STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY E. TEAGUE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4202

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on November 15, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Mary E. Teague, pro se

4258 Schank Court

Orlando, Florida 32811

For Respondent: James A. Sawyer, Jr., Esq.

District VII Legal Counsel

400 West Robinson, Suite 701 Orlando, Florida 32801

By Petition for Relief filed with the Florida Commission on Human Relations on August 19, 1988, Petitioner alleged that she had been employed by Respondent and had suffered discrimination by reason of race during the course of employment. She alleged that Respondent had failed to interview her for a position to which Respondent then promoted a less-qualified white woman for a promotion, harassed and unfairly disciplined her for other job-related rudeness to clients, retaliated against her filing the subject charges by denying or delaying a pay increase, and historically discriminated in favor of white persons over black persons in hiring and promotion practices.

After its investigation, the Florida Commission on Human Relations issued on June 28, 1988, a Notice of Determination: Cause.

At the hearing, Petitioner presented 18 witnesses, including herself.

Respondent presented one witness. Petitioner offered into evidence 11 exhibits. Respondent offered into evidence one exhibit. All exhibits were admitted, except for Petitioner's Exhibits 2 and 3.

Petitioner filed a proposed recommended order that contained no proposed findings of fact.

FINDINGS OF FACT

1. Petitioner is a black female. She has been continuously employed by Respondent since February 14, 1972.

   
   

2. Respondent has at all material times employed 15 or more employees for each working day in each of 20 or more calendar weeks.

   
   

3. For several years, Petitioner was classified as a Public Assistance Specialist I and worked as a certification worker in the food stamp program administered by Respondent.

   
   

4. In December 1984, Petitioner agreed with her supervisor, Dewey DeLoach, to serve as a second party reviewer for six months. The position required someone with superior experience and knowledge of food stamp eligibility criteria. In addition to selecting Petitioner on these grounds, Mr. DeLoach sought to make the assignment in order to remove Petitioner from client contact. On a number of occasions, she had been abrasive and rude to her clients.

   
   

5. The second party reviewer is responsible for monitoring the work of all other food stamp certification workers in the office. Although somewhat prestigious, the job was stressful due to the monitoring duties. Employees generally did not want to be assigned to the job for more than six months, especially because, at the time, the pay was the same as that for a food stamp certification worker.

   
   

6. Although Petitioner was competent as a food stamp certification worker, she had recurring problems with client relations. In one case, she asked a client seeking public assistance whether she was Jewish and, learning that she was, told her that Petitioner had never met a Jew who needed help. Petitioner then advised the client to get help from "her own" people.

   
   

7. In July 1985, Petitioner returned to her certification duties, but four months later Mr. DeLoach reassigned her to the position of second party reviewer due to her continued difficulties in dealing with the public.

   
   

8. In the same month, Petitioner was evaluated for a pay raise under the then new merit pay program. She was eligible for the raise as a result of the evaluations and recommendations from her immediate supervisor, her supervisor's supervisor (Mr. DeLoach), and the department head.

   
   

9. Complicated administrative rules governed the merit pay program in 1985. Notwithstanding the favorable evaluations and recommendations, Petitioner's eligibility for a merit pay raise did not guarantee her a pay hike due to limited funds. As was the case with all other similarly situated employees, Petitioner was next placed on a prioritized list with other employees eligible for a merit pay raise. Each month, priorities on the list changed as a result of the addition of new persons, who, under uniformly applied rules, might receive a higher priority than persons already on the list. Each month, Respondent awarded the available merit pay to eligible employees based on their priority on the list.

   
   

10. Pursuant to the merit pay rules, Petitioner was duly awarded a merit pay increase about one year after she had applied. As with other employees receiving merit pay hikes, Petitioner's raise was retroactive only one or two months prior to the award and not to the date of the application.

11. In December 1985, and January 1986, Respondent refused to pay a travel voucher submitted by Petitioner for expenses incurred while she was on a temporary disaster assignment in Tallahassee. This decision, which was made by Deputy District Administrator Sidney McAllister, was consistent with Respondent's policies requiring advance approval of such expenses. There was no evidence that other employees were treated differently than Petitioner in this regard.

    
    

12. Mr. McAllister rejected the travel voucher prior to his having learned that Petitioner had filed charges of racial discrimination in her employment with Respondent. At the time, Petitioner had filed a union grievance alleging a violation of the union contract in a manner that did not involve Petitioner's race; she had not filed any charges of race discrimination.

    
    

13. In December 1985, Petitioner filed with Respondent a request-for- promotion form expressing interest in being considered for vacancies within Respondent as they arose. The purpose of the form was to simplify the application process for Petitioner by relieving her, for a period of one year, of the obligation of filing applications for specific job openings.

    
    

14. The form that Petitioner originally filed with Respondent was returned to her on January 2, 1986, because it was improperly filled out. She added the missing information and returned the form to Respondent.

    
    

15. Petitioner was seeking a position as a child support enforcement investigator. Respondent had recently obtained funding for 22 new positions in the Orlando office.

    
    

    Certain of these positions were to be filled effective the beginning of 1986, but most of them were not filled until later in 1986.

    
    

16. Closing dates for applications for the first several positions to be filled were in October and November 1985, which had passed prior to Petitioner's filing of the incomplete request-for-promotion form.

