LINCE J. MUSGROVE FAVORS,
vs.
Respondent.
) Case No. 00-1791
Administrative Law Judge Don W. Davis of the Division of Administrative Hearings held a final hearing in the above-styled cause on April 25, 2002, in Panama City, Florida. The following appearances were entered.
For Petitioner: Cecile M. Scoon, Esquire
For Respondent: John R. Perry, Esquire
The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Children and Families (DCF) due to Petitioner's
race, sex, and martial status in violation of Section 760.10(1)(a), Florida Statutes.
Petitioner filed a Charge of Discrimination against DCF with the Florida Commission on Human Relations (FCHR) on December 17, 1996, alleging that her job had been terminated by DCF on the basis of Petitioner's race, sex, and martial status.
On February 18, 2000, the Commission issued a Notice of Determination: No Cause. On March 27, 2000, Petitioner requested an administrative hearing. On May 16, 2000, DCF filed a Motion to Dismiss for Lack of Jurisdiction, which was granted in an Order Closing File on June 13, 2000. Exceptions were filed before FCHR, which on February 8, 2001, entered an Order remanding the matter back to the Division of Administrative Hearings for resolution. A final hearing was scheduled and, after numerous continuances, conducted.
During the hearing, Petitioner testified on her own behalf and also presented the testimony of three other witnesses and three exhibits. DCF presented the testimony of one witness along with one exhibit. The parties presented one joint exhibit. By stipulation of the parties, the record of the proceeding was documented by an audio tape recording.
No written transcript of the proceeding was provided.
Both parties filed Proposed Recommended Orders which have been reviewed and considered in the preparation of this
Recommended Order.
Petitioner Lince Musgrove Favors, a single African- American female (who has since married), began working for DCF as a Human Services Counselor III with the Aging and Adult Services Program in DCF's Panama City, Florida, office on October 3, 1988. In this capacity, Petitioner occupied Department Position Number 50790.
Petitioner's duties involved services designed to help elderly persons remain in the community. One of her colleagues, fellow Human Services Counselor III Rebecca Schwetz, had the duties of implementing the Home Care for the Elderly and Home Care for the Disabled Programs, which focused on finding residential placements for the elderly and disabled in adult living facilities and adult family homes.
In September 1995, due to budget cuts and the transfer of certain functions from DCF to the Department of Elder Affairs, a memorandum issued from DCF state headquarters announcing that 134 positions in DCF's Aging and Adult Services Program would be eliminated.
District II of DCF, the District in which Petitioner worked, would eliminate 11 of these positions. George Benner,
then the Operations and Program Administrator over the Aging and Adult Services Program in one portion of District II, had the responsibility of eliminating four of these positions.
Benner, in making this difficult decision, sought to minimize the adverse impact on workers occupying these positions. Accordingly, he selected those positions which were already vacant or which were about to be vacated.
As a consequence, Benner’s four choices of positions to be eliminated were the following: a) the position of Sydney Canaday, a white female clerical worker whose position was deemed to be less essential than others; b) the position of John Johnston, a white male who had indicated an interest in finding another position; c) the position of Petitioner who had expressed to Benner and others in the office, inclusive of her immediate supervisor, that she intended to marry and leave District II to find other employment; and d) a vacant position.
While Petitioner, in the course of her testimony at hearing, denied saying that she intended to leave her position after her impending marriage, the testimony of her immediate supervisor and Benner that Petitioner intended to get married around the beginning of 1996 and leave District II to live with her new husband, was direct, candid, and credible. The testimony of Petitioner on this point is not credited.
Petitioner made numerous attempts to find employment in DCF's District I during the months of October and November 1995. On October 13, 1995, Benner wrote a letter to the district program manager in District I recommending Petitioner for employment there. Benner also telephoned the district program manager with a recommendation for Petitioner. At this time, Benner still believed that Petitioner intended to leave District II and seek employment within District I.
On October 31, 1995, DCF notified Petitioner in writing that the effective date of the deletion of her position would be December 29, 1995. The notification letter advised her of her right to request reassignment or demotion. Petitioner submitted a Request for Reassignment or Demotion on November 6, 1995. A Personal Interest Form submitted by Petitioner the same day specified that she was seeking employment in Okaloosa, Santa Rosa, Walton, and Escambia Counties.
As the effective date of the position deletion drew near, DCF continued to search for a position for Petitioner. On December 1, 1995, DCF offered Petitioner a Human Services Counselor III position in the Developmental Disabilities Program in the Panama City, Florida, office. Petitioner declined this position because it involved different skills and a different clientele. Petitioner did not explain why she felt that it
would be unacceptable to be required to acquire new knowledge and skills.
As the December 29, 1995, deadline approached and Petitioner still had no other employment prospects, DCF took unilateral action to preserve Petitioner's employment and reassigned her, effective December 22, 1995, to a Health Services Representative position at the Bay County Public Health Unit. Petitioner received the same pay in the new position as she did in the Human Services Counselor III position.
