STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN M. MALLORY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0270

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on September 28, 1995, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Eddie J. Bell, Esquire

62 Springwood Square

Port Orange, Florida 32119

For Respondent: J. Yvette Pressley, Esquire

2601 Blairstone Road

Tallahassee, Florida 32399-2500 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 in May 1994 when petitioner, Karen M. Mallory, filed with the Florida Commission on Human Relations a complaint of discrimination alleging that respondent, Department of Corrections, had violated Subsection 760.10(1), Florida Statutes, by causing her to be "subjected to harassment because of (her) race." After the agency conducted a preliminary investigation, its executive director issued a Notice of Determination: Cause on November 30, 1994. When reconciliation efforts were unsuccessful, petitioner filed her petition for relief on January 5, 1995. The matter was then referred by the agency to the Division of Administrative Hearings on January 23, 1995, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated February 20, 1995, a final hearing was scheduled on April 19, 1995, in Daytona Beach, Florida. At the parties' request, the matter was rescheduled to August 17, 1995, and then again to September 28, 1995, at the same location.

At final hearing, petitioner testified on her own behalf and presented the testimony of Belinda Davis, an employee at Tomoka Correctional Institution; Sandra Mallory, her mother; and Brian Jackson, a counselor. Also, she offered

petitioner's exhibits 1-10. All exhibits were received in evidence. Respondent presented the testimony of Cynthia M. Driggs, a former employee; and Michael Gulnac, business manager at Tomoka Correctional Institution. Also, it offered respondent's exhibits 1-12. All exhibits were received in evidence.

The transcript of hearing (two volumes) was filed on October 30, 1995.

Proposed findings of fact and conclusions of law were filed by petitioner and respondent on October 19 and November 9, 1995, respectively. 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. Background

   
   

   1. Petitioner, Karen M. Mallory, who is black, has been employed since June 1986 by respondent, Department of Corrections (DOC). On January 1, 1988, she was transferred to Tomoka Correctional Institution (TCI) in Volusia County, Florida. In a charge of discrimination executed on May 16, 1994, and later filed with the Florida Commission on Human Relations (Commission), petitioner has contended that she was subjected to harassment by her TCI supervisors by virtue of her race.

      
      

   2. After conducting a preliminary investigation, the Commission found probable cause that a violation of the law had occurred. On January 5, 1995, petitioner filed a petition for relief in which a general allegation was made that she had been "treated unfairly on a regular basis (by her supervisors) because of (her) race and this has caused a very uncomfortable and stressful work environment." The DOC denies this contention. This proceeding followed.

      
      

2. The Allegations

1. Petitioner was first hired by DOC in 1986 as a clerk typist. When she was transferred to TCI in January 1988, she assumed the position of fiscal assistant I. Within a few years, she was promoted to a fiscal assistant II in the accounting unit, a position she has retained since that time.

   
   

2. From October 1991 until October 1993, Cynthia Griggs, a white certified public accountant (CPA), was employed by TCI as an accountant supervisor II. Griggs supervised eight employees in the accounting unit, including petitioner. During Griggs' tenure at DOC, the unit consisted of the following sections: inmate bank, major institutions, general inventory and health services. One of Griggs' primary goals was to cross-train employees in her unit so that personnel could move between sections to cover vacant positions caused by illness or termination.

   
   

3. It is undisputed that, in comparison to the prior supervisor of the unit, Griggs was perceived by her subordinates as a "tough" manager. Upon assuming her role as supervisor, Griggs began enforcing a recently adopted policy that no two employees in a particular section could take breaks at the same time so that there would always be someone to answer the telephone. This policy, and other office disciplinary measures, were always applied in an even- handed manner by Griggs. Even so, Griggs' management style did not sit well

   with petitioner who speculated that she was being singled out for special treatment. This speculation, however, was just that and was not grounded on discriminatory reasons.

   
   

4. Among other things, petitioner claims that in April 1992 she was unfairly and discriminatorily counseled by Griggs for misconduct and insubordination. However, the facts show otherwise. On April 6, 1992, Griggs orally instructed petitioner to implement a new procedure for her inmate bank duties, including making a telephone call to the mail room to verify certain information. The instruction was based on Griggs' experience as a CPA and her understanding of a recent audit of inmate bank accounting procedures.

