STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNELL CAMPBELL-METCALFE,

Petitioner,

vs.

DEPARTMENT OF EDUCATION,

Respondent.

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) Case No. 00-4764

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RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted February 20, 2004, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Lynell Campbell-Metcalfe, pro se

309 Mona Drive, Apartment 1 Dothan, Alabama 36303

For Respondent: Margaret O'Sullivan Parker, Esquire

Office of the General Counsel Room 1701, The Capitol Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent was discriminated against by the

Petitioner based upon reasons of her gender, on an alleged violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause originally arose on a charge of discrimination filed with the Florida Commission on Human Relations (Commission) alleging that the Respondent had unfairly terminated the Petitioner and did not hire her for a permanent position based upon her gender.

The Commission did not complete its investigation of her original complaint within 180 days. Thereafter for unknown reasons, the matter remained in a state of inactivity for approximately four and one-half years with the Commission. It was ultimately originally forwarded to the Division of Administrative Hearings (Division) in November of 2000. The notice forwarding the matter to the Division made conflicting statements as to the status of the Petitioner's case. It noted that more than 180 days had elapsed since the date of the Petitioner's complaint, but also stated that the Petitioner submitted a request for formal hearing because of the dismissal of her case. This request rendered it unclear as to whether the Petitioner was exercising her option under Section 760.11(5), Florida Statutes, because of the Commission's inaction, or Section 760.11(7), Florida Statutes, because of a substantive dismissal of her claim. Additionally, the referral notice did

not attach a copy of the Petitioner's request for hearing, nor was any petition filed with the Division. The Respondent filed a Motion to Dismiss or in the alternative to remand the matter to the Commission. After giving a substantial period of time for the Petitioner to respond to the Motion and considering the essentially non-responsive material filed by the Petitioner after the filing of the Motion to Dismiss, an Order was entered by the undersigned closing the file in the case on February 23, 2001.

A substantial period of time thereafter elapsed whereupon the Commission entered an Order on November 30, 2001, remanding the matter back to the Division. For unknown reasons almost a year then elapsed before that Remand Order was ever forwarded to the Division. Thereafter, a substantial period of time elapsed while the pertinent documents in the possession of the Commission were located and forwarded to the Division.

On March 28, 2003, an Order recounting the rather interesting procedural history of the case was entered by the undersigned, noting, among other things, that the original purported "request for hearing" was first filed with the Division of Administrative Hearings late in 2002, when the Remand Order was ultimately located and forwarded to the Division. By way of procedural history that Order of the

undersigned entered March 28, 2003, is incorporated herein by reference.

By that Order, the undersigned noted the reasons for closure of the case related to jurisdictional defects that could not have been cured by amendment of a petition which had never been filed. However, recognizing the Remand Order of the Commission, the Petitioner was given one more time period to draft and file a petition stating the factual and legal basis or nature of the claim of discrimination originally filed with the Commission. Thereafter, several attempts were made to set a hearing. It was continued twice for good cause, including, on one occasion, the failure of the Petitioner to ever serve the new "petition" on the Respondent.

Ultimately, the matter was again set for final hearing and heard on February 20, 2004. The cause came on for hearing in Tallahassee, Florida, in which the Petitioner offered the testimony of one witness, Jerry Moore, and submitted two exhibits into evidence, testifying on her own behalf, as well. The Respondent offered the testimony of witnesses Robert Lane and Veronica Thomas, and submitted two exhibits which were admitted into evidence. A transcript of the proceeding was ordered and the parties were given an opportunity to file proposed recommended orders which have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a female who was employed by the Florida Department of Education (Department), the Respondent in this case. She was employed in a temporary position in late 1995 through early 1996.

2. The Petitioner had been a participant in a program designed to provide an opportunity for those receiving public assistance to obtain employment. The Petitioner volunteered to work for the Respondent, which is an agency of the State of Florida, in 1995. Jerry Moore was the Respondent's personnel director at that time. He oversaw the activities of several volunteers working as a part of that program. At that time the Department's mail room was short of staff members and the Petitioner was placed in an emergency position, working in the mailroom of the Department.

3. Robert Lane was the "lead worker" in the mail room at that time. An emergency position is a time-limited position. That is, the position had a definite expiration date after which the occupant of the position cannot be employed any longer in that position. The Petitioner's duties included making deliveries and pickups at the Capitol Building and the main agency location in the Turlington Building in Tallahassee. Her duties involved picking up, delivering, and processing outgoing mail.

4. The Petitioner stated to her co-workers on at least one occasion, in the presence of Mr. Lane, that "a man should be lifting these heavy boxes." Another female employee, Veronica Thomas, did much the same work that male employees did.

   Ms. Thomas has worked in the mailroom for approximately 14 years and her current position of senior clerk requires her to lift heavy weights, depending on the type of mail that has come in for the day. That includes lifting heavy boxes and assisting co-workers when the mailroom is short-handed. She has not been adversely treated by her supervisor for asking male co-workers to assist her in lifting extremely heavy boxes.

