STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENEVA BATSHEBA DOWNER, )

)

Petitioner, )

)

vs. ) Case No. 00-3015

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Tavares, Florida, on December 4, 2000. The appearances were as follows:

APPEARANCES

For Petitioner: Geneva Batsheba Downer, pro se.

5446 Terrell Road

Mount Dora, Florida 32757

For Respondent: Gary L. Grant, Esquire

State of Florida Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner suffered an adverse employment action as a result of unlawful discrimination because of the Petitioner's

race, sex, national origin and religion, as provided in Section 760.10 et. seq., Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner, Geneva Batsheba Downer, filed a Charge of Discrimination against the Respondent, Department of Corrections (Department) on or about January 30, 1997, alleging that the Department of Corrections discriminated against her because of her race, sex, national origin, religion and disability between the dates of August 15, 1996 and January 28, 1997. She alleged that the Department had harmed her by virtue of a January 28, 1997, suspension, and an August 15, 1996 instance of unspecified harassment. She also argues that on February 6 and April 4, 1996, there were reprimands and a failure to reasonably accommodate an unspecified disability. She made further allegations that she had been denied proper vehicles and Jewish holidays off from work and that she had been harassed for damaging Department vehicles. The allegations of discrimination were investigated by the Florida Commission on Human Relations (FCHR) and on April 12, 2000, the Commission issued its determination of "no cause."

A Petition for Relief was filed by Ms. Downer on June 5, 2000, wherein she added to the allegations contained in her original Complaint filed with FCHR. To-wit, she added allegations that she was discriminated against because of her

age, that the Department had retaliated against her in some manner, that the Department failed to promote her, and that the Department violated other unspecified labor laws. She also added allegations that discrimination had occurred by unlocking of bathroom doors, falsifying and changing documents, lying and "setting-up people," threatening people to become witnesses against inmates or staff and of her being sent to jail. None of these allegations were set forth in the original Complaint which had been filed, and investigated by, the FCHR.

On August 10, 2000, the Respondent filed an Answer and Affirmative Defenses to the Petition for Relief wherein it denied all allegations and asserted that the Petitioner was collaterally estopped from re-litigating the issue of whether the Department had cause to impose a 10-day suspension on the Petitioner effective January 28, 1997, and whether the suspension represented disparate treatment. These issues had previously been litigated by the Petitioner before the Public Employees Relations Commission and that agency issued a Final Order finding no cause and no disparate treatment on June 27, 1997.

On August 25, 2000, the Department filed a Motion in Limine requesting that Ms. Downer be prevented from litigating the charges and allegations contained in her Petition that were not contained in the original Complaint filed with and investigated

by the FCHR, and also to prevent her from re-litigating the issues set forth above that were previously decided by the Public Employee Relations Commission (PERC). In accord with Austin v. Florida Power Corporation, DOAH Case No. 90-5137 (Recommended Order entered June 20, 1991, Final Order entered October 24, 1991, filed October 30, 1991) and Luke v. Pic N' Save Company, DOAH Case No. 94-0294 (Recommended Order entered August 25, 1994, final Order entered December 8, 1995, filed December 12, 1995), the Motion was granted by order dated October 18, 2000.

Thereafter the cause came on for hearing as noticed. At the hearing, the Petitioner presented ten witnesses including her own testimony and had three exhibits admitted into evidence. The Respondent presented five witnesses and had five exhibits admitted into evidence. Upon conclusion of the hearing, the parties were given the right to submit Proposed Recommended Orders. The Respondent Department presented a Proposed Recommended Order which as been considered in the rendition of the Recommended Order in this proceeding.

FINDINGS OF FACT

1. At times pertinent hereto, the Petitioner was employed by the Respondent Department of Corrections at the Central Florida Reception Center. The Petitioner is an African-American woman who is dyslexic and is Jewish.

2. Ms. Downer is no longer employed by the Department of Corrections. By her own admission, she was terminated from the Department at some point in July or August of 1997, for matters not related to the issues in the subject case.

3. On August 15, 1996, the Petitioner approached Officer Kunkle and began to verbally assault him for his filing of an incident report on August 13, 1996, concerning the condition of a "post vehicle." Ms. Downer stated that she was going to "kick his ass" and made derogatory remarks about his race and gender.

