STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERMA J. BECKTON, )

)

Petitioner, )

)

vs. ) Case No. 97-3658

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 9, 1998, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marc Taps, Esquire

Legal Services of North Florida, Inc. 2119 Delta Way

Tallahassee, Florida 32303

For Respondent: John R. Perry, Esquire

Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

The issue is whether Respondent committed an unlawful employment practice by denying Petitioner a promotion.

PRELIMINARY STATEMENT

Petitioner Erma Beckton (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations

(FCHR) on or about March 21, 1995. Petitioner alleged that Respondent Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services (Respondent), discriminated against her because of her race by declining to promote her to a paralegal specialist position.

On March 13, 1997, FCHR issued a notice advising that there was no reasonable cause to believe that Respondent had committed an unlawful employment practice. FCHR subsequently granted Petitioner an extension of time to file a Petition for Relief from an Unlawful Employment Practice.

Petitioner filed her Petition for Relief with FCHR on May 6, 1997. FCHR referred the petition to the Division of Administrative Hearings on August 11, 1997.

The case was initially scheduled for formal hearing on November 21, 1997. However, Petitioner requested a continuance in order to retain an attorney. The undersigned granted Petitioner's request and rescheduled the case for formal hearing on March 9, 1998.

During the hearing, Petitioner testified on her own behalf and presented the testimony of three witnesses. Petitioner offered 6 exhibits which were admitted into evidence.

Respondent presented the testimony of one witness and offered one exhibit for admission into evidence. The undersigned reserved ruling on the admissibility of Respondent's exhibit. It is hereby deemed inadmissible.

After the hearing, Petitioner filed a Motion for Extension of Time to File Proposed Recommended Order. The undersigned granted this motion on March 19, 1998.

Petitioner filed a proposed order on April 6, 1998.

On April 6, 1998, Respondent filed an Unopposed Motion for Extension of Time Within Which to File Proposed Recommended Order. The undersigned granted this motion on April 7, 1998.

The transcript of the proceeding was filed on April 13, 1998.

Respondent filed its Proposed Recommended Order on April 13, 1998.

FINDINGS OF FACT

1. Petitioner is an African-American female. From 1990 through October 1996, she worked in Respondent's Child Welfare Legal Service (CWLS) office as an administrative secretary.

2. The CWLS office handles a heavy volume of child dependency cases in the juvenile courts of several counties. The cases require the filing of certain pleadings in a timely manner. Failure to comply with the filing deadlines could result in the return of a child to an abusive or neglectful home environment.

3. At all times material to this proceeding, the CWLS office consisted of one managing attorney, two staff attorneys, one administrative secretary, and two paralegal specialists.

4. During Petitioner's employment, another African-American female, Martha Johnson, occupied one of the paralegal specialist

   positions. Ms. Johnson performed her responsibilities to the complete satisfaction of her supervisor who was also the managing attorney, Martha Berrera.

5. The CWLS office required paralegal specialists, such as Ms. Johnson, to go to formal and informal court hearings with the attorneys. After the hearings, the paralegal specialists had to use their notes and the attorneys' notes to draft pleadings.

   They would also draft proposed orders for the courts.

   
   

6. Sometimes the attorneys were in court three or four days a week. On those occasions, the paralegal specialists had to perform their duties with a minimum of supervision.

7. In August 1994, one of the paralegal specialist positions in the CWLS office became vacant. Ms. Barrera developed a set of objective criteria to review applications for the vacancy prior to receiving them.

8. Ms. Berrera based the review criteria on the knowledge, skills and abilities (KSA) required for the position.

   Ms. Berrera considered KSAs in the following areas to be especially important: actual paralegal experience, maintaining the dockets, preparing cases, gathering information, drafting orders and pleadings for court, and assisting attorneys in other case-related functions.

9. Petitioner and a white male, Charles Atwell, applied for the vacant position along with 39 other applicants. Ms. Barrera reviewed all of the applications. She had every reason to expect

   that Mr. Atwell would perform well as a paralegal specialist. He had prior experience working as a temporary paralegal for a blind attorney at another state agency.

10. Petitioner did not have prior experience working as a paralegal. She knew how to type pleadings and orders that the attorneys dictated. However, she was unable to draft these documents.

11. Petitioner did not understand the distinctions in certain pleadings. Even though she had worked in the office since 1990, Petitioner did not understand the legal terminology used in court, i.e. review hearings, emergency hearings, and disposition hearings. The CWLS attorneys attempted to instruct Petitioner on how to prepare for these hearings without success.

12. As an administrative secretary, Petitioner was in charge of filing. She let the filing pile up; consequently, attorneys had to search for documents to complete a file immediately before a court appearance. This was a considerable burden in an office that handled between 20 and 30 hearings per week.

