STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. KRISTINE NOWACKI, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 90-6600

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 10-11, 1991, in Pensacola, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: John Barry Kelly,II, Esq.

   15 West Main Street Pensacola, Florida 32501

   
   

   For Respondent: Peter S. Fleitman, Esq.

   Lynda Quillen, Esq. Department of Legal Affairs The Capitol-Suite 1501

   Tallahassee, Florida 32399-1550 STATEMENT OF THE ISSUES

   The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of sex.

   
   

   PRELIMINARY STATEMENT

   
   

   On June 27, 1989, Petitioner filed a charge of discrimination against Respondent alleging Respondent's termination of Petitioner's employment on the basis of sex.

   
   

   On August 27, 1990, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. Thereafter, Petitioner filed a Petition for Relief with the Commission on September 26, 1990, alleging termination of her employment by Respondent on the basis of her sex.

   
   

   Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   Respondent's answer, dated November 2, 1990, denied termination of Petitioner's employment on the basis of sex.

   
   

   At the hearing, Petitioner presented the testimony of four witnesses, including herself, and 14 evidentiary exhibits. Respondent presented the testimony of five witnesses and six evidentiary exhibits.

   
   

   The transcript of the hearing was filed with the Division of Administrative Hearings on July 11, 1991. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner in this case is K. Kristine Nowacki. She was employed as an attorney in the office of the legal counsel for Respondent's District One in Pensacola, Florida, from November 14, 1988, until termination of her employment on June 9, 1989. Respondent is the Department of Health and Rehabilitative Services.

      
      

   2. Petitioner's immediate supervisor was Rodney Johnson, the district's chief legal counsel. Cheleene Schembera was Johnson's immediate supervisor and chief administrator of District One.

      
      

   3. Upon commencement of Petitioner's employment, the work force in the legal office consisted of Johnson, a male, and Teresa Goodson, another female attorney. Another attorney, Randy Werre, was male and began employment in March of 1989.

      
      

   4. Since Petitioner had never used a dictaphone and could type exceedingly fast, 140 words per minute, she was given a word processor to prepare preliminary drafts of her work products. Word processing equipment was limited in the office. Johnson considered the provision of such equipment to Petitioner to be an exceptional employee benefit, as opposed to a burden or impairment. Petitioner never requested that she be provided with a dictaphone.

      
      

   5. Both Johnson and Schembera were concerned about Petitioner's dress and appearance. On separate occasions, both individuals spoke with Petitioner about a need to effect changes in her personal dress and grooming habits.

      
      

   6. When Johnson offered employment to Petitioner, he discussed with her the need to do something with her long, bushy and unkempt hair style. Prior to his employment offer to Petitioner, Johnson was told by Schembera that he should counsel with Petitioner about her hair style if he intended to hire Petitioner. However, the need to change dress or hair style was not a condition of employment.

      
      

   7. On January 11, 1989, Johnson spoke with Petitioner and noted that she had handled a difficult evidentiary matter in a hearing that day. However, Johnson's comments did not amount to an endorsement of Petitioner as a person with potential to become a great trial attorney.

      
      

   8. Petitioner was hired to serve as Johnson's "backup" and to effectively take Johnson's place in the event of his absence. Petitioner never developed such capability in the course of her employment with Respondent.

   9. Although Schembera spoke with Petitioner on April 21, 1989, regarding the need for Petitioner to adopt a more conservative hairstyle and dress, Schembera sought to provide Petitioner with guidance in order that Petitioner might retain the respect of her peers. Schembera told Petitioner that the discussion had no significance with regard to Petitioner's job.

      
      

   10. Such counselling by Schembera is not unusual. She has counseled with other employees concerning dress or hair styles when she considered such action to be appropriate. On at least one occasion in proximity to Petitioner's employment, Schembera counselled a male employee regarding the necessity of that employee obtaining a hair cut. Schembera even-handedly applied her grooming code to both male and female employees.

       
       

   11. Petitioner was unable to properly perform her job duties. In the judgement of her supervisors, she did not adequately prepare for hearing or otherwise adequately present Respondent's position in numerous hearings.

       
       

   12. As an attorney in Respondent's employment, Nowacki was a select exempt employee serving at the pleasure of Respondent. As such an employee, Petitioner's employment could be terminated at any time by Respondent.

