STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CINDY DEXTER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2054

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 25, 1990.

APPEARANCES

The parties are represented as follows:

For Petitioner: Curley R. Doltie, Esquire

118 N. Gadsden Street Post Office Box 1325

Tallahassee, Florida 32302

For Respondent: D. Harper Field, Esquire

Vytas J. Urba, Esquire Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner has been the victim of an unlawful employment practice as defined in Chapter 760, Florida Statutes.

At the hearing, Petitioner, Cindy Dexter, testified in her own behalf and called eight witnesses. Additionally, Petitioner offered into evidence two exhibits. Respondent called two witnesses and offered into evidence one exhibit.

The parties filed proposed recommended orders on July 20, 1990 and July 13, 1990, respectively. Petitioner's and Respondent proposed findings of fact have been utilized in the preparation of this Recommended Order except where the parties' proposals were irrelevant, immaterial, cumulative or subordinate.

Specific rulings on the parties' proposals are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Cindy Dexter is a 32 year old black female. She was employed by Respondent in March, 1987, through July 19, 1989. Petitioner was terminated by Respondent for excessive absenteeism and insubordination.

   
   

2. Initially, Respondent was employed as a data entry operator. Later, Petitioner was moved to the position of clerk typist specialist. The new position did not involve an increase in pay. However, the new position presented more opportunities for promotion. The data entry position did not have such opportunities for promotion. Respondent offered Petitioner the new position in order to give her better opportunities for promotion.

   
   

3. Petitioner's main duty was to process the files generated by the complaint analysts in her section. Some data entry and typing was involved in the processing of these files. Complaint files which would remain open after being reviewed by a complaint analyst entailed more work than complaint files which would be closed after review by a complaint analyst. The clerical staff was divided into work groups consisting of two typists processing open files and one typist processing closed files and the overflow from the open files. Each member of the group was expected to cover the work of an employee who was absent to the extent such coverage was possible.

   
   

4. Petitioner initially processed complaint files which were to remain open.

   
   

5. In the beginning of her employment, Petitioner was considered to be at least an average employee who performed her duties well. However, at some point in time, Petitioner's absences from work increased until she was absent about 40% of the time. During the last six months, Petitioner was absent approximately 12 weeks and was not at work at all for approximately the last month of her employment. The only days she was present during the last month were two days during which she was present for only about an hour on each occasion. Most, if not all of her absences were supported by a doctor's excuse. However these excuses were not specific as to the infirmity or infirmities which precluded Ms. Dexter from attending her employment. Towards the end of her employment Ms. Dexter refused to give her supervisor any details regarding the nature of her illness and told her supervisor, "it was none of her business."

   At the hearing Ms. Dexter testified her absences were due to fatigue associated with some unspecified infirmity which she declined to disclose.

   
   

6. Ms. Dexter's increased absenteeism placed a great deal of pressure on the work group she was in due to the fact that her work had to be covered by the other typists as well as some of the complaint analysts. Tolerance of this increased work load differed among the specific individuals involved depending on each individual's expectations of the quality and quantity of his or her work and that individual's knowledge of the mysterious details causing Petitioner's absences. Put simply, to some of the individuals Petitioner worked with, her absenteeism and the concomitant decrease in the quality and quantity of

   Petitioner's work was tolerable and to others its was intolerable. Petitioner's absenteeism and its effects were particularly intolerable to Ms. Dexter's supervisors.

   
   

7. Relations between Petitioner and her supervisors became strained. 1/ In 1988, Petitioner received a reprimand for excessive absenteeism. At some

   time in 1988 she was to receive a three day suspension. However, the suspension was retracted when Petitioner appealed the disciplinary action to her union. At about the time the retraction occurred, Robin Harmom became Petitioner's supervisor. Petitioner continued to be excessively absent from work. About 6 weeks prior to Petitioner's termination, Ms. Harmom switched Petitioner from working on the more work intensive open files to the less work intensive closed files. 2/ Ms. Dexter took great umbrage at the change and refused to do the work assigned to her by her supervisor. Petitioner's on-going unilateral strike constitutes insubordination. 3/

   
   

8. The only evidence of any disparate treatment submitted by Petitioner was in relation to Louise Bull. Ms. Bull is a white female employee of Respondent. She was employed in the same capacity as Petitioner and apparently had had some absentee problems. She had received a written reprimand for excessive absenteeism. There was no evidence submitted that Ms. Bull refused to do the work assigned to her. 4/ She remains an employee of Respondent.

   
   

9. The evidence regarding Ms. Bull's absenteeism was anecdotal in nature and very vague. What was suggested by this very vague anecdotal evidence is that Ms. Bull's attendance improved while Petitioner's attendance did not. 5/ More concrete evidence of Ms. Bull's actual attendance record would have had to have been submitted by Petitioner before any adequate comparisons between Petitioner's and Ms. Bull's attendance records could be made for purposes of establishing disparate treatment. In any event, such vague evidence falls short of demonstrating discriminatory disparate treatment on account of race.

   
   

10. No other substantive evidence of disparate treatment was submitted by Petitioner. Since Petitioner's absenteeism and refusal to do her work assignments constitute sufficient reasons for termination, Petitioner has failed to demonstrate by a preponderance of the evidence that she was discharged due to her race.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

12. Respondent is an employer within the meaning of Section 760.02, Florida Statutes, the Florida Human Rights Act of 1977.

    
    

13. Section 760.10, Florida Statutes, makes it unlawful for an employer to "discriminate against any individual ... because of such individual's race..."

