CATHY M. THURSTON,
vs.
Respondent.
) Case No. 05-3286
A formal hearing was conducted in this case on November 1, 2005, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Antoneia L. Roe, Esquire
The issues are whether Respondent subjected Petitioner to unlawful employment practices by discriminating against her based on her age, sex, and/or disability contrary to Section
760.10(1), Florida Statutes (2003), and by retaliating against her contrary to Section 760.07, Florida Statutes (2003).
On February 9, 2005, Petitioner Cathy Thurston (Petitioner) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR). Said complaint alleged that Respondent Florida A&M University (Respondent) discriminated against her based on her age, sex, and disability and retaliated against her by terminating her employment. On August 8, 2005, FCHR issued a Determination: No Cause.
On September 7, 2005, Petitioner filed a Petition for Relief with FCHR. The petition alleged that termination of Petitioner's employment was unlawful in part because it was based on her sex and disability and in part because it was a retaliatory employment action.
On September 12, 2005, FCHR referred the case to the Division of Administrative Hearings. Administrative Law Judge Don W. Davis was assigned to conduct a formal administrative proceedings.
A Notice of Hearing dated September 27, 2005, scheduled the hearing for November 1, 2005. Before that time, the case was transferred to the undersigned.
During the hearing, Petitioner testified on her own behalf.
accepted as evidence. Respondent presented the testimony of four witnesses and offered one exhibit, R1, which was accepted as evidence.
The Transcript was filed on November 28, 2005. Respondent filed a Proposed Recommended Order on December 8, 2005. As of the date that this Recommended Order was issued, Petitioner had not filed proposed findings of fact and conclusions of law.
On or about February 17, 1992, Petitioner began working for Respondent in the College of Pharmacy and Pharmaceutical Sciences as an Other Personnel Services (OPS) Secretary. On or about January 11, 1993, Petitioner became a Program Assistant in the University and Support Personnel System. In late 1999 or early 2000, Petitioner began working as an Administrative Assistant for Dr. Folakemi Odedina, a Professor and Director of the Economic, Social, and Administrative Pharmacy Division (ESAP).
Initially, Petitioner enjoyed working for Dr. Odedina in an office located in the Frederick S. Humphries Science and Research Center (Science and Research Center). However, in time Petitioner's professional relationship with Dr. Odedina began to deteriorate, along with the expanding responsibilities of the job.1
In January 2001, Petitioner fell while she was carrying some documents from one of Respondent's buildings to another. The fall injured Petitioner's ankle, hip, and lower back.
Petitioner was pregnant at the time of her fall in January 2001. She filed a workers' compensation claim as a result of the accident and subsequently returned to work with medical limitations as to activities involving lifting and walking.
In a memorandum dated May 16, 2001, Petitioner advised Dr. Odedina and the ESAP faculty that she soon would be going on three to four months of parental leave. She also advised them that she had removed her personal belongings and other items belonging to other departments that had been on loan to her.
In June 2001, Petitioner fell again while she was at work. She was in her ninth month of pregnancy at the time of the second accident. She decided not to return to work until after the birth of her baby.
In a memorandum dated June 14, 2001, Dr. Odedina acknowledged that Petitioner would be out on sick leave, followed by parental leave until October 2001. Dr. Odedina wanted Petitioner to turn in her office keys and provide information about the office voicemail password so that the office would continue to function efficiently during Petitioner's absence.
Apparently, Petitioner had not removed her personal belongings from her office as stated in her May 16, 2001, memorandum. On June 14, 2001, Petitioner and Melvin Jones, an investigator for Respondent's Police Department went to the office after 5:00 p.m. to remove Petitioner's personal belongings.
During the moving process, Mr. Jones took a typewriter and a chair, both of which were university property on loan to Petitioner from another university office, to the library on the fourth floor of the Science Research Center. Petitioner intended to leave the chair and the typewriter there until someone could return them to the office in the department to which they were officially assigned. Additionally, in packing her personal items, Petitioner or Mr. Jones inadvertently packed and removed a black office telephone from the premises.
