STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JANET RODRIGUEZ, )
)
Petitioner, )
)
vs. ) Case No. 02-1709
) DISTRICT BOARD OF TRUSTEES OF ) MIAMI-DADE COMMUNITY COLLEGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on November 7 and 8, 2002, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in
Tallahassee, Florida.
APPEARANCES
For Petitioner: Neil Flaxman, Esquire
Neil Flaxman, P.A.
550 Biltmore Way, Suite 780 Coral Gables, Florida 33134
For Respondent: Karen A. Brimmer, Esquire
Hinshaw & Culbertson
One East Broward Boulevard Suite 1010
Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
Whether the Respondent discriminated against the Petitioner for exercising her rights under Sections 760.01-760.011, Florida Statutes (2001), and, if so, the appropriate remedy.
PRELIMINARY STATEMENT
On December 3, 2001, Janet Rodriguez filed an Amended Charge Of Discrimination with the Florida Commission on Human Relations ("FCHR") in which she alleged that she had been discriminated against when she was terminated from her employment with Miami-Dade Community College after having filed two grievances complaining of sexual harassment. On April 1, 2002, the FCHR issued a Determination: No Cause, and
Ms. Rodriguez filed a Petition for Relief and Request for Administrative Hearing with the FCHR on April 29, 2002.
Ms. Rodriguez set forth the same allegations against Miami-Dade Community College in her Petition for Relief as those she set forth in her Amended Charge of Discrimination. On May 1, 2002, the FCHR transmitted the petition to the Division of Administrative Hearings for assignment of an administrative law judge.1 After one continuance, and pursuant to notice, the final hearing was conducted on November 7 and 8, 2002.
At the hearing, Ms. Rodriguez testified in her own behalf and presented the testimony of Joy C. Ruff, who holds, among other positions, the position of interim Director of Employee
Relations at Miami-Dade Community College. Petitioner's Exhibits 1 through 16 were received into evidence on stipulation of the parties. Miami-Dade Community College presented the testimony of Frank Meistrell, a former employee of Miami-Dade Community College, and Olga Mejia Morales. Respondent's Exhibits 1 through 9 were received into evidence without objection.2
The two-volume transcript of the proceedings was filed with the Division of Administrative Hearings on November 27, 2002, and the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Miami-Dade Community College is an employer within the meaning of the Florida Civil Rights Act, Sections 760.01- 760.011, Florida Statutes (2000).
General Information
In October 1998, Ms. Rodriguez was hired as Technical/Classified Staff at the Consolidated College Warehouse ("Warehouse") maintained by Miami-Dade Community College.
At the times material to this proceeding, the main section of the Warehouse served as a storage facility for furniture and equipment that was no longer being used on the various campuses of Miami-Dade Community College. In another section of the Warehouse, called the "surge" section, furniture and equipment were stored temporarily, while portions of the campuses were undergoing renovations. Two employees were responsible for doing the manual labor in the Warehouse, which involved collecting furniture and equipment from the campuses, storing them in the Warehouse, and retrieving them when necessary.
A third section of the Warehouse was devoted to collecting used computers that were being replaced on the various campuses of Miami-Dade Community College. There were four employees in this section of the Warehouse, including the head of the section, Maggie Zilliner. The old computers were collected from the campuses and logged into the property control system. The computers were sorted into those that worked, those that did not work but could be repaired, and those that could not be repaired. Two of the four employees were responsible for doing the computer repairs.
The Warehouse also served as the site for storing records generated on the various campuses of Miami-Dade Community College. A large part of the work in this section
consisted of maintaining a computer record containing the identification and location of the records stored in the facility. In addition, records were retrieved and provided to the campuses as requested, and documents were destroyed in accordance with state regulations.
Frank Meistrell, who is now retired, was the Risk Manager for Miami-Dade Community College and was in charge of setting up and managing the Warehouse. He reported to Will Bailey, who was at the time the Director of the Budget for Miami-Dade Community College. The employees working in the Warehouse were, at the times relevant to this proceeding, part- time employees of Miami-Dade Community College with the exception of James Roof, who held a full-time position as the supervisor of operations for the Warehouse.
Mr. Meistrell was Mr. Roof's direct supervisor, and he had recommended that Mr. Roof be promoted to the supervisor's position at the Warehouse. Mr. Meistrell and Mr. Roof had both worked for Miami-Dade Community College for many years, and, at one time, their offices were close to one another. The relationship between Mr. Meistrell and Mr. Roof was, however, strictly a business relationship; Mr. Meistrell did not know Mr. Roof socially and never interacted with Mr. Roof outside of the office. Mr. Meistrell may have gone to lunch with Mr. Roof one or two times over the years they worked together, and
Mr. Meistrell may, on occasion, have shared a sandwich with Mr. Roof and other Warehouse staff.