5. While the Petitioner was working in the emergency position, she applied for an advertised vacant Motor Vehicle Operator position in the mailroom. Approximately 20 people applied for that position. The job description for that position included delivering and picking up mail and packages.

6. Ultimately Terrance Anderson, a male, was selected for that position. Witness Robert Lane assisted in the decision for hiring for that position, but Bureau Chief Don Griesheimer made the final decision to hire Mr. Anderson. Mr. Anderson had prior experience working for the Department and working in the mailroom. He worked as a warehouse clerk with the Department from 1989 through 1992, with duties that included assisting in the Department's mailroom "by stamping mail, delivery of

   incoming and outgoing mail." He also worked for the Department in the mailroom in a temporary position as a Motor Vehicle Operator for two months in 1994. His duties included posting, delivering, and picking up mail at that time.

7. Mr. Moore spoke with the Petitioner when she was notified that her time-limited emergency position was about to end and he discussed with her the fact that another individual had been selected for the Motor Vehicle Operator position. He offered to find another position for her with the Department, such as an OPS or "other personnel services" position.

8. Contrary to the Petitioner's contention, the Respondent attempted to locate another position for the Petitioner with the Department prior to her filing of the charge of discrimination. The search for an alternative position for her was not done as a means of acknowledgement that the Department had wrongfully terminated or failed to hire the Petitioner for the position that Mr. Anderson secured, but as a way of carrying out its general policy to assist those whose jobs have expired in finding alternative employment. Ultimately the Petitioner chose to refuse the OPS job.

9. The Petitioner's assertion that Mr. Lane spoke about her negatively "behind her back" was not corroborated by other witnesses or evidence. In fact, the Petitioner admitted that

   she did not hear Mr. Lane make such statements. Other employees stated that the Petitioner "complained a lot."

10. The Petitioner's assertions that Mr. Lane did not hire her because she was a woman or because he did not believe that a woman could lift heavy weights are not supported by the evidence. Mr. Lane's concerns were about having to stop to help the Petitioner with regard to items or packages that were not excessively heavy and that the Petitioner could have easily lifted. He did not expect employees to pick up packages by themselves, if they were excessively heavy, but did expect them to handle packages of manageable sizes. The Petitioner, however, did not appear to always be willing to lift even small or light weight packages. In particular, Mr. Lane established an instance where the Petitioner picked up packages from the Capitol Building, drove to the Turlington Building in the vicinity of the mailroom, and then asked another employee to help her bring the packages into the building. She apparently contended that they were excessively heavy. Mr. Lane weighed the packages later and found that most of them were in the range of 15 or 20 pounds.

11. Several female employees have worked in the mailroom and their gender has not been a consideration when making hiring decisions. They have handled most of the packages with relative ease, and when they required assistance from male (or female)

    employees in handling heavier packages, there is no evidence that their need to do so has resulted in any discriminatory treatment of them on account of their gender or otherwise.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

13. Section 760.10(1)(a), Florida Statutes, prohibits an employer from discharging, refusing to hire or promote or otherwise discriminating against an individual based upon that person's gender.

14. The Petitioner initiated this matter on January 30, 1996, with a complaint filed with the Commission alleging that she was terminated from her position as a Motor Vehicle Operator with the Respondent because of her gender. As to that allegation the state personnel rules limited her to holding the position for more than 12 weeks in a 12 month period. See Florida Administrative Code Rule 60K-4.003(3)(d) (1995).1/ She was terminated at the end of that time period. Although it was not required to, the Department tried to find an OPS position for her, but was not successful. In fact, she refused one unavailable OPS position.

15. The fact that the Petitioner claims that she was unaware of the temporary nature of her position does not change

    the fact that it was time limited and that she could not have continued working past the 12-week deadline. The position was created for the purpose of staffing the mailroom during a shortage of employees. Therefore, her termination was a function of the position and not related to her gender. There has been no persuasive evidence of any discriminatory action in the placement of the Petitioner in that position or in her termination from it due to the time limit.

16. The Petitioner alleged in a compliant or amendment, on April 9, 1999, that she was not hired in another position by the Respondent because of her gender. Additionally, her Petition filed May 13, 2003, after the remand proceeding commenced, also raises further allegations. Because the Amended Complaint or Amended Charges were filed more than one year from the initial complaint, the additional allegations shall not be considered because they were not filed within 365 days of the alleged discriminatory action, as envisioned in Section 760.11(1), Florida Statutes. New and additional types of allegations of discrimination cannot be raised in the Petition for Relief, if they were not raised in the timely complaint filed with the Commission. See Young v. Department of Business and Professional Regulation, DOAH Case No. 03-1140 (Recommended Order July 1, 2003; Final Order February 27, 2004); Jones v. Coastal Maritime Services, DOAH Case No. 02-2787 (Recommended

    Order December 16, 2002; Final Order April 30, 2003); Williams v. Shands at Alachua General Hospital and Santa Fe Health Care, DOAH Case No. 98-2539, (Recommended Order January 8, 1999; Final Order July 16, 1999). Regardless of the timeliness of the Petitioner's additional allegations, the Petitioner has not met her burden of proof as discussed infra.2/

17. The Petitioner has the burden of proof to demonstrate a prima facie case of gender discrimination. She must prove that she is part of a protected class, was qualified for and applied for the position in question, (or was terminated from her position) that she was rejected for the position or terminated, despite her proven qualifications, and that another person equally or less qualified than the Petitioner, outside her protected class replaced her, or was hired for the position.