On June 15, 2001, Dr. Odedina noticed that the typewriter and telephone were missing from Petitioner's office. After making an unsuccessful effort to contact Petitioner,
Dr. Odedina reported to Respondent's Police Department that the typewriter and telephone were missing from Petitioner's office. Respondent's Police Department immediately initiated an investigation of unauthorized removal of state property with Petitioner as the suspect.
On June 15, 2001, Petitioner realized that she had mistakenly packed the black telephone with her personal belongings. She returned it to Respondent that same day. Thereafter, Respondent's Police Department closed its investigation after verifying that Petitioner never removed the typewriter from the Science Research Center and that she returned the telephone on June 15, 2001.
On June 25, 2001, Petitioner delivered her baby.
Subsequently, Petitioner received medical treatment for physical problems that were the result of her on-the-job falls. Between parental leave and workers' compensation leave, Petitioner was out of work for approximately eighteen months.
During Petitioner's absence from work, Dr. Odedina hired an OPS employee to temporarily fill Petitioner's position.
At some point in time, Petitioner contacted FCHR to make an inquiry concerning discrimination. In a letter dated August 28, 2002, relative to FCHR Case No. 2202827, FCHR advised Petitioner as follows: "Based on the information you provided, we are unable to pursue this matter further." FCHR then cited Section 760.11(1), Florida Statutes (2002), for the proposition that a complaint must be filed within 365 days of the alleged discriminatory act.
From 1994 to 2004, and at all times relevant here, Dr. Henry Lewis was the Dean of the College of Pharmacy and
Pharmaceutical Sciences. From January 2002 through July 2002, Dr. Lewis also served as Respondent's interim president.
Since 2004, Dr. Robert Thomas has served as Dean of the College of Pharmacy and Pharmaceutical Sciences. At all times relevant here, Dr. Thomas served as Associate Dean of the College of Pharmacy and Pharmaceutical Sciences.
In a letter dated October 9, 2002, Dr. Lewis advised Petitioner that he had received documentation from Ruth Beck, Petitioner's Rehabilitation Consultant, regarding accommodations for Petitioner's return to work with medical restrictions.
Dr. Lewis requested that Petitioner meet with Respondent's Equal Opportunity Programs Office to determine what accommodation are to be provided upon Petitioner's return to work.
The recommended accommodations included an ergonomic chair and a desk equipped with a keyboard tray and mouse extension. It was also suggested that Respondent provide Petitioner with a flat screen monitor and a utility cart because Petitioner's permanent office in the Science and Research Center was small and too cramped to accommodate Petitioner's physical limitations.
Petitioner needed a more spacious work area, with adequate storage space in close proximity, than was available in her office at the Science and Research Center. Even with the new furniture and equipment, Petitioner's needs could not be met
in her old office. Accordingly, it was mutually agreed that, upon her return to work, Respondent would assign Petitioner to work temporarily in the Division of Pharmacy Practice, under the supervision of Dr. Otis Kirksey. Dr. Kirksey's office was located off-campus at 565 East Tennessee Street, Tallahassee, Florida, in a building with a ramp and without stairs that Petitioner would have to climb.
Petitioner's assignment to work in Dr. Kirksey's office was temporary. Dr. Odedina and the ESAP faculty and staff planned to move to the new Dyson Pharmacy Building as soon as it was completed. The new facility would have sufficient space, furniture, and equipment to accommodate Petitioner's needs in her position as Administrative Assistant to
Dr. Odedina.
In November 2002, Petitioner learned that her doctor would not sign a form stating that Petitioner had a permanent disability. Instead, he agreed that she needed a disabled parking permit for a temporary period, for three months through February 5, 2003.
On December 2, 2002, Petitioner began to work for Dr. Kirksey as an Administrative Assistant/Receptionist. She agreed to begin working in that capacity even though all the accommodations she needed were not immediately available. Petitioner was eager to return to work.
By February 18, 2003, Respondent had provided Petitioner with all necessary accommodations. She had the ergonomic chair and a desk equipped with a keyboard tray and mouse extension. Given her more specious work area, a flat screen monitor and/or utility cart was not required to accommodate her physical limitations.
