STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON J. PERKINS, )

)

Petitioner, )

)

vs. )

) TALLAHASSEE COMMUNITY COLLEGE, ) BOARD OF TRUSTEES, )

)

Respondent. )

Case No. 01-3302

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 31, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sharon J. Perkins, pro se

2991 Fenwick Court, East Tallahassee, Florida 32309

For Respondent: Michael Riley, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 600 Post Office Box 11189

Tallahassee, Florida 32302-3189

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner by committing an unlawful employment action contrary to Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner Sharon J. Perkins (Petitioner) filed a Charge of Discrimination against Respondent Tallahassee Community College, Board of Trustees (Respondent), with the Florida Commission on Human Relations (FCHR) on August 13, 1997. Petitioner's charge alleged that Respondent demoted her based on her race, sex, and marital status. Petitioner also alleged that Respondent had engaged in unlawful retaliatory conduct. During the hearing, Petitioner stated that she was no longer claiming that Respondent discriminated against her based on her race or marital status.

By letter dated August 16, 2001, FCHR advised Petitioner that it had been more than 180 days since she had filed her Charge of Discrimination. FCHR gave Petitioner several options, one of which was to file a Petition for Relief with the Division of Administrative Hearings. That same day Petitioner filed an Election of Rights form and a Petition for Relief with FCHR.

FCHR referred the Petition for Relief to the Division of Administrative Hearings on August 17, 2001. The Division of Administrative Hearings issued an Initial Order on August 21, 2001. Respondent filed a unilateral response to the Initial Order on September 5, 2001.

On September 5, 2001, the undersigned issued a Notice of Hearing scheduling the case for formal hearing on October 30,

2001. An Amended Notice of Hearing dated September 7, 2001, set the hearing for October 30-31, 2001.

On September 10, 2001, Respondent filed an Answer, Motion to Dismiss and Affirmative Defenses.

On September 17, 2001, Respondent filed a Motion for Summary Recommended Order.

On October 10, 2001, Respondent filed Respondent's Witness and Exhibit List.

On October 12, 2001, the undersigned issued an Order. In the Order, the undersigned reserved ruling on Respondent's request to dismiss the Petition for Relief as untimely. The undersigned also denied Respondent's Motion for Summary Recommended Order.

Respondent filed a Motion for Continuance on October 18, 2001. The undersigned issued an Order Granting Continuance dated October 19, 2001. The order required the parties to submit several mutually agreeable dates for rescheduling the hearing.

After receiving written responses from the parties and conducting a telephone conference, the undersigned issued an Order and a Notice of Hearing dated November 28, 2001. The Notice of Hearing rescheduled the formal hearing for January 31, 2002.

On January 11, 2002, Respondent filed an Amended Witness and Exhibit List.

On January 14, 2002, Respondent filed a Motion to Dismiss or, in the Alternative, Motion to Strike Petitioner's Witness and Exhibit List. On January 16, 2001, Petitioner filed a Motion to Except [sic] Petitioner [sic] Witness List and Exhibits. Petitioner also filed her Witness List and Exhibits. The undersigned issued an Order dated January 16, 2001, stating that witnesses and exhibits not timely disclosed would be excluded at the hearing.

Petitioner filed her Witness and Exhibit List on

January 16, 2001. She filed a Supplemental Exhibit List several days later.

On January 23, 2002, Respondent filed a Motion to Strike and Motion in Limine Directed to Petitioner's Exhibit No. 25. The undersigned granted this motion during the hearing.

On January 30, 2002, Respondent filed Board's Motion to Use Videotape Deposition at Final Hearing. This motion was denied during the hearing. However, the undersigned granted Respondent leave to file a post-hearing deposition of the witness,

1. K. Wetherell.

   
   

   During the hearing on January 31, 2002, Petitioner testified on her own behalf. She presented no other witnesses. Petitioner offered 15 exhibits, which were accepted as evidence.

