STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIE A. BEDELL,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 03-3290

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held November 18 through 21, 2003, in Fort Myers, Florida, before Fred L. Buckine, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Julie A. Bedell, pro se

16961 Carolyn Lane

Fort Myers, Florida 33917

Douglas P. Bedell Qualified Representative 16961 Carolyn Lane

Fort Myers, Florida 33917

Mark D. Friedland Qualified Representative 16961 Carolyn Lane

Fort Myers, Florida 33917

For Respondent: Anthony N. Deluccia, Jr., Esquire

Sharon A. Kaskie, Esquire Department of Children and

Family Services 5820 Buckingham Road

Fort Myers, Florida 33905

STATEMENT OF THE ISSUE

The issue is whether Respondent, Department of Children and Family Services, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Julie A. Bedell. Specifically, Petitioner alleged that after she was hired, completed training, and was assigned to a section, her section supervisor terminated her probationary employment because of her age (49 years), while other younger employees were retained.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on April 3, 2003, charging Respondent with wrongful termination based on her age (49 years). By letter dated August 7, 2003, FCHR informed Petitioner of its determination of no cause of discrimination and advised Petitioner of the right to request a de novo administrative hearing by filing a petition for relief within

35 days of August 7, 2003. Petitioner timely filed a Petition for Relief that was transmitted to the Division of Administrative Hearings on September 12, 2003.

On September 24, 2003, and in response to the parties' reply to the Initial Order, a Notice of Hearing, scheduling the final hearing for November 18 through 21, 2003, in Fort Myers, Florida, and an Order of Pre-hearing Instructions were entered.

On October 6, 2003, Petitioner filed a request to appoint Douglas P. Bedell and Mark D. Friedland as her qualified representatives, and, by Order of October 9, 2003, Douglas P. Bedell and Mark D. Friedland were appointed as Qualified Representatives for Petitioner.

Petitioner's Motion to Approve Video Depositions without the Cost of a Court Reporter (no deponents named) was filed on October 15, 2003, and, by order of the same date, was granted.

On October 16, 2003, Petitioner filed a Notice of Taking Depositions of D. Gilkerson, J. Mieses, R. Richmond, C. Duberry,

A. Carey, and J. Regier, Secretary of the Department of Children and Family Services, and on October 17, 2003, Petitioner filed an Addendum to Notice of Taking Deposition.

On October 22, 2003, Respondent filed a Motion to Quash Subpoena Duces Tecum for Deposition of J. Regier, Secretary of the Department of Children and Family Services, and by order entered October 24, 2003, Respondent's motion to quash was granted. On October 27, 2003, Petitioner filed her witness list for the final hearing.

On November 13, 2003, the parties filed a Joint Stipulated Witness List, and a case status conference was held via telephone.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of 27 witnesses: Clarke Kirby, at all times material, instructional specialist trainer with the Professional Development Center (PDC) at the University of South Florida (USF); Donna M. Hurst, personnel

technician III, specializing in recruiting for family safety for Respondent; Regina Hill-Faison, instructional specialist with the PDC at USF; Nancy Jackson, family safety specialist-mentor coordinator for field-based performance assessment and relative caregiver coordinator for Respondent; Joyce Mieses, family services counselor supervisor for Respondent and Petitioner's unit supervisor; Robert Richmond, at all times material, family services counselor and mentor for Respondent; Mary Jane Thompson, human resources personnel services specalist for Respondent; Gary Evanoff, a family services counselor for Respondent; Arlene Sue Carey, at all times material, USF faculty member working with the PDC; Deanna Gilkerson, program administrator for Respondent and supervisor of Ms. Mieses; Machel Poier, at all times material, personnel services specalist; Carolyn Duberry, at all times material, a family services counselor for Respondent; Cynthia Smith, family

services counselor for Respondent; Dorothy Bellmore, family services counselor for Respondent; Rober McHarry, deputy district administrator for Respondent, Fort Myers, Florida, District 1; Walther R. Cook, director of human resources, qaulified as an expert in human resources issues; Richard T. Runkle, management review specialist; Coral Conner, district manager for administrative services; Francine Parks, senior management analyst supervisor for Respondent; Florida McGee, Office of the State Attorney, Lee County, Fort Myers, Florida, administrative unit supervisor of the misdemeanor division and former supervisor of Petitioner; Jack N. Peterson, former prosecutor, Office of the State Attorney, Lee County, Fort Myers, Florida, for whom Petitioner was the administrative assistant; Rita Young, at all times material, district operations and program manager; Nancy Starr, licensing administrator; Sherre Lacy Hayes, instructional specialist with the PDC at USF; James Robertson, family services counselor, at all times material, training classmate of Petitioner; Rose Large, family service counselor, at all times material, training classmate of Petitioner; and Donathan Dean, sole proprietor of Suncoast Industries and former employer of Petitioner.