4. On April 4, 1996, the Petitioner attended a pre- determination conference that allegedly occurred on a Jewish holiday. The conference had been postponed once and was scheduled on April 4, 1996, at the request of Jim Payne, Downer's Police Benevolent Association (PBA) union representative. Mr. Payne was not an employee of the Department of Corrections. He informed Ms. Downer that if she wanted her job she would have to attend the conference.

5. On February 6, 1996, Captain D. C. Havelick, Ms. Downer's supervisor, issued a written reprimand to

   Ms. Downer for abuse of sick leave privileges. The reprimand was issued because Ms. Downer stated that her sick leave would end on the particular day in question at 4:00 a.m., and because her supervisor learned that she had been working in the citrus

   groves instead of actually being sick. He perceived this as an abuse of sick leave privileges.

6. The Petitioner has dyslexia. She did not request an accommodation for her dyslexia and there is no evidence that it affected her ability to perform her duties. Nevertheless, Colonel Frank Lopez accommodated the dyslexia by instructing Captain Havelick that reports for Downer's review should be read to her. No other disability was established at the hearing.

7. Ms. Downer was assigned a vehicle based upon her post assignment. Each post has a specific vehicle assigned to it. Other officers use the same vehicle and equipment as Ms. Downer. All guard post vehicles are substantially similar.

8. The Petitioner was allowed several Jewish holidays off from work. No evidence was presented at the hearing indicating that she did not receive a Jewish holiday off from work between August 15, 1996 and January 28, 1997, the time span involved in the Petition for Relief and the charges filed by the Petitioner. Whether the Petitioner received a holiday off depended upon the staffing situation at the institution at the time. A critical compliment of officers is necessary in order to effectively operate the correctional institution, and if another officer could not replace Ms. Downer for her shift, it is possible that she would be required to work on a Jewish holiday. Reasonable

   efforts were made to accommodate her leave requests as they were

   
   

   made.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

10. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer:

    (1)(a) to discharge 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.

    
    

11. The FCHR and the Florida courts have determined that federal discrimination law should be used as a guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586

    So. 2d 1205 (Fla. 1st DCA 1991).

    
    

12. The United States Supreme Court established in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248

    (1981), the analysis to be used in cases alleging discrimination under Title VII and which are persuasive in cases such as that

    at bar, as reiterated and refined in the case of St. Mary's

    
    

    Honor Center v. Hicks, 509 U.S. 502 (1993).

    
    

13. This analysis illustrates that a Petitioner has the burden of establishing by preponderance of evidence a prima facie case of discrimination. If that prima facie case is

    established the defending Respondent must articulate a legitimate, non-discriminatory reason for the action taken against the Petitioner. The burden then shifts back to the Petitioner to go forward with evidence to demonstrate that the offered reason is merely a pretext for unlawful discrimination. The Supreme Court stated in Hicks, before finding discrimination in that case, that:

    [T]he fact finder must believe the plaintiff's explanation of intentional discrimination.

    
    

    509 U.S. at 519.

    
    

14. In the Hicks case the court stressed that even if the fact finder does not believe the proffered reason given by the employer the burden still remains with the Petitioner to demonstrate a discriminatory motive for the adverse employment action taken even if the court, or fact finder, does not believe the employer's explanation for the reason.

15. In order to establish a prima facie case the Petitioner must establish that she is a member of a protected group; that she is qualified for the position in question; that

    she was actually subjected to an adverse employment decision; that she was treated less favorably than similarly situated persons outside her protected class and that there is some causal connection between her membership in the protected group and the adverse employment decision that was made. See Canino

    v. EEOC, 707 F.2d 468, (11th Cir. 1983); Smith v. Georgia, 684

    
    

    F.2d 729 (11th Cir. 1982).

