STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS JACQUELYN FERGUSON, ) ) Petitioner, ) ) vs. ) Case Nos. 02 4730 ) 03 0003 DADE COUNTY OCCUPATIONAL ) LICENSES, ) ) Respondent. ) __________________________________) JACQUELYN FERGUSON, ) ) Petitioner, ) ) vs. ) Case No. 02 4762 ) DADE COUNTY TAX COLLECTORS ) OFFICE , 1 ) ) Respondent. ) __________________________________) RECOMMENDED ORDER Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57( 1), Florida Statutes, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on March 19 and 20, 2003, in Miami, Florida. APPEARANCES For Petitioner: Jacquelyn Ferguson, pro se Post Office Box 3298 Berkeley, California 94703 For Respondent: Lee Kraftchick, Esquire Miami Dade County Attorney's Office 111 Northwest 1st Street Suite 2810 Miami, Florida 33128 1993 STATEMENT OF THE ISSUE Whether Miami Dade County committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioner and, if so, what relief should she be granted by the Florida Commission on Human Relations (FCHR). PRELIMINARY STATEMENT On or about July 25, 1999, Petitioner filed with the Equal Employment Opportunity Commission (EEOC) an employment discrimination charge, EEOC Charge No. 150993522, against her then employ er, Miami Dade County (County), 2 alleging that, from January 1, 1998, to February 1, 1999, she had been discriminated against on the basis of her gender and retaliated against for "protesting [this] unlawful discrimination." She gave the following "partic ulars" in the charge: 1. I am a female. Allen Eagle created and maintains a sexual[ly] hostile and offensive work environment. I have been subjected to sexual advances, verbal[] and physical. I have rejected these advance[s]. As a result, I have been retaliated against (received all sorts of threats, e.g. removal from department, bodily harm, reputation ass[ass]ination, etc. I complain[ed] to Harold Ginsberg, Supervisor III, about this harassment. He took no actions of elim[i]nation, instead things g ot worse. Subsequent[ly] I complained to his superiors. No action[] was taken. I was placed on administrative leave for three days which have turn[ed] into five months leave with pay. 2. No specific reason was given for the treatment accorded me. 3. I believe that I have been discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, because of my sex female and for protesting unlawful discrimination. The charge was also filed with the FCHR (in FCHR Case No. 22 02737). On January 24, 2000, the EEOC issued a Dismissal and Notice of Rights, indicating that it was "closing its file on this charge" (EEOC Charge No. 150993522) because, "[b]ased upon its investigation, the EEOC [was] unable to conclude tha t the information obtained establishe[d] violations of [Title VII]." On October 28, 2002, the FCHR issued a Notice of Dismissal and Right to Sue in FCHR Case No. 22 02737, advising that Petitioner could "pursue this claim in the Division of Administrative Hearings within 35 days of the date of this dismissal, or in civil court within 1 year from the date of this dismissal provided such time i[s] not more than 4 years from the date the alleged violation occurred." Petitioner, on December 2, 2002, filed wit h the FCHR a Petition for Relief in connection with the charge she had filed in FCHR Case No. 22 02737. On December 11, 2002, the FCHR referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of a DOAH Administrative Law Ju dge. The case was docketed as DOAH Case No. 02 4762 and assigned to the undersigned. On or about December 19, 2000, Petitioner filed with the EEOC a second employment discrimination charge, EEOC Charge No. 150A10614, against the County, 3 alleging that, as of June 25, 2000, she was being discriminated against on the basis of a disability she had (which she did not identify in the charge) and retaliated against for "having filed a previous charge of employment discrimination." She gave the following "partic ulars" in the charge: I. [I]n August 1999, I filed EEOC Charge No. 150993522. On June 25, 2000, I was being subjected to writeups, not allowed to work under my classification of Tax Record[s] Clerk II. I requested an accom[m]odation, and that was denied . II. No reason was given for the above action. III. I believe that I was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, for having filed a previous charge of employment discrimination. **The Respondent discr iminated against me in violation of Title I of the Americans with Disabilities Act. The charge was also filed with the FCHR (in FCHR Case No. 23 00271). On May 30, 2001, the EEOC issued a Dismissal and Notice of Rights, indicating that is was "closing i ts file on this charge" (EEOC Charge No. 150A10614) because, "[b]ased upon its investigation, the EEOC [was] unable to conclude that the information obtained establishe[d] violations of [Title VII]." On October 28, 2002, the FCHR issued a Notice of Dismis sal and Right to Sue in FCHR Case No. 23 00271, advising that Petitioner could "pursue this claim in the Division of Administrative Hearings within 35 days of the date of this dismissal, or in civil court within 1 year from the date of this dismissal provi ded such time i[s] not more than 4 years from the date the alleged violation occurred." Petitioner, on December 2, 2002, filed with the FCHR a Petition for Relief in connection with the charge she had filed in FCHR Case No. 23 00271. On December 5, 2002, the FCHR referred the matter to DOAH for the assignment of a DOAH Administrative Law Judge. The case was docketed as DOAH Case No. 02 4730 and assigned to the undersigned. On or about August 30, 2001, Petitioner filed with the EEOC a third employment dis crimination charge, EEOC Charge No. 150A13134, against the County, 4 alleging that, on July 10, 2001, she had been terminated from her position by the County in retaliation for "fil[ing] an EEOC charge against [the County]." She gave the following "particu lars" in the charge: I was employed as a Clerk II in or about 1984. I filed an EEOC charge against my employer on December 18, 2000. On or about July 10, 2001, I was discharged. Respondent's reason for my discharge was poor performance. I believe that I have been retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, in that Respondent terminated my employment because I filed an EEOC charge against it. The charge was also filed with the FCHR (in FCHR Case No. 22 02737 , as her first charge against the County had been). On May 30, 2001, the EEOC issued a Dismissal and Notice of Rights, indicating that is was "closing its file on this charge" (EEOC Charge No. 150A13134) because "[t]he facts alleged in the charge fail[ed] to state a claim under any of the statutes enforced by the EEOC." On November 19, 2002, the FCHR issued a second Notice of Dismissal and Right to Sue in FCHR Case No. 22 02737 (this time with respect to EEOC Charge No. 150A13134), advising that Petitione r could "pursue this claim in the Division of Administrative Hearings within 35 days of the date of this dismissal, or in civil court within 1 year from the date of this dismissal provided such time i[s] not more than 4 years from the date the alleged viol ation occurred." Petitioner, on December 23, 2002, filed with the FCHR a Petition for Relief in connection with EEOC Charge No. 150A13134. On January 2, 2003, the FCHR referred the matter to DOAH for the assignment of a DOAH Administrative Law Judge. Th e case was docketed as DOAH Case No. 03 0003 and assigned to the undersigned. On January 17, 2003, the County filed a motion requesting that DOAH Case Nos. 02 4730, 02 4762, and 03 0003 be consolidated. By order issued January 30, 2003, the motion was gr anted. As noted above, the hearing in these consolidated cases (DOAH Case Nos. 02 4730, 02 4762, and 03 0003) was held on March 19 and 20, 2003. Twelve witnesses testified at the hearing: Petitioner, Geneva Hughes, Allen Eagle, Juan de Ona, Arlesa Levere tte, Rachel Baum, Claudina Diaz, Ada Garcell, Guilaine Charlemagne, Martha Manthorpe, Geoffrey Martin, and Cristina Mekin. In addition, 34 exhibits (Petitioner's Exhibit 1 through 5, and Respondent's Exhibits 1 through 22 and 24 through 30) were offered a nd received into evidence. At the close of the hearing, a deadline for filing proposed recommended orders was established (no later than 30 days from the date of the filing of the hearing transcript with DOAH). The Transcript of the final hearing (consist ing of two volumes) was filed with DOAH on May 27, 2003. Petitioner and Respondent both filed their Proposed Recommended Orders on June 26, 2003. These post hearing submittals have been carefully considered by the undersigned. FINDINGS OF FACT Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: 1. The County is a political subdivision of the State of Florida. 