STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LERTHER J. YHAP, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2252

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 12, 1993 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack McLean, Esquire

Legal Services for North Florida 2119 Delta Way

Tallahassee, Florida 32303-4220

For Respondent: John R. Perry, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 252

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUES

Whether or not Petitioner is entitled to relief from an unlawful employment practice, i.e., disparate treatment based on her sex, female, and her race, black (Afro-American).

PRELIMINARY STATEMENT

This case arrives for de novo proceedings before the Division of Administrative Hearings after a March 29, 1993 "No Cause" Determination by the Florida Commission on Human Relations of Petitioner's claim filed December 10, 1992. The subsequent Petition for Relief was transmitted to the Division of Administrative Hearings on April 22, 1993. Respondent Department of Health and Rehabilitative Services' Response (Answer) was filed May 19, 1993.

At formal hearing, Petitioner presented the oral testimony of Sheila Bethea and Betty Simmons Remming and testified on her own behalf. Ten of Petitioner's eleven identified exhibits were admitted in evidence.

Respondent presented the oral testimony of Emma L. Harrell, Jimmy J. Cozart, and Donna McKenzie, and had five of seven identified exhibits admitted in evidence.

Also, the parties stipulated to the admission in evidence and consideration of the deposition of Ralph G. Harmsen, including exhibits thereto, in lieu of Mr. Harmsen's oral testimony at formal hearing.

A transcript of the formal hearing was filed in due course and all proposed findings of fact filed on or before September 27, 1993 have been ruled upon in the appendix to this recommended order pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner, a black (Afro-American) female, was employed from July 1987 to January 1993 as a clerk-typist in the Economic Services Division of the Department of Health and Rehabilitative Services (HRS) District II, located in Tallahassee, Florida. In that position, she performed primarily clerical tasks, including typing for seven persons and answering phones.

   
   

2. HRS' District II headquarters for Economic Services oversees the operation of HRS field offices providing benefits for state and federal entitlement programs over a fourteen county area.

   
   

3. Economic Services Program Administrator Donna McKenzie is in charge of HRS' District II Economic Services office. During 1992, the staff in the District Economic Services office under Ms. McKenzie's supervision consisted of twenty workers, some of whom were clerical staff.

   
   

4. Emma Harrell, Ms. McKenzie's personal secretary was classified as a Secretary Specialist, also considered clerical staff. Four other female clerical staff, designated Clerk-Typists, were Betty Simmons, Sheila Bethea, Petitioner, and Janna Lewis-Harrell. Of these five, only Ms. Harrell is white (Caucasian). The other clerical staff are black (Afro-American).

   
   

5. At all times material, Janna Lewis-Harrell was physically located in the Economic Services Division but was technically a part-time employee of another division.

   
   

6. At all times material, Emma L. Harrell was the only clerical person responsible primarily to just one supervisor, Ms. McKenzie. Except for Emma Harrell, all the clericals were responsible to numerous "professionals" in the HRS chain of command. Emma Harrell was employed at a higher grade than all the other "clericals" except Betty Simmons, who was employed at a grade higher than Ms. Harrell. Sheila Bethea and Petitioner were employed at grades lower than Ms. Simmons.

   
   

7. Normal working hours in the HRS Economic Services office were from 8:00

   a.m. to 5:00 p.m., with a one hour lunch break, Monday through Friday. However, at least two HRS employees, one black clerical and one white clerical, were approved to work flex-time. In both situations, their flex-time requests were required to be in writing and were approved not by Ms. McKenzie, but by Ms. McKenzie's supervisors.

8. From October 1991 through June 1992, Emma Harrell (a white clerical) was authorized to work on Mondays, Wednesdays and Fridays from 7:30 a.m. to 4:30

   p.m. with a one hour lunch, and on Tuesdays and Thursdays from 7:30 a.m. to 4:00

   p.m. with a half hour lunch. Ms. Harrell had applied for this as an open-ended arrangement on October 21, 1991, because it was the only way to adequately coordinate parental supervision with the activities of her then fifteen year old son. Apparently, Ms. Harrell minimally abused this first flex-time authorization, because she testified that at all times, she was the only person who had a set one hour lunch period from 12:00 noon to 1:00 p.m.

   
   

9. Subsequently, when Ms. Harrell's son's circumstances changed, she applied June 5, 1992 for another change of schedule. On June 9, 1992, Ms. Harrell was authorized to work every day from 7:30 a.m. to 4:30 p.m. with a one hour lunch break. Ms. Harrell worked this schedule partly to accommodate Ms. McKenzie, who worked 7:30 a.m. to 4:30 p.m.