Respondent presented the testimony of Agency employees called as witnesses by Petitioner. The verbatim testimony was taken of a total of 28 witnesses.

The parties stipulated to 37 of Respondent's exhibits and

41 of Petitioner's exhibits, and they were admitted into evidence.

At the conclusion of the final hearing, the parties' ore tenus motion for a 30-day extension of time to file proposed recommended orders was granted, extending the filing date to January 19, 2004, thereby waiving the time requirement for this Recommended Order. See Florida Administrative Code Rule

28-106.216.

The January 7, 2004, Motion for Extension of Time to file Proposed Recommended Order filed by Petitioner was granted by Order dated January 8, 2004, extending the filing date to January 30, 2004.

On January 15, 2004, Petitioner filed a post-hearing letter dismissing Mark D. Friedland as her Qualified Representative.

On January 22, 2004, Mr. Friedland filed a post-hearing letter regarding Petitioner's January 15, 2004, letter of dismissal.

On January 23, 2004, Petitioner filed a motion to strike from the record all correspondence from Mr. Friedland subsequent to her notice of dismissal, and on January 28, 2004, an Order granting Petitioner's motion was entered.

The parties' Proposed Recommended Orders and Respondent's Motion for Summary Final Order were considered in rendering this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made:

1. Respondent, Department of Children and Family Services (Agency), an agency of the State of Florida, at all times material to this cause, was an "employer," as that term is defined in Section 760.02(7), Florida Statutes (2002).1

2. Petitioner, Julie A. Bedell (Ms. Bedell), at all times material to this cause, was 49 years old and an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes.

3. All Agency personnel matters, at all times material to this cause in 2002, were centralized. Agency personnel was authorized, within budgetary constraints, to determine and advertise available positions, receive employment applications, evaluate and qualify each applicant, identify applicants who met minimal qualifications, and to hire qualified applicants to fill vacant positions throughout District 1, that included Fort Myers, Florida.

4. The minimum qualifications that must be met before one becomes qualified for a permanent position as a family service counselor (FSC) with the Agency are a bachelor's degree from an accredited institution, attainment of a child protection certification, and successful completion of a one-year probation period. Child protection certification is earned after attending eight weeks of PDC training, passing a written assessment test, and successfully completing a field-based (on- the-job training) assessment evaluation. New employees must successfully complete, from the date of hire, a one-year probationary period before attaining permanent employment status. Completion of a field-based performance assessment shall occur during the one-year probationary period. At all times material, Ms. Bedell was a probationary employee. A probationary employee is one who does not have the benefit of termination only for cause, as does a permanent employee. By Agency rule probationary employees may, at the discretion of the Agency, be terminated without cause.

5. On January 25, 2002, the Agency hired Ms. Bedell as a probationary employee in the position of a FSC. Ms. Bedell attended Human Resources (HR) orientation and there received the Agency's Employees' Handbook, containing, among other subjects, information regarding hours of work, lunch hour, breaks, and the

   requirement for approval from one's supervisor before variation of one's 8:00 a.m. to 5:00 p.m. work schedules.2

6. Thereafter, Joyce Mieses, Ms. Bedell's FSC unit supervisor, instructed and informed Ms. Bedell of policies, regulations, and operational procedures to which she was subject as a member of the FSC unit. Ms. Bedell was informed by