2. Among the various departments of County government is the Finance Department. Ther e are approximately 300 employees working in the Finance Department. 3. At all times material to the instant case, Rachel Baum was the Finance Director responsible for overseeing the operations of the Finance Department. 4. The Tax Collector's Office is administratively located within the Finance Department. There are approximately 210 employees assigned to the Tax Collector's Office. 5. The Occupational Licenses section and the Tourist Tax section are operational units within the Tax Collector's Office . 6. At all times material to the instant case, Xiomara Vuelta was the Manager of the Occupational Licenses section, Marie Esquivel was the Assistant Manger of the Occupational Licenses section, and Cristine Mekin was a Tax Records Clerk Supervisor I in t he Occupational Licenses section. 7. At all times material to the instant case, Allen Eagle was a supervisor in the Tourist Tax section. Harold Ginsberg was a superior of Mr. Eagle's. 8. At all times material to the instant case, the County had in effec t a policy prohibiting sexual harassment in the workplace. The policy was codified in Administrative Order No. 7 28, which read as follows: Statement of Policy : The policy of Dade County is to insure that all employees are able to enjoy a work environmen t free from all forms of discrimination, including sexual harassment. Employees who have experienced sexual harassment shall have the right to file complaints with the County's Affirmative Action Office and have those complaints properly investigated. Em ployees who are found guilty of sexually harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Definition : Sexual harassment consists of unso licited, offensive behavior involving sexual overtures or conduct, either verbal or physical It does not refer to occasional comments of a socially acceptable nature; it refers to behavior that is not welcome, that is personally offensive, that lowers mor ale, and that, therefore, interferes with the work environment. As explained in the EEOC Guidelines: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute[] sexual harassment when (1) s ubmission to such conduct is made either explicitly or implicitly a term of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such condu ct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Implementation : In order to effectively implement the above policy, all County employee s must refrain from 1. Threatening or insinuating, either explicitly or implicitly, that an employee's refusal to submit to sexual favors or advances will adversely affect another employee's employment, performance evaluations, wages, promotion, assigne d duties, shifts, or any other condition of employment or career development. 2. Creating a sexually harassing environment by such actions as offensive sexual flirtations, advances, propositions, verbal abuse of a sexual nature, graphic verbal commentari es about an individual's body, sexually degrading words, or such other conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 3. Tak ing retaliatory action of any kind against any other employee as a result of that person's seeking redress for, or complaining of, sexual harassment under this policy or through other legitimate channels. 4. Exhibiting any other conduct that falls within the above stated definition of sexual harassment. It shall be the responsibility of each County supervisor to maintain his or her work place free of sexual harassment. This duty includes discussing this policy with all employees and assuring them that t hey need not endure insulting, degrading, or exploitive sexual treatment, and informing employees of their right to file complaints about such conduct. Complaint Procedure : Employees who believe they have been the subject of sexual harassment have the ri ght to file a complaint with the County's Affirmative Action Office. Employees may, if they desire, also report such incidents of sexual harassment to their supervisor but are under no obligation to do so prior to filing a complaint. All complaints of se xual harassment will be investigated to determine whether the allegations are well founded. If the investigations confirm the continuation of sexual harassment, the Affirmative Action Office will pursue prompt corrective action, including positive relief for the victim, and appropriate disciplinary action against the offender. Compliance : It shall be the responsibility of the Affirmative Action Office to provide compliance information to managers and supervisors concerning the County's sexual harassment policy, the gravity of such conduct, and the procedures to be employed in conducting sexual harassment investigations. The Affirmative Action Office shall also provide necessary training to managers and supervisors in the area of sexual harassment. This administrative order is hereby submitted to the Board of County Commissioners of Dade County, Florida. 9. Documents describing the contents of Administrative Order No. 7 28 were posted at various County work locations. 10. Petitioner is a black female who was employed by the County from 1984 until July of 2001, when she was terminated. 11. At all times material to the instant case, Petitioner worked as a Tax Records Clerk II in the Finance Department, initially in the Tourist Tax section under the dir ect supervision of Mr. Eagle 5 and then in the Occupational Licenses section under the direct supervision of Ms. Mekin. 12. At no time did Mr. Eagle inappropriately touch Petitioner, discuss with her any matters of sexual nature, make sexual advances towa rds her, threaten to retaliate against her if she did not provide him with sexual favors, or otherwise, in his dealings with her, engage in conduct violative of the County's policy against sexual harassment. 13. Nonetheless, in or around early 1999, Petit ioner (who was aware of the County's anti sexual harassment policy) falsely accused Mr. Eagle of having subjected her to such harassment. 14. The County's Office of Fair Employment Practices (FEP) thoroughly investigated, in good faith, the allegations ma de by Petitioner. 15. Petitioner was placed on administrative leave with pay during the investigation. 16. Juan de Ona, an investigator with FEP, conducted the investigation, with the assistance Finance Department personnel who did not work in the Touri st Tax section (Marie Carpenter, the department's then Personnel Manager, and Arlesa Leverette, the department's Affirmative Action Coordinator). 17. Mr. de Ona interviewed Petitioner, Mr. Eagle, and others who worked with them in the Tourist Tax section and who would have been in a position to corroborate Petitioner's allegations of sexual harassment were the allegations true. 18. Based on his investigation, Mr. de Ona reasonably concluded that Petitioner's allegations were unfounded. 19. On May 27, 19 99, Mr. de Ona issued a written report of his investigation, which contained the following "Findings and Recommendations": (1) No evidence was found about any of Ms. Ferguson's allegations pertaining [to] Mr. Eagle's behavior. Testimony provided by all e mployees in the workplace directly contradicted all allegations made by the complainant. (2) Witnesses all expressed shock, stating that such behavior would be out of character [with] the manner they are supervised by Mr. Eagle. They believe he's a fair , capable supervisor. (3) There is no corroboration at all that sexual harassment took place between Mr. Eagle and Ms. Ferguson or to other incidents of a sexual nature as she alleged. (4) Ms. Ferguson appears to have some serious problems about her pe rceptions of interpersonal relationships and communications in the workplace. In light of the following I recommend the following: (1) Make it mandatory for Ms. Ferguson to participate in the Employee Support Services (ESS) program. (2) Request throug h the ESS office, a fitness for duty test if that office supports the approach. (3) If possible, transfer Ms. Ferguson to another work station under a different supervisor. 20. As the head of the County department in which Petitioner worked, Ms. Baum r eceived a copy of Mr. de Ona's report. 21. On or about July 25, 1999, before any formal action had been taken by Ms. Baum in response to Mr. de Ona's report, Petitioner filed EEOC Charge No. 150993522 (which is described above). 22. In accordance with M r. de Ona's recommendation, Ms. Baum took the reasonable step of transferring Petitioner to the Occupational Licenses section effective on or about August 16, 1999, so that Petitioner would no longer be supervised by Mr. Eagle. 