vs. ) Case No. 98-0173
Respondent. )
vs. ) Case No. 98-0174
Respondent. )
A formal hearing in the above referenced cases was held on June 25, 1998, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondents: H. B. Stivers, Esquire
The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
On March 26, 1997, Petitioner Faye Musgrove (Petitioner) filed separate complaints against Respondent Gator Human Services, c/o Tiger Success Center (Respondent Gator) and Respondent Hamilton House/Career Systems Development, Corp. (Respondent CSD) with the Florida Commission on Human Relations (FCHR). These complaints alleged that both Respondents committed unlawful employment practices by discriminating against Petitioner based on her race and age. Additionally, both complaints asserted a claim against Respondents on grounds of retaliation.
FCHR referred Petitioner's charges of discrimination to the Division of Administrative Hearings (DOAH) on January 9, 1998.
DOAH assigned Case Number 98-0173 to the case involving Respondent Gator. Petitioner's case against Respondent CSD was assigned Case No. 98-0174.
The undersigned issued Notices of Hearing scheduling Case Nos. 98-0173 and 98-0174 for formal hearing on June 25-26, 1998. The cases are hereby consolidated pursuant to Rule 60Q-2.011, Florida Administrative Code.
At the hearing on June 25, 1998, Petitioner offered Exhibits P-1 through P-5, P-7 through P-9, and P-11 through P-28 which were
accepted into evidence. Petitioner testified on her own behalf and presented the testimony of six witnesses. The court file also contains copies of Petitioner's medical records which were filed with DOAH as ex parte communications by Dr. Micki Kantowitz and by Christine Clark, MA, Med, MSW, LCSW. These medical records were not admitted as evidence in these consolidated cases.
Respondents presented the testimony of two witnesses. They offered Exhibits R-1 through R-7 which were accepted into evidence.
The parties did not elect to file a copy of the transcript or proposed recommended orders with DOAH.
In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients.
Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities.
Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24,
1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At
times she served as the acting shift supervisor though she was not paid a supervisor's wages.
When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker.
On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file.
In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD.
In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on
October 18, 1995.
By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended
periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation.
Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory.
In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request.
On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies.
On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file.
On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients."
On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet.
Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff."
On one occasion in February 1996, Petitioner was 30
minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building
because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time.
On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay.
Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages.
On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days.
On March 4, 1996, the Program Director, Dale Edwards,
agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved.
In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a
Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position.
Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor.
On April 23, 1996, Supervisor Myers completed
Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others.
Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part:
Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that
Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother.
In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check.
There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor.
Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter.
After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner
was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities.
Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove.
Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business.
On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part:
As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996.
The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the
consent of the employee.
On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996.
Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark.
On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her.
On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested
that each applicant take a copy of their most recent performance appraisal to their employment interview.
By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations.
Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff.
A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons.
On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization.
Petitioner was scheduled for an employment interview on
May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment.
Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make
inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner.
A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores.
On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey.
Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner.
Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory.
Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator
for personal reasons.
Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative.
On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996.
On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer.
The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons.
Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
Section 760.10(1)(a), Florida Statutes, provides as follows:
It is an unlawful employment practice for an employer:
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.
Section 760.10(7), Florida Statutes, states as follows:
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, at 42 U.S.C. Section 2000E et. seq. Florida Courts have deemed that federal decisions concerning Title VII issues are applicable in Florida, because of the similarly-cast Florida statutory scheme embodied in
Chapter 760, Florida Statutes. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
In Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1991) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court set forth the requirements for proving a prima facie case of discrimination, allocated the burden of production, and established the order for presentation of proof in Title VII cases. The elements of a prima facie case of discrimination will vary depending on the factual context of the case. McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n. 13; Schwartz v. State of Florida, 494 F.Supp. 574, 583 (N.D. Fla. 1980). However, McDonnell Douglas Corp. v. Green clearly provides:
that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the (Civil Rights) Act (of 1964)." Teamsters v. United States, 431 U.S. 324, 358
(1977).
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1977).
If the plaintiff proves a prima facie case of discrimination, the burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas Corp. v. Green, 411
U.S. at 802.
The employer is not required to prove the absence of discriminatory motive, but is required to explain what he has done or produce evidence of legitimate, non- discriminatory reasons for his actions.
Board of Trustees v. Sweeney, 439 U.S. 24 (1978).
Schwartz v. State of Florida, 494 F. Supp. at 583.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113
S. Ct. 2742, 2747 (1993), the Court held that once the employer succeeds in carrying its burden of producing a non-discriminatory reason for the challenged action, the employee must show that the employer's reason is pre-textual. The final and ultimate burden of persuading the trier of fact, by a preponderance of the evidence, remains at all times with the employee. St. Mary's Honor Center v. Hicks, 113 S. Ct. at 2747.
The employee's ultimate burden of persuasion may be satisfied by direct evidence showing that a discriminatory reason, more likely than not, motivated the decision involved, or by indirect evidence showing that the proffered reasons of the employer are not worthy of belief. Department of Corrections v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).