   Ms. Mieses that operational regulations included, but were not limited to: (1) employee's duty hours were limited to Monday through Friday from 8:00 a.m. to 5:00 p.m. with lunch hour from 12:00 p.m. to 1:00 p.m.; (2) employee's timesheets were to reflect 40 hours per week divided into work days of 8:00 a.m. to 5:00 p.m., Monday through Friday; (3) on those infrequent occasions when an employee was required, by demands of a particular assignment, to be at work before 8:00 a.m., or to leave work before 5:00 p.m. or work later than 5:00 p.m., prior approval from a supervisor was required; and (4) a supervisor's prior approval was required before an Agency employee could "flex" their time. Flex(ing) time is the term used to identify specific periods of approved deviation from the 8:00 a.m. to 5:00 p.m. work day (late arrivals or early departures) given an employee to equal the amount of overtime (early arrivals or late departures) previously incurred by that employee. At all times material, Ms. Bedell was aware of and fully understood the Agency's policy of prior approval by a supervisor before she

   would be permitted to work earlier or later than the 8:00 a.m. to 5:00 p.m. daily time constraints.3

7. On January 28, 2002, Ms. Bedell attended her first PDC class training session. The training sessions concluded on March 21, 2002. The PDC at USF conducted the training classes. All new employees are required to attend the PDC training classes and are placed in a "Trainee" status as required by Florida Administrative Code Rule 60L-33.003(2)(c), which, in pertinent part, required time spent in trainee status shall not count toward completion of the required one-year probationary period.

8. Including Ms. Bedell, there were 13 probationary trainee employees in the January 28, 2002, training class. The class makeup consisted of seven trainees under the age 40 and six trainees over the age 40.

9. The PDC training classes began at 9:00 a.m. and ended at 4:30 p.m., or earlier when excused by the instructor. The PDC service center was located approximately seven miles from the Agency office complex. One-way travel time between the two locations was approximately 15 to 20 minutes. All probationary trainees were instructed that when they are not in a PDC training classes, they are required to be in the Agency's offices doing field service activities.

10. Nancy Jackson, district mentor coordinator for the Agency, assigned Robert Richmond, an experienced FSC employee, as Ms. Bedell's mentor. The duty of the mentor to the trainees was to provide "hands-on" assistance in areas where the trainee encountered specific problems in acclimating themselves to the procedural processes of providing FSC services.

11. Ms. Mieses personally instructed Ms. Bedell to report to the PDC training classes at 8:00 a.m. daily and, after each class, to return to work in the FSC unit until 5:00 p.m. She also instructed Ms. Bedell that her time card must reflect 8:00 a.m. to 5:00 p.m. as time actually worked each day.

12. Ms. Mieses instructed Ms. Bedell that her personal approval was required before Ms. Bedell could enter a time change, from the 8:00 a.m. to 5:00 p.m. as hours worked each day, on her time-card. Ms. Mieses explained to Ms. Bedell the Agency's policy regarding the use of "flex" time as a means to compensate employees for those infrequent situations where an FSC would be required to report to work before 8:00 a.m. or work after 5:00 p.m. Ms. Bedell knew and fully understood that to flex one's 8:00 a.m. to 5:00 p.m., 40-hour-per-week work time meant to either come in late or leave early on a specific day.

13. Notwithstanding Ms. Mieses instructions and

    
    

    Ms. Bedell's understanding of both timecard entries and prior approval before deviation from established time constraints,

    during the period from January 28, 2002, through April 1, 2002, the record evidence established that Ms. Bedell, without approval by Ms. Mieses, intentionally skipped her scheduled lunch hour (12:00 p.m. to 1:00 p.m.) on five occasions,

    January 31, February 5 and 6, March 22, and April 1, 2002.

    
    

14. Ms. Bedell left work at 4:00 p.m. on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Each unapproved, early departure from work by Ms. Bedell was a separate cause for her termination. Ms. Bedell intended not to request and, in fact, did not request Ms. Mieses' approval before she skipped her lunch hours and "flexed" her time by departing early from work. Ms. Bedell deliberately chose to ignore the Agency's prior approval policy requirement before skipping lunch and flexing her time. Ms. Bedell repeated her established pattern of disregarding prior supervisor approval policy through her tenure with the Agency. Ms. Bedell acknowledged her intention to not follow instructions given by Ms. Mieses, with which she did not agree.4

15. On several occasions, Ms. Mieses counseled with Ms. Bedell and warned her about her failure to follow instructions regarding prior approval before deviations from standard procedures. Ms. Mieses instructed Ms. Bedell to

    discontinue that practice. Notwithstanding the conferences and warnings, on February 27, 2002, again without prior approval,

    Ms. Bedell worked 30 minutes of unnecessary overtime as an observer with an experienced FSC on a home visit. "Unnecessary" overtime is the term used to identify time spent on FSC tasks beyond the time that the supervisor, based upon the task(s) and the experiences of others FCSs, had predetermined was sufficient time to accomplish a given task(s). Ms. Bedell ignored her supervisor's instruction of a one-hour observation period and chose to stay longer on this home visit.