23. This action was not t aken to retaliate against Petitioner for having filed EEOC Charge No. 150993522. 24. Ms. Baum had no reason to believe that Petitioner would have any difficulties with the supervisory personnel in the Occupational Licenses section, none of whom had been i dentified by Petitioner as being in any way involved in the alleged sexual harassment to which Petitioner claimed she had been exposed in the Tourist Tax section. 25. Ms. Baum also followed Mr. de Ona's recommendation that Petitioner be referred to the Co unty's Employee Support Services (ESS) program. She did so with the hope that Petitioner would benefit as a result of her participation in the program. Although she did not know "exactly what [Petitioner's] problem was," Ms. Baum felt that there were "is sues there" because Petitioner had made allegations that were not true. 26. In addition, Ms. Baum suspended Petitioner for five days for having made "false statements" about her co workers in her complaint to the FEP. 6 Ms. Baum took this action because " people's reputations were tarnished" by Petitioner's "false statements" and, in Ms. Baum's view, Petitioner "need[ed] to understand that you can't make [such] false statements" without retribution. 27. Ms. Baum advised Petitioner of the referral to ESS an d the five day suspension by letter dated September 7, 1999, which read as follows: This is to advise you that you are being suspended without pay for five days on the following dates: September 13, 14, 15, 16 and 17, 1999. This action is a[] result of y our failure to comply with Miami Dade County Personnel Rule, Chapter VIII, Section 7, to wit: (B) That the employee has been offensive in h[er] conduct toward fellow employees, Wards of the County or the Public. (C) That the employee is antagonistic to wards Superiors and fellow employees, criticizing orders, rules and policies and whose conduct interferes with the proper cooperation of employees and impairs the efficien[cy] [of] County Service." Specific charges are detailed in the discipline action re port attached hereto. Upon return to work, you must attend sessions as designated by the Employee Support Services (ESS) . The initial appointment will be made for you. You must attend that meeting as well as all subsequent meetings set by ESS. You mus t also provide and maintain your current address and telephone number on file with your supervisor. It will be your complete responsibility to inform your immediate supervisor of any changes. While you were within your rights to file a discrimination com plaint with the Office of Fair Employment Practices, it was unnecessary and irresponsible of you to include falsehoods and personal attacks directed towards your superiors and fellow employees. By doing so, you have demoralized your co workers and damaged the overall morale of the Tax Collector's Office. This type of behavior exhibited by you is discouraging and cannot be tolerated. You may appeal your suspension to a Hearing Examiner within 14 days from receipt of this letter by requesting an appeal hea ring in writing to the Director of the Employee Relations Department at the Stephen P. Clark Center, 111 NW 1st Street, Suite 2110, Miami, FL 33128. 28. Petitioner did not appeal her suspension. 29. When she reported to the Occupational Licenses sectio n, Petitioner was trained by her immediate supervisor, Ms. Mekin. 30. At the beginning, in training Petitioner, Ms. Mekin treated Petitioner no differently than Ms. Mekin would treat any clerical employee new to the section. 31. Petitioner, however, wa s unable to grasp the basic procedures required to be followed by the section's clerical staff, so Ms. Mekin had to provide Petitioner with additional training beyond that which was standard for a new employee in the section to receive. 32. Despite the ex tra help she was offered, Petitioner continued to make numerous mistakes of a serious nature. 33. Ms. Mekin monitored Petitioner's work in the same manner and with the same frequency (on a daily basis) that she monitored the work of her other subordinate s. 34. Petitioner made far more errors than her co workers (and, for that matter, any other employee who had ever worked under Ms. Mekin's supervision in the Occupational Licenses section 7 ). 35. Although Petitioner occupied a Tax Records Clerk II pos ition (and was paid accordingly), she was assigned Tax Records Clerk I duties, which she performed at the "public counter" in the office. 36. Petitioner expressed dissatisfaction with her assignment and asked Ms. Mekin to assign her Tax Records Clerk II w ork. 8 Ms. Mekin declined to do so inasmuch as Petitioner lacked the "specialized knowledge" needed to perform such work. As Ms. Mekin explained in her testimony at the final hearing (which the undersigned has credited), "I couldn't get her trained as a [ Tax Records Clerk] I, how could I put her in a specialized [Tax Records Clerk] II position?" There being no other assignment Ms. Mekin could reasonably make given Petitioner's limitations, Petitioner remained at the "public counter" performing Tax Records Clerk I duties. 37. In addition to making many mistakes while at the "public counter," Petitioner engaged in disruptive workplace behavior, initiating confrontations with co workers, as well as visiting members of the public. It reached a point where, due to Petitioner's offensive and abusive conduct, no one in the office wanted to be seated next to her at the "public counter." 38. Also interfering with the efficient operation of the office was Petitioner's poor attendance. She had numerous absences a nd was frequently late reporting to work. In addition, there were instances when, before the end of the workday, Petitioner would just walk out of the office without permission and letting anyone know where she was going and not return until several days later. 39. On occasion, after being out of the office, Petitioner submitted doctor's notes. None of the notes stated that Petitioner was suffering from any substantially limiting mental impairment, and there is no persuasive evidence to suggest that any supervisory personnel perceived her as having such an impairment and took adverse action against her based upon such a perception. 40. Petitioner was counseled verbally and then in writing by her supervisors in the Occupational Licenses section concernin g her shortcomings, but such counseling did not yield any positive results. 41. Ms. Mekin waited well longer than usual to "write up" Petitioner. She gave Petitioner this "extra leeway" because she knew that Petitioner had "personal problems" and was mis sing a lot of work. 42. In or around late December of 1999, Petitioner received a written reprimand for "insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inc onvenience or injury to the County service or to the public" because she had stopped going to the psychiatrist (Dr. Charles Gibbs) to whom she had been referred by ESS. 9 The "facts" upon which the written reprimand was based were described therein as foll ows: In the disciplinary action dated July 27, 1999 your continued employment with Miami Dade County was contingent upon: "Seek assistance from Employee Support Services and attend sessions as designated by ESS. Failure to attend and participate in them will result in further disciplinary action up to and including dismissal." You have failed to follow the recommendation of the Employee Support Services Section. Further violation of the Disciplinary Action requirements will result in dismissal. 43. Le ss than a month later, Petitioner received a Record of Counseling, dated January 14, 2000, which read as follows: A. That the employee is incompetent or inefficient in the performance of his/her duty. K. That the employee has hindered the regular operat ion of the Department or Division because of excessive absenteeism. V. That the employee has been habitually tardy in reporting for duty or has absented himself/herself frequently from duty during regular working hours, or has refused to perform a reason able amount of emergency work after working hours when directed to do so by h[er] superior officer. Facts: The employee has been given the same training afforded any new employee, however the excessive absenteeism and habitual tardiness are negatively re flecting in the productivity and effectiveness of the employee's performance. The excessive absenteeism of the employee is disruptive to the section, resulting in a diminished effectiveness in the service to the public and reducing the inspectors['] field collections. See attachment II: Attendance and tardiness statistic table. "[A]ttachment II" reflected that, from August 26, 1999, to January 11, 2000, Petitioner had been absent 28.47 of a total of 86 work days and had been tardy 22 times. 