Ms. Rodriguez was initially hired in October 1998 as a part-time employee to work in general warehouse operations, when the Warehouse was just getting established. Ms. Rodriguez's only job experience prior to being hired to work at the Warehouse was as a leasing agent for an apartment building, a position she occupied from 1990 to 1999 and which involved some clerical duties.
Once the Warehouse was somewhat organized,
Ms. Rodriguez worked as a technician in the computer section, where she inventoried computers coming into the Warehouse and removed the software from the computers; Maggie Zilliner was her immediate supervisor in the computer section.
In the fall of 1999, Ms. Rodriguez was asked to work with other Warehouse employees, under the supervision of
Mr. Meistrell, to organize the layout of the records section of the Warehouse. After the records section became operational, and at the times material to this proceeding, Ms. Rodriguez worked in that section of the Warehouse. Mr. Roof was her immediate supervisor.
Mr. Meistrell developed and distributed to the campuses a manual for handling records that was based on the state's record retention requirements. He obtained standardized
boxes for the storage of records, and he developed a form to be used through Miami-Dade Community College to record the contents of each box. Personnel on the various campuses packed their records in the boxes and completed the form recording the contents of each of the boxes. One copy of the form was retained, one copy was put in each box, and one copy was taped to the top of the box. Warehouse employees collected the boxes from the campuses and delivered them to the Warehouse. The boxes were stacked on pallets, and the pallets were stored on racks in the Warehouse.
A Miami-Dade Community College faculty member, Sally Musay, wrote a program for a database to keep track of the boxes of records stored in the warehouse. The program was written in English, and Ms. Rodriguez worked with the faculty member developing the program, which required entry of, among other items, the names of the Miami-Dade Community College employees whose records were stored in the Warehouse, the year in which each record was to be destroyed, and the location of the records in the Warehouse.
In March 1999, Olga Mejia Morales ("Ms. Morales") was hired as a part-time employee in the Warehouse. Ms. Morales began working for Miami-Dade Community College in April 1996 as a student assistant in the Bursar's office at Miami-Dade Community College's north campus. Her duties included typing,
filing, and answering the phone. In the spring of 1997,
Ms. Morales moved to the property control section at Miami-Dade Community College's north campus, where she continued to work as a student assistant. Her duties in this position included filing, inputting data into the computer, typing, and answering the telephone. Ms. Morales worked at this position for two years before applying for the part-time position in the Warehouse.
During the time she worked as a student assistant, Ms. Morales was attending Miami-Dade Community College, studying business software applications.
When Ms. Morales came to work in the records section of the Warehouse, she was very familiar with computers and with various types of business software, such as Excel, Access, Power Point, and Microsoft Word. Ms. Rodriguez introduced Ms. Morales to the computer program developed by Ms. Musay to inventory the boxes of records sent from the various campuses to the Warehouse, although Ms. Morales was familiar with the type of program because it was a variation of the Access program. Because of her familiarity with the type of program used to keep track of the records, Ms. Morales was able to suggest to
Ms. Musay some ways in which the program could be improved.
Both Ms. Rodriguez and Ms. Morales input data into the computer regarding the records, although Ms. Morales was more
proficient in using computers than Ms. Rodriguez as a result of her studies in business software applications.
When requests for records were received from Miami- Dade Community College campuses, the location of the boxes of files to be retrieved would be obtained from the computer program, and either Ms. Rodriguez or Ms. Morales or another employee of the Warehouse would retrieve the boxes.
Ms. Rodriguez was trained in the operation of a forklift and was certified to operate one. Ms. Rodriguez used a forklift to retrieve pallets on which the boxes of records were stored when the pallets were stored on one of the higher storage racks. Ms. Rodriguez also used a pallet jack to move pallets of boxes around the warehouse, and she would pick up and move individual boxes of records, which weighed 40 to 50 pounds.
Ms. Morales was not an employee at the Warehouse when the forklift training was offered, and she did not know how to operate a forklift. She did, however, know how to use a pallet jack, and she used one routinely to move pallets of boxes around the warehouse. When pallets were stored on the second or third level, she often requested that Rafael Rodriguez, an employee who routinely operated a forklift in the Warehouse, retrieve pallets of records for her.
Both Ms. Morales and Ms. Rodriguez prepared the boxes for delivery to the office requesting them. Before Ms. Morales
began working in the records section, when the records storage and retrieval system was first implemented, Ms. Rodriguez would load boxes of records in her Jeep Cherokee and deliver them herself to the person requesting the files. Once the records section was better organized, a mail service picked up the boxes and delivered them to the persons requesting the records, and the mail service also returned the boxes of records to the Warehouse.
