STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH MILLER, )

)

Petitioner, )

)

vs. ) Case No. 97-3732

)

LEVY COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on Friday, October 24, 1997, in Bronson, Florida, before

Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings. Because formal hearing was not concluded in the time requested by the parties, it was continued into Monday, October 27, 1997.

APPEARANCES

For Petitioner: Sarah Miller, pro se

351 southeast 110th Terrace Williston, Florida 32696

For Respondent: Gregory V. Beauchamp, County Attorney

Levy County

Post Office Box 1129 Chiefland, Florida 32626

STATEMENT OF THE ISSUE

Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?

PRELIMINARY STATEMENT

Petitioner's Charge of Discrimination was filed with the Florida Commission on Human Relations on December 13, 1994.

Therein, Petitioner claimed the last act of discrimination occurred on August 11, 1994. Petitioner was not terminated until on or about November 13, 1995.

On March 8, 1997, the Florida Commission on Human Relations entered a Determination of No Cause. The Commission dismissed Petitioner's complaint on June 20, 1997, for failure to timely file a Petition for Relief. On August 8, 1997, the Commission rescinded its dismissal. The materials transmitted by the Commission to the Division of Administrative Hearings show that the Petition for Relief was filed with the Commission on April 28, 1997.

Only certain pages of the Petition were transmitted to the Division on August 11, 1997. Although given the opportunity, Petitioner never provided the facing pages, so it is not clear whether Petitioner raised the issue of "unlawful termination" before the Commission or within her Petition for Relief.

However, Petitioner did claim under 5B of her Petition for Relief "back pay through Dec. 97" and presented evidence on the issue of termination without objection, and so formal hearing encompassed all acts of Respondent through the date of termination of November 13, 1995.

Petitioner testified on her own behalf and presented the oral testimony of Wayne Hardee, Chester Humphries, Benny Jerrels,

Donna Conquest, Tommy Dean, Jessie Ellzey, Tony Parker, Wilber Dean, Don Foley, Matt Weldon, Felippe McCelroy,

Robert Murray, Charles Kennedy, and Bill Beddow.1 Petitioner's Exhibits P-1 through P-13 were admitted in evidence. Although the undersigned requested to retain Petitioner's unadmitted Exhibits P-14-17, Petitioner could not provide them on the last day of formal hearing, and so they were deemed withdrawn.

Respondent relied on Petitioner's witnesses and exhibits, offering none of its own.

The record of the proceedings was preserved by audio tape.2 No transcript was provided. Both parties waived the opportunity to file proposed recommended orders.

FINDINGS OF FACT

1. Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes.

2. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes.

3. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training.

4. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent

   contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill.

5. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12).

6. The value of the salvage rights were never calculated by anyone.

7. While she was employed as a "spotter," Petitioner was the only female "spotter."

8. Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3

9. Mark Hawes, a male, was hired as a spotter on June 1,

   1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4

10. During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public.

11. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators.

12. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters.

13. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her.

14. No performance evaluations were submitted in evidence. With the exception of the events related within the following

    findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1)

15. Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on

    
    

    the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will.

16. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2)

17. On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of

    putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr.

    Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not

    
    

    doing his job. At least three days and two meetings were involved in this investigation and counseling procedure.

18. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it.

19. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9)

20. A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time.

21. Mr. Hardee considered courtesy to customers to be an

    unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4)

22. On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5)

23. A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6)

24. Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994

    Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result.

25. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7).

26. Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination.

27. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing.

28. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent.

29. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to

    timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior.

    However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law.

30. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral.

31. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness.

32. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5

33. Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate.

34. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials.

35. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive.

36. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined.

37. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks.

38. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving.

39. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she

    basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy.

    Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13)

40. Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed.

41. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters.

42. From this point on, the dates that events occurred or their chronology is not entirely clear from the record.

43. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest

    piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her.

44. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty.

45. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work.

46. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave.

47. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill

    to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector.

48. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias.

49. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7

50. At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.

    CONCLUSIONS OF LAW

    
    

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

52. Petitioner claims that Respondent has unlawfully discriminated against her based upon her gender.

53. The statutory basis for Petitioner's position is set

    forth in Section 760.10(1)(a) and (b), Florida Statutes a follows:

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

       
       

       1. To discharge or to fail or refuse to hire an 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.

          
          

       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.