   
   

10. On June 26, 1990, Betty Simmons (a black clerical) had applied retroactively for a differential schedule limited to the period of June 25 - August 31, 1990. This also was to accommodate child care considerations. The last paragraph of her request read, "If you see that this time change is for the betterment of the agency, I would like for my hours to remain the same after this period."

    
    

11. On July 3, 1990, Donna McKenzie's supervisors approved Betty Simmons' request upon the following terms, "begin the workday at 8:00 a.m., observe a 30 minute lunch period and complete the workday at 4:30 p.m. This approval will be for June 25 through August 31, 1990, only." The approval either overlooked or denied Ms. Simmons' request to leave the change in place indefinitely.

    
    

12. Janna Lewis-Harrell's (a black clerical's) work schedule was also adjusted at her request by her supervisors.

    
    

13. Responsibility for answering the phone fell on the five clericals, including part-time worker Janna Lewis-Harrell. Under the monthly phone duty schedules, each clerical staff member was assigned primary duty to answer the phone one day a week, and was assigned backup duty another day of the week. Usually, a person's "primary" day immediately followed her "back up" day on the planned schedule. Staff with primary duty would be responsible for answering the phones on their designated day, while the back up staff would answer the phones when the primary staff member was unavailable for reasons including, but not limited to, chores such as photocopying, which took them away from their respective desks. This setup gave the impression that some people would have two busy phone days in a row, depending on respective work loads and the number of phone calls that came in on any given day. Office policy dictated that the phones be answered between 7:30 a.m. and 5:00 p.m.

    
    

14. Although the prescribed schedule was posted weekly and in advance, the schedule was aspirational, not mandatory. Clericals were free to trade primary and backup duty days with another clerical without their supervisors' permission, and they did so on a frequent basis. The expectation was that each clerical requesting such a trade off would make up the time traded to her during the month by working the time-slot traded to her by the clerical who had covered for her.

15. The need for phone coverage from 7:30 a.m. to 8:00 a.m. was not instrumental in either of Ms. Harrell's adjustments of hours. However, both by aspiration and in practice, Ms. Harrell usually answered the phones between 7:30

    a.m. and 8:00 a.m., every day Monday through Friday. On the days Ms. Harrell was authorized to leave at 4:30 p.m., her backup was routinely required to handle the phones until 5:00 p.m. That meant that routinely Emma Harrell's backup, which backup rotated among the other four clericals, was required to answer phones for an extra hour or half hour at the end of Emma Harrell's primary days and no clerical staff member except Emma Harrell had to answer phones before 8:00 a.m. any day. Since the other clericals did not arrive until 8:00 a.m., they saw only that Emma Harrell left early, requiring them to provide her backup. They did not understand or believe that she was also arriving at work early.

    
    

16. Sometimes, Mr. Jimmy J. Cozart and others also answered phones before 8:00 a.m. (See FOF 25).

    
    

17. Mr. Cozart was an intermediate "professional" and a mid-level supervisor between clericals Petitioner, Sheila Bethea, Betty Simmons, and Division Administrator Donna McKenzie.

    
    

18. By all accounts of all witnesses (white, black, professional, or clerical) the aspirational phone rotation system never functioned ideally. It was an ongoing source of disgruntlement to everyone in the office, but it was most especially vexing to the five clericals responsible for answering the phones. There was constant chatter and commentary by the clericals concerning the failure of certain people, most notably Emma Harrell, to cover the phone on their primary or backup days because they were away from their desks on other employment related tasks. Ms. Harrell's insistence on taking lunch at a set time and her abuse of taking one hour instead of thirty minutes Tuesdays and Thursdays from October 1991 to June 1992 probably aggravated matters (See FOF 8).

    
    

19. In the months immediately prior to August 1992, some clerical staff, most notably Petitioner, complained orally to Mr. Cozart and to Ms. McKenzie that it was unfair for Ms. Harrell to leave early, requiring one of the other four clericals to answer the telephone from 4:30 p.m. to 5:00 p.m. and that Ms. Harrell was "not pulling her fair share." No one specifically complained to Mr. Cozart or Ms. McKenzie that on certain weeks Ms. Harrell had no phone duty, that Ms. Harrell disregarded or refused to answer phones on days when she had primary coverage, that Ms. Harrell refused to honor her promises to take another's phone duty when she and a coworker had traded phone coverage days, or that she was regularly abusing her lunch hour privileges.

    
    

20. Oddly enough, events seem to have reached a fever pitch after Ms. Harrell reverted on June 9, 1992 to a uniform 4:30 p.m. departure time with a one hour lunch period.