13. Petitioner never understood the meaning of "CC:" at the bottom of a letter. Ms. Berrera had to write notes telling Petitioner the names of people to receive copies.

14. The CWLS attorneys attempted to teach Petitioner to prioritize her work. Petitioner followed their instructions for two weeks then reverted to her former less-efficient methods of organizing her work. The CWLS attorneys could not depend on her to help them meet certain case-related deadlines.

15. Petitioner was not sufficiently motivated to learn a new job. She rebuffed the CWLS attorneys when they attempted to teach her how to perform the tasks of a paralegal. She complained that such tasks were not in her job description.

16. In addition to the job-related problems referenced

    above, Petitioner spent as much as 20 percent of her time talking

    to her family on the telephone. At times she made lengthy chains out of paper clips.

17. Ms. Barrera decided to hire Mr. Atwell. Petitioner received a letter dated August 18, 1994, informing her that she would not be hired for the position.

18. Shortly after Mr. Atwell began working in the CWLS office, Ms. Barrera realized that his job performance did not meet the standards of the office. Ms. Barrera promptly fired Mr. Atwell.

19. In September 1994, Petitioner requested training that would qualify her to become a paralegal specialist. Ms. Berrera responded that she would approve any training that the state provided. Ms. Berrera referred Petitioner to the personnel office for additional information regarding the training. There is no evidence that any paralegal training was available.

20. The paralegal specialist position became available for the second time in March 1995. The following individuals were among the applicants: (a) Petitioner; (b) Brenda Parrish, a white female; and (c) Samuel Long, an African-American male.

21. Ms. Berrera was a member of the committee that interviewed applicants in 1995. The committee initially offered the job to Mr. Long because of his experience as a temporary paralegal specialist in the CWLS office. Mr. Long declined the offer because he accepted other employment with a higher wage.

22. The committee subsequently offered the paralegal

    specialist position to Ms. Parrish. Unlike Mr. Atwell, Ms. Parrish subsequently performed her duties very well.

23. Petitioner was not qualified for the paralegal specialist position in March 1995. Moreover, she had not improved in her performance as an administrative secretary. The committee had no reason to believe that Petitioner would have been any more successful as a paralegal specialist.

24. Ms. Berrera is a Cuban-American. She was born in Cuba and immigrated to the United States in 1961. She has multi- racial relatives. She did not harbor racial prejudice towards Petitioner or any of her minority subordinates.

25. Ms. Berrera could be a difficult supervisor at times. Often she yelled at the personnel in the CWLS office. However, she never showed favoritism based on race. She yelled with equal intensity and fervor at males and females, whites and African- Americans.

26. There is no evidence that Respondent discriminated against Petitioner based on her race by refusing to hire her as a paralegal specialist in August 1994 or March 1995.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceedings. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.

28. Petitioner claims that Respondent discriminated against

    her by refusing to promote her to the position of paralegal specialist based on her race. 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.

29. Initially, Petitioner has the burden of establishing a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2747, (1993). She has met this burden, in part, by proving the following: (a) she is black; (b) she was rejected for a position as a paralegal specialist; and (c) the position was ultimately filed by a white male in August 1994 and by a white female in March 1995. However, Petitioner has not proved by a preponderance of the evidence that she was qualified for the position of paralegal specialist. Therefore, she has not satisfied the minimal requirements of a prima facie case. St. Mary's Honor Center, 113 S.Ct. at 2742.

30. On the other hand, Respondent presented legitimate nondiscriminatory reasons for not promoting Petitioner. For example, Ms. Berrera knew Petitioner was not performing satisfactorily as an administrative secretary. The paralegal specialist must assume more responsibility than a secretary.

    Petitioner could not perform adequately as a paralegal when she could not perform even the simplest clerical tasks such as filing.

31. Ms. Berrera was aware that the paralegal specialist would have to show initiative and work with a minimum of

    supervision. Petitioner has not shown that she has that capability, as evidenced by the fact that she could not be relied upon to help the attorneys meet their filing deadlines.

32. On the face of their applications and during the interviews, Tom Atwell and Brenda Parrish appeared to be eminently qualified for the position of paralegal specialist. Respondent hired them based on their qualifications. There is no evidence that Respondent's decision was motivated by racism.

33. The overwhelming weight of the evidence shows that Respondent did not discriminate against Ms. Beckton by refusing to hire her in the paralegal specialist position.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 24th day of April, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 24th day of April, 1998.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services

2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

Marc Taps, Esquire

Legal Services for North Florida, Inc.

2119 Delta Boulevard

Tallahassee, Florida 32303

Dana Baird, General Counsel 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: 97-003658

Orders for Case No: 97-003658