In addition to her duties involving records storage and retrieval, Ms. Morales did typing and general office work for Ms. Zilliner and Mr. Roof, including answering the telephone.
Ms. Rodriguez is fluent in both English and Spanish.
Ms. Morales's first language is Spanish, but she began studying English in 1994. All of her courses at Miami-Dade Community College were taught in English, and Ms. Morales also took formal classes in English. At the times relevant to this proceeding, Ms. Morales could understand, speak, and read English; her command of spoken English has improved since September 2000.
During the times relevant to this proceeding, when a telephone caller spoke only English, Ms. Morales would often ask another Warehouse employee to handle the call. She was, however, able to communicate adequately with Mr. Roof and
Ms. Zilliner, and she had no trouble doing her work.3
Ms. Rodriguez's grievance
In May 2000, Ms. Rodriguez filed a complaint against Mr. Roof, the supervisor of warehouse operations and her direct supervisor, with Dr. Joy Ruff, Miami-Dade Community College's Director of Employee Relations. The complaint was misplaced in Dr. Ruff's office, and, in July, 2000, when Dr. Ruff realized the error, she apologized and asked Ms. Rodriguez to re-file the complaint, which Ms. Rodriguez did on July 17, 2000.
In her complaint, Ms. Rodriguez described several instances in which she believed Mr. Roof had acted inappropriately towards her, and she confirmed to Dr. Ruff that the basis for her complaint was discrimination on the basis of gender, specifically sexual harassment.
Because he was Mr. Roof's supervisor, Dr. Ruff advised Mr. Meistrell that Ms. Rodriguez had filed the grievance.
Mr. Meistrell told Dr. Ruff that he would make sure that Dr. Ruff had access to all the Warehouse employees for interviews and that the employees were paid for their time.
Mr. Meistrell had no further involvement in the investigation of Ms. Rodriguez's complaint against Mr. Roof.
During the course of her investigation, Dr. Ruff interviewed the employees who worked in the Warehouse. In their statements to Dr. Ruff, which were given on July 11, 12, 13, 24, and 28, 2000, several of the employees indicated that they had
heard Mr. Roof make inappropriate comments to and about
Ms. Rodriguez; three employees told Dr. Ruff that they had not observed Mr. Roof make inappropriate comments to or about
Ms. Rodriguez, one of which was Ms. Morales.
In addition to denying ever having heard Mr. Roof make any inappropriate comments to or about Ms. Rodriguez, Dr. Ruff's notes reflect that Ms. Morales commented during her interview that Ms. Rodriguez was a liar. This statement was not, however, related to the complaint Ms. Rodriguez had made against
Mr. Roof; rather, Ms. Morales commented that Ms. Rodriguez lied about the hours she worked and about Maggie Zilliner, the head of the Warehouse's computer section. Specifically, Dr. Ruff's notes reflect that Ms. Morales commented that she "observed Janet coming in at 9 & leaving at 12, but tells people she's in at 8 & out at 4" and that she "sees Brian and Jorge (computer technicians) talking & talking & Maggie (Zilliner) only one working. Janet lies about Maggie & Maggie is a good woman."
At some point during the investigation, Dr. Ruff suggested that Ms. Rodriguez work in the computer section of the Warehouse, at her original job, so that she would be directly supervised by Ms. Zilliner rather than Mr. Roof.
Dr. Ruff completed her investigation in late
July 2000, and she had a meeting with Mr. Meistrell, Mr. Roof's supervisor, on August 2, 2000, during which she advised
Mr. Meistrell of her findings that Mr. Roof had made inappropriate comments to Ms. Rodriguez but that he had not engaged in discrimination based on sex. Dr. Ruff also told Mr. Meistrell that disciplinary action would be taken against Mr. Roof and that Mr. Roof would be required to write
Ms. Rodriguez a letter of apology.
Dr. Ruff met with Ms. Rodriguez on August 2, 2000, and Dr. Ruff discussed with her, in detail, the results of the investigation, including Dr. Ruff's conclusion that Mr. Roof had made inappropriate comments to Ms. Rodriguez. Dr. Ruff advised Ms. Rodriguez during the meeting that disciplinary action would be taken against Mr. Roof by Miami-Dade Community College and that he would be required to write her a letter of apology.
Dr. Ruff also documented attempts to arrange a meeting with Mr. Roof on August 2, 2000, but Mr. Roof was not available. Dr. Ruff did, however, discuss the investigation and her conclusions with Mr. Roof in August 2000, while she was on vacation, and she advised him during the discussion that he would be subject to disciplinary action, that he would be required to write Ms. Rodriguez a letter of apology, and that he should begin drafting the letter of apology.
