STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIE A. JACOBS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5311

)

UNIVERSITY OF SOUTH )

FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 20, 1992 at Tampa, Florida.

APPEARANCES

For Petitioner: Christie A. Jacobs, pro se

P.O. Box 310774

Tampa, Florida 33680-0744

For Respondent: Wendy J. Thompson, Esquire

University of South Florida 4202 Fowler Avenue, Adm. 250

Tampa, Florida 33620-6250 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of her national origin.

PRELIMINARY STATEMENT

By charge of discrimination dated June 14, 1991 Mrs. Christie A. Jacobs, Petitioner, alleges that she was discharged from her position as Senior Computer Support Specialist at the University of South Florida, Respondent, because of her national origin, Virgin Islands. This allegation was investigated by the Florida Commission on Human Relations resulting in a Determination and Redetermination of No Cause. Thereafter, a Petition for Relief was submitted by Petitioner dated July 31, 1992. This was forwarded to the Division of Administrative Hearings for a formal hearing and these proceedings followed. In this Petition for Relief it is alleged that Respondent violated the Human Rights Act of 1977, as amended, in the following manner:

1. Mistreated, intimidated, harassed and discredited me.

2. Deliberately assigned excessive duties (time period).

3. Deliberately assigned new duties-used as "guinea pig".

4. Inadequate probationary period.

5. Dialect/pronunciation of words/choice of words.

6. Conspiracy.

7. Supervisor's inexperience and problems.

At the hearing Petitioner testified in her own behalf, Respondent called two witnesses and ten exhibits were admitted into evidence. Proposed findings have been timely submitted only by the Petitioner. However, no findings of fact were delineated as Petitioner's proposed order only quoted the exhibits admitted into evidence. After fully considering all evidence presented I submit the following.

FINDINGS OF FACT

1. Petitioner was employed by the University of South Florida on or about November 18, 1990 as a Senior Computer Support Specialist.

   
   

2. As with all university employees she was required to satisfactorily complete a probationary period of six months.

   
   

3. By memorandum dated April 26, 1991, subject: Pre-probationary appraisal (Exhibit 6), Petitioner was advised of the areas in which she should improve her performance.

   
   

4. Petitioner offered into evidence monthly reports for February through May, 1991 (Exhibit 1-4) submitted by Petitioner's supervisor, Janis Rawdin, for the apparent purpose of showing that other members of the group supervised by Rawdin were mentioned more than was Petitioner. Nothing in these reports supports Petitioner's allegation of discrimination by reason of national origin.

   
   

5. After Petitioner had completed her testimony with cross-examination, redirect and recross without testifying regarding her national origin, the Hearing Officer asked where she was born and Petitioner responded, the Virgin Islands.

   
   

6. Petitioner testified that Rawdin was short and abrupt with her, treated her badly, and that she was not included in all of the training sessions. No evidence was presented that this alleged treatment resulted from, or was influenced by, Petitioner's national origin.

   
   

7. Petitioner also testified that she was assigned projects for which she had not been trained. However, the nature of her assignment to field question from computer users at the University (and perhaps from the general public), would necessarily result in questions requiring additional research before giving a correct answer.

   
   

8. Petitioner's assignment, as noted above, was to answer questions regarding computer usage and to help those inquiring to solve the problem they had encountered.

9. Although repeatedly advised to use only computer terminology when responding to inquiries, which terminology was contained in the instruction books, Petitioner failed to do so.

   
   

10. Janis Rawdin, who was Petitioner's supervisor and recommended Petitioner for dismissal at the expiration of the six months probationary period, found that Petitioner was not learning the job at the expected rate; and that Petitioner was unlikely to reach the stage where she would qualify for advanced training.

    
    

11. In summary, Petitioner presented no evidence that her dismissal was in any wise related to her national origin. Those allegations in the Petition for Relief that she was mistreated, etc. unless associated with a right protected by the Human Rights Act of 1977, as amended, do not constitute grounds for relief in these proceedings.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's national origin. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., ("Title VII"). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st D.C.A. 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

    
    

14. The Supreme Court established, and later clarified the burden of proof and disparate treatment cases in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

    
    

15. McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. Where discriminatory discharge is claimed, a prima facie case is proved under the McDonnell Douglas approach by showing 1) plaintiff is qualified for the position; 2) she was discharged; and

    3) she was replaced by a person outside the protected class. Lee v. Russell County Board of Education , 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

16. Proving a prima facie case serves to eliminate the most common non- discriminatory reasons for the plaintiff's disparate treatment. See, Teamsters

    v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience had proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 568. 576 (1978).

17. Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non-discriminatory reason for the alleged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at

257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light". Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

1. Petitioner presented not a scintilla of evidence that her dismissal from employment at the expiration of her six month probationary period was related to her national origin. Accordingly, she has failed to establish a prima facie case of discrimination. Even if she had presented a prima facie case, Respondent has presented justifiable reasons for terminating Petitioner's employment, to wit: that Petitioner was not satisfactorily performing the work and did not appear capable of learning the work in a reasonable time.

   
   

2. Here Petitioner was a temporary employee serving a probationary period of six months. Anytime during this six months probationary period Petitioner can be terminated by Respondent for any reason except for those categories protected by Title VII and Chapter 760.10, Florida Statutes.

   
   

3. The burden to prove the alleged discrimination is on the Petitioner. Here she has failed to sustain that burden.

RECOMMENDATION

That a Final Order be entered dismissing Christie A. Jacobs' Petition for Relief from an unlawful employment practice filed against the University of South Florida.

DONE and ENTERED this 2nd day of December, 1992, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1992.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Christie A. Jacobs

P.O. Box 310774 Tampa, FL 33680-0744

Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250

Tampa, FL 33620-6250

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: 92-005311

Orders for Case No: 92-005311