    
    

21. In July 1992, the black clericals, that is, all the clericals except Emma Harrell, requested a meeting to resolve phone coverage issues. Donna McKenzie met with each of the five clericals individually instead of in a group because, as Ms. McKenzie testified at formal hearing, "It seemed like they were all ganging up on Emma."

22. Petitioner construed Ms. McKenzie's refusal to hold a group meeting of the clericals as racially based and racially biased. She sent Ms. McKenzie a July 28, 1992 letter expressing dismay that the black clericals' request for a group meeting had not been granted, in her opinion, in order to protect the white employee from meeting with black clericals in a group to discuss the phone coverage.

    
    

23. On August 12, 1992, Ms. McKenzie did hold a group meeting of the entire office staff, white and black, clerical and professional, to go over the phone situation. Although Ms. Harrell was not singled out in a negative manner, the need for everyone to work as a team was stressed in a positive manner and a written memorandum of detailed phone duties was circulated to all personnel. During the meeting, Mr. Cozart made a comment to Petitioner when she tried to ask a question. Petitioner testified that she took Mr. Cozart's remark to be derogatory of herself personally, because it was not directed at Ms. Simmons (black) or Ms. Harrell (white), who also had asked questions.

    
    

24. Petitioner was not satisfied with the interracial group meeting. She prepared a letter dated August 12, 1992. That letter, which is long and disjointed in its approach, stressed that everyone, including Emma Harrell, should leave at the same time, preferably 5:00 p.m., or that everyone should rotate the privilege of leaving early. The letter also peripherally alluded to Ms. Harrell's temper and bad attitude and asserted that the office was run on coloring. Petitioner clearly stated that until that situation was corrected, Petitioner refused to cover the phone for the white clerical, Emma Harrell.

    
    

25. Although Petitioner, Ms. Simmons, and Ms. Bethea testified that the phone rotation system was racially biased and that their superiors "letting [Ms. Harrell] get away" with abuses of the rotation schedule was racially motivated, their testimony was not persuasive. Ms. McKenzie tried to respect Ms. Harrell's phone schedule, but sometimes chores had to be done away from Ms. Harrell's desk. The office diagram in evidence does not show that any of the three black clericals who testified had a desk situated so that she could tell at all times when Ms. Harrell was legitimately away from her desk and phone on necessary

    work-related chores. The unrefuted evidence showed that Ms. Harrell's phone abuses, if any, never increased anyone's hours of work; that no one ever worked more than forty hours a week; and that no one ever had to work later than her normal quitting time as a result of Ms. Harrell's alleged abuses. Petitioner apparently decided that Ms. Harrell was not answering telephones before 8:00

    a.m. because a few times she called in between 7:30 and 8:00 a.m. and other people answered the phone. The credible evidence of Ms. Harrell, Ms. McKenzie, and Mr. Cozart is that anyone who was present before 8:00 a.m. answered the phones on a first come/first served basis (See FOF 16). Petitioner also testified that when she complained to Ms. McKenzie about being Ms. Harrell's primary backup just before the Cozart incident, Ms. McKenzie agreed to accommodate her request for a change (TR 99), and when she complained about Ms. McKenzie not calling a biracial meeting, Ms. McKenzie did so. Ms. McKenzie just did not call the meeting to Petitioner's exact specifications. This is accounted for by managerial "style" rather than racial bias (See FOF 23). It is therefore found that the phone rotation as a racially discriminatory factor was perceptual, not factual.

    
    

26. On Friday, August 14, 1992, Emma Harrell was "primary" on the printed phone schedule and scheduled to leave at 4:30 p.m., as usual. Janna Lewis- Harrell was her "backup." For reasons not fully disclosed in the record, Janna

    Lewis-Harrell (black) was not expected to "cover" for Emma Harrell (white) from 4:30 to 5:00 p.m. that day, and Emma Harrell's offer to stay to "help out" was rejected by Mr. Cozart.

    
    

27. Under the circumstances, Mr. Cozart's duty was to find alternative phone coverage for the period between 4:30 and 5:00 p.m. He did not want to do it himself because he was suffering back pain and wished to go to a pre- scheduled chiropractic appointment. First, Mr. Cozart tried to persuade Ms. Simmons and Ms. Lewis-Harrell to cover the phone, but was informed that both were going home early that day. Around 3:50 p.m., Mr. Cozart went to Sheila Bethea's office, where he spoke with Ms. Bethea and Petitioner, requesting that one of them answer the phone after Emma Harrell went home at 4:30 p.m.

