STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEARLIE M. MOORE, )

)

Petitioner, )

)

vs. ) Case No. 96-4672

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came on for formal hearing before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on March 12, 1997 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Curley R. Doltie, Esquire

1103 Hayes Street Post Office Box 1325

Tallahassee, Florida 32302

For Respondent: Sandra R. Coulter, Esquire

Department of Children and Family Services

1317 Winewood Boulevard, Building 1

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993).

PRELIMINARY STATEMENT

Petitioner Pearlie M. Moore (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission)on June 21, 1995. Said complaint alleged that Respondent Department of Children and Families (Respondent, formerly known as Department of Health and Rehabilitative Services) committed racial discrimination against Petitioner by refusing to reclassify her position from administrative secretary to staff assistant and by refusing to provide her with a ten (10) percent pay additive for additional duties. After conducting an investigation, the Commission issued a notice finding no cause to believe that Respondent had committed an unlawful employment practice on August 30, 1996.

On September 26, 1996, Petitioner filed a Petition for Relief with the Commission. The Commission referred the petition to the Division of Administrative Hearings on October 2, 1996.

Respondent filed a response to the petition on October 21, 1996.

Donald R. Alexander, Administrative Law Judge, issued a Notice of Hearing scheduling the case for formal hearing on December 19, 1996. Petitioner filed a Motion for Continuance on December 9, 1996. Judge Alexander granted a continuance and issued a Second Notice of Hearing rescheduling this matter for hearing on March 12, 1997. The Division of Administrative Hearings subsequently transferred this case to Suzanne F. Hood, Administrative Law Judge.

When the hearing commenced on March 12, 1997, the parties presented a stipulation as to certain facts. During the formal hearing, Petitioner testified on her own behalf and presented the testimony of two witnesses. Petitioner offered six (6) exhibits which were admitted into evidence without objection.

Respondent did not call any witnesses to testify.

Respondent offered six (6) exhibits which were admitted into evidence without objection.

At the conclusion of the hearing, the parties requested permission to file their proposed recommended orders sixty (60) days after the court reporter filed a copy of the transcript.

The court reporter filed the transcript on March 28, 1997. Accordingly, the parties’ proposed findings of facts and conclusions of law were due to be filed on or before May 27, 1997. The undersigned granted the parties’ subsequent joint request for an extension of time to file the proposed orders. They timely filed their proposed recommended orders on May 30, 1997.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993).

2. Respondent employed Petitioner, a black female, in March of 1980 as a Clerk-Typist II. Over the years, Petitioner worked in the position of Secretary II, Clerk-Typist Specialist,

   and Secretary Specialist. Petitioner held the position of Administrative Secretary when she filed her Petition for Relief in September of 1996. At the time of the hearing, Petitioner was working as a Staff Assistant.

3. In September of 1992, Otto Hough became the Accounting Services Director in Respondent’s Office of Financial Management. He was responsible for several sections including General Accounting, Accounts Receivable, Accounting Systems and Procedures, and Contract Administration.

4. The Office of Financial Management lost eleven (11) of eighty-eight (88) employees due to reorganization of the agency in the early months of 1993. One of the positions that Respondent eliminated was the Staff Assistant position assigned directly to Mr. Hough’s office.

5. As Accounting Services Director, Mr. Hough had the authority to recommend position reclassifications and pay additives for employees in the Office of Financial Management. One of his initial objectives was seek higher pay classifications for as many positions as possible.

6. In 1993, Petitioner worked as an Administrative Secretary in the General Accounting section of Respondent’s Office of Financial Management. Her direct supervisor was the Finance and Accounting Director, a position held by a career service employee.

7. Mr. Hough developed a job reclassification package that impacted about sixty (60) full time positions in the spring of 1993. As a part of that package, Mr. Hough recommended an upgrade of Petitioner’s position from Administrative Secretary to Staff Assistant. He made similar requests for two other Administrative Secretaries. Linda Ball, a black female, worked as an Administrative Secretary in the Accounts Receivable section. Rita Cook, a white female, worked as an Administrative Secretary in the Accounting Systems and Procedure section.

8. The agency’s Comptroller, Personnel Office, and Program Advisory Council approved Mr. Hough’s recommendations to reclassify most of the positions. However, they declined to upgrade the Administrative Secretary positions because the agency’s rules required a select exempt employee to supervise Staff Assistants. In this case, a career service employee supervised all three Administrative Secretaries. Mr. Hough advised the Administrative Secretaries that he would seek a special pay increase for them.