   
   

5. Petitioner became "very upset" with Griggs' instruction, and she stated that the instruction was not in comformity with the intentions of the audit. Griggs replied that she interpreted the audit differently and it was her intention that the new procedure be implemented. Petitioner then told Griggs not to talk to her that way and to come back when Griggs could talk to her in a "civil" manner. This exchange occurred in the presence of two other employees and an inmate.

   
   

6. Griggs acknowledged that she became "very angry," especially since she had not spoken to Mallory in an "uncivil" tone. Because other persons were present, she asked Mallory to come to her office to discuss the matter privately. Petitioner refused saying she would be there in a few minutes. However, she never went to Griggs' office, and this prompted Griggs to issue a counseling memorandum for misconduct and insubordination. In doing so, Griggs was not motivated by discriminatory animus but rather she issued the memorandum for a legitimate reason. The record also shows that Griggs had issued a similar memorandum to another white female employee for tardiness.

   
   

7. When the April 1992 incident occurred, Michael Gulnac, who is white and the TCI business manager, was Griggs' supervisor and was required to approve the counseling memorandum. Petitioner contends that because of her race, Gulnac refused to meet with her alone to discuss this and other grievances and, unlike his meetings with other employees, Gulnac always insisted that a third party be present. The evidence shows, however, that before this incident occurred, Gulnac had met privately with petitioner on several occasions. But after these meetings were held, petitioner would often misstate what Gulnac said during those meetings. Because of this, and for no other reason, Gulnac insisted that a third party be present in his office whenever petitioner requested a meeting. Contrary to petitioner's claim, there was no discriminatory animus on the part of Gulnac in requiring a third party to be present for meetings with petitioner.

   
   

8. Petitioner further contended that, unlike other employees, she was not given specialized training to assist her in mastering her new cross-training duties and thus she was denied employment opportunities on account of her race. For example, she pointed that a white male employee, Tom West, had been sent to Tallahassee for specialized training. However, unlike petitioner, West had no prior accounting background before assuming his fiscal assistant II slot and therefore required more intensive training. Like other employees, petitioner was given on-the-job training as an aid to learning her new duties. There was no discriminatory animus on the part of DOC in failing to send her to Tallahassee for specialized training.

   
   

9. Finally, petitioner contended that Griggs accused her of wasting time and engaging in too much socializing in the office while failing to treat white

   employees in the same fashion. Because there is less than a preponderance of evidence to sustain this allegation, this charge must also fail.

   
   

10. In summary, the evidence does not support a finding that petitioner was subjected to a discriminatorily hostile and abusive environment at her workplace. While petitioner has been unhappy with her job since 1991, and she was particularly displeased with the management style of the now-departed Griggs, there is no evidence, or even an inference, that any actions taken against petitioner were because of her race. Therefore, she has not been discriminated against with respect to her terms, conditions and privileges of employment at DOC, nor has she been deprived of employment opportunities because of her race.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Sections 760.10(1)(a) and (b), Florida Statutes, govern this dispute and provide 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 discrim- inate 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.

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex,

          national origin, age, handicap, or marital status.

          
          

          As clarified by her counsel at hearing, petitioner alleges that DOC violated the above statutes by unlawfully discriminating against her with respect to her terms, conditions and privileges of employment, and by depriving her of employment opportunities by virtue of her race.

          
          

13. Because petitioner has failed to establish a prima facie case in support of her claim, the petition for relief must be denied. Even if a prima facie case had arguably been made, respondent has rebutted this proof by articulating a legitimate, nondiscriminatory reason for its actions. There being no showing that the proffered reasons were a pretext for discrimination, the petition for relief is deemed to be without merit.

RECOMMENDATION

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

for relief with prejudice.

DONE AND ENTERED this 15th day of November, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 15th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0270

Petitioner:

1-2. Partially accepted in finding of fact 1.

3-7. Partially accepted in findings of fact 6-9. 8-11. Partially accepted in finding of fact 9.

12-15. Partially accepted in finding of fact 5. 16-20. Partially accepted in finding of fact 10. 21-22. Partially accepted in finding of fact 11.

23-24. Rejected as being contrary to the more persuasive and credible evidence.

Respondent:

The proposed findings submitted by respondent have been adopted in substance, albeit with considerable change.

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

COPIES FURNISHED:

Eddie J. Bell, Esquire

62 Springwood Square Port Orange, FL 32119

J. Yvette Pressley, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

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: 95-000270

Orders for Case No: 95-000270