16. On March 20, 2002, Ms. Bedell knowingly recorded an incorrect time on her timesheet. She recorded that the PDC class ended at 5:00 p.m., when in fact, the PDC class ended at 3:30 p.m. When Ms. Mieses asked Ms. Bedell about the "class ending time" discrepancy, Ms. Bedell intentionally misled

    Ms. Mieses by insisting that she was "in" class until 5:00 p.m. on March 20, 2002. The PDC class instructor subsequently advised Ms. Mieses that she dismissed the class and all students departed the PDC facility at 3:30 p.m. on March 20, 2002.

17. Ms. Mieses informed Ms. Bedell by e-mail that the PDC instructor confirmed that she released the class and all trainees were out of the facility classroom at 3:30 p.m. on March 20, 2002. After receiving the e-mail, Ms. Bedell retracted her position and corrected her timesheet.

    Ms. Bedell's misrepresentation of the time class ended on

    March 20, 2002, and her entry thereof on her time card provided two separate causes for termination: (1) intentional misrepresentation (lying); and (2) falsification of state records. She was again counseled but not formally disciplined for these offenses.

18. On March 21, 2002, Ms. Bedell was assigned her first case file. The file contained ten pages of pre-service intervention information. When a case is brought to the attention of the FSC unit, an investigation is undertaken, a home visit (or court visit if necessary) is arranged, and a situation specific case plan is developed by the assigned FSC, followed by a staffing comprised of all parties within the chain of operations to review, modify, and refine the case plan to accommodate the needs of the family.

19. On March 22, 2002, Ms. Bedell, without approval, came to work before 8:00 a.m. (no specific time in the record) to allegedly review the ten pages in her case file. At approximately 3:30 p.m. that afternoon, Ms. Bedell entered

    Ms. Mieses office and announced that she was leaving for the day because she came in early to review her case file. Ms. Mieses' attempt to stop Ms. Bedell from leaving work early (flexing her time) was ignored by Ms. Bedell as she left the FSC unit in direct violation of Ms. Mieses' instruction not to do so.

20. Three days later, March 25, 2002, Ms. Bedell received her second case. This case was also assigned after pre-service intervention. Ms. Bedell discussed her second case with her mentor, and he determined that Ms. Bedell should use another case plan as a model from which to learn how to develop and draft her "first" case plan. Mr. Richmond informed Ms. Mieses of his training decision, and she promptly e-mailed a finished case plan to Ms. Bedell to assist her in developing and drafting her first case plan. Gary Evanoff, another experienced FSC unit co-worker, in keeping with the FSC unit's team approach, demonstrated to Ms. Bedell how to split her computer screen displaying the two case plans using the model case plan as a guide for drafting the proposed case plan. These additional training instructions and directions from experienced FSC unit co-workers were given to assist Ms. Bedell in the preparation of her first case plan.

21. At all times material, the FSC unit to which

    
    

    Ms. Bedell was assigned had an open door policy and employed a "team approach" to train their new unit members. The team approach meant that when a new trainee enters the unit, other members of the FSC unit, the supervisor, the assigned mentor, and the field trainer undertook the joint responsibility of sharing in the overall training of their new unit co-worker.

22. The unrefuted evidence of record demonstrated that Ms. Mieses arranged for Ms. Bedell to: (1) shadow other FSC counselors, (2) accompany other FSCs on field service activities, (3) ride along and observe home visits, (4) attend staffing(s), and (5) accompany other FSCs when court appearances were required. No co-worker in Ms. Bedell's FSC unit knew

    Ms. Bedell's age. Not a single witness called by Ms. Bedell observed treatment (favorable or otherwise) given to other unit employees that was not likewise given and/or made available to Ms. Bedell during her employment tenure with the Agency.