44. Petitio ner received another Record of Counseling on March 10, 2000. This Record of Counseling read as follows: You have had several performance conferences regarding your numerous mistakes and have received copies of all your errors. I have pointed out ways in which you can improve your efficiency, nevertheless you have failed to improve your performance. In addition to the regular training afforded all new employees, you were re trained when I observed that you were not improving and were repeating the same mi stakes on a daily basis. Your poor performance negatively impacts our section[.] [I]t lowers our productivity and affects customer service. You must correct this situation immediately[.] [F]ailure to improve your performance will result in further disc iplinary action. 45. On Friday, May 12, 2000, Petitioner again was given a Record of Counseling. This Record of Counseling read as follows: You have been informed on multiple occasions that you had depleted your annual and sick time. Since you started to work with Occupational License[s] you have been habitually tardy in reporting for duty and have been excessively absent. In addition you have absented yourself frequently from duty during regular working hours. Your excessive and erratic pattern of a bsenteeism is disruptive to the Section, resulting in a diminished effectiveness in the service to the public. Furthermore, it affects the inspectors['] field productivity who must stay inside to cover your absences. You must correct the situation immedi ately by being on time everyday and by planning the usage of accrued time in advance. Failure to comply will result in a disciplinary action leading to dismissal. See attachment of attendance and tardiness table. 46. The "attendance and tardiness table " attached to the Record of Counseling reflected that, from August 26, 1999, to Sunday, May 14, 2000, Petitioner had been absent a total of 303.25 hours out of a total of 1264 possible work hours. 47. On June 1, 2000, Petitioner was sent a memorandum rega rding her "[f]ailure to follow procedures." It read as follows: On May 25, 2000 you failed to follow the established procedures concerning licenses under legal status. You served a taxpayer at the counter who came to pay license #444002 0 (under sheriff warrant)[.] [T]his license owed $150.00 [to] Occupational License[s] and $70.00 to the Sheriff['s] Department. You ignored the intermediate screen with the message "Do not print application Do not file maintenance. Check with your Supervisor first." T his failure to follow procedures resulted in a loss to the County, since the taxpayer was not directed to pay the $70.00 Sheriff fee. This is to remind you that you must strictly adhere to the established procedures at all times. Further incidents of thi s nature will result in a Disciplinary Action up to and including dismissal. 48. That same date, June 1, 2000, Ms. Mekin sent to Ms. Vuelta the following memorandum regarding a "[c]ounter [i]ncident": This is to inform you that Jacquelyn Ferguson claim s that someone opened a stapled shopping bag full of papers she had inside her desk drawer, while she went to an assignment at the 1st floor. Ms. Ferguson accused co workers of opening the paper bag and then passed inappropriate remarks to the clerks assi gned to the counter. I informed Ms. Ferguson that no one had been at her desk while she was downstairs. Martha Manthorpe and Milagros Valdivia expressed to me how stressed and upset they feel about the false accusations Ms. Ferguson is making. She then approached Marie Esquivel to claim that for the second time someone had gone into her paper bag. Since Ms. Ferguson was assigned to the Occupational License[s] Section, she has antagonized each person that she has ever worked next to her. All clerks and inspectors have complained of her lack of teamwork skills, her constant harassment , false accusations, and uncooperative behavior. As you are aware, I had to train Ms. Ferguson twice because of her numerous mistakes, nevertheless, I had to give her a Rec ord of Counseling for poor performance[.] [T]o this date she has failed to improve. In addition, I had to give her a second Record of Counseling because of her poor attendance. At this point I feel that I have exhausted all that is available to me as a S upervisor to motivate Ms. Ferguson to perform as expected of any County employee. It is extremely frustrating to divert time [to] constantly monitor Ms. Ferguson in order to diffuse incidents with other employees and taxpayers. This situation is causing undue stress and hardship to the other O.L. employees[.] [T]hey feel it is a punishment when I have to assign them to work next to Ms. Ferguson. Please advise on what my next steps [should] be regarding Ms. Ferguson. 49. On June 21, 2000, a co worker of Petitioner's, Martha Manthorpe, sent a memoranda to Ms. Vuelta complaining about Petitioner. The memorandum read as follows: I am writing to inform you that working with Jackie has caused considerable aggravation to my co workers and [me]. I have work ed in this department for over seven years, and have never had a problem with another employee. From the time that Jackie began working in our department, she has had problems with her co workers. She never liked being trained or told what to do by a Cle rk I, for no apparent reason, other than the fact that [that person's] classification is less than her[']s. Any clerk that has had to work next to her has endured constant negative comments and insinuating remarks. It has also been noted that she has thi s particular attitude towards her female co workers only. Ranier Castro has noticed the different attitude & tone she demonstrates toward another co worker, Milagros Valdivia, in comparison to him. This attitude has gotten to the point that Milagros was very thankful when she was moved from the counter desk to the mail desk. With me, she portrays an attitude that my job is to serve her alone and that I should drop whatever I am doing when she needs anything. If I do not know the answer to her question, she becomes upset that she needs to ask Cristina. If I am checking in inspectors or balancing their money, she will throw her paperwork in front of me, in order to force me to attend to her needs. Today, she became very rude towards me. She was arguing with Milagros regarding some ticket numbers that she claimed were missing and that someone had taken them. After Milagros told me what had happened, I then told Jackie that nobody had taken her numbers. She then turned her head away from me, put her hand up, and told me that she was not talking to me and that I was not to speak to her. She proceeded to repeat this a few more times while there were taxpayers in the lobby. Another problem that we have had with Jackie is that she has an extreme problem wit h smells either in the office or at the counter area. She will spray room deodorizers several times a day in front of taxpayers that are waiting to be served. In addition, Jackie has been noted to give incomplete information to taxpayers, specifically Hi spanic taxpayers, or sending them to incorrect departments to solve their problems. It is very difficult & stressful to work in a[n] office environment with a co worker that does not work as a team player & can be disrespectful to others. 50. On June 22 , 2000, Ms. Vuelta sent Petitioner a memorandum regarding an "[u]nauthorized [a]bsence." It read as follows: On Thursday, June 22, 2000 you left for lunch at 1:05 P.M. and did not return to work.[ 10 ] You have walked out of your job on several occasions si nce you started to work at Occupational License[s]. Once again you failed to inform your Supervisor about your absence[.] [T]his is considered an abandonment of your responsibility at the public counter, therefore creating a Customer Service crisis. 51. On June 27, 2000, Ms. Vuelta, acting on the suggestion of Ms. Mekin, signed a Disciplinary Action Report (June 2000, DAR) recommending the termination of Petitioner's employment. 52. "Attachment I" of the June 2000, DAR set forth the "charge[s]" against Petitioner. It read as follows: A. That the employee is incompetent or inefficient in the performance of [her] duty. B. That the employee has been offensive in [her] conduct toward [her] fellow employees, wards of the County or the public. D. That t he employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given [her] by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonabl[y] be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County Service or to the public. K. That the employee has hindered the regular operation of the department or division because of excessive absenteeism. S. That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the County se rvice. V. That the employee has been habitually tardy in reporting for duty or has absented [herself] frequently from duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by [her] superior officer. 