STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATANYA GRIMES,

Petitioner,

vs.

ALTERNATIVE CARE, INC.,

Respondent.

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) Case No. 04-2035

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 4, 2004, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Latanya Grimes, pro se

Southwest 26th Terrace, Apartment A Gainesville, Florida 32608

For Respondent: Herbert Webb, Esquire

4400 Northwest 23rd Avenue, Suite E Gainesville, Florida 32602

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

On November 5, 2002, Petitioner, Latanya Grimes, filed a Charge of Discrimination with the Florida Commission on Human

Relations (FCHR). The Charge of Discrimination alleged that Respondent, Alternative care, Inc., had subjected Petitioner to sexual harassment and a sexually hostile work environment that resulted in the termination of her employment with the Respondent.

On April 21, 2004, FCHR entered a Determination of No Cause on Petitioner's Charge of Discrimination. Petitioner was advised of her right to contest FCHR's determination, by filing a Petition for Relief. On June 7, 2004, Petitioner filed a Petition For Relief with FCHR. The petition was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf, and offered four exhibits into evidence. Respondent presented the testimony of seven witnesses and offered six exhibits into evidence.

After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on August 13, 2004, and August 16, 2004,

respectively.

FINDINGS OF FACT

1. Respondent is a residential facility for persons with various disabilities. It maintains several buildings to house its clients.

2. On September 1, 2000, Petitioner, who is female, began her employment with Respondent. She was employed as a consumer

   adviser. In that position she was responsible for transporting clients to and from appointments, picking up various medications and some clerical duties as needed.

3. Initially, she was assigned to work the 7:00 a.m. to 3:00 p.m. shift at one of the Respondent’s facilities. Sometime around August 26, 2000, Petitioner was reassigned to the night shift because, through a miscommunication, Respondent’s director believed Petitioner had cancer and was undergoing chemotherapy. The director thought the nightshift would be less stressful during this time period. However, the evidence showed that it was Petitioner’s father who had cancer and was undergoing chemotherapy. The manager’s belief that it was Petitioner who had cancer was genuine and the shift change was made in order to help Respondent. Indeed, at the time Respondent never complained that the change in shift was made to sexually harass her.

4. Around September 10, 2002, Petitioner claimed she was sexually accosted by a co-worker, Tommy Moore. Mr. Moore worked the same shift as Petitioner and at the same building. Petitioner testified that while she was on the phone to her supervisor, Otelia Arnold, Mr. Moore entered the room and began making lewd gestures of a sexual nature to her. At one point he allegedly came up behind her and rubbed his penis against her.

   Petitioner reported the incident to Ms. Arnold while she was on the phone with her. Ms. Arnold did not testify at the hearing and there were no corroborating witnesses to the incident.

   Mr. Moore denied the acts alleged by Petitioner. Petitioner did not report the incident to the executive director and did not report the incident to the police. On the other hand, Petitioner grew very emotional during the hearing while testifying about the incident. However, the totality of the evidence was insufficient to establish that Petitioner was accosted by Mr. Moore during her phone call to her supervisor.

5. Sometime after September 10, 2002, Petitioner began to arrive at work one to three hours ahead of her scheduled work time. Petitioner claimed at the hearing that she arrived early because she didn’t like to ride the bus at night. Co-workers complained about the disruption her early arrival caused in the care of the residents. Therefore, on October 16, 2002, the director gave Petitioner a memorandum instructing her not to arrive at work more than one-half hour before her shift. At the time of the memorandum, Petitioner did not explain her reasons for arriving early to the director. Nor did Petitioner complain to the director that she felt she was being sexually harassed. There was nothing in the record that demonstrated the director’s action was done in order to sexually harass Petitioner or to maintain a sexually hostile work environment.

6. Indeed, the first complaint of sexual harassment of which the director was aware occurred when he received Petitioner’s Charge of Discrimination from the Alachua County EEOC office sometime after November 5, 2002. That charge alleged that Petitioner had been sexually harassed by Mr. Moore as described above. The director immediately investigated the allegation and did not find any evidence that the incident had occurred. Nevertheless, the director reassigned Mr. Moore to another facility and prohibited him from having any contact with Petitioner. The evidence did not show any adverse action was taken against the Petitioner in retaliation for filing her complaint.

7. The evidence was unclear and disjointed regarding specific events following November 5, 2002. At some point, Petitioner telephonically contacted various employees at home while she was at work. Several of these contacts caused the employees and their families to complain to the director. Because of these complaints, Petitioner was instructed not to contact co-employees at home concerning work-related matters.