   Respondent presented the testimony of seven witnesses.

   
   

   Respondent offered 18 exhibits, which were accepted as evidence.

   
   

   The court reporter filed a copy of the hearing Transcript on February 18, 2002.

   Respondent filed the deposition of T. K. Wetherell on February 27, 2002.

   As of the date of this Recommended Order, Petitioner had not filed proposed findings of fact and conclusions of law.

   Respondent filed Board's Proposed Recommended Order on March 11, 2002.

   FINDINGS OF FACT

   
   

   1. Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992.

   2. Petitioner, an African-American female, began working in the Financial Aid Office at Florida State University as a student from 1978 to 1983. After receiving her undergraduate degree, Petitioner worked for Florida State University as a Financial Aid Specialist, administering Pell Grants from 1983 to 1989.

   3. In September of 1989, Respondent hired Petitioner to work in its Financial Aid Office as a Financial Aid Specialist. In July 1991, Petitioner became Respondent's Director of Financial Aid; she worked in that capacity during the 1996-97 school term.

   4. Mr. Tom Hanna, Respondent's Vice President for Administrative Services, was Petitioner's supervisor after she became Director of Financial Aid. From July 1991 through June 1996, Mr. Hanna gave Petitioner an overall performance rating of "above satisfactory."

   5. During the 1996-97 school year, Respondent's President,

      
      

      T. K. Wetherell, became concerned that students were not receiving timely notice of their financial aid awards. Untimely receipt of financial aid awards was a problem for Respondent because many students received financial aid.

   6. Respondent formed the Enrollment Retention Committee in the Spring of 1997. The purpose of the committee was to consider issues impacting student retention, such as financial aid.

   7. Mary Coburn, Respondent's Assistant Vice President for Student Services, was the Chairperson of the Enrollment Retention Committee. From the beginning, Ms. Coburn was concerned about problems with the delivery of financial aid to students. She received complaints from students about the Financial Aid Office losing documents and the inability of the staff to answer questions.

   8. The Enrollment Retention Committee formed a subcommittee to review financial aid operations. Dr. Marge Banocy-Payne was a member of the subcommittee. Dr. Banocy-Payne

      also was concerned about complaints from students about delays in receiving financial aid payments and problems with the attitudes of the financial aid staff.

   9. Petitioner worked with the subcommittee to find ways to improve financial aid services. In April 1997, the committee made 30 recommendations on ways that Petitioner could improve the Financial Aid Office.

   10. Mr. Hanna met with Petitioner at least five times during the 1996-97 school year to discuss multiple issues in the operations of the Financial Aid Office. Mr. Hanna meant for these meetings to serve as counseling sessions regarding Petitioner's ineffective performance. Mr. Hanna did not memorialize these meetings in writing because he believed Petitioner had been a loyal employee. Instead, Mr. Hanna felt that the problems in the Financial Aid Office were temporary and that Petitioner's job performance would improve.

   11. In June 1997, President Wetherell and Mr. Hanna requested Ms. Carmelita Tudor, Respondent's Director of Human Resources, to investigate allegations of improprieties in the Financial Aid Office. Ms. Tudor found no evidence to support these allegations. However, Ms. Tudor concluded in a June 12, 1997, written report that Petitioner was no longer an effective director of the Financial Aid Office and that Respondent should remove Petitioner from her position immediately.

   12. Ms. Tudor's recommendations were based in part on Petitioner's procrastination in filling vacant positions in the Financial Aid Office. The failure to promptly fill the positions compounded the workload and delayed the processing of Student Aid Reports for students who were waiting for financial aid.

   13. For example, an employee in a Veteran Affairs Specialist position gave Petitioner oral notice in June 1996 that the employee intended to retire. In August 1996, the employee gave Petitioner written notice that the employee would retire in January 1997. Mr. Hanna gave Petitioner authority to hire a replacement for the Veteran Affairs Specialist before January 1997 so that the retiring employee could train the new employee. Petitioner did not request that Respondent advertise for the vacant position until May 1997. The position was

       re-advertised in July 1997. The position was finally filled in September 1997.