53. "Attachment II" of the June 2000, DAR described the "specific actions [of Petitioner and the] statements" made by her, which warranted the termination of her employment: A. On March 10, 2000 you were given a Record of Counse ling because of your poor performance[.] [T]his Record of Counseling had to be given to you because of your lack of response to repeated training sessions where your Supervisor pointed out your errors and outlined expectations. You also had several perfo rmance conferences where your Supervisor tried to motivate you to improve your efficiency[.] [A]s of this date you have failed to achieve the expectations of this unit. B. On several occasions you have been offensive and abusive with your co workers in front of taxpayers[.] [Y]ou have also been abusive and offensive to the taxpayers in front of your co workers. On April 14, 2000 you were given a memo in reference to a complaint letter from a taxpayer. Your behavior has created an intimidating and host ile working environment. D. On multiple occasions you have failed to comply with the rules, policies and directives of the section. This situation results in a disruption of the smooth operation of this unit, affecting both our effectiveness and our Cus tomer Service. On December 20, 1999 you were given a Disciplinary Action for failure to follow the recommendations of the Employee Support Services. On June 1st, 2000 a memo had to be given to you for failure to follow procedure that resulted in an econo mic loss to the County. K. On May 12, 2000 you were given a Record of Counseling because of your excessive absenteeism. From August 1999 through May 14, 2000 you were absent 303.25 hours, with 209.00 hours of this total being a result of your calling in sick. S. On December 10, 1999 you were antagonistic with a Tax Record[s] Supervisor II from another section. You were advised to stay away from any other section of the Tax Collector and to resolve your differences using the proper channels. Furthermo re we had had to rotate all Clerks and Field Inspectors to work next to you at the counter because they have all complained of your lack of teamwork, unreasonable conduct and your poor Customer Service. This situation has created an antagonistic environme nt interfering with your peers['] work performance. You have been verbally counseled by your immediate Supervisor, by my Assistant and by me on multiple occasions regarding appropriate behavior expected from you. V. During your time at Occupational Lice nse[s] you have been habitually tardy and have on several occasions walked out of the office abandoning your duties, without notifying any Supervisor. You were given written counseling on June 26, 2000 for the most recent occurrence. You have been with Oc cupational License[s] since August, 1999. During this time your inadequate and antagonistic conduct as well as your poor performance have caused an adverse working environment for your peers and your Supervisors, hindering the proper delivery of Customer Service. 54. Petitioner was not served with the June 2000, DAR until a little more than a year after it had first been signed by Ms. Vuelta. 55. Petitioner had stopped coming to work on June 25, 2002 (the same date that Ms. Mekin had recommended Petitio ner's termination) and was not heard from until a month or two later when she contacted Geneva Hughes, who had replaced Ms. Carpenter as the Finance Department's Personnel Manager, and told Ms. Hughes that she was "not feeling well." 56. At Ms. Hughes' su ggestion, Petitioner applied for a year's leave of absence (retroactive to when she stopped coming to work in June). Ms. Baum granted the leave request because she "felt that [Petitioner] needed the time to get whatever [were] . . . the problems [Petition er was experiencing] in order, and if [Petitioner] needed that time, then [Ms. Baum wanted to] be accommodating." 57. At no time did Petitioner fill out the necessary paperwork to apply to participate in the sick leave pool, although Ms. Hughes explained to Petitioner what she needed to do to make such application. 58. On or about December 19, 2000, before any formal action had been taken on the termination recommendation contained in the June 2000, DAR, Petitioner filed a second employment discriminatio n charge with the EEOC against the County, EEOC Charge No. 150A10614 (which is described above). 59. Ms. Vuelta re signed the June 2000, DAR on June 28, 2001, and the re signed document was served on Petitioner after she returned to work from her year's l eave of absence. 60. Ms. Baum (who was responsible for making the "final decision" on the matter) accepted the recommendation of termination contained in the June 2000, DAR, and by letter dated July 10, 2001, which read as follows, so advised Petitioner: This letter is to advise you that you are terminated from County Employment, effective close of business Friday, July 06, 2001. This action was taken in accordance with Chapter VIII, Section 7, Paragraphs (A), (B), (D), (K), (S), and (V) of Dade County's Personnel Rules, as detailed in the Disciplinary Action Report presented to you on June 28, 2001 (copy attached). 11 You may, if you desire, in accordance with Chapter VIII, Section 5, of the Dade County Personnel Rules, appeal this action to a Hearing Exam iner by writing to Maria Casellas, Director, Employee Relations Department, 111 Northwest First Street, Suite 2110, Miami, Florida 33128. This appeal must be received within fourteen (14) days of the receipt of this letter. 61. Petitioner was terminate d because she was "just not progressing and she was just not functioning" as an employee should. 62. Neither her termination nor the "write ups" that preceded it were motivated by a desire to retaliate against her for having previously complained that s he was the victim of employment discrimination by the County or by any other illicit motive. 63. Petitioner did not "appeal [her termination] to a Hearing Examiner," but the representative of the collective bargaining unit of which she was a member did f ile a grievance and seek arbitration on Petitioner's behalf. The collective bargaining representative ultimately "withdr[ew] the [grievance] without prejudice," explaining in its letter of withdrawal that it had been unsuccessful in its efforts to contact Petitioner concerning the grievance and, based on Petitioner's "non respons[iveness]," it had concluded that Petitioner was "not interested in the pursuance of her dismissal arbitration." Thereafter the American Arbitration Association closed the file in the case. 64. In summary, there has been no persuasive showing of any acts of commission or omission by the County adversely affecting Petitioner's compensation or other terms, conditions, or privileges of her employment with the County that were based o n any protected status she enjoyed or any protected activity in which she had engaged. CONCLUSIONS OF LAW 65. The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statute s. "Because th[e] [A]ct is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 2, federal case law dealing with Title VII is applicable." Florida Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991) . 66. Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR the authority, if it finds, following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that such an "unla wful employment practice" has occurred, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." Sections 760.10 and 760.11(6), Florida Statutes. 67. To obtain such relief from t he FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sou ght") with the FCHR, the EEOC, or "any unit of government of the state which is a fair employment practice agency under 29 C.F.R. ss. 1601.70 1601.80." Section 760.11(1), Florida Statutes. This 365 day period is a "limitations period" that can be " be equ itably tolled, but . . . only [based on the] acts or circumstances . . . enumerated in section 95.051," Florida Statutes. 12 Greene v. Seminole Electric Co op., Inc. , 701 So. 2d 646, 648 (Fla. 5th DCA 1997). 68. "[O]nly those claims that are fairly enco mpassed within a [timely filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the complainant. Chambers v. American Trans Air , In c. , 17 F.3d 998, 1003 (7th Cir. 1994). 