8. On July 19, 2003, Petitioner observed a resident with scrapes and bruises on his arms. The scrapes and bruises were old self-inflicted injuries from which the resident had picked the scabs. She reported the resident’s condition to the abuse hotline maintained by the Department of Children and Family

   Services. Dexter Miller was the staff member responsible for the care of the resident during the prior shift. Without any authority to investigate further and in violation of the director’s earlier directive, Respondent tried to call Dexter Miller at home. She spoke with Mr. Miller’s wife and told her that the director planned to blame the abuse on Mr. Miller and that Mr. Miller was required to report to work immediately.

   Petitioner then contacted Mr. Miller at his other job and told him that the director was going to blame him for the abuse.

   None of this information was true. As a result of these phone calls and misinformation, Petitioner was terminated from employment with Respondent on July 23, 2003. The basis for Petitioner’s termination was legitimate and reasonable.

9. Finally, there was nothing in the evidence that linked Petitioner’s termination or any directives she received from the director to any sexual abuse or sexual harassment by Respondent. Likewise, there was nothing in the evidence that Respondent permitted a sexually hostile environment to exist or persist. Therefore, due to the lack of evidence, the Petition for Relief

   should be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

11. Under the provisions of Section 760.10, Florida.

    Statutes, it is an unlawful employment practice for an employer: (1)(a) To discharge 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.

    
    

12. 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); Cooper v. Lakeland Regional

    Medical Center, 16 FALR 567 (FCHR 1993).

    
    

13. The Supreme Court of the United States 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, such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

14. Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie

    case of unlawful discrimination. If a prima facie case is

    established, Respondent must articulate some legitimate, nondiscriminatory reason for its employment action. If the employer articulates such a reason, the burden of proof then shifts back to the petitioner to demonstrate that the proffered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the Plaintiff's explanation of intentional discrimination." 509 U.S. at 519. In Hicks, the Court stressed that even if the fact-finder does not believe the proffered reason given by the employer, the burden at all times remains with the petitioner to demonstrate intentional discrimination. Id.

15. In order to establish a prima facie case, Petitioner must establish that:

    1. She is a member of a protected group;

    2. She is qualified for the position;

    3. She was subject to an adverse employment decision; and,

    4. She was treated less favorably than similarly-situated persons outside the protected class;

       
       

       Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

       
       

       Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769,

       29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

16. If Petitioner fails to establish a prima facie case of discrimination, judgment must be entered in favor of Respondent. Bell v. Desoto Memorial Hospital, Inc., 842 F. Supp. 494 (M.D. Fla. 1994).

17. As indicated earlier, if a prima facie case is established, a presumption of discrimination arises and the burden shifts to Respondent to advance a legitimate,

    non-discriminatory reason for the action taken against Petitioner. However, Respondent does not have the ultimate burden of persuasion but merely an intermediate burden of production. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner. Petitioner must then demonstrate that the offered reason was merely a pretext for discrimination.

18. In the instant case, Petitioner alleges that she was terminated because of sexual discrimination. Thus, Petitioner must prove, by a preponderance of the evidence, that Respondent acted with discriminatory intent. Case law recognizes two ways in which Petitioner can establish intentional discrimination. First, discriminatory intent can be established through the presentation of direct evidence. See Early v. Champion

    International Corporation, 907 F.2d 1081 (11th Cir. 1990). Second, in the absence of direct evidence of discriminatory

    intent, intentional discrimination can be proven through the introduction of circumstantial evidence.

19. In this case, Petitioner's race is female and as such, she belongs to a protected class. Petitioner was terminated from her job with Respondent. The termination constitutes an adverse employment action. However, the evidence did not show that Petitioner was terminated because of her sex. There was no evidence, and therefore, Petitioner did not establish that similarly situated female employees were treated more favorably.

20. Moreover, even if Petitioner provided sufficient proof to establish a prima facie case of sex discrimination, Respondent articulated a credible, non-discriminatory basis for Petitioner's termination. That basis was her failure to follow the director’s instructions not to contact co-employees at home concerning work-related matters and the misinformation she gave one employee during one such contact.

21. Finally, in this case, there was no evidence that connected the various employment troubles of Petitioner to sexual harassment or the maintenance of a sexually hostile work environment. Corrective action was taken when Petitioner’s complaint regarding Mr. Moore became known to the director. The directives issued by the director to Petitioner were related to the immediate problem they were meant to solve and were

separated by significant amounts of time. Given these factors, the Petition for Relief should be dismissed.

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 7th day of October, 2004, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 7th day of October, 2004.

COPIES FURNISHED:

Latanya Grimes

3204 Southwest 26th Terrace, Apartment A Gainesville, Florida 32608

Herbert Webb, Esquire

4400 Northwest 23rd Avenue, Suite E Gainesville, Florida 32602

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303-4149

Cecil Howard, General Counsel Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002035

Orders for Case No: 04-002035