 Kay Klinsport, City Clerk, issued the Petitioner a written reprimand. The reprimand specifically addressed friction between the Petitioner and other employees and noted the following:

   
   

   1. 11-16-81 - Failure to complete a project from personnel;

      
      

   2. 12-1-81 - A confrontation with Becky from the Fire Department;

      
      

   3. 12-10-81 - A confrontation with Barbara from Public Works Department

      
      

   4. Refusal to stamp signatures on annexation notices;

      
      

   5. A confrontation with Bonnie concerning Vivian and Marlene;

      
      

   6. Problem involving mail from P. O. Box 137

      and directions given from Lynn in Finance;

      
      

   7. A confrontation with Charlotte regarding mail pick-up during distribution;

      
      

   8. 1-25-82 - Compensatory time confrontation as to date used;

      
      

   9. 1-26-82 - Attitude involved throughout day and into next.'

      
      

      The written reprimand stated that if Petitioner received another reprimand for the same reason, she would be suspended without pay for five days in accordance with personnel rules and regulations.

      
      

8. On February 16, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. This reprimand involved a complaint that Ms. Klinsport had received from the Police Department concerning the Petitioner's use (or rather misuse) of the microfilming equipment. The Police Department allows the City Clerk's Office to use certain camera equipment for microfilming records. Specifically, the reprimand alleged that the Petitioner continued to run documents through the machine without proper preparation (i.e., removing staples and paperclips) despite being instructed as to the proper use of the equipment. Improper use of the machine by failing to remove staples and paperclips can cause the machine to malfunction

   because the staples and paperclips accumulate in the bottom of the machine. The written reprimand warned Petitioner that if she continued to misuse the camera equipment at the Police Department, she would be suspended for three days.

   
   

9. On October 8, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. The written reprimand cited the following:

   
   

   10-1-82 - Incident involving Lynn McKenzle, Finance Department, in failure to readily relinquish use of the computer;

   
   

   10-6-82 - Copy paper incident with Brenda stemming from incorrect certificate of indebtedness turned into supervisor, department head; and

   
   

   Verbal complaints from several other employees.

   
   

   On the basis of this written reprimand, the Petitioner was suspended for five days without pay. The Petitioner was warned that should her attitude continue to interfere with subordinate and/or fellow employee relationships, she would be dismissed.

   
   

10. On November 12, 1982, the Petitioner filed a charge of discrimination against the City of Largo with the Equal Opportunity Commission (case #025830181).

    
    

11. On November 30, 1982 Kay Klinsport issued a written reprimand to Petitioner, Specifically, the reprimand addressed the Petitioner's poor attitude and ability to deal with subordinates and/or fellow employees and noted a confrontation between the Petitioner and "Kay and Leah." On the basis of this written reprimand, the Petitioner was suspended without pay for five days, with termination of employment to take effect on December 7, 1982.

    
    

12. Effective July 4, 1982, the Petitioner was moved from Clerical Assistant I to Acting Clerical Assistant II. On September 29, 1982, the Petitioner sent a memo to Kay Klinsport indicating her desire to apply for the permanent position of Clerical Assistant II. On November 21, 1982, the Petitioner was returned to her permanent position of Clerical Assistant I.

    Lynn McKenzie, a white female, was hired to fill the Clerical Assistant II position. The Petitioner performed poorly on the

    Clerical Assistant II written test and was not hired for the vacant position. Of the five people that took the examination, the Petitioner placed last; however, Ms. McKenzie did not make the highest score.

    
    

13. On March 21, 1982, the Petitioner's probationary appraisal was made by Kay Klinsport. In the evaluation, the Petitioner was rated "satisfactory" on overall performance. With the exception of "attitude," all factors were rated "satisfactory;" attitude was indicated as "generally neutral; disposition and outlook varied with mood."

    
    

14. On September 21, 1982, the Petitioner received her "anniversary performance appraisal" which was completed by Kay Klinsport. The Petitioner's overall performance was rated as "satisfactory." Ms. Klinsport did, however, mention that the Petitioner's attitude varied with her mood.

    
    

15. The Petitioner appealed her discharge and on September 19, 1983, an order of the Federal Mediation and Faciliation Service was issued directing that the City of Largo reinstate the Petitioner without any back pay to the position held by her on the date of her discharge. The Mediation order found that the Petitioner's conduct warranted a disciplinary penalty short of discharge. The Petitioner returned to work on October 5, 1983. However, the Petitioner resigned on February 4, 1984.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject of, this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

17. The general purpose of the Human Rights Act of 1977 is to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, marital status, and thereby to protect their interests in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strike and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state. In addition, Section 760.01(3), Florida Statutes (1983) provides that the provisions of the Human Rights Act of 1977 shall be construed liberally to further the general purposes stated in the Act. Section 760.10(1)(a), Florida Statutes, provides in part that:

    
    

    (1) it is an unlawful employment practice for an employer: (a) to discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race. . ."

    
    

18. The Petitioner has failed to show that the Respondent, the City of Largo, discriminated against her on the basis of race. Specifically, the Petitioner has failed to show that she was terminated from her employment on the basis of race, that she was not promoted to the position of Clerical Assistant II on the basis of race, or that her termination or failure for promotion resulted from a retaliation because of her charge of employment discrimination filed on November 12, 1982. The Respondent, City of Largo, articulated and substantiated legitimate, nondiscriminatory reasons for the actions complained of. The Petitioner has not shown the articulated reasons to be pretextual. While some of the disciplinary actions taken by Respondent appear to be either unwarranted or unduly harsh, it has not been shown that the actions were taken because of the Petitioner's race.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's Petition for Relief be denied in that no unlawful employment practice has been shown.

DONE AND ORDERED this 31st day of December 1985 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 31st day of December 1985.

COPIES FURNISHED:

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303

Aurelio Durana, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303

Ms. Patricia Catalano Personnel Analyst City of Largo

Post Office Box 296 Largo, FL 33540

Ms. Cleareather B. Gross 915 North Garden Avenue Clearwater, FL 33515

Thomas M. Gonzalez, Esq.

P. O. Box 639

201 E. Kennedy Blvd. Suite 838

Tampa, FL 33601

Docket for Case No: 85-002965

Orders for Case No: 85-002965