69. The "unlawful employment practices" prohibited by the Act include those described in Section 760.10(1)(a) and (7), Florida Statutes, which provide as follows: It is an unlawful employment practice for an employer :[ 13 ] (1)(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, s ex, national origin, age, handicap, or marital status. * * * (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 a ny 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 und er this section. 70. "Sexual harassment can constitute discrimination based on sex for purposes of [Section 760.10(1)(a), Florida Statutes]. Generally, sexual harassment comes in two forms: harassment that does not result in a tangible employment actio n (traditionally referred to as 'hostile work environment' harassment), and harassment that does result in a tangible employment action (traditionally referred to as ' quid pro quo ' harassment). All harassment by co workers necessarily falls into the first . . . class, as co workers cannot take employment actions against each other. Harassment by supervisors, on the other hand, can fall into either category." Johnson v. Booker T. Washington Broadcasting Service, Inc. , 234 F.3d 501, 508 (11th Cir. 2000)(ci tations omitted). 71. "Sexual harassment, like any other claim under [Section 760.10(1)(a), Florida Statutes], is a claim based on intentional discrimination." Pospicil v. Buying Office, Inc. , 71 F. Supp. 2d 1346,1356 (N.D. Ga. 1999); see also Downing v. Board of Trustees of University of Alabama , 321 F.3d 1017, 1024 (11th Cir. 2003)("Since Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same meaning that the employee must prove that the state actor intended to discriminate because of the employee's sex we discern no principled basis for holding that the Equal Protection Clause is implicated in a case of opposite sex discrimination but not in a case of same sex discrimination."). 72. "To demonstrate sexual harassment, [a complainant] must show: (1) that 'she belongs to a protected group'; (2) that she 'has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual natur e'; (3) that the harassment was 'based on [her] sex . . . .'; (4) 'that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment'; and (5) 'a basis for hol ding the employer liable.'" Johnson v. Booker T. Washington Broadcasting Service, Inc. , 234 F.3d at 508, quoting from, Mendoza v. Borden, Inc. , 195 F.3d 1238, 1245 (11th Cir. 1999). 73. It has been said that "[t]he fourth element that the conduct compla ined of was 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive work[ing] environment" is the element that tests the mettle of most sexual harassment claims.'" Gupta v. Florida Board of Regents , 212 F.3d 571, 583 (11th Cir. 2000). To establish the existence of this "fourth element" a complainant " must establish not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the environment to be ho stile and abusive. Id. "In evaluating the objective severity of the harassment, [one must] consider, among other factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating , or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1276 (11th Cir. 2002). 74. With the respect to the "fifth element" required to m ake a prima facie case of sexual harassment, employer liability, "[a]n employer 'is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.' The employer will be strictly liable for the hostile environment if the supervisor takes tangible employment action against the victim. However, when an employee has established a claim for vicarious liability but where no tangible employ ment action was taken, a defending employer may raise as an affirmative defense to liability or damages: '(a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unre asonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Miller v. Kenworth of Dothan, Inc. , 277 F.3d at 1278 (citations omitted). "While proof that an employer had promulgated an anti harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of su ch failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demoti on, or undesirable reassignment." Burlington Industries, Inc. v. Ellerth , 118 S. Ct. 2257, 2270 (1998); and Faragher v. City of Boca Raton , 118 S. Ct. 2275, 2293 (1998). 75. Section 760.10(1)(a), Florida Statutes, also prohibits employment discrimination based on "handicap." "While the [Act] does not define the word 'handicap,' the Fifth District [Court of Appeal of Florida] has looked to the Fair Housing Act which gives the term . . . the following meaning: ' A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment. . . .' § 760.22(7)(a), Fla. Stat. (2001); see Greene , 701 So. 2d at 648 (applying Fair Housi ng Act's definition of 'handicapped' to overrule trial court's dismissal of claim because court erroneously found that [the Act] only protected persons with actual, rather than perceived, disabilities). Applying that definition, a person who has no impair ment at all, but is regarded by the employer as having a substantially limiting impairment, may recover for discrimination." Razner v. Wellington Regional Medical Center, Inc. , 837 So. 2d 437, 441 (Fla. 4th DCA 2002). As observed in Davidson v. Iona McGr egor Fire Protection and Rescue District , 674 So. 2d 858, 860 (Fla. 2d DCA 1996), the First District Court of Appeal of Florida, in construing Section 760.10(1)(a), Florida Statutes, has "adopted the definition of a handicap contained in the Rehabilitation Act of 1973." See Brand v. Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1994). This definition is "virtually identical" to the definition of the term found in the Fair Housing Act. Cohen v. Township of Cheltenham, Pennsylvania , 174 F. Supp. 2d 307, 324 (E.D. Pa. 2001), quoting from, Support Ministries for Persons With Aids, Inc. v. Village of Waterford, N.Y. , 808 F. Supp. 120, 130 (N.D. N. Y. 1992). 76. To establish a prima facie case of handicap discrimination, a complainant must show that "( 1) [s]he is disabled; (2) [s]he was a 'qualified individual' at the relevant time, meaning [s]he could perform the essential functions of the job in question with or without reasonable accommodations [ 14 ] ; and (3) [s]he was discriminated against because of h [er] [handicap]." Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001). As part of such a showing, the complainant must present proof that her employer "had actual or constructive knowledge of the [handicap] or considered her to be [handica pped]." Hilburn v. Murata Electronics North America, Inc. , 181 F.3d 1220, 1226 (11th Cir. 1999). "At the most basic level, it is intuitively clear when viewing the [Act's] language in a straightforward manner that an employer cannot [take adverse action against] an employee 'because of' a [handicap] unless it knows of the [handicap]. If it does not know of the [handicap], the employer is [taking adverse action against] the employee 'because of' some other reason." Hedberg v. Indiana Bell Telephone Co., Inc. , 47 F.3d 928, 932 (7th Cir. 1995). "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice" of an employee's handicap. Morisky v. Broward County , 80 F.3d 445, 448 (11th Cir. 1996). Likewis e, "even where the conduct causing [an employer to take disciplinary action against an employee] may result from [that employee's handicap], e.g. tardiness or poor work performance, courts have found that such behavior is insufficient to impute knowledge o f the [handicap] to the employer." Larson v. Koch Refining Co. , 920 F. Supp. 1000, 1005 (D. Minn. 1996). 