STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS VICKERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5279

) FLORIDA DEPARTMENT OF CORRECTIONS, ) MADISON CORRECTIONAL INSTITUTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, William R. Cave, the assigned Hearing Officer, from the Division of Administrative Hearings, held a formal hearing in the above-styled case on January 15, 1992 in Madison, Florida.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

McMurry & Asbell

1357 East Lafayette Street Suite C

Tallahassee, Florida 32301

For Respondent: Ernest L. Reddick, Esquire

Assistant General Counsel

Florida Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

The issue presented, is whether the Respondent, Florida Department of Corrections/Madison Correctional Institution (Department), demoted Petitioner, Curtis Vickers, because of his race (black) and sex (male) while employed by the Department.

PRELIMINARY STATEMENT

In this proceeding, Vickers is challenging his demotion from Correctional Officer II (COII) to Correctional Officer I (COI) by the Department, and alleges that he was demoted because of his race and sex, to wit: black and male.

Vickers filed a Charge Of Discrimination with the Florida Commission on Human Relations (Commission) dated May 5, 1990. On January 24, 1991, the Commission issued a Notice of Determination: No Cause. Vickers then filed a Request For Redetermination with the Commission. On July 1, 1991, the Commission issued a Notice of Redetermination: No Cause.

Thereafter, the Vickers filed a Petition For Relief From An Unlawful Employment Practice with the Commission which was transferred to the Division of Administrative Hearings by the Commission for the assignment of a Hearing Officer and to conduct a formal administrative hearing. The matter was scheduled for hearing and heard on January 15, 1992.

At the hearing, the Vickers testified on his own behalf and presented the testimony of Kathy Leggett, Vernon Dukes, Ronnie K. Griffis, Janice Lingenfelter, Carl W. Mendheim and Jimmy F. Lamb. Vickers' Exhibits 1 through 4 were received as evidence.

The Department presented the testimony of William R. Dotson, Jerry Hicks and Kathy Leggett. Department's Exhibits 1 through 10 were received as evidence.

Official Recognition was taken of Chapter 110, Florida Statutes, and Chapters 22A-7, 22A-9 and 33-4, Florida Administrative Code.

A transcript of the proceeding was filed with the Division of Administrative Hearings on January 27, 1992. The parties timely submitted their proposed recommended orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department, an executive agency of the State of Florida, is an employer as that term is defined in Section 760.01(6), Florida Statutes.

   
   

2. Vickers is a black male who at all times material to this proceeding was employed by the Department. Vickers was first hired as a COI at the Mayo Correctional Institution, Lafayette County, Florida, on or about October 30, 1987, and transferred to the Madison Correctional Institution, Madison County, Florida, on or about February 19, 1988.

   
   

3. At all times material to this proceeding, Vickers held permanent status within the Career Service System, enacted and authorized under the laws of Florida.

   
   

4. On April 28, 1989, Vickers was promoted from COI in food service to COII in food service. Vickers was placed on a nine-month probationary status insofar as the promotion was concerned.

   
   

5. Vickers was selected for this promotion over two other white candidates. The interview team consisted of Eric Holt, Cathy Leggett and Aubrey Dean. Then-Superintendent, Terry Hicks selected Vickers for the promotion on the recommendation of the review committee.

   
   

6. In the position of COII in food service, Vickers was responsible for supervising staff and inmates in the preparation of food at the Madison Correctional Institution. Vickers would supervise as many as three correctional officers and as many as 20-30inmates. Among those under Vicker's supervision was COI, Janice Lingenfelter and inmate Jeffery Lausin.

7. On or about August 15, 1989, Lingenfelter made a complaint to COII Nellie Cunningham that Vickers had been sexually harassing her. Lingenfelter then made a written complaint to Hicks, who then requested that an inspector from the Department's Inspector General's Office be assigned to investigate the allegations.