After she returned from vacation, Dr. Ruff prepared a letter to Ms. Rodriguez dated September 1, 2000, in which
Dr. Ruff formally advised Ms. Rodriguez that she had completed
the investigation of Ms. Rodriguez's complaint against Mr. Roof and had concluded that Mr. Roof had made inappropriate comments to her in specific instances but that this behavior did not constitute discrimination based on sex. Dr. Ruff further advised Ms. Rodriguez in the letter that Mr. Roof would be disciplined for his behavior and that he would provide her with a written apology.
On September 5, 2002, Dr. Ruff provided Mr. Meistrell with a draft of a formal letter of reprimand to be issued to Mr. Roof. Mr. Meistrell, as Mr. Roof's supervisor, incorporated the draft provided by Dr. Ruff into a memorandum of reprimand addressed to Mr. Roof and dated September 5, 2000. Dr. Ruff confirmed that Mr. Roof had received the written reprimand and that it had been included in his personnel file.
The letter of complaint against Mr. Roof sent via facsimile to Dr. Ruff by Ms. Rodriguez on July 17, 2000, was not signed. A note dated August 14, 2000, that appears in the margin of Dr. Ruff's notes of her August 2, 2000, meeting with Ms. Rodriguez states: "Schedule mtg w/ Janet Rodriguez - signature on complaint."
Decision to terminate Ms. Rodriguez
In a memorandum dated July 26, 2000, Mr. Bailey,
Mr. Meistrell's supervisor and Director of the Budget for Miami- Dade Community College, notified Mr. Meistrell that there was a
shortfall in Miami-Dade Community College's operating budget for the 2000-2001 fiscal year of approximately $4 million, and he directed Mr. Meistrell to conduct his operations within the budget assigned to his areas of responsibility.
The salaries for part-time employees at the Warehouse exceeded the amount budgeted for the 2000-2001 fiscal year by approximately $75,000. It was, therefore, necessary for
Mr. Meistrell to reduce the staff at the Warehouse.
Mr. Meistrell developed a plan for reducing the number of staff at the Warehouse, and he advised Mr. Bailey of the plan and of the corresponding reduction in the services that could be provided by the Warehouse. Mr. Bailey approved Mr. Meistrell's plan for staff reductions at the Warehouse, and Mr. Meistrell implemented the plan.
Mr. Meistrell cut the program involving the repair of old computers, and the two part-time computer technicians who repaired the computers were terminated. Another employee of the computer section had recently quit, so three employees were cut from that section, leaving the supervisor of the computer section as the only employee.
Mr. Meistrell decided that, for safety reasons, he could not reduce the staff doing the manual labor in the Warehouse from two employees to one. He, therefore, decided to reduce the staff of the records section of the Warehouse from
two part-time employees to one. At the time, Ms. Morales and Ms. Rodriguez were the two part-time employees in the records section, and Mr. Meistrell decided to terminate Janet Rodriguez.
Mr. Meistrell was solely responsible for choosing the individuals that would be terminated under the staff-reduction plan, and he did not consult with anyone at the Warehouse regarding who should be terminated.
In making the decision to retain Ms. Morales and terminate Ms. Rodriguez, Mr. Meistrell concluded that
Ms. Morales was better qualified than Ms. Rodriguez for the position in the records section, based on his consideration of the following factors:
Mr. Meistrell believed that both Ms. Rodriguez and Ms. Morales understood the system for keeping track of the records stored at the Warehouse, and both had participated in
the development of the program for keeping track of the records.
Ms. Morales was first employed by Miami-Dade Community College as a student assistant in April 1996, and she worked as a student assistant until she accepted the part-time position at the Warehouse in March 1999. Mr. Meistrell believed that, during her employment with Miami-Dade Community College,
Ms. Morales had acquired secretarial, administrative, and general office skills. She was, in addition, certified in business software applications. Mr. Meistrell believed that
Ms. Morales would be a long-term employee, given her length of service with Miami-Dade Community College.
Mr. Meistrell considered Ms. Rodriguez to be a good employee who knew a great deal about the operation of the records section of the Warehouse. He believed, however, that Ms. Rodriguez had very little experience in general office work, and he believed that, with her limited experience working at Miami-Dade Community College, Ms. Rodriguez was not as familiar with the source of the records and the operations of Miami-Dade Community College in general as Ms. Morales. Mr. Meistrell considered this lack of knowledge a drawback as the Warehouse received more and more records from the various Miami-Dade Community College campuses. In addition, Mr. Meistrell believed that Ms. Rodriguez would not be a long-term employee because she was attending college and was about to graduate with a bachelor's degree.
In Mr. Meistrell's estimation, Ms. Rodriguez was not as proficient as Ms. Morales in inputting data into the computer and handling the paperwork relating to the records stored at the Warehouse, and he believed that Ms. Morales's administrative and organizational skills were superior to those of Ms. Rodriguez.