9. Linda Ball subsequently vacated her position as an Administrative Secretary when she transferred to Respondent’s office in Tampa. Her transfer left only Petitioner and Rita Cook occupying the positions of Administrative Secretary.

10. In late 1993 or early 1994, Mr. Hough physically relocated Ms. Cook to his work area. He moved her work station into his office because he lacked secretarial support. At the

    time, he was officially serving as Accounting Services Director. However, he also acted as Accounting Staff Director for Revenue Management, Financial Support Director, and Comptroller. Except for the position of Accounting Services Director, all of these positions were vacant from March through June of 1994.

11. After her relocation, Ms. Cook continued to occupy the position of Administrative Secretary in the Accounting Systems and Procedure section. She performed eighty (80) percent of her work for that section. The rest of her time was spent providing secretarial support to Mr. Hough. Ms. Cook’s relocation made her position eligible for reclassification from Administrative Secretary to Staff Assistant because Mr. Hough was a select exempt employee.

12. Petitioner had more seniority in time than Ms. Cook. Nevertheless, Ms. Cook was more qualified than Petitioner to work in the office of the Accounting Services Director because of her prior experience in the Accounting Systems and Procedure section. Ms. Cook possessed more expertise and knowledge about Respondent’s district offices. She was familiar with the interaction between the district fiscal offices and the central office in Tallahassee.

13. Mr. Hough was aware that Petitioner did not want to relocate from General Accounting to Accounting Systems and Procedure before he relocated Ms. Cook to his office. In February and May of 1994, Mr. Hough gave Petitioner the

    opportunity to move upstairs to work in the Accounting Systems and Procedures section. A lateral transfer to a position in that office would have allowed Petitioner to gain knowledge and experience similar to Ms. Cook’s. However, Petitioner declined the offer. She decided to stay downstairs in General Accounting and wait for a position reclassification or a special pay increase.

14. The work environment in the General Accounting section was less stressful than the Accounting Systems and Procedures section. The latter had the additional pressure of interacting with the Deputy Secretary of Administration and Budget. It also was involved with the flow of information to the Legislature.

15. Toward the end of the 1993-1994 fiscal year, Respondent’s Deputy Secretary of Administration selected Glenda Guess as the new Comptroller. The Deputy Secretary

    directed Mr. Hough to arrange for Ms. Guess to have the level of staff that she was expecting when she came "on board." Pursuant to this directive, Mr. Hough realigned the duties of staff in the offices of the Comptroller and the Accounting Services Director.

16. On June 8, 1994, Mr. Hough approved a reclassification of Ms. Cook’s position from Administrative Secretary to Staff Assistant. Mr. Hough signed the Request for Payroll Action form as the Respondent’s Acting Comptroller. On June 10, 1994, Glenda Guess became Respondent’s Director of Financial Management/Comptroller.

17. The "promotion due to reclassification" resulted in a five (5) percent pay raise for Ms. Cook. She began to devote one hundred (100) percent of her time to duties within the office of the Accounting Services Director.

18. In 1994 and 1995, the agency was in the process of decentralizing its functions. In the short run, this process required the central office to perform additional functions until the district offices could assume those responsibilities.

19. In 1995, Respondent closed the Jacksonville office, phased out twenty-nine (29) positions, and brought the child welfare voucher system into General Accounting at the Tallahassee office. When this change occurred, Petitioner assumed the additional duty of controlling the inflow of documents for the child welfare vouchering system from all the districts.

20. As Petitioner’s responsibilities increased, she and Mr. Hough discussed the possibility of changing her classification from Administrative Secretary to some type of accounting position. However, Petitioner preferred to remain in the secretarial/clerical niche and not seek a position with an accounting orientation.

21. In April of 1995, Mr. Hough sent Ms. Guess a memorandum requesting a ten (10) percent "pay additive for additional duties" for Petitioner. Ms. Guess denied the request because it was not in the correct format. Additionally, she thought a three-to-five percent increase was a more appropriate raise for

    employees assuming additional duties. At that time, Respondent’s ability to provide pay increases for additional duties was a new concept. Ms. Guess was not aware of a precedent for a ten (10) percent pay increase for additional duties.

22. In May of 1995, Mr. Hough revised Petitioner’s position description to reflect Petitioner’s additional duties. On

    May 16, 1995, Mr. Hough again requested a ten (10) percent pay additive for Petitioner. He felt the salary increase was justified because Petitioner handled the Child Welfare Vouchering System input documents, as well as the reconciliation documentation from the districts each month. According to

    Mr. Hough, these additional duties were beyond the scope of Petitioner’s normal tasks as an Administrative Secretary.