There is no direct evidence that either of the Respondents discriminated against Petitioner on the basis of any illegal criterion. Petitioner repeatedly testified that she could not explain Respondent CSD's actions that she found offensive and harmful. She could not understand why Respondent Gator did not hire her as a resident advisor when it began operating the facility. Therefore, Petitioner must prove a prima facie case of discriminatory intent on the part of one or both Respondents.
To prove a prima facie case of disparate treatment due
to racial discrimination, Petitioner must show that: (1) she is a member of a protected group; (2) the employer made an employment decision, which was adverse to her interests; (3) she and a similarly situated non-white person received dissimilar treatment; and (4) sufficient evidence, either circumstantial or direct, exists to infer a nexus or causal connection between race and the disparate treatment. Perkins v. School Bd. of Pinellas County, 902 F. Supp 1503, 1506-1507 (M.D. Fla. 1995).
As a white female, Petitioner is not a member of a minority class. Nevertheless, Title VII prohibits racial discrimination against all groups, including white employees. McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 278-280 (1976); Bush v. Barnett Bank of Pinellas County, 916 F. Supp. 1244, 1252 (M.D. Fla. 1996); Schwartz v. State of Florida,
494 F. Supp. at 583. As to her claims of racial discrimination, Petitioner is a member of a protected class.
Under a variation of the McDonnell Douglas four-prong test, a prima facie case of disparate treatment due to age discrimination requires Petitioner to prove that: (1) she belongs to a protected class; (2) her job performance was sufficient to meet her employer's legitimate expectations; (3) she and a similarly situated younger employee received dissimilar treatment; and (4) sufficient evidence, either circumstantial or direct, exists to infer a causal connection between age and the disparate treatment. See Mechnig v. Sears, Roebuck & Co., 864 F.
2d 1359, 1364 (7th Cir. 1988); Keller v. Western-Southern Life Insurance Company, 881 F. Supp. 1559, 1565 (M.D. Fla. 1995).
Petitioner, was over 50 years old when she began working for Respondent CSD and when she applied for a position with
Respondent Gator. Therefore, she is a member of a protected class for purposes of establishing age discrimination. Mechnig v.
Sears, Roebuck & Co., 864 F. 2d at 1365 (terminated employee was over 40 years old.).
A prima facie case involving the failure to hire due to racial discrimination requires Petitioner to prove that: (1) she is a member of a protected group; (2) she applied and was qualified for a job for which an employer was seeking applicants;
(3) despite her qualifications, she was rejected; and (4) after her rejection, the position remained open and the employer continued to seek applicants from persons of Petitioner's qualifications. McDonnell Douglas Corporation v. Green, 411 U.S. at 802.
A prima facie case involving the failure to hire due to age discrimination requires Petitioner to prove that: (1) she is a member of a protected group; (2) she was rejected by a prospective employer; (3) the potential employer subsequently hired a younger person to fill the position for which she was rejected; and (4) she was qualified for the position for which she was rejected. Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F. 3d 436, 439 (11th Cir. 1996); Carter v. City of Miami, 870 F. 2d 578, 582 (11th Cir. 1989); Barnes v. Cochran, 944 F. Supp. 897, 901 (S.D. Fla. 1996).
In the instant case, Petitioner alleges that both Respondents discriminated against her based on her race and age.
In support of these charges, Petitioner alleges the following facts: (1) Respondent CSD refused Petitioner's request to change her schedule to the day shift; (2) Respondent CSD failed to promote Petitioner to shift supervisor; (3) Respondent CSD failed to reimburse Petitioner for supplies; (4) Respondent CSD failed to handle the charges of misconduct against Petitioner appropriately;
(5) Respondent CSD locked Petitioner's time sheet in a room for four days; (6) Respondent CSD changed Petitioner's time sheet; (7) Respondent CSD did not pay Petitioner for one-half hour of regular time and two hours of overtime until she filed a grievance; (8) Respondent CSD disclosed confidential information to Petitioner's co-workers, relatives, and prospective employer; and (9) Respondent Gator did not hire Petitioner.
Respondent CSD did not honor Petitioner's requests in March of 1996 to change her schedule to the day shift. The refusal to change Petitioner's schedule to a more stressful day shift was not adverse to her interests under the circumstances of this case.
Additionally, Petitioner presented evidence that Respondent CSD moved other employees, who were relatives of administrative staff and who were hired after Petitioner, from the midnight shift to the day shift. However, Petitioner did not present evidence that Respondent CSD honored the requests of non- white and/or younger resident advisors to change their schedule to the day shift.
Respondent CSD did not promote Petitioner to shift supervisor even though she occasionally worked as an acting shift supervisor. The failure to promote her was not based on racial or age discrimination because Petitioner offered no evidence that she applied and was turned down for a full-time position as a shift supervisor. Accordingly, Petitioner has not proved that Respondent took an employment action that was adverse to her interests.