Both Ms. Rodriguez and Ms. Morales did typing and filing for the computer section, but Mr. Meistrell believed that Ms. Morales was more proficient at this type of work than
Ms. Rodriguez. In addition, because Ms. Morales was familiar with the property control system, Mr. Meistrell believed that she could also assist the computer section by handling the paperwork and inputting data relating to the old computers being sent to the Warehouse for the various Miami-Dade Community College campuses.
Although Ms. Rodriguez was certified to use a forklift and Ms. Morales was not trained in the use of a forklift,
Mr. Meistrell did not consider the use of a forklift to be a job requirement for those working in the records section of the Warehouse; usually, one of the employees of the furniture and equipment section of the Warehouse would retrieve pallets of boxes from the higher levels. Pallet jacks were then used to move the pallets of boxes around the Warehouse, and both
Ms. Rodriguez and Ms. Morales knew how to use a pallet jack.
Mr. Meistrell was aware that both Ms. Rodriguez and Ms. Morales were bilingual in Spanish and English.
Mr. Meistrell was also aware that Ms. Rodriguez's command of spoken English was superior to that of Ms. Morales, but, in his opinion, Ms. Morales could communicate adequately in person or on the telephone with the staff in the Warehouse, including
Mr. Roof and Ms. Zilliner, and with Miami-Dade Community College staff and others who spoke only English.
In a memorandum dated September 6, 2002, Mr. Meistrell notified Mr. Roof, the head of warehouse operations;
Ms. Zilliner, the head of the computer section of the Warehouse; and Rafael Rodriguez, the head of the storage section of the Warehouse, of the budget reduction and the decision he had made to reduce the number of staff in the Warehouse. Mr. Meistrell advised in the memorandum that, in addition to reducing the number of employees at the Warehouse, the maximum hours of the remaining Warehouse employees were restricted to 30 hours per week.
Mr. Meistrell notified Ms. Rodriguez and the two employees from the computer section of their termination on September 6, 2000; he went to the Warehouse and gave the termination letters to each of the three employees.
Ms. Rodriguez was advised that she would receive her salary through September 17, 2000.
On September 6, 2000, after she was told of her termination and while she was packing up her belongings to leave the Warehouse, Ms. Rodriguez received a call from Dr. Ruff's office asking that she visit Dr. Ruff's office to sign some documents before she left. Ms. Rodriguez went to Dr. Ruff's office, where she signed and dated the complaint that she had sent to Dr. Ruff by facsimile on July 17, 2000. At this time,
Dr. Ruff presented her with a letter of apology prepared by Mr. Roof and dated September 1, 2000.
Computer records maintained by Miami-Dade Community College's indicate that Ms. Rodriguez was actually terminated from her employment on May 25, 2001. It was, however,
Mr. Meistrell's practice to keep many terminated part-time staff on active status in the computer system, at no cost to the college, so that, if he needed a part-time employee to work for a couple of weeks, he could call and offer work to one of the people in the system without going through hiring formalities; because they were retained in the computer on active status, these employees could start working almost immediately.
Ms. Rodriguez was one of the Warehouse employees that
Mr. Meistrell kept on active status in the computer after her termination-in-fact. When he was told that he had too many people on active status in the computer, he cleaned out the records, and Ms. Rodriguez's was one of the records he took off of the computer.
Ms. Rodriguez has not been employed since her termination from the Warehouse. Even though she has had interviews, Ms. Rodriguez believes that prospective employers lose interest in her when she explains that she has a pending sexual harassment complaint against Miami-Dade Community College.
No one has been hired to fill the positions held by Ms. Rodriguez and the two employees from the computer section that were terminated on September 6, 2000.
Summary
Ms. Rodriguez presented evidence (1) that she filed a grievance against her supervisor, Mr. Roof, with Miami-Dade Community College in July 2000, charging that he had sexually harassed her in the workplace; (2) that she was terminated from her part-time employment with Miami-Dade Community College on September 6, 2000; and (3) that Mr. Meistrell was aware that she had filed a grievance against Mr. Roof and notified her of her termination less than two months after she filed the grievance, approximately one month after he was advised by Dr. Ruff that Mr. Roof would be reprimanded for making inappropriate comments to Ms. Rodriguez, one day after Mr. Meistrell prepared a memorandum of reprimand to Mr. Roof, and the same day
Ms. Rodriguez was given Mr. Roof's letter of apology.
