On July 22, 1998, a formal administrative hearing in this case was held by video conference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Respondent: Mark A. Hanley, Esquire
Kelly L. Soud, Esquire Thompson, Sizemore & Gonzalez
The issue in the case is whether the Petitioner was discriminated against on account of race or gender when the Respondent re-assigned her from police corporal to police officer in October 1994.
On October 12, 1995, the Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR), asserting that her reassignment on October 23, 1994, from police corporal to police officer constituted discrimination on account of race and gender. In October 1997, the FCHR issued a "no-cause" determination. The Petitioner filed a Petition for Relief in November 1997. The FCHR referred the petition to the Division of Administrative Hearings, which scheduled the matter for hearing.
At the hearing, the Petitioner presented the testimony of five witnesses, testified on her own behalf, and had Exhibits numbered 1-8 admitted into evidence. The Respondent presented the testimony of three witnesses and had Exhibits numbered 1-13 and 16-20 admitted into evidence.
A transcript of the hearing was filed. Both parties filed proposed recommended orders.
Beginning in 1982, the City of Tampa Police Department (Respondent) employed Linda Baker-James (Petitioner) as a police officer.
The Petitioner is a black female.
The Petitioner has been involved in multiple incidents resulting in imposition of disciplinary action by the Respondent. These disciplinary actions include a suspension related to untruthfulness in department matters, numerous reprimands and
suspensions for tardiness, a reprimand for failure to honor a subpoena, and a reprimand for careless operation of a police vehicle.
In 1992, the Petitioner was assigned to work as a school resource officer (SRO) at Oak Grove Junior High School. The rank of SRO is the equivalent to a police corporal.
While working as the SRO, disciplinary problems continued. She received a reprimand for failure to submit required documentation, a letter of counseling related to failure to comply with regulations, a letter of counseling related to excessive tardiness, and refusal to direct traffic to assist the departure of students from the school grounds.
On March 25, 1993, she received a Notice of Disciplinary Action related to failure to submit required reports. According to the documentation, also on March 25, 1993, the Petitioner was advised by letter that continuing unacceptable performance would result in her removal from the SRO program.
On June 30, 1993, the Petitioner received a written reprimand for excessive tardiness.
By written notice, the Petitioner was placed on "special evaluation status" on July 19, 1993, related to continuing unacceptable job performance issues. The notice started that failure to demonstrate improvement according to a remedial training plan would result in reassignment.
On July 10, 1994, the Petitioner was reassigned from Oak Grove Junior High School to a position as police corporal in Patrol Unit District One. The transfer was a lateral move. The Petitioner does not allege that the July 1994 reassignment was based on race or gender, or that the transfer was indicative of any discrimination.
Some of the officers in District One were aware of the job performance issues and were not pleased by her assignment to the unit. There is no evidence that any of the officers who were aware of such factors discriminated against the Petitioner in any manner, or that race or gender issues formed any basis for their opinions of her performance.
District One Captain Robert Price reviewed the Petitioner’s personnel records when he learned of the reassignment and expressed concern over her disciplinary record. There is no evidence that his concern was based on the Petitioner’s race or gender. There is no evidence that race or gender issues formed any basis for his opinion of her performance.
Captain Price met with the Petitioner when she began her duties with District One and offered encouragement to her, including making specific suggestions related to correcting her problems with tardiness.
Job performance problems continued throughout the Petitioner’s assignment as a police corporal in District One.
On August 2, 1994, the Petitioner was inexplicably delayed in responding to a burglary call. At approximately 4:39 a.m., she was on duty in a patrol vehicle. By radio, the Petitioner was assigned to respond to a possible burglary call. At 4:40 a.m., Sergeant J. M. Marks, a white female on patrol duty, was assigned as backup to the Petitioner.
Sergeant Marks arrived at the scene at 4:42 a.m. and discovered a broken front window at a business. She waited for the Petitioner to arrive before investigating further.
The Petitioner arrived at 4:54 a.m., 15 minutes after receiving the assignment, and 12 minutes after Sergeant Marks arrived at the scene as the Petitioner’s backup.
The Petitioner was less than five miles from the possible burglary site when she received her assignment at 4:39
a.m. There is no credible explanation for her tardy response to the potential burglary assignment.
At 4:39 a.m., unimpeded by traffic, the total transit time from the Petitioner’s location at the time she received the call to the location of the burglary call is substantially less than 15 minutes. Even during daytime traffic, and complying with all traffic laws, transit time of less than 15 minutes is possible.
By report dated August 20, 1994, the incident was
recorded in a memo from Sergeant Marks to the Petitioner. Marks was concerned that the Petitioner’s tardy response posed a threat to Marks’ safety, and expressed her displeasure in the memo.