77. As noted above, Section 760.10(7), Florida Statutes, makes it an "unlawful employment practice" for an employer to retaliate against an employee " 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 s ection." "To establish a prima facie case of [such] retaliation, a plaintiff must show that (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is some causal relationship between the two eve nts." Johnson v. Booker T. Washington Broadcasting Service, Inc. , 234 F.3d at 507. "Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment." Id. An employer, however, may lawfully discipline an employee whom, during an internal investigation by the employer, has made accusations of sexual harassment that the employer has reason to believe were made by the employee knowing that they were false. As the Eleventh Circuit Court of Appea ls held in E.E.O.C. v. Total System Services, Inc. , 221 F.3d 1171, 1176 (11th Cir. 2000): [W]e cannot agree that an employer must be forced to prove presumably in a court of law more than its good faith belief that a false statement was knowingly made. In the kind of investigation involved in this case, the employer is not acting pursuant to the statute or under color of law, but is conducting the company's own business. When an employer is told of improper conduct at its workplace, the employer can l awfully ask: is the accusation true? When the resulting employer's investigation (not tied to the government) produces contradictory accounts of significant historical events, the employer can lawfully make a choice between the conflicting versions that is, to accept one as true and to reject one as fictitious at least, as long as the choice is an honest choice. And, at least when the circumstances give the employer good reason to believe that the fictitious version was the result of a knowingly false statement by one of its employees, the law will not protect the employee's job. False statements impair the employer's ability to make sound judgments that may be important to the employer's legal, ethical and economic well being. So, an employer is en titled to expect and to require truthfulness and accuracy from its employees in an internal investigation that is exploring possibl[e] improper conduct in the business's own workplace. (For example, we readily suppose an employee a nonharassing employee - could be fired if the employer had reason to believe the employee was concealing harassing conduct from the employer's investigation.) And, in carrying out its business and in making business decisions (including personnel decisions), the employer can la wfully act on a level of certainty that might not be enough in a court of law. In the workaday world, not every personnel decision involving a false statement (or a cover up) has to be treated as something like a trial for perjury. Therefore, an employer , in these situations, is entitled to rely on its good faith belief about falsity, concealment, and so forth. Cf . Damon , 196 F.3d at 1363 n.3 ("An employer who fires an employee under the mistaken but honest impression that the employee violated a work ru le is not liable for discriminatory conduct."); Sempier v. Johnson & Higgins , 45 F.3d 724, 731 (3d. Cir. 1995)("Pretext is not demonstrated by showing simply that the employer was mistaken."). Warren could properly be discharged based on Defendant's good faith belief that she lied in an internal investigation. In other words, Defendant offered a legitimate nondiscriminatory reason for Warren's termination: Defendant concluded that she had lied in an internal investigation. (footnote omitted). 78. A com plainant, like Petitioner, alleging that she was the victim of intentional employment discrimination in violation of the Act has the burden of proving, at the administrative hearing held on her allegations, that such discrimination occurred. See Departmen t of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company , 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."'); Florida Department of Health and Rehabilitative Services v. Career Service Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"); a nd Hong v. Children's Memorial Hospital , 993 F.2d 1257 , 1261 (7th Cir. 1993)(" To ultimately prevail on a disparate treatment claim under Title VII, the plaintiff must prove that she was a victim of intentional discrimination."). 79. "Discriminatory inten t may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001). 80. " Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without res ort to inference or presumption." King v. La Playa De Varadero Restaurant , No. 02 2502, 2003 WL 435084 *3 n.9 (Fla. DOAH 2003)(Recommended Order). 81. "[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor. . . . If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir . 1999). Likewise, a statement "that is subject to more than one interpretation . . . does not constitute direct evidence." Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189 (11th Cir. 1997). 82. "[D]irect evidence of intent is often unavailable." Shea ly v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997). 83. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green , 411 U .S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the [employer] to 'articulate' a legitimate, non discriminatory reason for its action. 15 If the [employer] successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt , 168 F.3d at 1267 ( citations omitted.). 84. Under no circumstances is proof that, in essence, amounts to no more than mere speculation and self serving belief on the part of the complainant concerning the motives of the employer sufficient, standing alone, to establish a pr ima facie case of intentional discrimination. See Lizardo v. Denny's, Inc. , 270 F.3d 94, 104 (2d Cir. 2001) ("The record is barren of any direct evidence of racial animus. Of course, direct evidence of discrimination is not necessary. . . . However, a ju ry cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.")( citations omitted.); Reyes v. Pacific Bel l , 21 F.3d 1115 (Table), 1994 WL 107994 **4 n.1 (9th Cir. 1994)("The only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient t o establish a prima facie case."); Little v. Republic Refining Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)(" Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated h is employer's action is of little value."); Elliott v. Group Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Rou illard v. Potter , 2003 WL 21026814 *9 (D. Minn. 2003) (" A plaintiff's subjective belief or speculation that statements are discriminatory does not establish a claim of hostile work environment."); Coleman v. Exxon Chemical Corp. , 162 F. Supp. 2d 593, 622 ( S .D. Tex. 2001)(" Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland Goins v. City of New York , 1999 WL 673343 *2 ( S.D. N.Y. 1999)(" Plaintiff has failed to proffe r any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African American man [sic] to hold the position of administrative assistant/secretary at Manhattan Cons truction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus, is entirely insufficient to make out a prima facie case or to state a claim under Title VII ."); Umansky v. Masterpiece International Ltd. , 1998 WL 433779 *4 ( S.D. N.Y. 1998)(" Plaintiff proffers no support for her allegations of race and gender discrimination other than her own speculations and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race or gender discrimination."); and Lo v. F.D.I.C. , 846 F. Supp. 557, 563 ( S.D. Tex. 1994)(" Lo' s subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII."). 85. In the instant case, Petitioner failed to meet her burden of proving, at the administrative hearing, that the County commi tted any of the "unlawful employment practices" alleged in the three, dual filed (with the EEOC and the FCHR) employment discrimination charges that are the subject of these consolidated cases. 86. To prove that she was sexually harassed by Mr. Eagle and threatened with reprisals for rejecting his advances (as alleged in EEOC Charge No. 150993522), Petitioner relied exclusively on her own testimony. Petitioner, however, was not a credible witness. The County presented convincing evidence, in the form of testimony from Mr. Eagle and others who had worked in the Tourist Tax section with Mr. Eagle and Petitioner, that not only established that the allegations against Mr. Eagle were a product of Petitioner's imagination and without merit, but also cast serio us doubt on the credibility of Petitioner's entire testimony (even those portions that were not directly contradicted by the County's evidentiary presentation). See Walker v. Florida Department of Business and Professional Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring) ( " [T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Maurer v. State , 668 So. 2d 1077, 1079 ( Fla. 5th DCA 1996)(" A judge acting as fact finder is not req uired to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); and Bellman v. Yarmark Enterprises, Inc. , 180 So. 2d 663, 664 ( Fla. 3d DCA 1965)(" The two principal witnesses relied upon by appellant for the proof of usury were substantially impeached and we cannot say that the trial court was bound to accept their testimony. A chancellor as the 'finder of fact' may find a witness who has been impeached completely unworthy of belief, and in such circumstances it is within his province to reject such testimony."). 