54. In resolving the instant dispute, reference may be made to the precedents set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 200e et seq., through court cases interpreting that law. This opportunity exists because Chapter 760, Florida Statutes, "The Florida Civil Rights Act of 1992" is patterned after federal legislation. See Florida Department of Community Affairs v. Bryant, 580 So. 2d 1205 (Fla. 1991).

55. However, the shifting burdens of proof in discrimination cases have most cogently been examined in Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), wherein Judge Ervin opined:

    Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)]

    formula, the employee has the initial burden of establishing a prima facie case of

    intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reasons given. If the employer satisfied its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.

56. Herein, Petitioner claimed discrimination in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, training, and ultimately, termination. In attempting to prove her charges, she utilized the legal theory that there was "pattern gender discrimination" by Respondent against all its female employees generally.

57. On the allegation of pay disparity, Petitioner established her pay level during her probationary period in 1990, but she provided no evidence that male employees similarly

    situated were paid more or differently during the same time period. Therefore, she proved no prima facia case of direct pay discrimination against herself as a female. She also provided no evidence that female employees in her category, or any category, were paid less than comparable male employees at any time.

    Therefore, she failed to prove a prima facie case of "pattern gender discrimination" at any time on the pay issue.

58. On the allegation that she was not provided equipment equally with male employees similarly situated, there is a modicum of evidence that males similarly situated or males higher up the chain of command may have preempted truck use. However, there is no credible evidence that management specifically assigned trucks to any spotter, male or female. Assuming arguendo, but not ruling, that management passively acquiesced in the pre-emption of trucks by male employees, it also actively attempted to meet Petitioner's specialized clear demands for transportation and toilet access even if it did not meet her collateral demands for assignment of a truck to herself alone. Petitioner has failed to establish a prima facie case of gender discrimination on the equipment issue.

59. Petitioner presented no employment evaluations and therefore did not establish any prima facie case of discrimination on that issue.

60. Petitioner established that she was not provided specialized training, but she did not establish that any other spotter or similarly situated male employee was provided

    specialized training. Therefore, she has failed to establish a prima facie case of gender discrimination on the issue of training. Even so, Respondent articulated its reason for not sending any spotters, male or female, to training. Assuming, but not ruling, that the Respondent's sending two other employees (not spotters) to a school for Certified Landfill Operators somehow could be equated with Petitioner's situation as a spotter, the gender of these employees was not specified on the record, and so Petitioner still has not demonstrated a prima facie case of disparate treatment on the basis of gender.

61. On the issue of whether or not Petitioner, a female, was reprimanded or disciplined differently or more harshly than males similarly situated, she also cannot prevail.

62. Generally, oral complaints by either gender resulted in oral reprimands against the complainer and/or the complainee, or both, based upon the two direct supervisors' and single middle level supervisor's individual perceptions of each situation on a case-by-case analysis and the supervisors' individual abilities to determine which employee was telling the truth. The information on these instances is vague and contradictory. Petitioner never established any clear gender bias.

63. Petitioner was reprimanded, cited, and suspended for one day by the Director for the loss of a radio, which Petitioner admitted was lost due to her own carelessness, and for repetitive complaining about other employees, but a male employee was not cited or suspended for denting Respondent's truck. In the latter

    situation, there was no admission by the male employee or proof of the male employee's carelessness with the truck, and the male employee had no history of repetitive complaints. There is no way to equate these two events. Dents in trucks are commonplace occurrences in hard-labor jobs. A dented truck is probably covered by insurance, and Respondent's truck at least could be used. A lost CB radio cannot be used, period. Respondent's response or lack thereof to the two incidents does not demonstrate a prima facie case of disparate treatment. Assuming arguendo that it did, there is no proof that the disparate treatment arose because Petitioner was female. Even so, Respondent has articulated as its non-discriminatory reason that Petitioner was disciplined in part because, in addition to carelessness in the loss of a CB radio, she was constantly complaining about other employees.

64. Petitioner's Written Personnel Citations targeted the consistent perception of co-employees, supervisors, and the Director of the Landfill that Petitioner was constantly complaining about other employees. It is important to note that Petitioner's former union advocate shared this same perception. This perception of the extent of Petitioner's oral complaints vis a vis complaints by other employees may have been accurate or inaccurate, but there is no evidence that management's perception had any relationship to Petitioner's gender. Extensive complaining by an employee may be a good or a bad reason to discipline that employee, but it is not a discriminatory one.