Later on August 20, 1994, the Petitioner responded to an alleged stabbing incident. Upon arriving at the scene, the Petitioner determined that the stabbing victim was too intoxicated to provide useful information, and decided to release him to the custody of one of his neighbors. The Petitioner asked a neighbor to have the victim contact the Petitioner when he was
not intoxicated. She filed no official written report documenting her response to the stabbing report.
Apparently later that same night, the Petitioner responded to a possible suicide call. The suicide attempt involved an excessive but apparently non-fatal dose of a pain reliever. Although the Petitioner accompanied the victim to the hospital, she filed no official written report of her response to the potential suicide situation.
The appropriateness of an officer’s response to a citizen’s call is established through preparation and review of a police report. Police investigations are initiated by the filing of an officer’s report. The failure to file a report results in no follow-up investigation. The requirement to prepare and file a report is part of every officer’s responsibility.
The Petitioner’s failure to prepare or file the reports was cited in an August 20, 1994, written report from Sergeant Marks to Captain Price.
The issue of tardiness continued to be of concern to the department. On September 1, 1994, the Petitioner was scheduled for an in-service training program at the police academy. Sergeant Marks talked to the Petitioner the previous night and advised that Marks would meet her at the academy before the training began at 8:00 a.m. to take care of some paperwork with the Petitioner.
Marks arrived at the academy at 7:40 a.m. and waited
for approximately 25 minutes, until after the training session had started, before leaving. The Petitioner had not arrived by the time Marks left. In a September 1, 1994, memo to Captain Price, Sergeant Marks reported the tardiness incident.
Captain Price began a review of the Petitioner’s job performance issues. By memo dated September 26, 1994, to Police Chief B. R. Holder, a black male, Captain Price recommended that she be reassigned to the position of police officer. At the time the memo was transmitted to Chief Holder, Captain Price relieved the Petitioner of her supervisory responsibilities.
Captain Price has never recommended that an officer be demoted, but believed the Petitioner’s performance deficiencies were of such serious nature to warrant the action.
On October 21, 1994, the Petitioner received her annual performance evaluation, prepared by three supervisors, Sergeant Stertzer, Sergeant Curry, and Sergeant Marks, who had supervised the Petitioner at times during the evaluation period. Although the evaluators identified areas where the Petitioner’s performance was acceptable, all also identified numerous deficiencies.
Sergeant Stertzer is a white male. Stertzer supervised the Petitioner during part of the period she worked as an SRO. He reported that the Petitioner’s "chronic tardiness problem" improved "with very close supervision." He also noted, however, that she failed to report to the school administrative office
upon her morning arrival, violating an agreement reached between the parties to address complaints about her tardiness from an earlier evaluation period.
Sergeant Stertzer reported that the Petitioner failed to maintain the safe status of her patrol vehicle, including malfunctioning brakes and a lose steering wheel, either of which constituted a "significant danger to anyone traveling in the vehicle or other vehicles sharing the same traffic way." He also noted that the Petitioner left a vinyl zipper pistol bag containing her revolver in plain view between the two front seats of the vehicle, constituting an "invitation to theft."
Sergeant Stertzer also reported that she put forth no exceptional effort in her job. He noted that there were strained relations with school administrators and staff, and that she "tended to rationalize on occasion."
The Petitioner does not substantially disagree with Sergeant Stertzer’s evaluation of her performance.
Sergeant Curry is a black female. Curry supervised the Petitioner during part of the period she worked as an SRO.
Sergeant Curry wrote that the Petitioner failed to follow unidentified police procedures during an incident referred to as "cracker day" which apparently involved a threat of organized violent activity at the school. The threat was widely known, resulted in expressions of parental concern, and in attention from local news media.
Sergeant Curry addressed another incident when, while Curry was at the school, she and the Petitioner observed a crying female student. The Petitioner approached the student and talked
to her, then returned to Curry to state that the student had been told that some gang members were going to kill her and she was scared. The Petitioner advised Curry that the student was told to go to class and that the Petitioner would check on the student later. Curry insisted that the matter be addressed immediately. The child was removed from class, and both the child’s parent and the school principal were notified of the situation. Curry later verbally counseled the Petitioner regarding her intended delay in responding to the alleged threat.
Curry wrote that in order to address the tardiness issue, a plan had been implemented which required the Petitioner to check in with the administration office upon her morning arrival.
Curry wrote that the Petitioner "occasionally projected a defensive, threatened attitude when broached by a supervisor for constructive criticism or disciplinary purposes."
The Petitioner disagrees with Sergeant Curry’s evaluation of her performance.