   
   

8. CO Inspector II William Dotson was assigned to investigate the allegations made by Lingenfelter. Dotson began his investigation on August 17, 1989, by interviewing several witnesses including Lingenfelter, Cunningham, Lausin and Vickers. Dotson's investigative report was completed and sent for review to the Inspector General of the Department on October 3, 1989. It was determined through Dotson's investigation that there was evidence to support Lingenfelter's claim of sexual harassment against Vickers and a failure by Vickers to maintain a professional relationship with staff and inmates under his supervision.

   
   

9. Dotson's report was sent to Hicks at Madison Correctional Institution sometime between October 4, 1989 and November 1, 1989. By letter dated November 1, 1989, Vickers was notified that disciplinary charges were being brought against him for violating certain Department rules pertaining to sexual harassment and failure to maintain a professional relationship with inmates under his supervision. That letter, signed by Hicks, also advised Vickers of his right to request a conference, prior to any final action being taken, at which he could present evidence to refute or explain the charges against him.

   
   

10. Vickers requested and was given a conference held on November 28, 1989. At that conference, Vickers was represented by counsel and presented a statement to Hicks regarding the charges against him. Vickers was notified by letter dated December 6, 1989 that he would be suspended for five days without pay for his violation of the rules cited in the charging letter of November 1, 1989.

    
    

11. On or about August 18, 1989, Vickers was reassigned from food service to security. Hicks made this reassignment due to the investigation into allegations of sexual harassment against Vickers which had originated in food service.

    
    

12. After reviewing Dotson's investigative report, and after hearing Vickers' response to the charges against him, Hicks made the decision to demote from COII to COI. The demotion was effective December 15, 1989.

    
    

13. At the time of the demotion, Vickers was in probationary status as a COII. Hicks determined that Vickers had exhibited an inability to properly supervise the inmates and staff under his supervision. An inmate in food service had patted a female correctional officer in food service (Lingenfelter) on the buttocks. Hicks attributed this lack of discipline on the part of the inmate to poor supervision by Vickers.

    
    

14. On or about December 15, 1989, Vickers was given a below standards performance appraisal written by Eric Holt, his supervisor. On the front of the appraisal was the indication that it was a probationary appraisal. Personnel Manager Leggett told Hicks that it should be a special performance appraisal rather than probationary, but Hicks did not change the appraisal prior to giving it to Vickers. This performance appraisal was incorrectly titled "probationary" rather than "special", and later determined to be invalid.

15. Vickers was not given an annual performance appraisal on his anniversary date (October 30, 1989) because he was in a probationary status. While the failure to give a timely and appropriate employee performance appraisal may be a violation of the Career Service System Rules, Chapter 22A-9, Florida Administrative Code, this not would prohibit the Department from demoting an employee who is on probationary status because of a promotion, if there were legitimate, nondiscriminatory reasons for the demotion.

    
    

16. Vickers has never received a Performance Appraisal wherein he was rated at less than an "Achieves Level", other than the Performance Appraisal entitled "probationary" which was later determined to be invalid for reasons other than the rating of Vickers' performance.

    
    

17. Vickers appealed his suspension and demotion to the Public Employees Relations Commission (PERC). A hearing was held, since it was determined that PERC did have jurisdiction to review Vicker's suspension but not his demotion. Under the personnel rules governing state employees, a person who is in probationary status in a class may not appeal his or her demotion from that class. After hearing and weighing the evidence and argument of both parties, the Hearing Officer entered a Recommended Order dated March 2, 1990 wherein it was found that the Department had proven the charges against Vickers by a preponderance of the evidence, and therefore, just cause existed for discipline. The Hearing Officer also determined that the five-day suspension should not be reduced, specifically citing the seriousness of the offense as it related to his duties and responsibilities.

    
    

18. A Final Order was issued by PERC on May 2, 1990 adopting the Hearing Officer's Recommended Order in its entirety and dismissing Vicker's appeal.