    
    

16. There is no dispute in this case concerning whether Ms. Downer is a member of a protected class or whether she was qualified for her position. The first step in analyzing whether she has thus presented a prima facie claim is to ascertain whether she has actually suffered an adverse employment action. Adverse employment actions simply do not encompass each and every aspect of one's employment. Rather, an adverse employment action should be viewed as an ultimate employment decision. The courts have generally determined that ultimate decisions are limited to hiring, firing, granting leave, discharging, promoting and compensating employees. See Landgraf v. USI Film Products, 968 F.2d 427, 431 (5th Cir. 1992), wherein the court held that hostility from fellow employees and resulting anxiety, without more, cannot constitute an ultimate employment decision or adverse employment action. In Mattern v. Eastman Kodak Company, 104 F.3d 702, 708 (5th Cir. 1997), the court of appeals for the Fifth Circuit held that a verbal threat of firing or a

    reprimand for not being at one's assigned station, or even a missed pay increase and being placed on "final warning" do not themselves constitute "adverse employment actions" because of their lack of direct consequences.

17. Here, the Petitioner alleges the following adverse employment actions: that on January 28, 1997, she was suspended; that on August 15, 1996, she was harassed by a co-employee and that on February 6, 1996, and April 4, 1996, she was reprimanded and denied reasonable accommodations for a disability. She also maintains that she was denied properly maintained vehicles and was not allowed Jewish holidays off from work and that she was harassed and reprimanded for damaging or otherwise endangering department vehicles as well as for abuse of sick leave. Lastly, she claims that she was denied all accommodation for a disability.

18. Certain of these allegations do not constitute adverse employment actions and shall be described initially before analyzing each of the other allegations.

19. The Petitioner alleges that she was harassed on August 15, 1996. Although she does not provide any detail concerning this incident in her charging letter as to what the harassment might have been, Officer Kunkle testified at hearing that on August 15, 1996, the date and the occasion in question, Officer Downer approached him and began to verbally assault him

    for filing an incident report concerning her about the condition of a post vehicle after she left the vehicle. The Petitioner stated, in that incident, that she was going to "kick his ass" and made derogatory remarks about his race and gender. This appears to be the only incident occurring on August 15, 1996 and does not demonstrate any harassment toward Ms. Downer; rather it appears that the Petitioner engaged in harassment of Officer Kunkle. Even if she had demonstrated that Officer Kunkle had harassed her, it is obvious that such an action without more could not constitute an adverse employment action since it is hostility, at most, from a co-worker. This does not represent any ultimate employment decision by her superiors unless it could be shown that they were aware of such actions by Officer Kunkle or other co-employees on a repetitive basis and condoned them. There is no evidence whatever of such a circumstance.

20. Ms. Downer's allegation that she was denied proper vehicles to use in her job likewise does not constitute an ultimate employment decision and fails to establish an adverse employment action. In any event, the testimony of both Colonel Lopez and Captain Havelick, her superiors, clearly establishes that any officer assigned to the same post Ms. Downer was assigned to would use exactly that same vehicle, regardless of its condition. Indeed, Officer Kunkle, a non-minority male, testified at hearing that he frequently relieved Ms. Downer from

    her post and he would use the same vehicle and the same equipment as she did.

21. In addition to failing to establish that the above- described actions were adverse employment actions, Ms. Downer failed to establish any causal connection between the remainder of her allegations and her race, sex, religion, national origin, or disability. Indeed no preponderant evidence was presented that the actions taken against her were because of her membership in a protected class other than her simply making conclusory statements to the effect that because she was a member of a protected class, any action taken against her must have been because of that protected status. Simply stating that there is such a connection, does not establish a prima facie

    case; rather, there must be some evidence of a relationship between her protected status and an adverse employment action. Additionally, the Petitioner failed to establish that any employees who were not members of her protected class were treated any differently. Finally, the Department either disproved that the allegations occurred, or offered legitimate non-discriminatory explanations for each of the actions taken.

22. Initially, in examining the remaining alleged, adverse employment actions, it should be again pointed out that the January 28, 1997, ten-day suspension complained of by the Petitioner was previously litigated and ruled upon before and by

    the Public Employees Relations Commission (PERC). The parties before that agency, which found that no disparate treatment had occurred with regard to her January 28, 1997, ten-day suspension, were identical to the parties in this case.

    Accordingly, as set forth above and as found in the Order on the Department's Motion in Limine, the Petitioner is precluded from re-litigating issues related to that incident.