Respondent CSD failed to reimburse Petitioner for supplies that she voluntarily purchased with her own funds. Respondent CSD's decision in this regard was not an adverse employment action absent some showing that the employer required her to make the purchase. Moreover, Petitioner has not shown that Respondent CSD reimbursed non-white and/or younger employees for similar purchases.
Petitioner's claim that Respondent CSD discriminated against her in the way it handled the client's charges of misconduct is without merit. She and her co-worker were both suspended for a brief interval. After a preliminary investigation, Petitioner and her co-worker were allowed to return to work in a different dorm and on a different shift. They were paid for the time they missed at work.
When the Office of the Inspector General completed its investigation, Petitioner's name was cleared of all charges. The greater weight of the evidence indicates that Respondent CSD
handled the charges against both employees in accordance with the procedures required by the Department of Juvenile Justice. There is no evidence that a non-white and/or a younger employee was treated more favorably under similar circumstances.
One of Petitioner's supervisors locked her time sheet up while she was off from work on February 22-23, 1996. Petitioner and her supervisor were involved in a dispute over the accuracy of Petitioner's time sheet during the month of February. When Petitioner returned to work on February 24, 1996, the supervisor's office was locked because he was not at work. Petitioner was unable to clock in and out with the other employees until
February 26, 1996, when the supervisor returned to work. Petitioner's wages were not reduced as a result of this incident.
There is no indication in the record whether the supervisor made a deliberate decision to lock up the time sheet due to the wage dispute or whether it happened inadvertently. In any event, Petitioner has not proved that similarly situated non- white and/or younger employees received dissimilar treatment under similar circumstances, i.e. while they were involved in a dispute over the accuracy of the time recorded on the time sheet. There is no causal connection between locking up Petitioner's time sheet and Petitioner's race or age.
Petitioner alleges that her supervisor changed her time sheet by deducting 30 minutes of regular time on one occasion and failed to pay her for overtime on another occasion until she filed a grievance. She was paid for 30 minutes of regular time in
May 1996 when Mr. Edwards became aware that his earlier directive in March 1996 had not been followed. Mr. Edwards allowed Petitioner to take off two hours from work with pay which was
consistent with her request to have compensatory leave time. There is no evidence that Petitioner and similarly situated persons of a different race and younger age received dissimilar treatment. There is no causal connection between Petitioner's race and age and her wage disputes.
The most persuasive evidence indicates that Respondent CSD never disclosed confidential information about Petitioner to any other unauthorized person. Thus, Petitioner cannot allege that the disclosure of confidential information was due to any form of discrimination or retaliation.
Petitioner applied for a position as a resident advisor with Respondent Gator. Her prior job performance indicates that she was qualified for the position. She was rejected despite her qualifications. Respondent Gator continued to seek qualified applicants.
Petitioner has not proved a prima facie case of failure to hire due to age or racial discrimination. She presented no evidence that a younger person of a different race was hired as a resident advisor to work on the night shift in the level eight dormitory. Ms. Bristol, a black female, was hired to work in the level six dormitory.
To the extent that Petitioner proved a prima facie case of failure to hire due to age or racial discrimination, Respondent Gator presented a legitimate reason for not offering Petitioner a job, i.e. she made a terrible impression during her employment
interview. Specifically, her responses to questions were very negative and critical of the existing program. Petitioner presented no evidence that Respondent Gator's reason for not hiring her was a pre-text for age or racial discrimination.
In order to establish a prima facie case of retaliation, Petitioner must prove the following: (1) that she engaged in statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that there is some causal connection between the two events. Balletti v. Sun-Sentinel Company, 909 F. Supp. 1539, 1549 (S.D. Fla. 1995).
Petitioner gave Respondent CSD written statements complaining about the way her employer handled the charges filed against her by the client, about the wage disputes, and about other incidents or conditions at work that she found objectionable. Assuming that these complaints constitute protected expressions and that Petitioner suffered an adverse employment action after making each statement, there is no causal connection between Petitioner's complaints and Respondent CSD's subsequent employment decisions. Likewise, there is no nexus between the complaints and Respondent Gator's failure to offer her employment. For example, there is no evidence that Petitioner's written grievance caused Respondent CSD to disclose confidential information to unauthorized persons or Respondent Gator to reject her employment application. Accordingly, Petitioner has not established a claim for retaliatory treatment of any kind.
During the hearing, Petitioner claimed that the Respondents subjected her to harassment and a hostile work environment based on her sex or gender. She based this charge on the same facts which she claimed supported her charges of race and age discrimination. The original charges of discrimination, which were filed with FCHR, did not allege sex or gender discrimination.
In order to prove a claim of hostile work environment, Petitioner must prove the following: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on her protected status; (4) the harassment affected a term, condition or privilege of employment; and (5) respondeat superior. Joseph v. Publix Super Markets, Inc., 983 F. Supp. 1431, 1439-1440 (S.D. Fla. 1997).
In the instant case, Petitioner has provided no evidence of harassment or offensive behavior based on her sex or gender. As a result, Petitioner's claims for hostile work environment based on her sex or gender are unsupported in the record.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator.
DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998.
H. B. Stivers, Esquire Levine and Stivers
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.