    
    

28. Ms. Bethea refused Mr. Cozart's request outright. Petitioner also refused Mr. Cozart's request outright. Rather than simply ordering one of them to cover the phones since their work day did not officially end until 5:00 p.m. anyway, Mr. Cozart started to explain their job descriptions, then stopped and started to exit Ms. Bethea's office.

    
    

29. What happened next was the subject of a great deal of testimony. After consideration of all the evidence, it is here found that Mr. Cozart believed Petitioner was impeding his access to the doorway, and he struck the back of Petitioner's shoulder at least three times with a shoving motion sufficient to cause a sound and a mild stinging sensation to Petitioner's back, repeatedly saying "Let's go. Let's go. Let's go!" In doing so, his only intent was to get Petitioner to precede him out of the office doorway and go back to her own work station or at least to get Petitioner out of his way so that he could go back to his own work. Petitioner was never bruised, abraded, or incapacitated in any way by Mr. Cozart's forceful touching. She did,

    however, utter an angry verbal retort. Mr. Cozart's unrefuted testimony that he never saw Petitioner's August 12, 1992 letter before this incident, and that he would never have asked Petitioner to stay until 5:00 p.m. to answer phones on August 14 if he had known Petitioner previously had written that she henceforth refused to cover for or backup Emma Harrell, is accepted as credible. Mr.

    Cozart's testimony that he was anxious to get out of Ms. Bethea's office because he thought the conversation with Petitioner was going to evolve into some religious discussion with Petitioner which he did not want also is accepted as credible. In further analysis of the evidence, it is also found that the forceful shoving by Mr. Cozart was not racially or gender motivated and was not intended as a battery to do physical harm to Petitioner. It was, however, of greater impact than Mr. Cozart intended it to be or thought it was at the time, and it constituted a totally unacceptable touching of a subordinate by a supervisor.

    
    

30. In making the foregoing findings, the undersigned has carefully considered the testimony of all four witnesses who offered any direct evidence concerning the actual incident: Petitioner, Cozart, Bethea, and Simmons. The credibility or lack thereof of the witnesses' respective versions of the event has been weighed. Specifically, the candor and demeanor of each witness has been assessed and the consistencies and inconsistencies of Petitioner's and Cozart's testimony have been compared with the testimony of Sheila Bethea, the only other eye witness, and the testimony of Betty Simmons, who overheard part of the immediate verbal aftermath of the incident. Petitioner's minor son, who reportedly heard what Mr. Cozart said while touching Petitioner and Petitioner's oral retort, did not testify.

31. Petitioner returned to her desk after the altercation with Mr. Cozart in Sheila Bethea's office and immediately typed up her impressions of what had occurred in Ms. Bethea's office. She did not hand this item, dated August 14, 1992, to Mr. Cozart. Instead, she gave him a multi-page document she had prepared the previous day, August 13, 1992.

    
    

32. Petitioner's August 13, 1992 missive is disjointed and verbose. It is filled with vague accusations that Cozart, McKenzie and others have harassed Petitioner and with Biblical quotations and prophetic statements of judgment, retribution, and doom against those who have allegedly harassed Petitioner and against the children of the alleged harassers. Emma Harrell's name is mentioned, and the word "prejudice" appears several times in this item but one would be hard-pressed to figure out it was a complaint about a racist phone situation or about Emma Harrell, specifically. Although persons of Petitioner's unique religious bent might see her August 13, 1992 letter as proclaiming peace and joy, most readers would not reach that interpretation of its contents. Indeed, it would not be stretching a point to see the August 13, 1992 letter as a hostile and threatening letter. Petitioner's testimony characterized this letter as "letting [Mr. Cozart] know that what goes around comes around."

    
    

33. Mr. Cozart skipped his chiropractic appointment and answered the office phones himself until 5:00 p.m. on August 14, 1992. Two calls came in.

    
    

34. The incident between Mr. Cozart and Petitioner was made known to Ms. McKenzie upon her arrival at 7:30 a.m. on Monday, August 17, 1992. At 8:30 a.m., Mr. Cozart also phoned in and told Ms. McKenzie what had happened. Shortly thereafter, Ms. McKenzie heard that the police were coming to see Petitioner. Ms. McKenzie then called Petitioner to see if the police had arrived.

    
    

35. Ms. McKenzie then spoke with the District II Personnel Office, which instructed her to speak with Petitioner. Ms. McKenzie approached Petitioner and asked what had occurred the previous Friday. Petitioner stated only that her civil rights had been violated, and refused to discuss the particulars of the incident. Ms. McKenzie backed off from further "pushing" Petitioner to answer her either at Petitioner's desk or to speak privately with her in Ms. McKenzie's office because of Ms. McKenzie's past experience with Petitioner that Petitioner became easily "upset" and "had a tendency to file grievances," and due to Petitioner's current attitude.

