STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA Y. PALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6219

)

CAL HENDERSON, Sheriff )

of Hillsborough County, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 14, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Joe Episcopo, Esquire

1060 West Busch Boulevard, Suite 103

Tampa, Florida 33612

For Respondent: Thomas M. Gonzalez

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent engaged in an unlawful employment practice by discriminating against the Cynthia Y. Pall on account of race or sex.

PRELIMINARY STATEMENT

Petitioner Cynthia Y. Pall, an employee of the Hillsborough County Sheriff's Department, applied for an internal promotion. She did not receive the promotion and alleges that she was discriminated against based on her race and gender.

At the hearing, the Petitioner presented the testimony of seven witnesses and offered into evidence exhibits numbered 2-4, 5A-5D, 6-7, 9-11 and 13.

Respondent presented the testimony of four and offered into evidence exhibits numbered 1-3, 4A-4B, 5 and 6. All exhibits were admitted into evidence.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Cynthia Y. Pall is employed by the Hillsborough County Sheriff's Office (HCSO) as a sergeant. Ms. Pall has been employed by the HCSO since May of 1977. She is a black female.

   
   

2. In October, 1991, Ms. Pall applied for a promotion to detention lieutenant. She did not receive the promotion. The position went to Michael Sawyer, a white male.

   
   

3. Applicants for promotion to detention lieutenant were reviewed by Colonel David Parrish, the HCSO Detention Department Commander.

   
   

4. Mr. Parrish has a Master's degree in criminology and has worked for the HCSO since May, 1974. Since 1981, Mr. Parrish has been responsible for operation of the HCSO jail system. He was promoted to his current position in 1985 and is the highest ranking officer in the Detention Department.

   
   

5. Mr. Parrish has historically sought recommendations for internal promotion from the supervisors in the Detention Department. Each supervisor is encouraged to nominate one employee from within the supervisor's squad and one employee from outside the supervisor's squad.

   
   

6. Promotional candidates are required to have completed a sufficient period of time in their current positions and to have successfully passed an examination to be eligible for promotion. A list of "eligibles" is prepared identifying those employees eligible for the promotion.

   
   

7. From those eligible, Mr. Parrish reviews the materials and prepares an information package about each candidate for the promotion. Each information package includes the resume submitted by each candidate.

   
   

8. Twelve persons sought the position at issue in this proceeding. Seven of the twelve, including five white males, had been passed over for promotion to lieutenant previously.

   
   

9. In reviewing candidates for promotion, Mr. Parrish considers the experience, test scores, annual performance evaluations, education and recommendations of the applicants. No one factor is determinative; the overall quality of the candidates is paramount in the decision making process. Some employees who lacked substantial college education have been promoted. Many individuals, male and female, black and white, have applied and been passed over for promotion.

   
   

10. Mr. Parrish reviews the eligibles with two Detention Department majors. After review, Mr. Parrish makes a recommendation to the Sheriff as to which person should be promoted. The review and recommendation process has been utilized since 1981 and continues unchanged to the present. With rare exception, Mr. Parrish's recommendations have been followed by the Sheriff.

    
    

11. Ms. Pall has been employed by the HCSO since May of 1977. She became a sergeant in 1982, served as an administrative sergeant until approximately 1984, and then became a detention sergeant, the position she presently holds.

12. Most of Ms. Pall's experience has been in the care, custody and control of inmates. She has trained and supervised subordinate employees, and planned and coordinated their work assignments. She created the HCSO victim notification program. She developed a cash accounting system which resulted in increased accountability in the handling of cash within the Detention Department. During her employment as an administrative sergeant, she handled correspondence for Mr. Parrish. She was responsible for facility maintenance, bookkeeping, inspections and inactive records.

    
    

13. Michael Sawyer has been employed by the HCSO since the end of 1980 or beginning of 1981. He was initially employed as a correctional officer, serving for about five years as a deputy and then as corporal for three more years. Thereafter, he was promoted to sergeant.

    
    

14. During his HCSO employment, Mr. Sawyer worked in the records section for approximately one and a half years, during which time he trained civilians to assume the responsibilities of the position. He worked in the booking section for approximately two years. He thereafter worked on the detention floor for approximately four and a half years and was responsible for care, custody and control of inmates.