Miami-Dade Community College in its turn produced evidence that, because of a reduction in the funds allocated for part-time salaries in Miami-Dade Community College's budget for Fiscal Year 2000-2001, Mr. Meistrell decided to re-organize the operations of the Warehouse and to cut the staff of the records section of the Warehouse from two employees to one employee. Miami-Dade County also produced evidence that Mr. Meistrell's
decision to terminate Ms. Rodriguez rather than Ms. Morales was based on the length of Ms. Morales's employment with Miami-Dade Community College and his determination that Ms. Morales had more experience in general office work and was better qualified to carry out the duties of the remaining position in the records section than Ms. Rodriguez.
Ms. Rodriguez's proof is insufficient to establish with the requisite degree of certainty that the reasons articulated by Mr. Meistrell were not the true reasons for her termination and that her filing a grievance against Mr. Roof was the true reason for her termination. Ms. Rodriguez did not dispute Mr. Meistrell's explanation that budget cuts required him to re-organize the Warehouse and reduce the staff of the records section to one part-time employee. Rather,
Ms. Rodriguez claimed she was more qualified for the position than Ms. Morales; she implied that the removal of
Ms. Rodriguez's position from Miami-Dade Community College's computer records on May 31, 2001, somehow undercut the credibility of Mr. Meistrell's explanation of the reasons for her termination; and she asserted that Ms. Morales strongly supported Mr. Roof when she was interviewed by Dr. Ruff during the investigation of Ms. Rodriguez's sexual harassment complaint.
Ms. Rodriguez's perception that she was more qualified for the one remaining position in the records section of the Warehouse than Ms. Morales does not discredit the reasons given by Mr. Meistrell for his decision to terminate Ms. Rodriguez. Mr. Meistrell's explanation of the factors that he considered in reaching the decision to terminate Ms. Rodriguez rather than Ms. Morales establishes that he chose Ms. Morales based on his determination that she was more qualified for the position that Ms. Rodriguez, given his understanding of the duties that the person in the position would be required to perform and of the office skills and work experience of Ms. Morales and
Ms. Rodriguez. Second, although the evidence supports the finding that Ms. Rodriguez's position was not removed from Miami-Dade Community College's computer files until May 25, 2001, Ms. Rodriguez does not dispute that she was terminated in fact on September 6, 2000, and she has failed either to establish that the deletion of her position from the computer records in May 2001 was more than a ministerial act or to explain how the delay in deleting her position from the computer records supports in any way her contention that she was terminated because she filed a claim of sexual harassment against Mr. Roof. Finally, Ms. Rodriguez presented no evidence tending to show that Mr. Meistrell knew the details of
Ms. Morales's statement to Dr. Ruff regarding Ms. Rodriguez's sexual harassment complaint against Mr. Roof.
Ms. Rodriguez has failed to produce proof sufficient to permit the inference that Mr. Meistrell intentionally discriminated against her when he decided to terminate her employment in the records section of the Miami-Dade Community College Warehouse. Not only did she fail to present sufficient evidence to discredit Mr. Meistrell's explanation of the reasons underlying his decision to terminate Ms. Rodriguez, she failed to establish that Mr. Meistrell's decision was influenced in any way by the fact that she filed a sexual harassment grievance against Mr. Roof. The evidence presented by Miami-Dade Community College is sufficient to establish that Mr. Meistrell did not have a close personal relationship with Mr. Roof, did not seek Mr. Roof's input regarding whether Ms. Rodriguez or Ms. Morales should be terminated or discuss the matter with him, and did not make Mr. Roof aware of his decision to terminate Ms. Rodriguez prior to September 6, 2000.4
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).
Section 760.10, Florida Statutes (2000), part of the Florida Civil Rights Act, provides 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.
Florida courts routinely rely on decisions of the federal courts construing Title VII of the Civil Rights Act of 1964, codified at Title 42, Section 2000e et seq., United States Code, ("Title VII"), when construing the Florida Civil Rights Act, "because the Florida act was patterned after Title VII." Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998), citing, inter alia, Ranger Insurance Co. v. Bal Harbor Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989), and Florida State University v. Sondel, 685 So. 2d 923, 925, n. 1 (Fla. 1st DCA 1996).
Timeliness
The first legal issue that must be addressed is the timeliness of Ms. Rodriguez's complaint of discrimination to the FCHR. Section 760.11(1), Florida Statutes (2000), provides that "[a]ny person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the
alleged violation, . . ." As set forth in the findings of fact herein, Ms. Rodriguez was in fact terminated from her employment at the Warehouse on September 6, 2000. She filed her complaint with the FCHR on December 4, 2001. Accordingly, the complaint was, on its face, filed more than 365 days after the violation alleged by Ms. Rodriguez.