    
    

36. Acting pursuant to further instructions from the Personnel Office, Ms. McKenzie interviewed Ms. Bethea and Mr. Cozart separately on August 18, 1992. Ms. McKenzie's supervisors then instructed her to get written statements from each participant. Accordingly, Ms. McKenzie instructed Mr. Cozart, Ms. Bethea, and Petitioner to explain in writing what had happened.

    
    

37. Petitioner and Mr. Cozart complied immediately. Petitioner's written statement was the one she had typed on August 14, 1992, immediately after the Cozart incident (See FOF 31). It did not mention Ms. Simmons as a potential witness, but did show Petitioner's son had heard, but not seen, the incident. Ms. Bethea did not provide a written statement until urged to do so in late November 1992 (See FOF 43). Ms. McKenzie did not press Ms. Bethea for a statement because, upon consultation with HRS District Program Manager Ralph D. Harmsen, Ms. McKenzie was instructed that, since the police were investigating the incident, Ms. McKenzie was not to pursue the matter at least until after the police finished. Some of Mr. Harmsen's reasoning on this matter seems to have

    been that since he knew Petitioner had previously filed internal agency grievances against supervisors and had not done so in this instance, she had made some sort of election to only pursue a criminal action.

    
    

38. Petitioner was interviewed by a female police officer in the HRS offices on August 17, 1992 and a written report was filed that day. Petitioner and Sheila Bethea gave sworn affidavits to the police on August 20, 1992. None of these items named Ms. Simmons as a potential witness. Petitioner's affidavit stated her son had heard it all but saw nothing.

    
    

39. Mr. Harmsen's initial directive to Ms. McKenzie had been to interview and get written statements from all witnesses. Ms. McKenzie admittedly did not interview either Betty Simmons or Petitioner's minor son, each of whom overheard some of the altercation, but there is no evidence Ms. McKenzie understood that either Ms. Simmons or Petitioner's son had any useful evidence, and she at least orally suggested to a police investigator at some point that Petitioner's son might be a witness.

    
    

40. In late August 1992, Hurricane Andrew swept through South Florida. Because of the crisis, HRS actively sought volunteers from HRS offices statewide to go to Miami and assist with the problems caused by the hurricane. Petitioner and Ms. Bethea volunteered and left for south Florida on September 2, 1992.

    Ms. Bethea returned in two or three weeks. Petitioner stayed in south Florida until early October 1992.

    
    

41. Concerned about the time Petitioner was spending in south Florida, Ms. McKenzie telephoned in late September 1992 to ask when Petitioner would be returning. During this conversation, Ms. McKenzie suggested to Petitioner that everyone, including the police, were anxious to conclude the criminal matter. Petitioner told Ms. McKenzie that she planned to drop the charges against Mr. Cozart. When Ms. McKenzie inquired further, Petitioner stated "I wanted to teach Mr. Cozart a lesson." Petitioner phoned the police to drop the charges the same day.

    
    

42. However, the police "investigation," as such, had actually concluded on September 8, 1992, after interviews with, and/or statements from, Petitioner, Ms. Bethea, and Mr. Cozart. The police report stated that Donna McKenzie had stated that no other witness had seen the incident, as was, in fact, true. Petitioner's son and Ms. Simmons were not interviewed by the police. As of September 8, 1992, the authorities had concluded that criminal prosecution was not feasible since the case hinged on Mr. Cozart's intent and it was his word against Petitioner's.

    
    

43. Petitioner returned to the HRS District II Office in early October 1992. She inquired repeatedly in the HRS Personnel Office concerning the status of HRS' investigation of the August 14, 1992 incident with Mr. Cozart. In response, HRS' Personnel Office instructed Ms. McKenzie to turn in all written witness statements. Since Ms. Bethea still had not provided her statement to HRS as instructed by Ms. McKenzie, Ms. McKenzie repeated her instruction to Ms. Bethea, who then turned in her written statement. Ms. McKenzie forwarded the three written statements of Petitioner, Cozart, and Bethea to the Personnel Office. Ms. McKenzie was informed that management would review the statements and make a decision.

    
    

44. On December 10, 1992, Petitioner filed her original discrimination complaint with the Florida Human Relations Commission.

45. Mr. Harmsen reviewed all the information he had, which included the three written eyewitness statements, none of which mentioned a racial issue; the police report; and Petitioner's hostile August 13, 1992 letter (See, FOF 32).