   14. Mr. Hanna decided that Respondent should be transferred from her position as Director of Financial Aid. The decision was based on Petitioner's ineffective performance during the 1996-97 school term. The office had become dysfunctional and appeared to be incapable of providing financial aid to a significant number of students in the next school year.

   15. The decision to transfer or demote Petitioner was based on the following management issues: (a) Petitioner's failure to remain current with the job knowledge that was necessary to perform her duties, specifically in the areas of staff workload and staff morale; (b) Petitioner's failure to timely fill two full-time job vacancies in the office, adversely impacting the ability of the office to function adequately;

       (c) Petitioner's failure to ensure that the office produced a satisfactory quantity of work, evidenced by the volume of unprocessed aid requests; (d) Petitioner's failure to establish a dependable management style, requiring only minimum supervision; (e) Petitioner's failure to establish office management practices to eliminate unnecessary stress on staff and to ensure the respect of her staff; (f) Petitioner's failure to demonstrate initiative, making it necessary for the Enrollment Management Committee and other college personnel to examine the office in order to suggest ways to improve overall office performance; and (g) Petitioner's failure to exercise management judgment to discern problems and develop solutions or to implement plans of action developed by her colleagues and Mr. Hanna.

   16. By letter dated June 16, 1997, Mr. Hanna notified Petitioner of Respondent's intention to demote Petitioner to another position. Respondent scheduled the predetermination

       conference for June 25, 1997, so that Petitioner could respond in writing and orally to Respondent's proposed action.

   17. Petitioner's husband subsequently informed Mr. Hanna that Petitioner had been advised by her medical doctor to avoid any activities that might engender stress, tension, or anxiety for a period of 30 days.

   18. On July 1, 1997, Respondent increased the salary of the Financial Aid Director from $45,770.50 annually to

       $48,059.02 annually. This raise was not related to Respondent personally or to her performance. Instead, it was the result of an effort to standardize the salary for the position compared to the salary of financial aid directors at other institutions and the salaries of peer positions. Respondent's staff insisted that the pay grade for the position of financial aid director be changed even though Petitioner's job performance was substandard.

   19. By letter dated July 2, 1997, Petitioner's medical doctor advised Mr. Hanna that Petitioner was being treated for depression and would be unable to attend a July 15, 1997, predetermination conference.

   20. Respondent conducted the conference on July 31, 1997.

       
       

       Petitioner authorized her husband to speak on her behalf at the conference.

   21. On or about August 4, 1997, Respondent advised Petitioner that she was being transferred to a position with the Big Bend Job and Educational Council, effective August 11, 1997. Petitioner's new job as a WAGES Administrative Assistant had a salary rate of $36,000 annually.

   22. Respondent elected to transfer Petitioner to another position rather than terminate her or offer her a probationary period in her position as director of financial aid. Respondent did not want to damage Petitioner's career or cause her to lose benefits. Respondent did not believe that Petitioner could successfully complete a probationary period in her position as director of financial Aid in which she would have been required to show significant progress.

   23. On August 13, 1997, Petitioner filed her Charge of Discrimination with FCHR.

   24. On August 15, 1997, Petitioner filed a grievance claiming that Respondent's decision to transfer her was "inappropriate and unfair." This complaint initiated the grievance process set forth in the classified staff manual.

   25. On August 28, 1997, Ms. Coburn upheld Mr. Hanna's decision to transfer/demote Petitioner. Ms. Coburn handled Petitioner's grievance at Step III because Mr. Hanna was Petitioner's direct supervisor.