DCF continued to let Petitioner know that it would assist her in finding another position either in District II or elsewhere if she so desired. There is no evidence that Petitioner ever attempted to avail herself of this assistance.
Due to legislatively mandated reorganization in the executive branch, the Department of Health was created and Petitioner's position at the Bay County Public Health Unit became a position within the Department of Health at some point subsequent to her reassignment to that position.
In July 1999, Petitioner was still employed as a Health Services Representative with the Department of Health. At this time, the Department of Health informed Petitioner that her duties would now include drawing blood samples from the Health Department’s clientele. The Department of Health offered Petitioner training in how to safely draw blood, but she decided
to resign instead. She was convinced that she would not be able to safely perform these tasks after receiving training in the proper technique, but she was able to offer no reasons at the hearing to support this belief. Petitioner submitted her resignation on July 19, 1999, effective August 5, 1999. The Department of Health accepted the resignation on July 20, 1999, and Petitioner voluntarily left her employment with the State of Florida on August 5, 1999.
No evidence of any kind, direct or inferential, testimonial or documentary, was introduced to establish that DCF or any of its personnel were motivated negatively by concerns of race, sex, or marital status with regard to Petitioner.
No pleading has identified with any specificity the type of relief sought. No evidence was introduced at the final hearing to establish what remedy would be required to make Petitioner whole relative to back pay, benefits, or other forms of relief.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of the above-styled cause. Sections 120.57(1), 760.11(4)(b), and 760.11(6) Florida Statutes.
Section 760.10, Florida Statutes, prohibits, among other things, an employer from discriminating against an employee on the basis of race, sex, or marital status.
Section 760.10, Florida Statutes, is the specific statutory provision in the Florida Civil Rights Act which prohibits unlawful discrimination in employment settings. The provisions of the Florida Civil Right Act are to be read in pari materia with parallel federal civil rights legislation, and, accordingly, reliance on federal civil rights case law is appropriate in interpreting Florida civil rights law. See
Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
Cases involving allegations of violations of Section 760.10, Florida Statutes, like those involving violations of federal civil rights legislation, are subject to a shifting burden of proof. The ultimate burden of persuasion (by a preponderance of the evidence) always rests on the party claiming violation of the statute. See Department of Community
Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991). Nevertheless, the typical case usually involves two shifts of the burden of going forward with the evidence.
The initial burden falls on the party alleging the discriminatory conduct. In order for the case to proceed, the complaining party must establish a prima facie case of
discrimination. Id. Accomplishing this task requires the complaining party to prove that:
She is a member of a protected group;
An adverse employment action took place;
The complaining party and a nonprotected person received dissimilar treatment; and
Sufficient evidence, circumstantial or direct exists to infer a causal connection between the alleged disparate treatment and the protected classification.
See Pugh v. Heinrich, 695 F.Supp. 533, 540 (M.D. Fla. 1978).
Petitioner cannot carry this initial burden. She is a member of a protected group. An employment action adverse to her interests did take place. But there is insufficient evidence to establish that Petitioner received different treatment from similarly situated nonprotected employees. The one white employee named by Petitioner (Rebecca Schwetz) was not affected, but the unrebutted evidence establishes that both of the other persons adversely affected by Benner’s management decision were white, and one of them was a male. As such, dissimilar treatment was not established.
Likewise, no causal connection can be shown between the deletion of the four positions chosen by Benner and any discriminatory intent based on race, sex, or marital status. The management decision made by Benner affected one white male, one white female, and one African American female. This
circumstance does not evince a pattern of discrimination on the basis of race or sex. Moreover, no evidence of any kind has been offered to ascribe any improper motivation on the part of Benner or any one else. Consequently, Petitioner has failed to establish a prima facie case of discrimination.
Benner, DCF's former Operations and Program Administrator, articulated that he decided which positions to eliminate on the basis of vacancy or anticipated vacancy, not on race, sex, or marital status. This is a valid nondiscriminatory reason. As a consequence, the burden at this point must shift back to Petitioner.
Once this burden shifts, the complaining party must prove by a preponderance of evidence a) that the nondiscriminatory reason offered by the employer is a pretext and b) that the adverse action was motivated by consideration of race, sex, or marital status. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).
No evidence was offered at the final hearing to prove that Benner’s reasons for deleting the positions he deleted were a pretext for a different and more nefarious motivation. Specifically, no evidence of any kind exists to prove, or even suggest, that Benner or any other person in DCF acted against Petitioner for any reason prohibited in Section 760.10, Florida
Statutes. Benner made a management decision to eliminate certain positions because he legitimately understood that they were vacant or about to become vacant.
Based on the foregoing on the foregoing Findings of Fact and Conclusions of Law, it is
That a final order be entered dismissing the Petition for Relief.
DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
John R. Perry, Esquire
Cecile M. Scoon, Esquire Peters & Scoon
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway
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.