    
    

15. As a sergeant, Mr. Sawyer was assigned to a special projects unit. During this period, he worked as an accreditation coordinator for two HCSO jail facilities and was responsible for assuring that the facilities would meet standards for accreditation. He also served as the HCSO fire safety officer for approximately two and a half years and was responsible for compliance with fire safety, health department, and worker's compensation regulations and OSHA requirements.

    
    

16. At various times during his HCSO employment, Mr. Sawyer has been in a supervisory position, responsible for between five and 20 individuals.

    
    

17. Five promotional candidates, including four white males, had worked for the HCSO longer than had the successful applicant, Mr. Sawyer. One white male applicant had worked for the HCSO longer than had Ms. Pall.

    
    

18. As to the responsibilities Mr. Sawyer has successfully performed related to special projects and facility accreditation coordination, Ms. Pall has not been provided with similar opportunities. There is no evidence that, as to experience, Ms. Pall is more or less qualified than Mr. Sawyer for the position at issue in this proceeding.

    
    

19. The HCSO administers a test of skills required in the lieutenant position to applicants. Of the 100 points available on the test, Ms. Pall scored a 78. Mr. Sawyer scored an 85.

    
    

20. At the review immediately prior to the promotional decision at issue in this proceeding, Ms. Pall received a performance evaluation of 89 points. Her evaluator, a black male, wrote that Sgt. Pall needed to visit all areas of the pod more frequently and that she permitted some deputies to become to "familiar" with her. Although good, the performance evaluation score was lower than she had received in the preceding three year period when her scores were 92, 92.75, and 93.

21. At the review immediately prior to the promotional decision at issue in this proceeding, Mr. Sawyer received a performance evaluation of 96.5 points. His evaluator, a white male, wrote that Sawyer was extremely qualified and should receive highest consideration for promotion at the earliest opportunity.

    
    

22. At the time of application, Ms. Pall had a high school diploma and had completed one year of studies at Hillsborough Community College. She had completed eight advanced law enforcement training courses.

    
    

23. According to Mr. Sawyer's application, he was two credits shy of receiving an Associate in Arts degree from Hillsborough Community College. This information was not correct. Mr. Sawyer needs more than two hours of additional credit to receive the degree. He had completed five advanced law enforcement training courses.

    
    

24. Review of educational information was based solely on the information submitted by the applicants. There was no attempt made by the HCSO to verify the education information submitted. Applicants were not required to submit educational transcripts.

    
    

25. Although Mr. Sawyer's educational information was apparently overstated on his application, there is no evidence that HCSO officials were aware of the misleading information. There is no evidence that Mr. Sawyer was encouraged by HCSO officials to misstate his educational credentials in order to receive the promotion.

    
    

26. There is no evidence that the review of educational credentials was related to the race or gender of the applicants or that, as to the review of said credentials, Ms. Pall was discriminated against on the basis of race or gender.

    
    

27. Mr. Sawyer received recommendations for promotion from six persons with whom he had worked. Ms. Pall received two similar recommendations.

    
    

28. Based on his review of the foregoing factors and the information available, Mr. Parrish determined that Michael Sawyer was the best qualified candidate for promotion to detention lieutenant. The information was presented to the Sheriff. Michael Sawyer received the promotion.

    
    

29. Although the evidence does not establish whether or not Mr. Parrish determined a "ranking" order for the promotional candidates, had Mr. Parrish established a ranking of the candidates, Ms. Pall would have ranked well.

    
    

30. There is no evidence of any discord between Mr. Parrish and Ms. Pall. There is no evidence that any HCSO official has stated or implied that Ms. Pall was not qualified for promotion, but rather the evidence establishes that Ms. Pall is clearly qualified for promotion.

    
    

31. The HCSO has implemented an affirmative action plan which provides for employment and promotion of female and African-American personnel. The HCSO does not utilize a quota system, but considers minority group status in making employment decisions. Mr. Parrish has previously recommended black females for employment and promotion, including two black women who were promoted to currently held lieutenant positions, Ms. Pall's promotion to sergeant, and a black woman promoted immediately prior to the time the hearing was conducted.

32. The evidence is insufficient to establish that Ms. Pall's race or gender were considered in the determination of the best qualified candidate for promotion to detention lieutenant.

    
    

33. The evidence establishes that in this case, both Michael Sawyer and Cynthia Y. Pall were qualified for promotion to the rank of detention lieutenant. Based on the information available to the Mr. Parrish and to the Sheriff at the time of the promotion, Michael Sawyer was determined to be the best qualified candidate for promotion.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

35. The Florida Commission on Human Relations is vested with jurisdiction to enforce laws prohibiting unlawful employment discrimination. Section 760.06(5), Florida Statutes.