23. On May 25, 1995, Petitioner wrote Mr. Hough a memorandum to advise that she would not be satisfied with a three-to-five percent raise. She demanded a ten (10) percent salary increase. Petitioner sent Ms. Guess a copy of the memorandum.

24. On May 31, 1995, Ms. Guess properly denied the second request for Petitioner’s salary additive for the following reasons: (a) the additional duties were of a clerical nature;

    (b) the additional duties did not require Petitioner to work overtime except for her involvement in year-end closing; (c) Petitioner’s salary was in line with other clerical positions in the Office of Financial Management; (d) funds for pay increases

    were insufficient to raise the salary of every employee in the Office of Financial Management who were performing additional duties; and (e) a raise of three-to-four percent was more in line with raises given to employees in Respondent’s Office of General Services for assuming additional duties.

25. On or about June 25, 1995, Ms. Guess learned that funds were available for pay increases based on added duties and/or sustained superior achievement. The next day, Ms. Guess sent the Deputy Secretary for Administration a request for pay increases for the following: (a) Melissa Pugh, white female, 7.5 percent for sustained superior achievement and added duties;

    1. Beverly Smith, white female, 5 percent for added duties;

       
       

    2. Kimmie Canfield, white female, 10 percent for added duties and superior performance; (d) Gail Kruger, white female,

    5 percent for superior performance; (e) Cindy Philips, white female, 5 percent for superior performance; (f) Barbara Huskey, white female, 5 percent for superior performance;

    (g) Sonja Bradwell, black female, 5 percent for superior performance; and (h) Petitioner, 5 percent for additional duties.

26. Ms. Canfield worked for Respondent as Staff Assistant to the Financial Support Director for approximately seven months as of June 26, 1995. Her 10 percent raise was due in part to her salary being substantially below the salary of other support staff. Petitioner’s salary remained higher than Ms. Canfield’s even though she was in a more responsible position.

27. Petitioner’s performance evaluations for 1994-1995 and 1995-1996 indicate that she was an above-average employee. She performed her duties in a timely manner with little or no supervision. She willingly assisted her co-workers when they needed help. However, Petitioner’s performance was not superior. Therefore, Ms. Guess properly did not consider awarding Petitioner more than a five (5) percent pay increase for sustained superior performance in June of 1995.

    CONCLUSIONS OF LAW

    
    

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

29. Section 760.10(1)(a), Florida Statutes, states 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.

30. Petitioner has the burden of proving that Respondent committed intentional racial discrimination by failing to reclassify her position to Staff Assistant in 1994 and by refusing to award her a ten (10) percent pay additive in 1995.

    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981).

    First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.

    Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.". . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

    Burdine, 450 U.S. at 252-253 (Citations Omitted).

    
    

31. In the instant case, there is no persuasive evidence that racial discrimination motivated Respondent’s actions. Petitioner has not presented a prima facie case of discrimination. On the other hand, Respondent had legitimate, nondiscriminatory reasons for the decisions it made.

32. Petitioner’s position of Administrative Secretary was not eligible for reclassification in 1993 and 1994 because she was not supervised by a select exempt employee. Petitioner chose not to make a lateral transfer that would enhance her career opportunities on more than one occasion. When Mr. Hough decided to increase his secretarial support, Petitioner was not as qualified to work in his office as Ms. Cook. Petitioner had no expertise in working with the district fiscal offices at that time. Ms. Cook’s relocation to the office of Accounting Services

    Director, together with her knowledge and work experience, made her eligible for subsequent reclassification to Staff Assistant.

33. Mr. Hough did everything he could in 1995 to see that Petitioner received the ten (10) percent raise that he thought she deserved. However, he was not in a position to make the final decision. After appropriate review and consideration in May of 1995, Ms. Guess properly determined that Petitioner was not entitled to a ten (10) percent pay additive. Petitioner’s additional duties warranted a five (5) percent increase when funds became available to raise the salaries of all similarly situated employees in June of 1995. Respondent awarded two salary increases in excess of five (5) percent at that time. Unlike Respondent, both of those employees had "sustained superior achievement" in addition to assuming additional duties.

34. The greater weight of evidence indicates that Respondent is not guilty of disparate treatment of Petitioner based on racial discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed in this case.

DONE AND ORDERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.

COPIES FURNISHED:

Curley R. Doltie, Esquire Post Office Box 1325 Tallahassee, Florida 32302

Sandra R. Coulter, Esquire Department of Children and

Family Services Building 1

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dana Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004672

Orders for Case No: 96-004672