Petitioner did not want to return to work for Dr. Odedina under any circumstances. She was aware that Dr. Kirksey was going to hire a new employee for a Program
Assistant position. However, Petitioner never applied for the new Program Assistant position because she believed that
Dr. Kirksey had already made up his mind to hire another person for the job. There is no evidence that Dr. Kirksey ever intended to deprive Petitioner of the opportunity to apply for the Program Assistant position or that he would not have considered her application if she had filed one.
On October 6, 2003, Petitioner had a meeting with Dr.
Lewis about her work assignment. During the meeting, Petitioner and Dr. Lewis discussed another position that was available.
The position involved keeping track of student volunteer hours. After the meeting, Petitioner mistakenly believed that Dr. Lewis had offered her the new position, which would not have been under Dr. Odedina's supervision.
During the October 6, 2003, meeting, Dr. Lewis asked Petitioner how things were going in her private life, i.e. whether she had anyone special in her life. Petitioner replied that she did not have such a relationship and that with all the drama she was experiencing in her personal life, she did not need to be involved with anyone. There is no indication that Petitioner was offended by Dr. Lewis's personal expressions of concern for Petitioner's well being.
On October 8, 2003, Petitioner met with Drs. Lewis and Thomas. During the meeting, Petitioner adamantly refused to return to work for Dr. Odedina. Petitioner made the following statement: "I do not want to see FAMU facing a wrongful death lawsuit for an employee killing a supervisor." Drs. Lewis and Thomas were concerned about the statement, which they understood to be a threat against Dr. Odedina. However, they believed they would be able to handle any problem that might arise when
Dr. Odedina joined the prescheduled meeting.
Petitioner was agitated during the meeting with Dr. Lewis and Dr. Thomas. She became more agitated when Dr. Odedina joined the meeting.
Dr. Odedina went to the meeting expecting to discuss Petitioner's office space and accommodations when she moved into the Dyson Pharmacy Building with the rest of the ESAP faculty
and staff. She was not aware that Petitioner had made a threatening comment.
Initially, Dr. Odedina was obviously pleased that Petitioner would be returning to work for her. However, as the October 8, 2003, meeting proceeded, Dr. Odedina felt that Petitioner's demeanor was hostile. Dr. Odedina got the impression that Petitioner was resisting the idea of returning to work for Dr. Odedina. At that point, Dr. Odedina insisted that Petitioner return to work for ESAP or, if Petitioner continued to work for Dr. Kirksey, his office should be responsible for paying Petitioner's salary.
At one point during the October 8, 2003, meeting Petitioner complained that she suffered from migraine headaches and depression. She showed Drs. Lewis, Thomas, and Odedina prescriptions for Imatrex and Prozac.
Before Petitioner left the meeting on October 8 2003, Dr. Lewis told Petitioner that she should write a letter stating that she refused to return to work in the ESAP office under
Dr. Odedina's supervision. Petitioner subsequently wrote a letter, describing it as a "notice of transfer," but clearly indicating that she chose not to return to work for Dr. Odedina.
After Petitioner and Dr. Odedina left the October 8, 2003, meeting, Drs. Lewis and Thomas discussed Petitioner's threatening statement against Dr. Odedina. They decided to
report it as a serious threat of bodily harm to Respondent's Director of Personnel, Vice President for Academic Affairs, and Provost, first by telephone, and later in writing. Dr. Lewis also contacted Dr. Odedina by telephone, advising her of the threat and directing her not to report to work on October 9, 2003. Finally, Dr. Lewis informed Respondent's Police Department about the threatening statement.
Respondent's Provost, Larry Robinson, drafted a letter dated October 9, 2003. According to the letter, Petitioner was on administrative leave with pay, effective upon receipt of the notice. The letter advised Petitioner of a pending investigation of an employment matter and directed her to return all university-owned property. The letter advised Petitioner to refrain from reporting to work or visiting the campus, until further notice. The only exception was that Petitioner could continue to transport one of her sons to Respondent's Developmental Research School.
On October 10, 2003, Respondent's Police Department initiated a formal investigation about Petitioner's threatening statement based on the written statements of Drs. Lewis and Thomas. On that date, Respondent's investigator, James Rose, filled out an incident report, indicating that he had interviewed Dr. Odedina and that Respondent's Director of
Personnel had requested him to deliver the October 9, 2003, letter to Petitioner.