It is, however, settled that the time limitation on filing a complaint under Title VII is not jurisdictional but, rather, is "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
The first time Miami-Dade Community College actually raised the issue of timeliness in this proceeding was in its proposed Findings of Fact and Conclusions of Law, which was filed after the conclusion of the final hearing. Counsel for Miami-Dade Community College mentioned the timeliness issue twice during the final hearing, but did not directly raise or argue the issue.5 Because the issue was not raised prior to or even during the final hearing, it is concluded that Miami-Dade Community College waived any challenge to the timeliness of Ms. Rodriguez's complaint to the FCHR.
Discrimination
The court in Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993), observed that "[t]he burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." The court
described that burden as follows:
In order to prevail, the plaintiff must first establish a prima facie case by showing (1) statutorily protected expression, (2) adverse employment action, and (3) a causal link between the protected expression and the adverse action. . . .
Once a prima facie case has been established, the defendant may come forward with legitimate reasons for the employment action to negate the inference of retaliation. . . . If the defendant offers legitimate reasons for the employment action, the plaintiff then bears the burden of proving by a preponderance of the evidence that the reasons offered by the defendant are pretextual.
Goldsmith, 996 F.3d at 1163 (citations omitted).
Based on the findings of fact herein, Ms. Rodriguez established a prima facie case of discrimination. First, she filed a grievance against her supervisor accusing him of sexual harassment, a charge that is considered a type of discrimination based on sex prohibited by Section 760.10(1)(a), Florida Statutes (2000). See Scelta v. Delicatessen Support Services,
Inc., 57 F.Supp.2d 1327 (M.D. Fla. 1999). Second, she was
terminated from her employment with Miami-Dade Community College. Third, Mr. Meistrell was aware when he decided to terminate Ms. Rodriguez that she had filed the grievance, and she was terminated approximately two months after she filed the grievance, one month after Dr. Ruff found that Mr. Roof had made inappropriate comments to her, and on the same day she received Mr. Roof's letter of apology. See Goldsmith, 996 F.2d at 1163- 64, (citing Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) for the proposition that "evidence that employer knew of employee's protected activities, combined with a proximity in time between protected action and the allegedly retaliatory action, is sufficient to establish prima facie case of retaliation.").
Based on the findings of fact herein, Miami-Dade Community College produced evidence that Ms. Rodriguez was terminated for a legitimate, nondiscriminatory reason, in accordance with the shifting burden of production set forth in McDonnell Douglas. The reasons for Ms. Rodriguez's termination articulated by Miami-Dade Community College were that
Mr. Meistrell was required to reorganize the staffing of the Warehouse because of budget cuts for the 2000-2001 fiscal year, specifically cuts in the amount budgeted for salaries for part- time employees; that Mr. Meistrell decided that it was necessary to reduce the number of employees in the records section from
two persons to one person; and that he chose to terminate Ms. Rodriguez because he concluded that Ms. Morales was the person best qualified for the one remaining position.
Because Miami-Dade Community College produced evidence of a legitimate, nondiscriminatory reason for Ms. Rodriguez's termination, Ms. Rodriguez was given the opportunity, as required by the United States Supreme Court in Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143 (2000), citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 255, 256 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08, 511 (1993),
"to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." . . .
That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." . . . Moreover, although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production,
. . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual."
(Citations omitted.)
"The ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a
pretext for prohibited, retaliatory conduct remains on the plaintiff." Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001), citing Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir. 1998). Proof sufficient to "permit the trier of fact to conclude that the employer unlawfully discriminated" consists of the "plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false." Reeves, 530 U.S. at 148.
All of the evidence presented by Ms. Rodriguez has been carefully considered, and it is concluded that, based on the finding of fact herein, Ms. Rodriguez has failed to prove by a preponderance of the evidence that the reasons offered by Miami-Dade Community College for her termination were false. Ms. Rodriguez's perception that she was more qualified than
Ms. Morales for the remaining position in the records section of the Warehouse is not relevant. As the court in Vickers v.
Federal Express Corp., 132 F.Supp.2d 1371, 1381 (S.D. Fla. 2000), observed: "The issue of pretext has nothing to do with the employee's perception of fairness. See Webb v. R & B Holding Co., 992 F.Supp. 1382, 1387 (S.D. Fla. 1998)('The
employee's perception of himself . . . is not relevant. It is the perception of the decision maker that is relevant. ')."
Nor is it sufficient to discredit the reasons given by Mr. Meistrell for Ms. Rodriguez's termination that Ms. Rodriguez established the "causal link" element of her prima facie case through evidence of the temporal proximity of the filing of her grievance, the completion of the investigation, the delivery of Mr. Roof's letter of apology, and notice of her termination. Although this showing was sufficient to support the inference that the grievance and the termination were not wholly unrelated for purposes of her prima facie case, the showing that must be made to establish the "causal link" element of a prima facie case of discrimination is much less stringent than the showing that must be made to establish that the reason given for adverse employment action is a pretext for discrimination. See Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996)("The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a 'but for' cause of the adverse employment decision."). Based on the findings of fact herein, Ms. Rodriguez has failed to establish anything more than the temporal proximity of her termination and the filing, investigation, and resolution of her grievance; she has not proven by a preponderance of the evidence that she would not have been terminated "but for" the filing of her grievance.