       
       

   13. By letter dated June 9, 1989, Johnson informed Petitioner that her employment had been terminated. Her gross wages at the time of discharge from employment were $788.46 biweekly.

       
       

   14. The testimony of Petitioner's immediate supervisor, Rodney Johnson, was candid, consistent and creditable. That testimony establishes that Petitioner's employment was terminated because of her work performance. Neither dress nor hair length or style were factors in her termination. Johnson felt that Petitioner's appearance had begun to improve at the time of her employment termination.

       
       

   15. Petitioner's testimony, as a result of inconsistencies in that testimony and her demeanor while testifying, is not credited and fails to establish that her supervisors unlawfully terminated her employment.

       
       

   16. During the course of her seven months of employment, Petitioner made extensive use of sick leave. From an initial allotment of 104 hours, Petitioner used all but 17 hours of that leave amount.

       
       

   17. On June 27, 1989, Petitioner filed a charge of discrimination against Respondent alleging termination of employment on the basis of sex.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   19. The discharge of an employee from employment on the basis of sex or race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

       
       

   20. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for Petitioner's termination. If Respondent is successful and provides such reason, the burden

       shifts again to Petitioner to show that the proffered reason for termination is pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

       
       

   21. To establish a prima facie case, Petitioner must show that she was a member of a protected class; that she was discharged; that she was qualified for the job; and that she was replaced by a member of a non-protected class. Carter

       v. City of Miami, 870 F.2d 578 (11th Cir. 1989), Pace v. Southern Ry. System, 701 F.2d 1382 (11th Cir. 1983), cert. denied, 464 U.S. 1018 (1984), Rehr'q denied, 465 U.S. 0154 (1984).

       
       

   22. Petitioner has failed to show that she was replaced by a member of a non-protected class. Another attorney, Randy Werre, was male and began employment in March of 1989. However, the proof fails to establish that Werre was hired, at least two full months prior to Petitioner's termination, to replace Petitioner.

       
       

   23. Absent the establishment of a prima facie case, Petitioner has failed to meet her burden and her case must fail. However, even it is assumed that Petitioner has met this burden, Petitioner has failed to show that Respondent's asserted reason for terminating her employment, i.e. inability to adequately perform job chores, was pretextual.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief.

RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

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 26th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6600

The following constitutes my ruling on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1. Adopted in substance.

2. Rejected with regard to pregnancy comment, credibility.

3. Rejected, legal conclusion, argumentative and a mere restatement of Petitioner's position. The creditable evidence establishes that Petitioner was hired and retained in employment until her lack of capability was demonstrated.

4. Rejected, Petitioner's testimony in this regard is not credited. As established by Johnson's testimony, which is credited, one of Petitioner's asserted strengths was her typing capability and she was provided a word processor as a benefit. Petitioner did not establish that she objected to this arrangement at the time.

5. Rejected, creditability, insofar as grooming and dress requirements comprising employment conditions.

6. Adopted in substance. 7.-8. Rejected, relevancy.

1. Rejected, Petitioner's version is not supported by weight of the evidence, creditability.

2. Rejected, relevancy.

3. Adopted in substance, but not verbatim.

4. Rejected, not supported by the weight of the evidence. 13.-16. Rejected, relevancy.

17. While Schembera frankly admitted her dislike for Petitioner's dress and grooming and also accepted responsibility for the ultimate approval of the decision to terminate Petitioner's employment, this testimony does not establish that the basis for employment termination was other than Petitioner's job performance. This proposed finding must be rejected as a mischaracterization of Schembera's testimony.

18.-19. Rejected, unnecessary.

1. Adopted.

2. Rejected, not supported by weight of the evidence. 22.-24. Rejected, unnecessary.

Respondent's Proposed Findings

1.-21. Adopted, although not verbatim. 22.-25. Rejected, relevancy.

26.-28. Adopted by reference. 29.-30. Rejected, relevancy.

31. Adopted in substance.

COPIES FURNISHED:

John Barry Kelly,II, Esq.

15 West Main Street Pensacola, FL 32501

Peter S. Fleitman, Esq. Lynda Quillen, Esq.

Department of Legal Affairs The Capitol-Suite 1501

Tallahassee, FL 32399-1550

Ronald M. McElrath Executive Director

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006600

Orders for Case No: 90-006600