    Petitioner did not establish that there was a pattern of disciplining only females for complaining. Indeed, she showed that one other female was terminated for not complaining but was hired back due to union intervention. Likewise, she showed that a single written cross complaint by a male employee and by herself against each other did not result in discipline for either the male or the female. Only repetitive, unsubstantiated oral complaints by Petitioner resulted in her being disciplined.

65. Petitioner was provided every opportunity to contest her Written Personnel Citations for extensive complaining under the union collective bargaining agreement. The facts that she did not prevail in a grievance hearing and did not actively pursue all of her grievance appeal rights, without more, does not demonstrate discrimination by the Respondent employer.

66. Petitioner also seems to have labored under the mis- impression that she was terminated for making repetitive oral complaints against other employees, but that is not what the evidence shows. Mr. Hardee testified credibly that he terminated her because, after weighing all the workers' compensation claim consequences, he preferred to employ someone who could perform all the job activities of a spotter on a full-time basis and he did not have enough light work to keep Petitioner on as an employee.8

67. Petitioner has continued to draw workers' compensation payments. In so doing, she has held herself out to be permanently partially disabled or otherwise unable to work,

    totally or partially. Her degree of permanent disability, if any, or loss of wage earning capacity is more properly a subject of a workers' compensation forum established under Chapter 440, Florida Statutes.

68. For purposes of the instant case governed by Chapter 760, Florida Statutes, and its federal counterpart, if Petitioner has established a prima facie case of gender discrimination, Respondent has articulated a non-discriminatory, non-gender-based reasons for disciplining and terminating Petitioner, which reasons Petitioner has not overcome.

69. Even if Respondent had terminated Petitioner for constant complaining, Respondent was within its rights unless a gender bias can be demonstrated. Absent a prohibited discriminatory reason, an employer under Florida law may terminate an employee for a good reason, a bad reason, or for no reason at all. See Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108 (Fla. 1st DCA 1977).

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief.

RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 19th day of November, 1997.

ENDNOTES

1/ These spellings are taken from the parties' Joint Prehearing Stipulation.

2/ All or some of the proceedings were videotaped at Petitioner's request. However, that videotape has no legal significance, and the official record was preserved by the audio tapes simultaneously transmitted by the undersigned with the exhibits and this Recommended Order to the Florida Commission on Human Relations.

3/ Petitioner also claimed that she, personally, was paid below the minimum wage while on probation. There is no competent evidence to confirm this. Assuming, arguendo, that she is correct, that claim should be brought to the federal Department of Labor, Wage and Hour Division, and the Florida Department of Labor.

4/ Petitioner did not affirmatively prove any wage of her own for 1993. Despite Petitioner presenting her last probationary wage in 1990 as $3.85 per hour, in light of Petitioner's union membership, there is no reason to conclude that her salary was not adjusted upward over subsequent years. (See Findings of Fact 13).

5/ If Petitioner could have established herself as a "whistleblower", she might have some recourse under Section 112.3187, Florida Statutes, but Petitioner never established a clear connection between what she claimed she was reporting and any Florida Department of Environmental Protection or federal Environmental Protection Agency requirements concerning hazardous wastes. She also did not prove that she ever reported hazardous wastes to any agency or that Respondent tried to prevent her from reporting hazardous wastes to any agency.

6/ There is insufficient evidence by which to determine conclusively if this were the employer's truck or Mr. Hardee's personal truck. Either way, the assignment to wash it was not proven to be gender-related and so it is not congnizable under Chapter 760, Florida Statutes. This is not to say that Petitioner may not have other recourse before PERC, pursuant to state career service provisions, or pursuant to her collective bargaining agreement.

7/ There is no evidence to suggest that the termination was the result of retaliation for filing a discrimination charge with the Florida Commission on Human Relations on December 13, 1994, or because Petitioner filed a Workers' Compensation claim under Chapter 440, Florida Statutes. These grounds were never alleged nor proven. See Section 760.10(7), Section 440.205, Florida Statutes, and Scott v. Otis Elevator Co., 572 So. 2d 902 (Fla.

1990).

8/ Petitioner has not alleged discrimination as a result of handicap or termination without attempts to accommodate a disability.

COPIES FURNISHED:

Sarah Miller, pro se

351 southeast 110th Terrace Williston, Florida 32696

Gregory V. Beauchamp, County Attorney Levy County

Post Office Box 1129 Chiefland, Florida 32626

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

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: 97-003732

Orders for Case No: 97-003732