Officer Rose was not able to deliver the October 9, 2003, letter to Petitioner until October 11, 2003. After Officer Rose gave Petitioner the letter placing her on administrative leave with pay, Petitioner stated that she only made the comment about Dr. Odedina because the department was about to transfer her back to Dr. Odedina's office. Petitioner told Officer Rose that she never intended to harm Dr. Odedina.
On October 13, 2003, Petitioner returned her office key to Respondent. She left the key at Respondent's Police Department's communications office.
On October 14, 2003, Petitioner filed her first Employment Charge of Discrimination with FCHR. In that initial complaint, identified hereinafter as DOAH Case No. 04-2003, Petitioner alleged as follows: (a) Respondent discriminated against Petitioner based on her disability by failing to accommodate her back impairment; (b) Respondent discriminated against Petitioner based on her age because Respondent did not give Petitioner an opportunity to apply for a position ultimately given to a younger, less senior employee; and (c) Respondent placed Petitioner on administrative leave with pay.
In a letter dated October 31, 2003, Respondent advised Petitioner that Respondent intended to terminate her employment
for threatening and/or abusive language and conduct unbecoming to a public employee. In an undated letter, Petitioner requested a conference in order to make an oral or written statement to refute or explain the charges against her.
On or about November 3, 2003, Petitioner requested information about the return of her personal property located in Dr. Kirksey's office. Officer Rose approved Petitioner's request to retrieve her property.
Sometime after November 3, 2003, Officer Rose concluded that Petitioner had made a threatening statement. However, Officer Rose found no indication that Petitioner intended to carry out the threat against Dr. Odedina. Accordingly, Respondent's Police Department suspended its investigation.
In a letter dated November 17, 2003, Respondent advised Petitioner that it had scheduled a predetermination conference on November 24, 2003.
By letter dated December 8, 2003, Petitioner informed Respondent that she received the November 17, 2003, letter on December 5, 2003. She asserted that she did not receive timely notice of the predetermination conference.
In a letter dated December 11, 2003, Respondent advised Petitioner that it was proceeding with the employment action. According to the letter, Petitioner's dismissal from
employment would be effective on December 19, 2003. However, Petitioner had an opportunity to request arbitration.
On December 19, 2003, Petitioner reminded Respondent that she did not receive timely notification of the predetermination conference. She requested Respondent to schedule another conference.
In a letter dated January 9, 2004, Respondent advised Petitioner that it had scheduled a predetermination conference for January 13, 2004. However, a subsequent letter dated January 13, 2004, rescheduled the conference for February 18, 2004.
In a letter dated March 3, 2004, Respondent advised Petitioner that her dismissal from employment was effective March 11, 2004.
On February 2, 2005, Petitioner filed a Consented Motion for Abatement or Alternatively, Notice of Voluntary Dismissal without Prejudice in DOAH Case No. 04-2003.
On February 8, 2005, Administrative Law Judge Diane Cleavinger entered an Order Closing File in DOAH Case
No. 04-2003. Judge Cleavinger's order is silent as to any prejudice that might have resulted from closure of the file in DOAH Case No. 04-2003. However, the parties agreed during the hearing in the instant case that FCHR never entered a final order in the prior case.
CONCLUSIONS OF LAW
The Division of Administrative Proceedings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2005).
Section 760.01, Florida Statutes (2003), through Section 760.11, Florida Statutes (2003), contain the provisions of the Florida Civil Rights Act of 1992 that apply in this case. FCHR and the Florida Courts interpreting the Florida Civil Rights Act of 1992 have determined that federal anti- discrimination law should be used as guidance when construing Florida anti-discrimination law. 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).
It is an unlawful employment practice for an employer to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability, age, or sex. See § 760.10(1), Fla. Stat.(2003). It is also unlawful to retaliate against an employee "because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section." See
§ 760.10(7), Fla. Stat. (2003).