    
    

36. The Hillsborough County Sheriff's Office is an employer within the meaning of the statute and is subject to the FCHR's jurisdiction. Section 760.02(7), Florida Statutes.

    
    

37. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to fail or refuse to hire any individual, or to otherwise 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. Section 760.10(7), Florida Statutes, provides that it is an unlawful employment practice for an employer to discriminate against any person because of the filing of a charge of an unlawful employment practice.

    
    

38. The Petitioner has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If the Petitioner succeeds in proving that prima facie case, the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for the action. Should the Respondent carry this burden, the burden then shifts back to the Petitioner to show by a preponderance of the evidence that the reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988), McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

    
    

39. In this case, the evidence establishes that Michael Sawyer and Cynthia

    Y. Pall, among others, were qualified for promotion to the rank of detention lieutenant. Based on the information available to the Mr. Parrish and to the Sheriff at the time of the promotion, Michael Sawyer was determined to be the best qualified candidate for promotion. Mr. Sawyer received the promotion.

    
    

40. Ms. Pall asserts that the promotion decision by the HCSO is based on racial or gender discrimination. The evidence fails to support the assertion.

    
    

41. Based on the information available to the HCSO and the factors considered in the promotion decision, Mr. Sawyer appeared to be more qualified than Ms. Pall. Although Ms. Pall's tenure with the HCSO was longer than Mr. Sawyer's, his experience related to a broader range of responsibilities. His

    test scores were higher than were Ms. Pall's. His most recent annual performance evaluation was superior to hers. He obtained substantially more recommendations that did Ms. Pall.

    
    

42. As to education, at the time the employment decision was made, Mr. Sawyer's education appeared to be superior to Ms. Pall's. The HCSO review of educational qualifications was based solely on the information provided by applicants. Ms. Pall's resume indicated a high school diploma and one year of studies at Hillsborough Community College. She had completed eight advanced law enforcement training courses. According to Mr. Sawyer's application, he was two credits shy of receiving an Associate in Arts degree from Hillsborough Community College. He had completed five advanced law enforcement training courses.

    
    

43. The information stated on Mr. Sawyer's resume was not correct. He needs more than two hours of additional credit to receive the Associate in Arts degree.

    
    

44. There is no evidence that any official of the HCSO was aware of or encouraged Mr. Sawyer's misstatement of his educational qualifications on his application so as to provide an opportunity to discriminate against Ms. Pall on the basis of race or gender.

    
    

45. The evidence fails to establish that the factors identified as the basis for making an award of promotion to Michael Sawyer were a pretext for discrimination against Cynthia Y. Pall.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed by Cynthia Y. Pall.

DONE and RECOMMENDED this 9th day of August, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 9th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6219

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact, which are not supported by citations to the record as is required by Rule 60Q-2.031(3), Florida Administrative Code, are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected, not supported by the greater weight of the credible and persuasive evidence.

2. Rejected, twelve names were on the list of eligibles.

3. Rejected as to supervision of Sawyer by Pall, irrelevant.

4. Rejected, irrelevant.

5. Rejected, not supported by the greater weight of the credible and persuasive evidence.

8. Rejected, number of supervised employees is irrelevant.

11. Rejected, irrelevant. Although Mr. Sawyer's educational information was apparently overstated on his application, there is no evidence that HCSO officials were aware of the misleading information or that HCSO officials encouraged Sawyer to misstate his educational credentials in order to receive the promotion or to discriminate against other applicants on the basis of race or gender.

12-13. Rejected, irrelevant.

14. Rejected, subordinate.

15-16. Rejected, as to determination that Sawyer was "not qualified," not supported by the greater weight of the credible and persuasive evidence.

17. Rejected, subordinate.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

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

Dana Baird, General Counsel

Florida Commission on Human Relations

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

Joe Episcopo, Esquire 1060 West Busch Boulevard Suite 103

Tampa, Florida 33612

Thomas M. Gonzalez, Esquire THOMPSON, SIZEMORE & GONZALEZ

Suite 200

109 North Brush Street

1. Box 639

   Tampa, Florida 33601

   
   

   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 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.