Because, based on the findings of fact herein,
Ms. Rodriguez has failed to establish by a preponderance of the
evidence that the reason given by Mr. Meistrell for her termination were unworthy of belief and a mere pretext for discrimination, she has failed to sustain her burden of proving that her termination was an unlawful employment practice prohibited by Section 760.10(7), Florida Statutes (2000).
Cf. Reeves, 590 U.S. at 149 ("A prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability.").
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Janet Rodriguez.
DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 29th day of January, 2003.
ENDNOTES
1/ Rule 60Y-5.008(5)(a), Florida Administrative Code, requires that, in a case involving allegations of employment discrimination, the respondent "shall file an answer with the Commission within 20 days of service of the petition." The FCHR transmitted the Petition for Relief and Request for Administrative Hearing to the Division of Administrative Hearings shortly after it was filed, before the expiration of the 20-day time period for filing an answer. No answer to the petition has been transmitted to the Division of Administrative Hearings either by the FCHR or by Miami-Dade Community College.
2/ Respondent's Exhibit 6 is a composite exhibit consisting of the response Miami-Dade Community College submitted to the Commission, and it contains 16 separately numbered sections.
Sections 7, 8, and 9 correspond to Respondent's Exhibits 7, 8, and 9, and copies of these sections of Respondent Exhibit 6 were not separately provided and labeled as Respondent Exhibits 7, 8, and 9. Accordingly, reference should be made to Respondent's Exhibit 6 for these three exhibits.
3/ Ms. Morales was unable to understand the question "What would you define as the essential functions of your position?" posed by Ms. Rodriguez's attorney during cross-examination. While this shows that Ms. Morales is not as fluent in English as
Ms. Rodriguez, it does not tend to show that Ms. Morales's grasp of English was insufficient to perform her job responsibilities.
4/ Ms. Rodriguez testified that, one day in August 2000, while she was inputting data into her computer, a co-worker came to her and told her that Mr. Roof wanted her computer taken away. Ms. Rodriguez testified that, when she refused to give up her computer, the co-worker summoned Mr. Roof and that Mr. Roof, in her presence, placed a telephone call to Mr. Meistrell and "asked him if I [Ms. Rodriguez] was not off the payroll."
(Tr. at 78.). Ms. Rodriguez further testified that she immediately telephoned a "Ms. Thompson," whom she identified as Dr. Ruff's supervisor, and told Ms. Thompson of the incident.
Ms. Rodriguez claimed in her testimony that Ms. Thompson called Mr. Meistrell at his home on a Sunday, and that she had called Ms. Thompson to find out "what had come of the incident" but that she "never heard anything else of that." (Tr. at 79.).
Ms. Rodriguez's testimony about this incident is uncorroborated: Ms. Rodriguez did not present the testimony of the co-worker who was allegedly dispatched by Mr. Roof to remove
her computer; she did not present the testimony of Mr. Roof; and she did not present the testimony of Ms. Thompson, the person she purportedly she telephoned immediately after the incident.
Even though Ms. Rodriguez identified Ms. Thompson as Dr. Ruff's supervisor, Ms. Rodriguez's counsel did not inquire during cross-examination of Dr. Ruff whether Ms. Thompson had discussed this matter with her. And, finally, even though Mr. Meistrell was subject to cross-examination by Ms. Rodriguez's counsel, no inquiry was made regarding the telephone call Mr. Roof allegedly made to Mr. Meistrell asking if Ms. Rodriguez was still on the payroll. Because it is uncorroborated, Ms. Rodriguez's testimony regarding this alleged incident is not credited.
5/ Transcript at 14-15; 187.
COPIES FURNISHED:
Neil Flaxman, Esquire Neil Flaxman, P.A.
550 Biltmore Way, Suite 780 Coral Gables, Florida 33134
Karen A. Brimmer, Esquire Hinshaw & Culbertson
One East Broward Boulevard Suite 1010
Fort Lauderdale, Florida 33301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Cecil Howard, General Counsel 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 07, 2003 | Agency Final Order | |
| Jan. 29, 2003 | Recommended Order | Petitioner failed to prove that reasons given by Respondent for terminating her employment were pretextual. Recommended that Petitioner`s Petition for Relief be dismissed because she failed to prove she was victim of employment discrimination. |
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PAM STEWART, AS COMMISSIONER OF EDUCATION vs DEBORAH SWIRSKY-NUNEZ, 02-001709 (2002)
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