In a case where there is no evidence of direct discrimination, a petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate
non-discriminatory reason for the actions it took. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Respondent's burden is one of production, not persuasion, as it always remains Petitioner's burden to persuade the fact-finder that the proffered reason is a pretext and that Respondent intentionally discriminated against Petitioner. See Burdine, 450 U.S. at 252-256.
To prove a prima facie case of handicap discrimination, Petitioner must establish the following elements: (a) she was a disabled person; (b) she was able to perform her assigned duties satisfactorily with or without accommodation; and (c) Respondent did not accommodate Petitioner's disability and/or discharged Petitioner despite her satisfactory performance. Swenson-Davis v. Orlando Partners, Inc., 16 F.A.L.R. 792, 798 (FCHR 1992).
The facts in this case indicate that Petitioner was at least partially disabled, that she was capable of performing her
assigned duties with accommodations, and that Respondent provided her with those accommodations. Petitioner did not prove that she was discharged despite her satisfactory performance; her performance was no longer satisfactory when she refused to return to her permanent position as Dr. Odedina's Administrative Assistant.
To the extent that Petitioner presented a prima facie case of handicap discrimination, Respondent presented persuasive evidence that it terminated Petitioner because she directly threatened her supervisor, Dr. Odedina. Petitioner presented no persuasive evidence that Respondent's reason for discharging her was a pretext for discrimination.
Petitioner alleges that Respondent discriminated against her based on her sex. To the extent that Petitioner's allegations refer to sexual harassment, she presented no evidence that she was subjected to unwelcome/offensive sexual advances or comments of any kind. Accordingly, discrimination based on sexual harassment is not addressed here.
In order to establish a prima facie case of sex/gender discrimination, Petitioner was required to demonstrate the following: (a) she is a member of a protected class; (b) she is qualified to do her job; (c) her employer discharged her but did not discharge similarly situated employees outside of the protected class. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir 1997).
Petitioner has not established a prima facie case of sex/gender discrimination. There is no evidence that Respondent has ever failed to discharge any employee, male or female, who refused to work for an assigned supervisor and who threatened an assigned supervisor with bodily harm.
In order to prove a prima facie case of age discrimination, Petitioner must show the following: (a) she is a member of a protected age group; (b) she was qualified for the job; (c) she was subjected to an adverse employment action; and
(d) similarly situated employees of a different age were treated more favorably. See Green v. ATC/VANCOM Management, Inc.,
20 F.A.L.R. 314 (1997); Musgrove v. Gator Human Services,
c/o Tiger Success Center, 22 F.A.L.R. 355, at 356 (FCHR 1999).
Petitioner claims that she wanted to continue to work for Dr. Kirksey instead of returning to work for Dr. Odedina. She also alleges that Dr. Kirksey had a position available that he awarded to a younger, less senior female. Petitioner makes these allegation even though she admits she never applied for the permanent position with Dr. Kirksey. By failing to apply for the position, Petitioner never gave Respondent an opportunity to consider her for the job. Therefore, Petitioner
cannot be considered similarly situated to the successful applicant.
Petitioner also alleges that Dr. Lewis led her to believe she could have a new position keeping track of student volunteer hours. There is no evidence that Respondent hired anyone, older or younger than Petitioner, to fill such a position. Additionally, there is no evidence that Respondent kept the position open for applicants younger or older than Petitioner. Petitioner did not prove she was treated less favorably than a similarly situated employee of a different age.
Petitioner has established a prima facie case of unlawful retaliation. Petitioner has shown that she engaged in protected activity and that Respondent subsequently took an adverse employment action against her. See Casey v. Wal-Mart
Stores, Inc., 8 F. Supp. 2d 1330,1338 (N.D. Fla. 1998).
On the other hand, Respondent presented a legitimate non-discriminatory reason for terminating Petitioner's employment, i.e. her threatening statement against Dr. Odedina. Petitioner has not shown that Respondent's reason is a pretext for retaliation.
That FCHR enter a final order dismissing Petitioner's Petition for Relief.
DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005.
1/ Except as necessary to provide relevant background information, incidences which occurred more than 365 days prior to the time that Petitioner filed her first FCHR complaint are untimely and have not been considered here. See § 760.11(1), Fla. Stat. (2003).
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cathy M. Thurston Post Office Box 15871
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.