    
    

17. Filing the request-for-promotion form made Petitioner eligible to be considered for positions for which the closing date had not yet passed. Contrary to Petitioner's testimony, the form did not obligate Respondent to interview her, especially for positions for which the closing date had passed prior to the filing of the form.

    
    

18. The next applicable closing date for applications for child support enforcement investigators was May 1986. Petitioner was notified by letter dated July 21, 1986, that she had been selected to fill one of the next available positions as a child support enforcement investigator. She began work on August 8, 1986, and occupies this job at present.

    
    

19. Petitioner's initial rate of pay was $589.39 biweekly, which was what she was making at the time of the change in duties. However, this rate of pay was the third highest of those persons hired to fill the 22 newly created child support enforcement investigator positions.

    
    

20. There was no evidence of racial discrimination in the hiring practices of Respondent in 1986 with respect to child support enforcement investigators for the Orlando office, which hired Petitioner. Four of the 22 persons hired in 1986 were black, one of whom received the highest rate of pay among the 22 new hires. There was no evidence that the procedures employed by Respondent to

    contact persons who had expressed interest in these positions were intended to discriminate on the basis of race or in fact discriminated on the basis of race.

    
    

21. Child support enforcement investigators were first hired in the Orlando office in 1976. The evidence failed to establish the number of initial investigators, which was considerably less than the 22 new positions filled in 1986. The evidence failed to establish how many of the initial investigators were black, although at least one was. There was little if any turnover among those persons initially hired. The first significant openings occurred in 1986 when the 22 new positions were created.

    
    

22. Following her employment as a child support enforcement investigator, Petitioner's son was involved in a child support enforcement matter that had apparently been pending at the time of her employment. He was eventually taken to court where the judge required that he purge himself of contempt by paying the entire child support arrearage of over $3000. In connection with this matter, Petitioner's son had to serve 172 days in jail.

    
    

23. The substantial period of incarceration, together with the enforcement of the arrearage, negate Petitioner's testimony that Respondent participated in the prosecution of her son in retaliation for her filing a Charge of Discrimination with the Orlando Human Relations Department in February 1986.

    
    

24. The Determination: Cause, dated June 28, 1988, cited as evidence of discrimination the hiring of Ms. Jane Downs, who is white, on or about January 17, 1986, for a position for which Petitioner was denied an interview. The failure of Petitioner to timely file a request-for-promotion form, with respect to the opening for which Ms. Downs was hired, precluded Petitioner from consideration for this opening, by operation of law.

    
    

25. The Determination: Cause cited as additional evidence of race discrimination the failure of Respondent to hire any blacks for three other child support enforcement investigator positions or even interview a significant number of blacks for these positions. The failure of Petitioner to timely file the request-for-promotion form explains her exclusion from the interviews for these positions, which were among the first to be filled. Persons interviewed for these positions were selected without regard to race and, in most cases, without knowledge of the applicant's race. Moreover, when the race of the persons hired for all 22 persons is considered, there is no evidence of race discrimination.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

27. It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race.. Section 760.10(1)(a), Florida Statutes. It is also an unlawful employment practice to discriminate against any person because that person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.

    
    

28. The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices involving unlawful discrimination. Section 760.06(5), Florida Statutes. Respondent is an employer

    within the meaning of the statute and is thus subject to-the jurisdiction of the Commission. Section 760.02(6), Florida Statutes.

    
    

29. The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Harqis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

30. In a case involving allegations of racial discrimination in employment, Petitioner has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If Petitioner meets this burden, Respondent then has the burden to articulate some legitimate, nondiscriminatory reason for its action or failure to act. If Respondent meets this burden, then Petitioner has the burden to prove by a preponderance of the evidence that the legitimate reasons offered by Respondent were not the true reasons but only a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981).

    
    

31. A prima facie case is made out in a case of this type by the complainant showing: a) he is a member of a protected class; b) he was denied promotions or job benefits for which he was qualified; and c) he was treated differently from similarly situated employees outside of the protected class. Cf. Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-41 (3d Cir. 1980); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973).

    
    

32. Petitioner has failed to prove a prima facie case of discrimination. She was never denied a promotion for which she was entitled to consideration. When she was entitled to consideration, she received the promotion. Her rate of pay was among the highest of the persons hired for the 22 new positions. Her reassignment to second party reviewer was justified under the circumstances.

    She was treated without regard to race with respect to her request for reimbursement for travel expenses. Her merit pay increase was awarded to her when she was entitled to it. In no way was the pay hike delayed due to adverse evaluations.

    
    

33. Petitioner's claims of retaliation are entirely baseless. She had not made a protected claim of race discrimination when her travel request was denied. The outcome of the child support enforcement case involving her son proves the propriety of Respondent's participation in that case.

Based on the foregoing, it is hereby

RECOMMEND that the Petition for Relief filed by Petitioner be dismissed.

ENTERED this 22nd day of December, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 22nd day of December, 1988.

COPIES FURNISHED:

Mary E. Teague 4258 Schank Court

Orlando, FL 32811

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

James A. Sawyer, Jr., Esq. District VII Legal Counsel

400 West Robinson, Suite 701 Orlando, FL 32801

Dana Baird, Esq. General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Melvin L. Herring, Jr., Esq. Director

Office of Civil Rights Department of Health and Rehabilitative Services 1317 Winewood Boulevard

Room 203

Tallahassee, FL 32399-2850

Margaret Agerton, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 88-004202

Orders for Case No: 88-004202