   
   

   ================================================================= ORDER PARTIALLY DISMISSING PETITION FOR RELIEF

   FROM AN UNLAWFUL EMPLOYMENT PRACTICE AND REMANDING CASE FOR FURTHER DETERMINATIONS

   =================================================================

   
   

   STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

   
   

   CYNTHIA PALL,

   
   

   Petitioner, EEOC Case No. 151920305 FCHR Case No. 92-1626

   vs. DOAH CASE NO. 93-6219

   FCHR Order No. 95-027

   SHERIFF OF HILLSBOROUGH

   
   

   Respondent.

   /

   
   

   ORDER PARTIALLY DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE AND REMANDING CASE FOR FURTHER DETERMINATIONS

   
   

   1. PRELIMINARY MATTERS

      
      

      Cynthia Pall, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Florida Civil Rights Act of 1992, Sections

      760.01 - 760. 11, Florida Statutes (Supp. 1992), alleging that the Sheriff of Hillsborough County, Respondent herein, unlawfully discriminated against her on the basis of her gender (Female) and her race (African American) by failing to promote her.

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Thereafter, Petitioner filed a Petition for Relief From an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      On August 9, 1994, DOAH hearing officer William F. Quattlebaum issued a Recommended Order of Dismissal. Pursuant to notice, public deliberations were held on April 21, 1995 in St. Petersburg, Florida, before this Commission, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

      
      

   2. FINDINGS OF FACT

      
      

      The hearing officer's findings of fact pertaining to the issue of denial of promotion are supported by competent substantial evidence. Therefore, we adopt these findings as set forth in the Recommended Order. The hearing officer failed to make any findings of fact with reference to the issue of retaliation.

      
      

   3. RULINGS ON EXCEPTIONS

      
      

      Petitioner filed exceptions to the hearing officer's findings relating to an allegation of retaliation. After duly considering Petitioner's exception regarding an allegation of retaliation we find that this exception is with merit. The facts adduced from the record and from the Petition state that Petitioner believes that Respondent retaliated against her during the course of the investigation through its legal counsel by mailing a copy of a disciplinary form to the FCHR investigator. This disciplinary report was for an alleged incident that occurred after Petitioner's failure to receive the promotion that she desired. The hearing officer denied to hear testimony concerning retaliation because there had been no amendment to the original complaint and alternatively, there had been no new complaint of retaliation filed or investigated by the Commission. He therefore concluded that the Division of Administrative Hearings did not have jurisdiction over the matter.

      
      

      Petitioner alleges in her exceptions that there was jurisdiction as the retaliation and facts supporting it were alleged in her Petition for Relief. The hearing officer made no findings with regard to this allegation in the recommended order.

      
      

      Therefore the panel votes to accept Petitioner's exception number one and remand the issue to the hearing officer for hearing on the issue raised therein. The panel also votes to accept Petitioner's exceptions two through five only to the extent that they support our ruling in accepting exception number one and are otherwise rejected.

      
      

   4. CONCLUSIONS OF LAW

      
      

      We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions of law as they pertain to the issue of denial of promotion. The hearing officer failed to include any conclusions of law on the issue of retaliation.

   5. PARTIAL DISMISSAL AND REMAND

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination with regard to the failure to promote are DISMISSED with prejudice. The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination with regard to the retaliation alleged in the Petition for Relief From an Unlawful Employment Practice is remanded to the hearing officer for hearing.

DONE AND ORDERED this 5 day of May, 1995. FOR THE FLORIDA COMMISSION ON HUMAN

BY:

Commissioner Elena Flom Commissioner Laura Santos

Commissioner Deborah Wagner, Panel Chairperson (Dissents to remanding the case for hearing

on the issue of retaliation)

FILED this 26th day of May 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Mr. Joseph Episcopo, Esquire Mr. Thomas M. Gonzalez, Esquire 1060 West Busch Boulevard, Suite 103 P.O. Box 639

Tampa, Florida 33612 Tampa, Florida 33601 Jennifer Monrose, FCHR Legal Advisor

William F. Quattlebaum, DOAH Hearing Officer

=================================================================

SUPPLEMENTAL RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA Y. PALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6219

)

CAL HENDERSON, Sheriff )

of Hillsborough County, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on February 27, 1996 in Tampa, Florida. The hearing was conducted by videoconference.