    
    

19. Approximately January 3, 1990, interviews were held to fill the position of COII in food service from which Vickers had been demoted. Of the eleven applicants, two were black males, one was a black female, five were white males, and three were white females. One of the black males cancelled his interview, while the other "declined F.S." (food service). The black female was promoted to a position with the Hamilton Correctional Institution. Larry Pickels, a qualified white male, was selected for the position.

    
    

20. Neither the "invalid Performance Appraisal" nor Hick's decision to demote Vickers were motivated by Vickers' race or sex, to wit: black and male.

    
    

21. The Department has produced sufficient admissible evidence to show that it had a legitimate, nondiscriminatory reason for demoting Vickers.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Respondent is an "employer", defined in Section 760.02(6), Florida Statutes, as "...any person employing 15 or more employees for each working day in each 20 or more calendar days...".

    
    

24. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

25. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So. 2d 103, 1 DCA Fla. 1981).

    
    

26. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facia case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by a preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.

    
    

27. To present a prima facia case, the Petitioner must present facts which "...'raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'..." Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, 450 U.S. 248. The prima facia case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44 (1977).

    
    

28. In order to establish a prima facia case, Petitioner must show: (1) he is a member of a protected class; (2) he is qualified; (3) he was demoted; and

    (4) he was replaced by a person outside the protected class. Cf. McDonnell Douglas, 411 U.S. 792. The dispute centers not on Petitioner's capabilities, but on his actual job performance. Considering the evidence in the light most favorable to Petitioner, it shows that the Petitioner was capable of satisfactory performance on the job but failed to perform his assigned duties satisfactorily. However, Petitioner has established a prima facia cases of discrimination.

    
    

29. There is competent, substantial evidence in the record to show that Petitioner was not performing his job satisfactorily, and that Petitioner was demoted for failing to maintain a professional relationship with staff and inmates under his supervision. It is apparent from the record, that Respondent has articulated a legitimate, nondiscriminatory reason for Petitioner's demotion, and thereby rebutted Petitioner's prima facia case.

    
    

30. Petitioner argues that Respondent's stated reasons for his demotion are merely a pretext for unlawful discrimination. However, there is insufficient evidence in the record to show that Respondent's decision to demote him was racially or sexually motivated. Therefore, Petitioner has failed to meet his burden to show that the reasons offered by Respondent for his demotion were pretextual and that the intent behind the demotion was actually discriminatory.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, recommended that the Commission enter a Final Order finding that Petitioner, Curtis Vickers, was not demoted due to his race or sex in violation of Section 760.10, Florida Statute, and that the Petition for Relief be dismissed.

RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 day of February, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5279

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 the Petitioner

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(14); 5(2,19); 6(11); 7(7,18); 8(7); 11(10); 12(17); 13-14(16); 15-16(15); 18(14); 19(12); 20-21(14); 27(7,8); 31(16).

   
   

2. Proposed findings of fact 9 and 10 are a restatement of testimony rather than a finding of fact, but see Finding of Fact 8.

   
   

3. Proposed findings of fact 17, 28 and 32 are unnecessary.

   
   

4. Proposed findings of fact 22-26, and 33 are neither material nor relevant.

   
   

5. Proposed findings of fact 29 and 30 are more in the way of an argument than findings of fact.

   
   

6. Proposed finding of fact 34 is neither material nor relevant, unless it is shown that Vikers' demotion was discriminatorily movitated.

Specific Rulings On Proposed Findings Of Fact Submitted by the Respondent

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number inparenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(2); 2(4,5); 3-14(6,7,8,9,10, 11,12,13,14,17,18 and 19, respectively).

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, Esquire General Counsel

325 John Knox Road Building F, Suite 240 Tallahssee, FL 32399-1570

Gary L. Asbell, Esquire McMurry & Asbell

1357 East Lafayette Street Suite C

Tallahassee, FL 32301

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Ernest L. Reddick, Esquire Assistant General Counsel

Florida Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

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: 91-005279

Orders for Case No: 91-005279