Sergeant Marks is a white female.
Sergeant Marks wrote that the Petitioner’s "effort to improve her job performance was marginal." Marks noted that the Petitioner had allowed her driver’s license to expire on September 20, 1994, and that the expiration was discovered on October 7, 1994, in a "routine check in preparation for this evaluation."
Sergeant Marks noted that her relationship with other officers in District One was "strained" and that "[s]he did not appear very comfortable in the role of a supervisor," but also
wrote that she had shown recent improvement and was working to correct the situation.
Sergeant Marks wrote that while professional in her dealings with the public, the Petitioner "needs to learn to deal with things on a professional level and that constructive criticism is not a personal attack."
Sergeant Marks also noted the burglary response delay, the stabbing incident, the suicide response, and tardiness issues that are addressed elsewhere herein.
The Petitioner disagrees with Sergeant Marks’ evaluation of her performance.
Tampa Police Chief Holder accepted Captain Price’s recommendation for demotion. On October 23, 1994, the Petitioner was demoted from her position as police corporal to police officer.
In November 1994, the Petitioner filed a grievance related to her reassignment. In the grievance, the Petitioner asserted that the demotion was made without "just cause." There was no assertion that the reassignment was related to race or gender.
The parties resolved the grievance through a settlement agreement. The agreement provided that the Petitioner would lose no pay in the demotion. The agreement further provided that the Petitioner would be promoted to Master Patrol Officer if her next annual evaluation achieved an "outstanding" rating.
The evidence establishes that the Petitioner received assistance from the Respondent in an attempt to address the identified deficiencies. The Petitioner was assigned to work with Sergeant Rousseau, a 14-year veteran of the department. Sergeant Rousseau and the Petitioner created a plan, monitored on a monthly basis, to remedy the deficiencies.
Despite Sergeant Rousseau’s assistance, the Petitioner did not get an "outstanding" rating in the next annual evaluation.
In October 1995, shortly after receiving the evaluation, the Petitioner filed a charge of discrimination with the FCHR.
The evidence fails to establish that the Petitioner’s reassignment from police corporal to police officer was related to race or gender.
The evidence fails to establish that any of the employment actions taken by the Respondent towards the Petitioner are related to race or gender.
The Petitioner asserts that the she was treated differently than a white male SRO, Anthony Cangelosi, who was also transferred back to the patrol force. The Petitioner asserts that Mr. Cangelosi received formal training prior to his return as a patrol officer after working 12 years as an SRO. The Petitioner further asserts that Corporal Cangelosi received special treatment from fellow officers and his sergeant,
including the opportunity to ride with other officers on patrol in order to become comfortable with his new assignment.
There is no evidence that Corporal Cangelosi received formal training as alleged by the Petitioner. There is no evidence that Corporal Cangelosi received any special treatment as alleged by the Petitioner.
The Petitioner asserts that the she was treated differently than a white male officer, Michael Niemi, who was also placed on "special evaluation." The evidence fails to support the assertion.
The evidence establishes that during 1994 or 1995, Corporal Niemi was demoted to an officer’s position based on evaluation by his District One supervisor. After being placed on special evaluation, Mr. Niemi was transferred to District Two patrol unit.
Unlike the Petitioner’s disciplinary history, Corporal Niemi had no history of disciplinary problems. Other than his problem with the District One supervisor, Mr. Niemi had never been advised of any job performance deficiencies. While on "special evaluation" Mr. Niemi received two "outstanding" evaluation ratings.
There is no evidence that Mr. Niemi received any special consideration based on race or gender. There is no evidence that Mr. Niemi’s transfer to District Two was based on race or gender. There is no evidence that Mr. Niemi’s
evaluations were based on race or gender.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Florida Commission on Human Relations is vested with jurisdiction to enforce laws prohibiting unlawful employment discrimination. Section 760.06(5), Florida Statutes.
The City of Tampa Police Department is an employer within the meaning of the statute and is subject to the FCHR's jurisdiction. Section 760.02(7), Florida Statutes.
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.
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).
In this case, the evidence fails to establish that the Petitioner was discriminated against on account of her race or gender. There is no evidence that the Petitioner’s race or gender was a factor in any evaluation or determination made by the Respondent related to this complaint of discrimination.
The evidence establishes that the Petitioner’s reassignment from corporal to police officer was based on a reasonable evaluation of her job performance in the corporal’s position.
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 Charge of Discrimination filed against the City of Tampa Police Department by Linda Baker-James.
DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998.
Mark A. Hanley, Esquire Kelly L. Soud, Esquire
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 must be filed with the agency that will issue the Final Order in this case.
