STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATSY SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2525

) CENTRAL SECURITY SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 10, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie A. Mattox, Esquire

3045 Tower Court

Tallahassee, Florida 32303 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This cause arose on August 19, 1992, when petitioner, Patsy Smith, filed a complaint of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, Central Security Systems, Inc., had violated Section 760.10, Florida Statutes, by denying her a promotion and harassing her on the job by virtue of her gender and race. After the Commission conducted a preliminary investigation, its executive director issued a Notice of Determination: No Cause on March 29, 1993. Thereafter, petitioner filed her petition for relief on April 22, 1993. The matter was referred by the Commission to the Division of Administrative Hearings on May 6, 1993, with a request that a hearing office be assigned to conduct a formal hearing. By notice of hearing dated June 11, 1993, a final hearing was scheduled on August 10, 1993, in Tallahassee, Florida.

At final hearing, petitioner testified on her own behalf and offered petitioner's exhibits 1-4. All exhibits were received in evidence. In addition, hearing officer exhibit 1 was received in evidence. Finally, petitioner submitted a late-filed affidavit which has been made a part of this record. Respondent did not appear at the final hearing.

The transcript of hearing was filed on August 16, 1993. Proposed findings of fact and conclusions of law were filed by petitioner on August 23, 1993. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Petitioner, Patsy Smith, who is black, is employed as a court security officer (CSO) for the United States District Court, Northern District of Florida. Court security officers and baliffs are provided to that court under a contract between a security firm and the United States Marshal's Office. When the events herein occurred, respondent, Central Security Systems, Inc. (CSSI), held the contract to supply security services to the court, and petitioner was an employee of that firm. Petitioner asserts without contradiction that CSSI had more than twenty-five employees. Accordingly, respondent is subject to the jurisdiction of the Commission on Human Relations (Commission).

   
   

2. Petitioner began work as a CSO in 1983. At that time, the contract was held by Wackenhut Corporation. She is now and has been the only female and black employed in that capacity. All other employees, including her supervisors, are white males, and many are retired members of the Florida Highway Patrol. Although the firm providing security services to the court changes from time to time, there is virtually no turnover in CSOs and bailiffs. CSSI was awarded the contract in 1990 or 1991, and it held the contract until it was terminated in late 1992. The exact dates are not of record. A new firm, MBM Security Company, now has the contract, and petitioner is still employed in the same position. There is no evidence that MBM Security Company and CSSI are related parties or that when MBM Security Company was awarded the contract, it assumed all liabilities of CSSI.

   
   

3. Beginning in 1988 or 1989, or before CSSI held the contract, petitioner says she worked in a racially hostile work environment. After CSSI was awarded the contract, and until the contract was terminated in late 1992, petitioner was subjected to a number of racially and sexually hostile events. They included being denied leave time when white male co-workers were given preferential treatment as to taking annual and sick leave, being present when the word "nigger" was used by a co-worker (who was not punished for using that word), being accused of theft of a Coca-Cola and of insubordination when other males doing the same thing as petitioner were not treated in the same way, receiving a written reprimand for having a personal telephone conversation while white male co-workers did not receive reprimands for their personal telephone calls, being denied the opportunity to run personal errands during the day while white male co-workers were given the opportunity to do so, and having personal logs of her work hours kept by other workers and supervisors while no such log was kept for her white male co-workers.

   
   

4. In March 1992 petitioner became aware of a new position to be established in her office. This was followed by a memorandum issued in April 1992 advertising an opening for a new position as assistant lead court security officer. Petitioner signed the memorandum indicating her interest in the position and submitted it to her supervisor, Don Curtis, a white male. She applied for the job since she had been told by Curtis that "I want you to be assistant CSO," and she believed she was the most qualified person. Only one

   other employee, Roy Beard, who is a white male, applied for the position. Although Beard had less than two years experience on the job, compared to almost nine years for petitioner, Beard was selected for the new position. Petitioner was not given an interview nor a reason why she was not chosen.

   
   

5. On May 27, 1992, petitioner wrote Peter Gavigan, CSSI's regional supervisor, and asked why she was not selected for the position, given her qualifications. Gavigan replied by memorandum dated June 2, 1992, stating in pertinent part that:

   
   

   After an extensive review of all personnel records, an evaluation was undertaken and a decision was made. I am satisfied with both the procedure and results and would have no reason to alter it at this time.

   
   

6. On July 17, 1992, petitioner sent Gavigan another letter asking that someone other than Gavigan review the matter. In her letter, Smith stated that she believed her request for a promotion had been "denied because of factors other than (her) performance." This letter was never answered. At about the same time, she requested to see her own personnel records and those of Beard so that she could compare qualifications of the two and see if the files reflected any reason for CSSI's employment decision. Gavigan denied her request, and the records were immediately put "under lock and key." In August 1992, petitioner filed with the Commission her charge of discrimination against respondent.

   
   

7. Although respondent was a viable corporation when the charge of discrimination was filed, it did not appear at hearing and therefore did not offer any proof to counter petitioner's charge of discrimination or to justify its employment decision. According to a letter from its former counsel, which has been received in evidence as hearing officer exhibit 1:

   
   

   CSSI ceased doing business in December of 1992 and I have been unable to contact anyone who can speak for CSSI. I have no authority to speak for CSSI and I cannot authorize anyone to appear on CSSI's behalf in this matter.

