STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILIANE PARBOT-JOHNSON, )

)

Petitioner, )

)

v. ) CASE NO. 91-1586

) DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 19, 1991, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Liliane Parbot-Johnson, Pro Se

Post Office Box 20363 Tallahassee, Florida 32316

For Respondent: Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe St., Ste. 60

Tallahassee, Florida 32399-0792 STATEMENT OF ISSUES

The issue is whether the Respondent, Department of Professional Regulation (DPR), engaged in an unlawful employment practice by discriminating against Petitioner, Liliane Parbot-Johnson, on account of age or national origin.

PRELIMINARY STATEMENT

Petitioner presented her own testimony and that of Steven Hjelm.

Petitioner's Exhibit 1 was admitted in evidence. DPR presented the testimony of Lorena Randy Reid-Umberger and Robert B. Taylor. Respondent's Exhibits 1-6 were admitted in evidence.

The transcript of the proceedings was filed on May 1, 1991. The parties timely filed their proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was hired and began work with DPR on August 22, 1989, in the position of Information Specialist II. The job duties for that position are contained in Respondent's Exhibit 1. Petitioner was terminated on February 5, 1990, before the expiration of her probationary term under the Career Service System.

   
   

2. On November 30, 1989, Randy Reid was hired as a public information specialist and worked with Petitioner. It is uncontroverted that Ms. Reid and Petitioner had a personality conflict.

   
   

3. Effective January 25 or 26, 1990, Ms. Reid was promoted to the position of Public Information Supervisor, a position to which Petitioner was directly responsible.

   
   

4. Before that time, Petitioner had made Ms. Reid aware that the duties which she was performing were not the duties for which she had been hired. Specifically, Petitioner wanted to cover board meeting and to write. Instead she was spending much of her time responding to telephone requests for information.

   
   

5. Ms. Reid initiated the paper work to promote Petitioner to the position of Information Specialist III. According to Respondent's Exhibit 2, Petitioner would have been performing the duties for which she had expressed an interest. She would also receive a pay increase. When Ms. Reid informed Petitioner of this promotion, Petitioner was unhappy because she did not want to begin an new probationary period.

   
   

6. Petitioner made the situation more difficult by refusing to take directions from Ms. Reid unless the instructions were given by Ms. Reid in writing.

   
   

7. Petitioner also responded inappropriately to reporters' requests for information. Instead of advising that certain confidential information was not available, Petitioner, having been a reporter herself for 15 years, expressed empathy with the reporters' dilemma and frustration with not being able to get the information the reporters sought. The information was confidential and Florida Statutes expressly prohibit disclosure.

   
   

8. On February 2, 1990, an incident occurred during which Petitioner was insubordinate to Ms. Reid. Petitioner raised her voice and told Ms. Reid that she would not take verbal directions from her. Petitioner then left her work place and went to the personnel office to complain about Ms. Reid's alleged verbal abuse.

   
   

9. Based on this incident and the other problems experienced between Ms. Reid and Petitioner, Ms. Reid recommended to the DPR Assistant Secretary that Petitioner be terminated. When Petitioner returned to her work place, Ms. Reid took her to the Assistant Secretary's office. Petitioner was given the option to resign or be terminated. She was very agitated when the Assistant Secretary presented her with that option. She was given the upcoming weekend to make her decision.

   
   

10. Petitioner returned to work the following Monday morning, February 5, 1990. She refused to resign and she was terminated.

11. The parties stipulate that Petitioner is over the age of forty and is of French origin. Petitioner's position of Information Specialist II was filled by a person over age forty of American origin.

    
    

12. Petitioner alleged throughout this proceeding that Ms. Reid regularly, verbally harassed her by making disparaging comments about her age and national origin. She alleged that Ms. Reid is married to a German man from the Alsace- Lorraine region, which has been the subject of many disputes between the French and Germans. She further alleged that the marital relationship prompted Ms. Reid to harass her in order to please her husband. Finally, Petitioner alleged that Ms. Reid verbally abused her with specific negative comments about her age and French accent.

    
    

13. Absolutely no credible evidence was produced by Petitioner to substantiate any of these allegations. It is found that Ms. Reid did not verbally harass Petitioner based on age or national origin.

    
    

14. Petitioner did perform her job duties adequately except for the specific instances found herein.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

16. Section 760.10, Florida Statutes, prohibits employment discrimination based upon national origin or age.

    
    

17. The seminal case setting forth the criteria against which discrimination charges are to be measured is McDonnell Douglas Corp. v. Green,

    411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the Petitioner has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment action. Finally, the Petitioner must then show that the reasons offered by the employer are pretexts for discrimination.

    
    

18. In the context of the Petitioner's initial burden of proof, Petitioner must show that she is a member of a protected class, that she was terminated, and that she was replaced by a person outside the protected class. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Pace v. Southern Railway System, 701 F.2d 1383 (11th Cir. 1983).

    
    

19. In the present case, Petitioner failed to prove a prima facie case of age discrimination because she was replaced by another member of that protected class. Petitioner has carried the burden of proof in regard to the allegation of discrimination on the basis of national origin.

    
    

20. The Respondent presented evidence of legitimate, nondiscriminatory reasons for Petitioner's termination. Those reasons included insubordination and apparent inability to work with her supervisor. Her responses to reporters also were not appropriate on all occasions. The reasons articulated by Respondent are supported by the preponderance of the credible, competent and substantial evidence.

21. Petitioner failed to prove that the reasons given for her termination were pretextual. Burdine, supra.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing Petitioner's complaint for age and national origin

discrimination.

DONE and ENTERED this 28th day of May, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

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 28th

day of May, 1991.

APPENDIX TO THE RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Liliane Parbot-Johnson

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); and 12 & 14(11).

   
   

2. Proposed findings of fact 2, 3, 4, and 15 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 5-11, 13, and 17 are unsupported by the credible, competent and substantial evidence.

   
   

4. Proposed finding of fact 16 is irrelevant.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(4); 4(3); 5(5); 6(5); and 10(10).

2. Proposed findings 2, 7, 8, and 9 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Liliane Parbot-Johnson Post Office Box 20363 Tallahassee, FL 32316

Vytas J. Urba

Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Ronald M. McElrath, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

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 contact 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: 91-001586

Orders for Case No: 91-001586