23. Ms. Bedell would frequently interrupt Mr. Richmond as he worked at his desk. The frequency of her interruptions, the questions she asked, and the help she sought became a burdensome interference. As an experienced mentor of many other new FSC employees, Mr. Richmond surmised that Ms. Bedell came to him, in effect, for him to do for her tasks pertaining to her case, rather than attempting to do those tasks herself. Mr. Richmond opined that Ms. Bedell was not concerned with self-improvement through the process of learning from and by her mistakes.

24. Mr. Richmond discussed his concern with Ms. Mieses and suggested that a more effective use of time for both him and Ms. Bedell would be to schedule a time for Ms. Bedell's questions. Ms. Mieses instructed Ms. Bedell to meet with

    Mr. Richmond and establish a schedule for mentor training meetings. Ms. Bedell did not comply with that request. Based upon the frequency of her visits and the questions she asked, Mr. Richmond concluded "compared to other mentorees at the same stage of training, she [Ms. Bedell] was not grasping basic terms and operational processes that was [sic] covered in her classroom training." He shared his observations, mentor relationship concerns, and conclusions with Ms. Mieses.

25. Mr. Richmond never observed nor was he ever made aware of any discriminatory action taken against Ms. Bedell. He never observed nor was he ever made aware of any treatment different from the treatment of other FSC unit employees directed toward Ms. Bedell. He never considered nor was he aware of

    Ms. Bedell's age.

    
    

26. Sue Carey, PDC field instructor, identified problems she observed and became aware of with Ms. Bedell's knowledge and work skills. After two home visits, Ms. Bedell voluntarily shared with Ms. Carey her "trouble liking" one family and her "trouble trusting" another family. In response to Ms. Bedell's expressed trouble (feelings and attitude) of "liking" and "trusting" families comments, Ms. Carey informed Ms. Bedell that her negative feelings and attitude (liking and trusting) towards families served by the Agency through FSC were of serious and professional concern to her and the FSC unit. Ms. Carey's

    follow-up field assessment review of April 1, 2002, described Ms. Bedell's knowledge of basic terms and operational processes contained in the two cases assigned to her as "extremely limited."

27. Ms. Carey never observed nor was she ever made aware of any discriminatory action taken against Ms. Bedell. She never observed nor was she ever made aware of any treatment different from the treatment afforded other FSC unit employees directed toward Ms. Bedell. Ms. Carey never considered nor did she know Ms. Bedell's age.

28. Ms. Bedell voluntarily chose to share and express her "feelings" and "attitude" about families she encountered with Ms. Carey, but she never shared or expressed her job-related "feelings" (of frustrations) and "attitude" resulting from a lack of or a denial of training; from derogatory, age-related remarks made to her; and discrimination by different treatment because of her age with Ms. Carey.

29. The unrefuted evidence demonstrated that throughout her probationary employment tenure with the Agency, Ms. Bedell received the same standard training as other probationary trainees, regardless of the age of the trainee. There is no record evidence to substantiate a single instance where another probationary-trainee received "training" (assistance and or

    directions) that had intentionally not been made available or intentionally denied to Ms. Bedell.

30. Ms. Bedell's allegation of disparaging age-based remarks made to her by a Jim Robertson, fellow trainee, during their PDC class on February 14, 2002, is not supported by evidence of record. Mr. Robertson denied knowledge of

    Ms. Bedell's age and denied making disparaging, age-based remarks to Ms. Bedell at any time during her employment tenure.

31. On or about March 28, 2002, Ms. Mieses, through discussions and conversations with Mr. Richmond, Ms. Carey, and others, concluded that a structured, 8:00 a.m.-to-5:00 p.m., office job would probably better suit Ms. Bedell's personality. After further consideration of Ms. Bedell's demonstrated lack of respect for policies, her difficulty and refusal to following instructions, her ineffective utilization of her time, her limited grasp of basic FSC terminology, and her lack of acclimation to the FSC processes, all of which are common to a FSC worker with an assigned case load, Ms. Mieses submitted

    Ms. Bedell's name to the licensing unit supervisor for consideration as a candidate for a position in the licensing unit. It is within Ms. Mieses' supervisory authority to recommend the transfer placement of her unit personnel to positions she believes they may be best suited.