    He did not have a copy of Petitioner's July 28 or August 12, 1992 letters which more clearly related the phone situation to race. He did have Petitioner's August 14, 1992 statement (See, FOF 31) which also does not allude to any racial problem about the phones. There had been no previous written allegations concerning discrimination from any other blacks, and historically, Petitioner generally perceived everything she considered negative in the office as related to racial discrimination. Accordingly, Mr. Harmsen did not believe Petitioner's charges to be credible or believe the cause of the phone coverage discontent had a racial component or that the August 14, 1992 incident had been racially motivated.

    
    

46. Petitioner has charged that Donna McKenzie intentionally misled Mr. Harmsen when she failed to focus his attention on the black clericals' oral complaints and give him Petitioner's earlier letters charging that the phone rotation system was racially motivated. However, based upon what Ms. McKenzie knew of the phone situation (See FOF 19 and 25), the lack of clarity on this point in all three witnesses' incident statements, and Petitioner's initial lack of cooperation (See FOF 35), this accusation was unproven.

    
    

47. Mr. Harmsen felt he could discern no real way to determine who was right or wrong, or even what happened with regard to the incident on August 14, 1992. Although he had Ms. Bethea's statement, from his point of view, the situation presented a "swearing contest" between Petitioner and Mr. Cozart, with Ms. Bethea's statement not clearly supporting either side. Even the Tallahassee Police Department, which was better equipped and trained to ferret out the truth, had not reached a conclusion as to what really happened sufficient to prosecute Mr. Cozart for battery upon Petitioner.

    
    

48. Mr. Harmsen, like the police, concluded that there was no way to decide whether Petitioner or Mr. Cozart was right or wrong in their descriptions of the August 14, 1992 incident. Nonetheless, he decided that Mr. Cozart should be disciplined for the incident to prevent any future such incidents. He instructed Donna McKenzie to "counsel" with Mr. Cozart as a means of discipline and to record the counseling in Mr. Cozart's personnel file. This method of discipline is one of the prescribed methods of discipline under the State's personnel rules.

    
    

49. On or about December 18, 1992 Ms. McKenzie counselled with Mr. Cozart and filed a memorandum in his personnel file that stated,

    
    

    During your many years with this agency, you have demonstrated an ability to approach staff on all levels in an appropriate manner. It is expected this ability to effectively relate will continue.

    
    

50. Harmsen, McKenzie, and Cozart perceived the foregoing as a disciplinary action against Cozart, however mildly worded.

    
    

51. Nevertheless, Mr. Harmsen perceived that it had become impossible for Petitioner, Cozart, and McKenzie to work together harmoniously.

    
    

52. Mr. Harmsen was authorized to reassign employees within 50 miles of their current work site.

53. In deciding who to reassign, Mr. Harmsen had to consider the following factors:

    
    

    1. The person reassigned should have the same degree of responsibility in his or her new position and cannot lose salary as a consequence of the reassignment.

    2. Management should try to find the best fit between knowledge, skills and abilities of the person reassigned in his or hew new position.

    3. Management must avoid if possible the loss of valuable experience as a result of the reassignment.

    4. Management must consider the likelihood of finding a replacement of comparable experience, knowledge, skills and abilities of the person reassigned.

       
       

54. In the instant situation, Mr. Cozart had thirty-three years experience and Ms. McKenzie twenty-seven years experience as professionals in the economic services area. No available position existed to which they could be reassigned without placing them in a position in which they would be grossly over qualified. Moreover, the likelihood of finding a suitable replacement for Mr. Cozart and/or Ms. McKenzie was slim, and failure to do so would seriously impede the productivity of the District II Economic Services Division.

    
    

55. Reassigning Petitioner on the other hand, presented a different picture. There was an available clerical position at Florida State Hospital which fit nicely with her pay grade and her knowledge, skills and abilities. Furthermore, Petitioner's work site at Florida State Hospital was thirty to forty-five minutes closer to her home than the District II Economic Services office in Tallahassee.

    
    

56. On January 5, 1993, Petitioner was reassigned to the personnel office at Florida State Hospital in Chattahoochee, Florida. Mr. Harmsen, who ultimately decided this action, did so because of the remaining personnel problems in the Economic Services office, not in any racial retribution against Petitioner.

    
    

57. Petitioner claimed at formal hearing that her educational development was impeded by the transfer of job location sites because she was enrolled in a Lively Vocational Technical course in Tallahassee which began shortly after she got off work, but Petitioner did not protest to Mr. Harmsen concerning her reassignment for any reason at the time it was made.