   
   

8. Petitioner submitted an affidavit reflecting that she incurred

   $5,250.00 in attorney's fees in pursuing this action. This amount is deemed to be reasonable and is hereby approved. At the time petitioner was denied a promotion to assistant lead CSO, her salary was $9.75 per hour. The salary of the assistant lead court security officer is not of record.

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Subsection 760.10(1)(a), Florida Statutes, provides as follows:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such

          individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

          The petition for relief alleges that CSSI violated the above statute by refusing to promote petitioner because of her gender and race.

          
          

11. To establish a prima facie case of race or gender discrimination in a case where a promotion has been denied, petitioner must show (a) she belongs to a protected group, (b) she was qualified for and applied for the promotion, (c) she was considered for and denied the promotion, and (d) other employees of similar qualifications who were not members of the protected group were indeed promoted at the time petitioner's request for promotion was denied. Bundy v. Jackson, 641 F.2d 934, 951 (4th Cir. 1981). Once petitioner establishes a prima facie case of discrimination, respondent has the responsibility of articulating a legitimate, nondiscriminatory reason for its actions. If respondent meets this burden, petitioner may still prevail by proving that respondent's justification was pretextual.

    
    

12. The evidence shows that petitioner is black and female, she was qualified for the position of assistant lead court security officer and applied for that position, she was denied the position by her employer, and another employee of similar or lesser qualifications who was not a member of the protected group was promoted into that position. Therefore, a prima facie case of discrimination has been established. Since respondent did not articulate a legitimate, nondiscriminatory reason for its actions, petitioner must prevail in this dispute.

    
    

13. Subsection 760.10(13), Florida Statutes, specifies the relief that may be given a prevailing claimant in a discrimination action. It reads in pertinent part as follows:

    
    

    In the event the commission, in the case of

    a complaint under subsection (10), . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. . . . No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the commission.

    
    

    In view of the conclusions in paragraph 12, petitioner is entitled to an award of attorney's fees, but not costs. These fees have been established to be

    $5,250.00. She is also entitled to the entry of an order citing CSSI for an unlawful employment practice and requiring it to cease and desist such illicit practices. Finally, she is entitled to "affirmative relief from the effects of the (discriminatory) practice," including back pay accruing no more than "2 years prior to the filing of (her) complaint."

    
    

14. Besides asking for attorney's fees and costs, petitioner has also requested the entry of an order (a) "(requiring) the Respondent to pay Petitioner the difference in salary and benefits between her current position and the Assistant Lead Court Security Officer position, beginning June 1, 1992, and continuing;" and (b) "requir(ing) the Respondent to promote Petitioner into the next available Assistant Lead Court Security Officer vacancy." Whether this

relief can be granted is questionable. This is because CSSI ceased doing business in late 1992 and a new security firm, MBM Security Company, now has the contract with the court. Although petitioner has continued in her position as a CSO, and is now an employee of the new contractor, MBM Security Company is not a party to this controversy, and thus the Commission has no jurisdiction over that entity. See e. g., Arthritis Medical Center v. Dept. of Health and Rehabilitative Services, 543 So.2d 1304, 1305 (Fla. 4th DCA 1989)(a defendant is entitled to personal service of original process before an administrative board acquires personal jurisdiction). Therefore, the Commission has no authority to require the new contractor-employer to promote petitioner to a new position. In a similar vein, petitioner is only entitled to the difference in pay between a CSO and an assistant lead court security officer for the period beginning when the position was filled (June 1, 1992) until CSSI lost the contract in late 1992. This is because, absent any evidence that MBM Security Company assumed all liabilities of the predecessor firm, the new contractor would not be responsible for any discriminatory employment decisions made by a different, unrelated entity. Therefore, as to these latter claims for relief, they should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order finding respondent

guilty of an unlawful employment practice and ordering that it cease and desist

such practice. Respondent should also be required to pay petitioner reasonable attorney's fees in the amount of $5,250.00. Finally, petitioner should be reimbursed for the difference between her pay as a CSO ($9.75 per hour) and an assistant lead CSO from June 1, 1992, until CSSI's contract was terminated in late 1992.

DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2525

Petitioner:

1. Covered in the conclusions of law.

2-3. Partially accepted in finding of fact 2.

4. Partially accepted in finding of fact 6. 5-9. Partially accepted in finding of fact 2. 10-13. Partially accepted in finding of fact 3.

14-15. Partially accepted in finding of fact 4.

16. Partially accepted in finding of fact 5. 17-22. Partially accepted in finding of fact 4. 23-24. Partially accepted in finding of fact 5. 25-26. Partially accepted in finding of fact 6.

1. Partially accepted in finding of fact 4.

2. Partially accepted in finding of fact 6.

3. Partially accepted in finding of fact 2. 30-31. Partially accepted in finding of fact 3. 32-33. Rejected as being irrelevant.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary to a resolution of the issues, irrelevant, not supported by the evidence, cumulative, or a conclusion of law.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Marie A. Mattox, Esquire 3045 Tower Court

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 93-002525

Orders for Case No: 93-002525