32. The licensing unit office worked from 8:00 a.m. to 5:00 p.m. daily. Licensing was primarily an in-house unit with little or no out-of-office field activities or family interactions. Ms. Mieses, though not required, informed

    Ms. Bedell that her name was forwarded to the licensing unit supervisor who was responsible for making the selection. She explained to Ms. Bedell why she believed the potential transfer to the licensing unit would be in her best interest. At the time Ms. Bedell was informed of the potential transfer, she expressed no concerns of disparate treatment. She expressed no concerns that the possible transfer was made "because of her age."

33. The licensing unit supervisor, however, had two candidates from which to choose from among the group of employees initially hired with Ms. Bedell and determined the other candidate, not Ms. Bedell, was the best suited candidate for the position.

34. The licensing unit supervisor made her choice based primarily on two factors; first, the chosen candidate's long and stable work history of having taught in public schools for over

    20 years, and second, the chosen candidate's long and varied experiences dealing with children and their families.5 The ages of the two candidates were not considered by the supervisor of licensing in filling the position. It is significant, however,

    that the candidate chosen by the licensing supervisor was both within the same protected class as Ms. Bedell and older than Ms. Bedell. The person chosen by licensing voluntarily resigned from the Agency after working in the unit a short period of time.

35. Ms. Bedell's allegation and argument that the Agency's subsequent acceptance of the licensing unit candidate's resignation and not affording her the opportunity or option to resign before termination demonstrated discrimination (different treatment) is not based on fact. Voluntary resignation was available to Ms. Bedell throughout her tenure with the Agency. It was her post-termination attempt to broker a "resignation" that aborted her negotiations with HR. Her proposal consisted of tendering her resignation in exchange for the Agency either withdrawing from or sealing in her personnel file the termination letter. The post-termination negotiations failed.6

36. On April 1, 2002, Ms. Mieses provided Rita Young, district operations program manager and her supervisor, a documented outline of instances of insubordination, specific failures and refusals to follow instructions by Ms. Bedell. Based upon her many years as a FSC supervisor, Ms. Mieses' concerns resulted from Ms. Bedell's job-related inabilities and her repeated refusals to follow instructions and directions during her probationary employment period. Based upon

    Ms. Bedell's failures and refusals to follow instructions,

    
    

    Ms. Mieses concluded that once Ms. Bedell was in the field working as a permanent employee, she would continue her pattern of failing and refusing to follow instructions and directions. Ms. Mieses was convinced that Ms. Bedell's demonstrated propensity for disobedience of Agency policy would adversely affect the safety of children and families served by the FSC unit and the Agency.

37. Based on her observations of Ms. Bedell's characteristic traits, her experiences with Ms. Bedell's lack of respect for supervisory authority, Ms. Bedell's demonstrated inability to follow directions, and Ms. Bedell's propensity to do things her way, Ms. Mieses recommended Ms. Bedell's termination as a probationary employee to her supervisor, Rita Young. Ms. Young possessed authority to disagree and overturn Ms. Mieses' recommendation. Ms. Young did not overturn the recommended termination.

38. Ms. Young made the final decision to terminate

    
    

    Ms. Bedell and, following protocol, directed Deanna Gilkerson to forward the termination decision and supporting information to HR for review. Machel Poier, HR employee, relying upon the experience and knowledge of staff, agreed with staff's recommendation to terminate Ms. Bedell. Ms. Poier conferred with her supervisor, Coral Conner, who also agreed with staff's

    recommendation to terminate Ms. Bedell. Thereafter, Ms. Poier prepared the probationary termination form and sent it to

    Ms. Gilkerson for her signature, officially terminating

    
    

    Ms. Bedell's employment at the close of business on April 2, 2002. The documentation process, the review process, and the final decision making processes were in full accord with Agency protocol, policy, and procedures for termination of a probationary employee by the Agency.

39. Ms. Bedell did not produce, through the testimonies of her witnesses, nor through admitted documentation, evidence that her age (even "if" known at the time) was considered by and/or a concern of Ms. Mieses, Ms. Young, Ms. Gilkerson, Ms. Poier, or Ms. Conner in their concurrence with recommendations to terminate her probationary employment with the Agency.

40. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, evidence of discrimination by treatment afforded other younger (and/or same age) employees that was different from the treatment afforded her. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, that her supervisor, FSC unit co-workers, or any other Agency employee denied, prevented, or hindered her access to her obtaining probationary employee training that was offered during her tenure with the Agency.

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569(1) and 120.57(1), Florida Statutes (2003), and Section 760.11(7), Florida Statutes.

42. Here, Petitioner alleges the following specific adverse and discriminatory employment actions:

    1. I was subjected to a "hostile work environment" which gives rise to inference of age discrimination in violation of (a) Florida Civil Rights Act of 1992, as amended (Chapter 760, Florida Statutes); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) The Age Discrimination in Employment Act (ADEA); and (d) The Americans with Disabilities Act (ADA).

       
       

    2. I maintain that the stated reasons for my discharge are pretext. My employment was terminated for no justifiable reason. I contest all their stated reasons that they reduced to writing.

       
       

    3. The ultimate facts that I will prove at the hearing through anecdotal, documentary, and statistical evidence

       is [sic] as follows: 1) that statistically there is a disparate number of younger workers at the Florida Department of Children & Families and that I was treated differently than employees under forty. 2) I was replaced by someone substantially younger than me. 3) I will also prove that I was subject to a "hostile work environment" in that, I was treated with less dignity and fairness than similarly situated persons not in the protected class.

       Entitlement for relief are: reinstatement, back pay, front pay, compensatory and punitive damages, attorney fees and all other appropriate relief in consideration of the term of my unemployment which followed my termination.

       
       

43. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer:

    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, sex, national origin, age, handicap, or marital status.

    
    

44. The FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

45. The United States Supreme Court established, in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII, which is persuasive in cases such as that at bar, as reiterated and refined in the case of St. Mary's Honor

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

46. This analysis illustrates that a petitioner has the burden of establishing, by a preponderance of evidence, a prima

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

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

    
    

    509 U.S. at 519.

    
    

47. In the Hicks case, the Court stressed that even if the fact finder does not believe the proffered reason given by the employer, the burden remains with the petitioner to demonstrate a discriminatory motive for the adverse employment action taken.

48. In order to establish a prima facie case, Petitioner must satisfy each prong of a three-prong test establishing that before or at the time of termination: (1) she was a member of a protected group; (2) she was qualified for the position in question; (3) she was actually subjected to an adverse employment decision. Failure to satisfy one prong of the test is fatal to the claim. See Williams v. Motorola, Inc., 303 F.3d

    1284, 1293 (11th Cir. 2002); Canino v. U.S., E.E.O.C., 707 F.2d

    
    

    468 (11th Cir. 1983); and Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982).

49. There is no dispute that Petitioner was a member of a protected class, so the first prong is met.

50. The second step in analyzing whether Petitioner has presented a prima facie case is to ascertain whether Petitioner was "qualified" for the FSC (career service) position in question. Qualified means before or at the date of termination, Petitioner was, in fact, competent, suited, and met all requirements for the position of FSC, as set forth below.

51. The evidence of record established the relevant statutes and rules required. In addition to possessing a college degree, Petitioner was required to have: (1) attained a child protection certification, (2) passed a written assessment test, (3) successfully completed a field-based assessment evaluation, and (4) successfully completed one year's probation before being "qualified" for the FSC career service status position. Petitioner did not meet the above-required criteria at any time during her employment tenure with Respondent and had not met the criteria on April 2, 2002.

52. Assuming arguendo, that Petitioner passed the written test and passed the field-based assessment, Petitioner had not, before or at the time of her termination, satisfied the one-

    year, time-in-service, probationary requirement to qualify for permanent career service status as contained in Florida Administrative Code Rule 60L-33.002(2). Thus, Petitioner cannot be deemed "qualified" until (1) completion of probationary status and (2) acceptance as a career service employee. See Foster v. Department of Corrections, DOAH Case No. 02-0957 (August 2, 2002). Adopted in toto as Agency Final Order on December 4, 2002.

53. Petitioner's conduct, consisting of continuous disrespect of her supervisor's instructions and directions; ignoring and failing to request permission before deviating from regularly scheduled work hours; flexing her employment time without prior approval; and failing to acquire the requisite knowledge as did other probationary employees with identical class training experiences, justified dismissal. Under the provisions of Florida Administrative Code Rule 60L-33.002(5), a probationary status employee can be terminated without cause at the discretion of the Agency. In this case, the material evidence of record, established by both Petitioner's and Respondent's witnesses, proved the Agency had good cause to justify Petitioner's termination, given the above-described facts.