    
    

14. Petitioner, has the ultimate burden of proving by a preponderance of the evidence that Respondent has committed an unlawful employment practice against her. Chapter 760, Florida Statutes. See Shipp v. Kaiser Aluminum & Chemical Corp. 4 FALR 256-A 1981)(FCHR 1981) In Re School Board of Pinellas County v. Rateau, 449 So.2d 839 (Fla. App. 1st Dist. 1984) and Hudson v. Affiliated of Florida, Inc., 8 F.A.L.R 643 (1986) which adopt the Title VII order and allocation of proof under McDonnell Douglas v. Green, 411 U.S. 792

    (1973) and Burdine v. Texas Department of Community Affairs, 450 U.S. 248 (1981). Once a complainant has established a prima facie case, the burden of going forward with the evidence then shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the action complained of. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Where a legitimate, nondiscriminatory reason for the employer Respondent's actions is shown, the claimant then must establish and prove that the proffered reason was in fact "pretextual." Texas Department of Community Affairs, supra; Simmons v. Camden Board of Education, 757 F.2d 1187, 1189 (11th Cir. 1985), reh'g en banc den., 767 F.2d 938 (11th Cir. 1985) cert. den., 106 S.Ct 385 (1985). See also, Suson v. Zenith Radio Corp., 763 F.2d 304 (7th Cir. 1985).

    
    

15. Ms. Dexter's primary claim (and the only claim identified in her charge of discrimination filed with FCHR) was that she was "discharged" because of her race. Ms. Dexter must establish a prima facie case of discrimination in regards to her discharge.

    
    

16. In a discharge case, a Petitioner establishes a prima facie case by showing: (1) he or she is a member of a protected class, (2) he or she was qualified for the job, (3) he or she was discharged, and (4) after discharge, the position was filled by someone outside the protected category. Marks v. Prattco, 607 F.2d 1153 (5th Cir. 1979); Leob v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

    
    

17. By statute black individuals are members of a protected class. Since Petitioner is a member of the black race she has demonstrated that she is a member of a protected class. Likewise, Petitioner has demonstrated that she was qualified for her job and that she was discharged. However, Petitioner did not submit any evidence that she was replaced by someone outside the protected category. Without such evidence, Petitioner has failed to establish a prima facie case.

    
    

18. However, even assuming arguendo that Ms. Dexter had proven a "prima facie case" the inquiry would not end. The burden of proof would shift to the employer to articulate a legitimate, non-discriminatory reason for its actions.

    
    

19. Here, the evidence clearly demonstrated that Respondent had legitimate, non-discriminatory reasons for Ms. Dexter's termination. No substantive evidence was presented which demonstrated Respondent's action was a pre-text for discrimination on the basis of race. See DOE v. Regien 13 Mental Health-Mental Retardation Commission, 704 F.2d 1402 (5th Cir. 1983), Schmidt v. Bell 33 FEP 839 (E.D. Penn, 1983). Without such evidence deference to an employer's reasons for its action is required. As was stated in Halsell v. Kimberly-Clark, 683 F.2d, 285 (8th Cir. 1982),

    
    

    The defendant employer need not persuade the court that the proffered reason in fact justified the discharge because the issue is not whether the reason articulated by the employer warranted the discharge, but whether the employer acted for a non-discriminatory reason.

20. Petitioner's absences, even if legitimate and excused by a doctor, were clearly excessive during the last month of her employment. Petitioner's refusal to do the work legitimately assigned to her was unjustified. Respondent therefore met its burden of articulating a legitimate non-discriminatory reason for its action.

    
    

21. Since the Petitioner has failed to prove that Respondent's reasons were pretextual, the Petitioner has failed to establish that she was unlawfully discriminated against on the basis of her race within the meaning of the Florida Human Rights Act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petition be dismissed.

DONE and ENTERED this 15th day of August, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1990.

ENDNOTES

1/ The evidence demonstrated that Petitioner had problems with her last two supervisors, Susan Doherty and Robin Harmon.

2/ Even though all the witnesses refer to this change as a change in Petitioner's job description, the change in duties was not an actual change in Petitioner's formal job description. Petitioner's formal job description covered work on both open and closed flies. The division of the work within the work group was simply a matter of custom. Such assignment of duties within a job description is within the discretion of an employee's supervisor and under the facts of this case was not inappropriate.

3/ The claim by the Department that Petitioner's refusal to sign her employment performance appraisal constituted insubordination is rejected since there is no specific requirement that the document be signed and the signatures only purpose is to supply evidence that the appraisal was presented to the employee.

Obviously, such evidence can also be supplied through other means.

4/ This lack of evidence on Ms. Bull's willingness to work is in itself a material distinguishing fact between Petitioner's and Ms. Bull's situations for purposes of demonstrating disparate treatment between a white employee and a black employee.

5/ During this improvement, Ms. Bull was out on pre-authorized extended maternity leave.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2054

The facts contained in paragraphs 1, 2, and 7 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraphs 3, 4, 5, 6, 8, 10, 11, 12, 14, 15, 17,

19, 21, 22, 23, 24, 25, 26 and 27 of Petitioner's Proposed Findings of Fact are subordinate.

The facts contained in paragraphs 9, 13, 16, 18, 20 and 28 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

The facts contained in paragraphs 1 and 2 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Respondent's Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Curley R. Doltie, Esquire

118 N. Gadsden Street Post Office Box 1325

Tallahassee, Florida 32302

E. Harper Field, Esquire Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Donald A. Griffin Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32300-1570

Docket for Case No: 90-002054

Orders for Case No: 90-002054