    
    

58. Between the date of Petitioner's reassignment and the date of formal hearing, Mr. Cozart retired and legislative budget cuts eliminated Petitioner's former position in the Economic Services office. The possibility this cut could occur existed at the time of Petitioner's reassignment and was known to Mr. Harmsen. There is every likelihood that, because of the cut, Petitioner would have been reassigned to a different, less desirable, location by a "bumping" procedure, had she remained in the Tallahassee office.

    CONCLUSIONS OF LAW

    
    

59. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

    
    

60. This is a case alleging an unlawful employment practice of disparate treatment as to terms, conditions, or privileges of Petitioner's employment, only on the basis of gender and race.

    
    

61. Petitioner prays for relief from an unlawful employment practice in the form of (1) return to the Tallahassee office; (2) official reprimand of Donna McKenzie; (3) official reprimand of Jimmy Cozart; (4) that phone rotation be done in a nondiscriminatory manner; and (5) award of reasonable costs and attorney's fees as a result of these proceedings.

    
    

62. The undersigned is not unmindful that there is now a new Civil Rights Act enacted into law in 1991 affecting what has come to be known as federal "Title VII" litigation or that Florida enacted similar, but not identical, legislation in 1992. However, under the facts as found herein, Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) remains the preeminent case. That case instructs as follows:

    
    

    Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)]

    formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden

    of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.

    
    

63. Petitioner falls in the protected classes, black and female, and has set out a prima facie case. However, she has been unable to overcome Respondent's articulated nondiscriminatory reasons for each of its actions.

    
    

64. Petitioner's allegations can be broken down as follows: (1) that there was pattern discrimination against blacks because their work loads were higher as a result of Emma Harrell's (a white's) failure to carry her fair share of the phone duty, and because she received a more favorable work schedule than another black employee, Betty Simmons; (2) that Jimmy Cozart's actions on August 14, 1992 were designed to coerce or harass the black Petitioner to accept phone coverage for the white Ms. Harrell from 4:30 to 5:00 p.m. that day; and (3) that Donna McKenzie concealed the racial overtones of the phone situation from her superiors, specifically Mr. Harmsen, discouraged relevant testimony during the incident investigation, omitted from her investigation the testimony of Betty Simmons which would have corroborated Petitioner's version of events, and narrowed the focus of her investigation so that it appeared to her superiors that Petitioner was the only employee who felt race was a factor in all these events.

    
    

65. The evidence shows that Emma Harrell "got away" with some minimal abuse of her flex-time privileges, most notably via a longer lunch hour two days a week from October 1991 to June 1992, but this appears to be the result of her secretarial setup reporting to one high-ranking supervisor rather than several. There is no credible evidence that Ms. McKenzie collaborated in this minimal abuse or was even aware of it. Betty Simmons and Emma Harrell were treated in grossly similar ways with regard to flex-time (See FOF 7-11). Ms. Simmons' request for flex-time was less open-ended than Ms. Harrell's and it was approved accordingly. The multiple reasons the phone system itself was not racially discriminatory are set out in Finding of Fact 25. The situation in this case does not warrant relief under the theory expressed in Hishon v. King and Spaulding, 104 S.Ct. 2228 (1986). Moreover, Ms. McKenzie personally changed Petitioner's schedule when she complained about backing up Ms. Harrell (See FOF

25) and called a biracial meeting when Petitioner complained that Ms. Harrell should be forced to attend a meeting with the black clericals (See FOF 23). Jimmy Cozart's actions on August 14, 1992 were possibly personal and certainly reprehensible, but any racial overtones were in Petitioner's mind. Admittedly, Ms. McKenzie did not emphasize racial concerns of other black clericals about the phone system when reporting to Mr. Harmsen about Petitioner's August 14, 1992 charges, but the evidence as a whole does not support the conclusion that she knowingly hid the names of any witnesses from the police or from Mr. Harmsen or that she discouraged Sheila Bethea's input to HRS' investigation of the incident. The worst that can be said is that Ms. McKenzie inquired of Petitioner if she were dropping criminal charges after Ms. McKenzie knew the charges were already dropped (See FOF 41). It is noteworthy that Ms. McKenzie transmitted Ms. Bethea's and Petitioner's written statements to Mr. Harmsen and these black witnesses' statements did not clearly specify a racial component in the phone setup either.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Petition for Relief and its underlying discrimination claim be dismissed.

RECOMMENDED this 2nd day of February, 1994, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 February, 1994.

APPENDIX TO RECOMMENDED ORDER 93-2252

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-3 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 1-6, 12-14 and 44.