54. When the Agency terminated Petitioner on April 2, 2002, she was a probationary employee and was not "qualified" as

a full-fledged, career service employee. Based upon the Findings of Fact and for the reasons hereinabove stated, Petitioner has not proven a prima facie case, and, therefore, her claim must fail for that reason. This failure rendered moot all other issues raised by Petitioner's claim of discrimination and Respondent's Motion for Summary Final Order.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING Petitioner's, Julie A. Bedell, Petition for Relief based on age discrimination against Respondent, Department of Children and Family Services.

DONE AND ENTERED this 26th day of March 2004, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2002), unless otherwise indicated.

2/ Agency's budget constraints did not permit payment of overtime. The Agency used flextime as its method of equalizing approved overtime work. Implementation of the flextime plan was the responsibility of each unit supervisor, who was to monitor the time worked and the timesheet of each unit employee to ascertain that no unapproved overtime was submitted to payroll.

3/ Ms. Bedell's opinion, intent, and personal views regarding instructions given by her supervisor are reflected in Joint Exhibit J-1. This hand written exhibit states: "1/12 arrived @ 8:00 left @ 4:30; 1/29 arrived 8:00 left @ 4:30; 2/11/02 arrived

9:00 left @ 4:30; 2/12/02 arrived @ 9:00 left @ 4:30. 'I reviewed over materials to make up time-my decision to do so felt uncomfortable putting 8-5 as Ms. Mieses instructed me to do.'" "2/12, 2/13, 2/14, 2/15, 2/18-each day arrived at 9:00 left @ 4:30." This is ridiculous because no one else is doing this-they just putting 8-5 w/out making up time by reviewing, but this is my choice. I feel that it is wrong for super [sic] Mieses to instruct me to put 8-5 when I only work 9-4:30 during classroom training--(I guess this is what I get for having morals.)" (Emphasis added)

4/ After her termination on April 2, 2002, Ms. Bedell attempted to cast her moral "decision to do so" as a legal requirement.

She then filed a whistle-blower claim alleging her supervisor illegally instructed her to include incorrect information

(8:00 a.m. to 5:00 p.m.) on her timesheets. Her whistle-blower claim was dismissed.

At the final hearing, Ms. Bedell argued that her refusal to comply with Ms. Mieses' instructions was the basis for her "discriminatory treatment," to which she was subjected because she was the only employee who, openly and continuously, opposed the Agency's prior approval rule and for entering "actual time" away from her job rather than following instructions and Agency policy.

5/ Concerning work experience, in the nine-year period from 1989 to 1998, Ms. Bedell held six different positions and worked a total of three years and nine months. When questioned,

Ms. Bedell explained that her time was spent pursuing her degree. She worked only when family finances compelled her to

work and after the financial burden was lightened, she returned to school.

6/ It was only after Ms. Bedell became aware of her inevitable termination (on or about approximately February 27 through April 1, 2002) that she began a campaign of (a) letter writing,

(b) making telephone calls, (c) engaging in mediation discussions, and (d) attempting to negotiate terms and conditions as a prerequisite to tendering her resignation. Ms. Bedell offered, in exchange for the Agency's sealing or withdrawing from her personnel file her performance evaluation and letter of termination, her letter of resignation. The Agency suggested to Ms. Bedell that she should have legal counsel accompany her in the mediation-negotiation process because of potential legal ramifications of an agreed

resignation in exchange for sealing personnel file information. The Agency made it clear to Ms. Bedell that it would not negotiate with her without her legal counsel. Ms. Bedell did not have legal counsel contact the Agency and negotiations ended.

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

Tallahassee, Florida 32301

Mark D. Friedland 16961 Carolyn Lane

Fort Myers, Florida 33917

Anthony N. Deluccia, Jr., Esquire Sharon A. Kaskie, Esquire Department of Children and

Family Services 5820 Buckingham Road

Fort Myers, Florida 33905

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.

Docket for Case No: 03-003290

Orders for Case No: 03-003290