87. Furthe rmore, even if the undersigned had found Petitioner's testimony regarding how she was allegedly harassed by Mr. Eagle to be believable, the County would nonetheless be insulated from liability for such harassment, since the alleged harassment did not invol ve any tangible employment action and the County presented proof establishing that it acted reasonably and in good faith when Petitioner complained to the FEP about Mr. Eagle. See Swenson v. Potter , 271 F.3d 1184 , 1196 (9th Cir. 2001)(" According to Ellert h , the employer cannot be held liable unless it reacts negligently to the harassment complaint. 524 U.S. at 759, 118 S. Ct. 225. Conversely, the employer will insulate itself from Title VII liability if it acts reasonably. Obviously, the employer can ac t reasonably, yet reach a mistaken conclusion as to whether the accused employee actually committed harassment."); and Goff v. Soundolier Division of American Trading & Production Corporation , 2000 WL 707810 *4 n.2 (N.D. Tex. 2000)(" Despite the actual exis tence of sexual harassment, an investigation may shield an employer from Title VII liability even where [the] investigation turned up no evidence of harassment if made in good faith."). 88. Petitioner's evidentiary presentation at hearing in support of th e allegations made in EEOC Charge Nos. 150A10614 and 150A13134 was also lacking. The record is bereft of any credible evidence that, at any time from her transfer to the Occupational Licenses section to her termination, Petitioner was subjected to any adv erse employment action or unreasonable treatment by her supervisors that was based on any Section 760.10 protected status she enjoyed at the time 16 or any Section 760.10 protected activity in which she had engaged. 17 While Petitioner may sincerely and genui nely believe that she was so victimized, such a good faith belief, unaccompanied by any persuasive supporting proof, is simply insufficient to establish that such intentional discrimination occurred. 89. Not only did Petitioner fail to prove the allega tions made in EEOC Charge Nos. 150A10614 and 150A13134, but the record affirmatively establishes that the specific actions Petitioner complained of in these charges (her "being subjected to write ups," her "not being allowed to work under [her] classificat ion of Tax Record[s] Clerk II," and her being discharged) were motivated by legitimate business considerations. 90. In view of the foregoing, no "unlawful employment practice" should be found to have occurred, and the employment discrimination charges t hat are the subject of these consolidated cases should therefore be dismissed. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in these consolidated cases finding that the County is not guilty of any of the "unlawful employment practices" alleged by Petitioner in EEOC Charge Nos. 150993522, 150A10614 and 150A13134 and, based upon such finding, dismissing these charges. DONE AND ENTERED this 10th day of July, 2003, in Tallah assee, Leon County, Florida. S ___________________________________ STUART M. LERNER 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.do ah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2003. ENDNOTES 1 Both "Occupational Licenses" and the "Tax Coll ectors Office" are parts of the government of Miami Dade County, which, as both parties agreed at the final hearing (at page 324 of Volume II of the hearing Transcript), is the real respondent in interest in all three of these consolidated cases. 2 In h er charge, Petitioner actually named the "Dade County Tax Collector['s] Office" as her employer. 3 In her charge, Petitioner actually named "Dade County Occupational License[s]" as her employer. 4 In her charge, Petitioner actually named "Dade County O ccupational License[s]" as her employer. 5 Mr. Eagle supervised approximately six other employees. 6 Ms. Baum rejected the Tax Collector's recommendation that Petitioner receive a lengthier, ten day suspension for having made these "false statements." 7 Ms. Mekin has worked in the Occupational Licenses section for the past 14 years. 8 Although Petitioner complained to Ms. Mekin about her counter assignment, Petitioner never mentioned to Ms. Mekin that she found working at the counter too stressful. 9 She had last seen Dr. Gibbs on October 19, 1999, and had not scheduled another appointment. 10 Petitioner was due to report back from lunch at 1:50 p.m. 11 This was the June 2000, DAR. 12 Section 95.051, Florida Statutes, provides as follows: 95.05 1 When limitations tolled. (1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by: (a) Absence from the state of the person to be sued. (b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued. (c) Concealment in the state of the person to be sued so that process cannot be served on him or her. (d) The adjudicated incapacity, before the caus e of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action. (e) Voluntary payments by the alleged father of the child in paternity acti ons during the time of the payments. (f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument. (g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of t he action. (h) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or i s adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action. Paragraphs (a) (c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought. This section shall not be construed to limit the ability of any person to initiate an action within 30 days of the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. s. 108(c). (2) No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law. 13 An "employer," as that term is used in the Act, is defined in Section 760.02(7), Florida Statutes, as "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 14 An employer is required " to provide reasonable accommodations for known [handicaps] unless that accommodation would result in u ndue hardship for the employer. An 'accommodation' is 'reasonable' and, therefore, required . . . only if it enables the employee to perform the essential functions of the job." LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 835 (11th Cir. 1998). "Reassignment to another position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified." Willis v. Conoco, Inc. , 108 F.3d 282, 284 (11th Cir. 1997). 15 " To 'articulate' does not mean ' to express in argument.'" Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th Cir. 1990). "It means to produce evidence." Id . 16 In support of her allegation of "disability" discrimination in EEOC Charge No. 150A10614, Petitioner failed to even prove that, at the time in question, she suffered from a "handicap," as that term is used in Section 760.10, Florida Statutes, much less establish that the County discriminated against her because she had a "handicap." 17 While Petitioner's filing e mployment discrimination charges with the EEOC constituted activity protected by Section 760.10, Florida Statutes (specifically subsection (7) thereof), her making false accusations to the FEP was not such a protected activity. See E.E.O.C. v. Total Syste m Services, Inc. , 221 F.3d at 1175 (" Even if false statements made in the context of an EEOC charge (per the participation clause) are protected and cannot be grounds for dismissal or discipline, . . . this extreme level of protection for untruth is not a fforded to false statements made under the opposition clause. . . . As in this case, whether to fire an employee for lying to the employer in the course of the business's conduct of an important internal investigation is basically a business decision; thi s decision, as with most business decisions, is not for the courts to second guess as a kind of super personnel department." ); and Vasconcelos v. Meese , 907 F.2d 111 , 113 (9th Cir. 1990)(" Vasconcelos argues her termination for lying during the Internal Aff airs investigation violates Title VII, because statements made by her during that investigation, whether truthful or not, are protected by section 2000e 3 and cannot be used as a basis to fire her. We reject Vasconcelos' argument in the context of this ca se. Section 2000e 3 is inapplicable. Vasconcelos was fired for lying during the Marshal's Service's 1982 Internal Affairs investigation, not for lying in any EEOC investigation. . . . Accusations made in the context of charges before the Commission are protected by statute; charges made outside of that context are made at the accuser's peril."). COPIES FURNISHED: Jacquelyn Ferguson Post Office Box 3298 Berke ley, California 94703 Lee Kraftchick, Esquire Miami Dade County Attorney's Office 111 Northwest 1st Street Suite 2810 Miami, Florida 33128 1993 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallah assee, Florida 323301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 323301 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions withi n 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: 02-004762

Orders for Case No: 02-004762