   26. Mr. Hanna conducted Petitioner's annual employee evaluation for the period of July 1, 1996, through June 30, 1997. In preparing the evaluation form, Mr. Hanna noted the deficiencies in Petitioner's job performance. Mr. Hanna gave Petitioner an unsatisfactory rating regarding her knowledge of her job, the quality of her work, the quantity of her work, dependability, responsibility, initiative, judgment, attitude and attendance.

   27. Mr. Hanna attempted to furnish Petitioner with the evaluation personally but was unable to arrange an interview with Petitioner. Mr. Hanna eventually mailed the evaluation to Petitioner on or about September 4, 1997.

   28. On September 8, 1997, Petitioner filed her Step IV grievance with President Wetherell. On September 16, 1997, President Wetherell upheld the decision to transfer/demote Petitioner and denied her grievance.

   29. On October 9, 1997, Petitioner filed her Step V grievance, seeking review by the Board of Trustees. President Wetherell responded to the Step V grievance on November 14, 1997. On or about November 26, Petitioner received copies of documents to be presented to the Board of Trustees.

   30. On December 1, 1997, Petitioner and Respondent's representatives addressed the Board of Trustees. After reviewing the matter, the Board of Trustees approved the

       decision to transfer/demote Petitioner from her position as financial aid director to WAGES Administrative Assistant.

   31. Respondent employed Petitioner at the Big Bend Job and Education Council until May 10, 2000. During that time, Petitioner received employment promotions and salary increases. On May 10, 2000, Respondent concluded its administration of the Big Bend Job and Education Council.

   32. As of the time of the final hearing, Petitioner continued to be employed as the One-Stop Coordinator for the Big Bend Job and Education Council. The program is now administered by a private, non-profit organization.

   33. In the 1994-95 school term, Carlotta Appleman was employed as Respondent's Computer Systems Manager. She was responsible for all of Respondent's information technology services.

   34. In the 1994-95 school term, Respondent employed Norm Cave, an American Indian/Alaskan Native male, as a programmer analyst. Mr. Cave had no supervisory responsibilities or direct contact with Respondent's students.

   35. Ms. Appleman was Mr. Cave's supervisor. In the last half of 1994, Ms. Appleman placed Mr. Cave on probationary status because of issues involving interpersonal relations and insubordination. Ms. Cave's probation was not based on the quantity and quality of his work or job performance. Mr. Cave

       failed to resolve the issues of interpersonal relations and insubordination during his probation. Mr. Cave resigned his position effective August 31, 1995.

   36. As director of financial aid, Petitioner had supervisory responsibilities over employees and was charged with direct student contact. Petitioner was transferred/demoted because of her job performance deficiencies. There are no similarities in the employment situation involving Mr. Cave compared to the employment situation involving Petitioner.

       CONCLUSIONS OF LAW

       
       

   37. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.

   38. Respondent argues that the Petition for Relief should be barred as untimely pursuant to Joshua v. City of Gainesville, 768 So. 432 (Fla. 2000). FCHR has determined that "a complainant may request an administrative hearing at any time after the conclusion of the initial 180-day period following the filing of the complaint and no later than 35 days after the date of a determination by the Commission. . . ." Wilson v. Scotty's, Inc., FCHR Order No. 98-032 (FCHR 1998). Therefore, Respondent's Motion to Dismiss is denied.

   39. Section 760.10(1), Florida Statutes, makes it unlawful for an employer to demote any person because of such person's gender. Section 760.10(7), Florida Statutes, makes it unlawful for an employer to retaliate against employees for opposing any practice which is an unlawful employment practice. Petitioner asserts that Respondent violated both of these statutes.

   40. The legislative scheme contained in the Florida Civil Rights Act of 1992, as amended, Chapter 760, Part I, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws under Title VII of the Civil Rights Act of 1964, as amended, 42

       U.S.C. Section 2000e, et seq. FCHR and the Florida courts have determined that federal discrimination law provides guidance for construing the Florida Civil Rights Act of 1992, as amended. Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

   41. The Supreme Court established and later clarified the burden of proof in discrimination cases in McDonnell Douglas

       Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and

       St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Under McDonnell Douglas, Petitioner has the initial burden of proving a prima facie case of discrimination. Bryant, 586 So. 2d at 1209.