4 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 18, 19, 21, 23, 25, 45 and 55.

5-6 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 3, 17 and 54.

7-9 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 4-6, 18-25, 36-38 and 45-48, especially 19 and 21.

10 Rejected as stated as not supported by the greater weight of the credible evidence. Covered in FOF 18-25, 36-38, and 45-48, especially FOF 19 and 21 and 45-48.

11-12 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. Covered in FOF 22-24.

1. Accepted in part and rejected in part upon the greater weight of the credible competent evidence as covered in FOF 26-31, espcially 29-30.

2. Rejected as stated because as stated, it is misleading and mere argument. Covered as proven in FOF 18, 19, 21, 23, 25-30, 36-38, and 43-48, especially 21, 25, and 45-48.

3. Accepted that testimony conflicted on this issue but otherwise rejected as covered in FOF 8 and 25.

4. Rejected as stated, because as stated it is misleading and not supported by the greater weight of the credible competent evidence. Covered in FOF 7-12 and 25.

5. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 8-9, 15-16, and 25.

6. Accepted as covered more accurately in FOF 35-39 and 43-48.

19-20 Accepted in part and rejected in part as covered more accurately in FOF 25, 34-39 and 43-48. Also, the footnote is rejected as not accurate as stated and as non-determinative. Mr. Harmsen had seen many hostile discrimination allegations and religious exhortations of Petitioner before, and this history, rather than Ms. Harrell's rank or her being placed in the phone rotation mix, influenced him. See FOF 4-6 on actual ranks.

21-22 Rejected as not supported by the greater weight of the credible competent evidence. See, FOF 19-25, and 35-

48. As to the last clause of the last sentence of PFOF 21, the record actually shows that Ms. Bethea "waffled" on this issue and Ms. McKenzie could not recall if she had told Sheila Bethea at any point that her statement was not needed, but same is still immaterial because both HRS and the police obtained a written statement from Ms. Bethea.

1. The PFOF is rejected as mere argumentation and as not supported by the greater weight of the credible competent evidence. See FOF 35-39 and 42-48. The footnote is accepted at FOF 34.

2. Rejected as mere argumentation and as covered in FOF 29-30, upon credibility.

3. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See, FOF 48-50 and 56.

Respondent's PFOF:

1-2 Accepted in FOF 2-5. Unnecessary, subordinate or cumulative material has not been utilized.

3-4 Accepted except that Janna Lewis-Harrell's employment has been more accurately conformed to the record evidence in FOF 5 and 12, work hour situations and who approved flex-time have been more accurately conformed to the record in FOF 7-11, Ms. Harrell's motives are in FOF 9 and 15.

5-6 Accepted in FOF 13-16. Unnecessary, subordinate or cumulative material and argumentation has not been utilized.

7 Accepted in FOF 18-25 and 43-48, especially 19 and 25; footnote covered in FOF 17. Unnecessary, subordinate or cumulative material has not been utilized.

8 Accepted in FOF 20, 25-26, 35-38 and 43-46.

Unnecessary, subordinate or cumulative material and mere argumentation has not been utilized.

1. Accepted in FOF 27. Unnecessary, subordinate or cumulative material has not been utilized.

2. Accepted in part and rejected in part after reconciling where possible and weighing the credible evidence in FOF 28-30.

3. Accepted in FOF 33. Unnecessary, subordinate or cumulative material has not been utilized.

4. Accepted in FOF 34.

5. Accepted in FOF 35.

6. Accepted in FOF 36-39 and 43-48.

7. Accepted in FOF 40.

8. Accepted in FOF 41.

9. Accepted in FOF 43, except for the last sentence, which is deemed out of chronology, or mere argumentation.

10. Accepted as modified for acuracy in FOF 48. Unnecessary, subordinate or cumulative material has not been utilized.

11. Rejected in favor of greater accuracy in 49-50. Argumentation has not been utilized.

12. Accepted in FOF 56 except that introductory, unnecessary, subordinate or cumulative material has not been utilized.

13. Accepted in FOF 45-48. Unnecessary, subordinate or cumulative material has not been utilized.

14. Accepted in FOF 51.

15. Accepted in FOF 52.

16. Accepted in FOF 53.

17. Accepted in FOF 54.

18. Accepted in FOF 55.

19. Accepted as modified in FOF 58 to more accurately reflect the record.

COPIES FURNISHED:

John R. Perry, Esquire DHRS District 2 Legal

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949

Jack McLean, Esquire

Legal Services for North Florida 2119 Delta Way

Tallahassee, Florida 32303-4220

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 93-002252

Orders for Case No: 93-002252