APPEARANCES

For Petitioner: Joe Episcopo, Esquire

1060 West Busch Boulevard, Suite 103

Tampa, Florida 33612

For Respondent: Arnold B. Corsmeier, Esquire

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601 STATEMENT OF THE ISSUE

The issue is whether the Respondent retaliated against the Petitioner for the filing of a complaint with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

Petitioner Cynthia Y. Pall, an employee of the Hillsborough County Sheriff's Department, applied for an internal promotion, which she did not receive. She alleged that she was discriminated against based on her race and gender. A hearing was held and a Recommended Order was entered in this case.

By Order Partially Dismissing Petition for Relief From an Unlawful Employment Practice and Remanding Case for Further Determinations, the Florida Commission on Human Relations directed the Hearing Officer to reopen the hearing and make Findings of Fact on the issue of retaliation.

The second hearing was conducted by videoconference on February 27, 1996.

At the hearing, no witnesses testified. The Petitioner had three exhibits admitted into evidence.

No transcript of the hearing was filed. The Respondent filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Cynthia Y. Pall was employed by the Hillsborough County Sheriff's Office as a sergeant.

   
   

2. By Charge of Discrimination dated December 23, 1991 and filed with the Florida Commission on Human Relations, Ms. Pall alleged that she had been discriminated against by reason of her gender and race. Ms. Pall had applied for a promotion to detention lieutenant. She did not receive the promotion. The position went to a white male.

   
   

3. Subsequent to the filing of her complaint with the Florida Commission on Human Relations, Ms. Pall was cited by the Respondent for an incident which occurred during an In-Service Training Physical Fitness Assessment on October 13, 1992.

   
   

4. Information regarding the incident was forwarded to the Florida Commission on Human Relations. Ms. Pall has asserted that the filing of the information with the Florida Commission on Human Relations constitutes retaliation for her complaint of discrimination.

   
   

5. The evidence fails to establish that the Respondent retaliated against Ms. Pall for filing the discrimination complaint.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The Florida Commission on Human Relations is vested with jurisdiction to enforce laws prohibiting unlawful employment discrimination. Section 760.06(5), Florida Statutes.

   
   

8. Section 760.10(7), Florida Statutes, provides that it is an unlawful employment practice for an employer to discriminate against any person because of the filing of a charge of an unlawful employment practice.

   
   

9. Chapter 760, Florida Statutes is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000, et seq. (Title VII) As such, federal precedent construing the similar provisions of Title VII are accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1 DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

10. Federal courts have adopted a three-pronged burden of proof for establishing a prima facie case of retaliation. Canino v. EEOC, 707 F.2d 468, (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982). A prima facie case requires evidence that:

    
    

    1. The employee engaged in a protected activity;

    2. The employee was subject to an adverse employment decision; and

    3. There is a causal connection between A and B.

       
       

11. In this case, the Petitioner has failed to establish a prima facie case of retaliation. The evidence establishes that the Petitioner engaged in the protected activity of filing a discrimination complaint. The evidence establishes that after the filing of the complaint, the Petitioner was cited for an incident which occurred during an In-Service Training Physical Fitness Assessment on October 13, 1992. There is no evidence that the citation was unwarranted. There is no evidence that the citation was related to the complaint of discrimination. The information about the job action was forwarded to the Florida Commission on Human Relations.

    
    

12. An adverse employment action is a material change in the terms or conditions of employment. Crady v. Liberty National Bank, 993 F.2d 132 (7th Cir. 1993). The evidence fails to establish that the job citation constitutes an adverse employment action. There is no evidence that the terms or conditions of the Petitioner's employment have been changed in any manner.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed by Cynthia Y. Pall.

DONE and ENTERED this 21st day of March, 1996 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, 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 21st day of March, 1996.

APPENDIX TO SUPPLEMENTAL RECOMMENDED ORDER, CASE NO. 93-6219

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner did not file a proposed recommended order.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order, except as follows:

4-5. Rejected, subordinate.

6-9. Rejected, unnecessary.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Joe Episcopo, Esquire

1060 West Busch Boulevard, Suite 103

Tampa, Florida 33612

Arnold B. Corsmeier, Esquire

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

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 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.

================================================================= AMENDED SUPPLEMENTAL RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA Y. PALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6219

)

CAL HENDERSON, Sheriff )

of Hillsborough County, )

)

Respondent. )

)

AMENDED SUPPLEMENTAL RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on February 27, 1996 in Tampa, Florida. The hearing was conducted by videoconference. This Amended Supplemental Recommended Order is entered to address the Petitioner's proposed recommended order.