   42. After a complainant satisfies the initial burden, the employer

       . . . need only articulate--it need not prove--the existence of a legitimate, nondiscriminatory reason for its action.

       The plaintiff then retains the burden of persuading the court that the offered reason is a pretext and that a discriminatory reason more likely motivated the employer in its actions.

       
       

       Texas Department of Community Affairs v. Bryant, 586 So. 2d at 1209.

   43. The petitioner always retains the ultimate burden of persuasion. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254-256.

   44. In the instant case, Petitioner's prima facie case of gender discrimination consists of proving the following: (a) she belongs to a protected class (female); (b) her job performance as financial aid director was sufficient to meet Respondent's legitimate expectation; (c) Respondent demoted Petitioner without giving her a chance to improve her performance during a probationary period; and (d) after Respondent demoted Petitioner i) Respondent replaced Petitioner with a person outside the protected class, with equal or lesser qualifications; ii) others who were similarly situated but not members of the same class remained in similar positions; or iii) similarly situated persons outside the protected class were

       treated more favorably. Andrada v. Morse Operations, Inc., 946

       
       

       F. Supp. 979, 983 (M.D. Fla. 1996). Petitioner here attempted to show that she received disparate treatment, i.e. Petitioner did not have the opportunity that Respondent gave to Norm Cave to improve his job performance during a probationary period.

   45. Petitioner has not met her prima facie burden of proving gender discrimination for two reasons. First, Petitioner's job performance for the 1996-97 school year did not meet Respondent's expectations. Petitioner failed to correct the inefficiencies in her office despite many counseling sessions with her supervisor and other persons in authority. She failed to successfully implement the recommendations of the committee after participating with the committee in looking for ways to improve the Financial Aid Office.

   46. Second, Petitioner and Norm Cave were not similarly situated. Mr. Cave did not have supervisory responsibilities or contact with students where his failure to perform his duties would have a direct and immediate impact on students and the school's enrollment. Additionally, Mr. Cave was not being disciplined for deficiencies in the quality and quantity of his work. "In determining whether employees are similarly situated

       . . . it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are

       disciplined in different ways. Holifield v. Reno, 115 F. 3d 1555, 1562 (11th Cir. 1997).

   47. Assuming, arguendo, that Petitioner established a prima facie case, Respondent produced evidence of a legitimate and nondiscriminatory reason for its action, i.e. Petitioner's failure to perform satisfactorily in her work. Petitioner, in turn, presented no persuasive evidence that Respondent's reason was a pretext for an illegal discriminatory act.

   48. Despite Petitioner's prior years of satisfactory or above satisfactory work as financial aid director, her performance for the 1996-97 school term fell far short of meeting Respondent's legitimate expectations. Petitioner presented no credible evidence to the contrary.

   49. In order to make out a prima facie case of retaliation, Petitioner must show the following: (a) she engaged in a statutorily protected activity; (b) she suffered an adverse employment action such as demotion; and (c) the demotion was causally related to the protected activity. See Harper v.

       Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir.

       
       

       1998).

       
       

   50. Petitioner has not proved a prima facie case of retaliatory conduct. Mr. Hanna made the final decision to demote Petitioner on or about August 4, 1997. Petitioner subsequently filed her Charge of Discrimination and initiated

the grievance procedure. There is no evidence that Respondent took some adverse action against Petitioner after she exercised her right to file her charge and/or grievance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 26th day of March, 2002, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 26th day of March, 2002.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Michael Riley, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 600 Post Office Box 11189

Tallahassee, Florida 32302-3189

Sharon J. Perkins

2991 Fenwick Court, East Tallahassee, Florida 32309

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 01-003302

Orders for Case No: 01-003302