18. Once a Petitioner has met the initial burden of demonstrating a prima facie case, it is duty of the employer to go forward with evidence of a legitimate, non-discriminatory explanation for the employment action taken. Finally, the Petitioner must then establish that the reason asserted by the employer was not the real reason for the employment action taken, but was really a pretext for discrimination. See McDonnell-Douglas v. Green, 411 U.S. 798, 801 (1973); Lee v. GTE

    Florida, 223 F.3d 1249, 1253 (11th Cir. 2000). Federal court decisional authority rendered in interpretation of federal anti-

    discrimination law has been adopted in Florida when construing Chapter 760, Florida Statutes due to the close similarity with the federal statutes. See Department of Corrections v.

    Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991); School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

19. The Respondent in this case, as the employer, has a burden of production, rather than a burden of persuasion, in demonstrating a legitimate, non-discriminatory reason for the employment action taken. Chandler at 1186; Texas Department of

    Community Affairs v. Burdine, 450 U.S. 248, 255 (1981). An employer is not required to show that the person hired was more qualified than the complainant. An employer has the discretion to choose among equally qualified applicants, and is not required to hire an applicant merely because he or she is a member of a protected class. Id. at 259. The ultimate burden of persuading the trier of fact that discrimination took place remains with the Petitioner. Id. at 253; St. Mary's Honor

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

    
    

20. The Petitioner demonstrated that she was a member of the protected class (female), and that a qualified individual was hired in the position that she sought. However, the Petitioner has not made a prima facie case because she has failed to prove that she was minimally qualified for the Motor

    Vehicle Operator position or that she was equally or more qualified than the individual hired for the position. She has not proven she was terminated from her original position, because the time-limited position simply ended. The Petitioner did not address her own qualifications for the position.

    Instead, most of the evidence presented addressed her dissatisfaction with her supervisor and whether Mr. Anderson was qualified for the position.

21. Even assuming arguendo that the prima facie burden had been met, the Respondent met its burden of production by articulating a legitimate, non-discriminatory reason for its decision to hire another person rather than the Petitioner. Specifically, the person hired worked for the Department on two prior occasions, and had experience working in the mailroom on both of those occasions. Thus, the evidence presented by the Respondent meets the burden of production articulated in the Chandler and Burdine decisions.

22. The Petitioner was not able to overcome this demonstration by the Respondent, because she did not provide any evidence to show that the stated reason by the Department was pretextual. The Petitioner admitted that she did not hear the alleged negative comments made by the mailroom supervisor, and that she herself made the statement that they "needed a man" to lift the heavy boxes. Other witnesses indicated that female

employees in the mailroom were not discriminated against because of their gender and were not penalized if they asked for assistance in lifting. Moreover, the Department offered to place the Petitioner in another position, and she refused the position. Thus, the Petitioner has failed to demonstrate that the termination of her time-limited position and the decision not to hire her for the Motor Vehicle Operator position was based on anything other than a legitimate, non-discriminatory reason. Thus the Petitioner has not carried forward and established her burden of persuasion in this proceeding. St.

Mary's Honor Center, supra.

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, therefore,

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety.

DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida.

S

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 Clerk of the

Division of Administrative Hearings this 14th day of May, 2004.

ENDNOTES

1/ The portion of this rule addressing emergency positions was deleted in 1999, and the entire rule was repealed in 2002.

2/ The Respondent's counsel makes or advances a cogent and largely persuasive discussion and argument in the Proposed Recommended Order concerning the jurisdictional frailties attributable to the Petitioner's posture herein, discussed in the undersigned's Order of March 23, 2003; the question of the Commission's untimely referral of the case originally to the Division; the question of the applicability of the four year statute of limitations of Section 95.11(3)(f), Florida Statutes, given the Florida Supreme Court's holding in Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000); and the issue of the defensive application of the Doctrine of Laches to a situation such as that at bar. The cogent argument thus advanced by the Respondent need not be reached and determined, however, due to the Conclusions of Law below, on the merits of the Petitioner's claim.

COPIES FURNISHED:

Lynell Campbell-Metcalfe

309 Mona Drive, Apartment 1 Dothan, Alabama 36303

Margaret O'Sullivan Parker, Esquire Office of the General Counsel

The Capitol, Room 1701 Tallahassee, Florida 32399

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 00-004764

Orders for Case No: 00-004764