APPEARANCES

For Petitioner: Joe Episcopo, Esquire

1060 West Busch Boulevard, Suite 103

Tampa, Florida 33612

For Respondent: Arnold B. Corsmeier, Esquire

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601 STATEMENT OF THE ISSUE

The issue is whether the Respondent retaliated against the Petitioner for the filing of a complaint with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

Petitioner Cynthia Y. Pall, an employee of the Hillsborough County Sheriff's Department, applied for an internal promotion, which she did not receive. She alleged that she was discriminated against based on her race and gender. A hearing was held and a Recommended Order was entered in this case.

By Order Partially Dismissing Petition for Relief From an Unlawful Employment Practice and Remanding Case for Further Determinations, the Florida Commission on Human Relations directed the Hearing Officer to reopen the hearing and make Findings of Fact on the issue of retaliation.

The second hearing was conducted by videoconference on February 27, 1996.

At the hearing, no witnesses testified. The Petitioner had three exhibits admitted into evidence.

No transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Cynthia Y. Pall was employed by the Hillsborough County Sheriff's Office as a sergeant.

   
   

2. By Charge of Discrimination dated December 23, 1991 and filed with the Florida Commission on Human Relations, Ms. Pall alleged that she had been discriminated against by reason of her gender and race. Ms. Pall had applied for a promotion to detention lieutenant. She did not receive the promotion. The position went to a white male.

   
   

3. Subsequent to the filing of her complaint with the Florida Commission on Human Relations, and while the complaint was under investigation, Ms. Pall was cited by the Respondent for an incident which occurred during an In-Service Training Physical Fitness Assessment on October 13, 1992.

   
   

4. Information regarding the incident was forwarded to the Florida Commission on Human Relations. Ms. Pall has asserted that the filing of the information with the Florida Commission on Human Relations constitutes retaliation for her complaint of discrimination.

   
   

5. The evidence fails to establish that the Respondent retaliated against Ms. Pall for filing the discrimination complaint.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The Florida Commission on Human Relations is vested with jurisdiction to enforce laws prohibiting unlawful employment discrimination. Section 760.06(5), Florida Statutes.

   
   

8. Section 760.10(7), Florida Statutes, provides that it is an unlawful employment practice for an employer to discriminate against any person because of the filing of a charge of an unlawful employment practice.

   
   

9. Chapter 760, Florida Statutes is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000, et seq. (Title VII) As such, federal precedent construing the similar provisions of Title VII are accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1 DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

10. Federal courts have adopted a three-pronged burden of proof for establishing a prima facie case of retaliation. Canino v. EEOC, 707 F.2d 468, (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982). A prima facie case requires evidence that:

    
    

    1. The employee engaged in a protected activity;

    2. The employee was subject to an adverse employment decision; and

    3. There is a causal connection between A and B.

       
       

11. In this case, the Petitioner has failed to establish a prima facie case of retaliation. The evidence establishes that the Petitioner engaged in the protected activity of filing a discrimination complaint. The evidence establishes that after the filing of the complaint, the Petitioner was cited for an incident which occurred during an In-Service Training Physical Fitness Assessment on October 13, 1992. There is no evidence that the citation was unwarranted. There is no evidence that the citation was related to the complaint of discrimination. The information about the job action was forwarded to the Florida Commission on Human Relations.

    
    

12. An adverse employment action is a material change in the terms or conditions of employment. Crady v. Liberty National Bank, 993 F.2d 132 (7th Cir. 1993). The evidence fails to establish that the job citation constitutes an adverse employment action. There is no evidence that the terms or conditions of the Petitioner's employment have been changed in any manner.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint filed by Cynthia Y. Pall.

DONE and ENTERED this 1st day of April, 1996 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 1st day of April, 1996.

APPENDIX TO SUPPLEMENTAL RECOMMENDED ORDER, CASE NO. 93-6219

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order, except as follows:

2. Rejected, subordinate.

1. Rejected, conclusion of law.

2. Rejected, unnecessary.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order, except as follows:

4-5. Rejected, subordinate.

6-9. Rejected, unnecessary.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Joe Episcopo, Esquire

1060 West Busch Boulevard, Suite 103

Tampa, Florida 33612

Arnold B. Corsmeier, Esquire

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

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 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: 93-006219

Orders for Case No: 93-006219