23. The Petitioner's complaint of a February 6, 1996, written reprimand that she received for abuse of sick leave privileges was not shown by the Petitioner to be causally connected with her race, sex, religion, national origin or any disability. Thus it cannot assist in establishing a prima facie case. In any event, the Department showed a legitimate, non- discriminatory explanation for that written reprimand by showing that Captain Havelick had a genuine good faith belief that the Petitioner had abused her sick leave and was thus entitled to a reprimand. Captain Havelick testified that he issued the reprimand because Ms. Downer called in sick on the third shift on December 26, 1995, and then stated that she would be in at 4:00 a.m. She later called Captain Havelick and told him that she had been working in the citrus grove during her sick leave. Captain Havelick believed this certainly did not indicate sickness as a reason for her absence and that this, therefore, constituted an abuse of her sick leave. He stated that his

    issuance of the written reprimand was not based on any characteristic of Ms. Downer, including race, sex, religion etc., but rather was based upon her actions in violating the sick leave policy. Ms. Downer presented no evidence to indicate that that explanation, by the Captain, was pretextual.

24. Her claims also involve allegations that the Department failed to reasonably accommodate her religion and disabilities. She no longer works for the Department and there was no evidence presented that the alleged failure to reasonably accommodate resulted in a constructive discharge. Accordingly, this aspect of her claim appears to be moot since there can be no available remedy at this time. There was no showing that even had the Department failed to reasonably accommodate her religion or disability, as she maintains, that any pay was withheld or lost as, for instance, by a failure by the Department to give her leave on religious holidays.

25. In any event, the claims are without merit. First the Petitioner complains of a pre-determination conference that was scheduled on a Jewish holiday. She states that she was told that if she wanted to keep her job, she needed to show up. At hearing, the evidence showed that if any such statement had been made it was not done by an employee of the Department of Corrections; rather, as Ms. Downer herself testified and indicates in her own April 4, 1996, incident report, the

    statement was made by Jim Payne, her PBA representative who is not an employee of the Department of Corrections. Furthermore, Danny Bussenni, a former personnel officer, testified that the Department did not refuse to postpone the conference.

26. Additionally, the Petitioner admits that she did receive some Jewish holidays off from work. She complains that she did not receive each and every holiday off. There was no indication of exactly how many Jewish holidays she did not receive off nor which ones, nor was there any evidence that any other days that she allegedly did not receive leave from work fell within the August 15, 1996 through January 28, 1997 time period put at issue by the Petition and Charge of Discrimination. It should be noted, however, that Colonel Lopez and Captain Havelick both testified that efforts were made to allow the Petitioner to have each Jewish holiday off and that she in fact did receive a good number of the holidays off. She might not have received every holiday off because a minimum number of staff are required by law to be at the institution each day for security reasons. Thus if there was no officer available to work on Ms. Downer's shift on a Jewish holiday then it is quite possible that she would have been required to work on such a holiday. It would have been unduly burdensome to allow her to take off from work if it meant that the critical

    compliment of security staff would not be met, with a concomitant breach of security.

27. It must be remembered that the Petitioner's job was essentially to guard inmates. The safety of the community, the inmates and other officers depended upon a sufficient number of officers being present as scheduled at the institution for duty shifts. In any event, as noted above, the Petitioner has not demonstrated that the alleged failure to allow her to take her religious holidays off from work resulted in her constructive discharge. Since she no longer works for the Department there would appear to be no relief or remedy available, even if she had established this to be a violation of Chapter 760, Florida Statutes.

28. The Petitioner also maintains that the Department failed to accommodate her disabilities. The only evidence of a disability presented was dyslexia. Ms. Downer did not allege that she ever asked for an accommodation for this disability. Nevertheless, upon learning of the disability on his own initiative, Colonel Lopez, her superior, instructed that any reports to be given to Ms. Downer were to be read to her in order to ensure that she understood them. Thus, the Department accommodated the disability even though no request for accommodation had ever been made.

29. In light of the above Findings of Facts and Conclusions of Law, the Petitioner's claim that she suffered an adverse employment action as a result of the discriminatory reasons and bases referenced above is not supported by preponderant evidence.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case.

DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2001.

COPIES FURNISHED:

Geneva Batsheba Downer 5446 Terrell Road

Mount Dora, Florida 32757

Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399

Louis A. Vargas, General Counsel Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-6563

Michael J. Moore, Secretary Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Azizi Coleman, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-3100

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: 00-003015

Orders for Case No: 00-003015