vs.
Respondent.
) Case No. 06-4762
Pursuant to notice, a final hearing was held in this case on February 1 and 2, 2007, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
Angel & Angel, P.A.
For Respondent: Andrea R. Fraser, Esquire
Jack N. Peterson, Esquire Lee County Attorney's Office Post Office Box 398
The issues in this case are whether Respondent discriminated against Petitioner based on her age, and whether
Respondent retaliated against Petitioner for reporting the alleged age discrimination.
Petitioner, Joanne Hilty (Ms. Hilty), filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that Respondent, Lee County Government (Lee County), had discriminated against her based on her age and had taken retaliatory actions against her. On October 17, 2006, the Commission issued a Notice of Determination: No Cause, determining that there was no reasonable cause to believe that an unlawful employment practice had occurred. On November 20, 2006, Ms. Hilty filed a Petition for Relief with the Commission. The case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on November 21, 2006.
At the final hearing, Ms. Hilty testified in her own behalf and called the following witnesses: Kathy Brantley, Helen McNally, and Shannon Shipley. Petitioner's Exhibits 1
through 23 were admitted in evidence. At the final hearing, Lee County called the following witnesses: George Williams, William Hammond, Dinah Lewis, Charlotte Veaux, and James Palopoli.
Respondent's Exhibits 1 and 2 were admitted in evidence. Lee County submitted Respondent's Exhibit 3, which was not admitted in evidence based on objection from Ms. Hilty.
The three-volume Transcript was filed on February 12, 2007. The parties had agreed to file their proposed recommended orders within ten days of the filing of the Transcript. However, due to medical conditions of Petitioner's counsel, several extensions of time for filing proposed recommended orders were requested and granted. The parties filed Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
Ms. Hilty was hired by Lee County in March 2002 as a human resources specialist, which was a temporary position. She was 25 years old at the time of her employment. Ms. Hilty received a bachelor's degree in human resource management in May 2000. From October 2000 to December 2001, Ms. Hilty was employed as a recruiting coordinator for a private firm in Indiana. While in college, she worked for 16 months as a human resources assistant for a condominium.
Approximately six months after Ms. Hilty was hired as a human resources specialist, she was hired in a permanent position as a human resources analyst. She remained in this position until July 2003, when she was promoted to a staffing coordinator at a salary of $47,000 per year, which was a 29.8635 percent increase in pay.
Prior to Ms. Hilty being hired as a staffing coordinator, the staffing area had been supervised by managers rather than staffing coordinators. Lauren Roberson had been hired as a manager to supervise the staffing area with a beginning salary of approximately $60,000. Before
Ms. Roberson's employment, Kathy Dorsey had been hired as a manager to supervise the staffing area with a beginning salary of approximately $50,000.
George Williams was appointed Lee County's human resources director in January 2001. Mr. Williams made the decision to terminate Ms. Roberson as the staffing manager. He regraded and reclassified the staffing manager position to that of wellness coordinator and created a new position as staffing coordinator. Mr. Williams promoted Ms. Hilty to the new position. Her duties included being responsible for the hiring processes for Lee County and supervising the staffing team. She supervised two employees.
In December 2003, Mr. Williams resigned his position with Lee County. From December 2003 to September 2004, the Human Resources Department was supervised on an interim basis by William Hammond, who was the deputy county manager for Lee County. In September 2004, Dinah Lewis was hired by Lee County as the human resources director. Ms. Lewis was hired to make changes and correct problems that the Human Resources Department
was having in responding to the community and various departments within Lee County, in putting together information that departments needed such as budget information, and in dealing with relationships with the staff. In the words of Mr. Hammond, "we decided that we were going to find a true professional, somebody that we really didn't care if our staff downstairs loved them, like [sic] them, but we wanted somebody
that we could count on to be fair and honest, up front, but also make some changes."
When Ms. Lewis became employed by Lee County, she asked the managers and coordinators in the Human Resources Department to provide her with their resumes and memoranda outlining the projects and issues on which they were working. In
September 2004, Ms. Lewis met with each of the managers and coordinators, including Ms. Hilty, who reported directly to Ms. Lewis.
During Ms. Hilty's meeting with Ms. Lewis in September 2004, Ms. Hilty asked Ms. Lewis to upgrade her
position and increase her salary. Ms. Hilty did not indicate to Ms. Lewis that she felt that she was being discriminated based on her age. Ms. Lewis told Ms. Hilty that it was too early for her to be making changes in Ms. Hilty's position. Ms. Lewis also noted that Ms. Hilty did not have a lot of experience in management.
By October 2004, Ms. Lewis saw the need to reduce the number of staff reporting directly to her. Ms. Lewis met with Ms. Hilty in October 2004, at which time Ms. Lewis increased Ms. Hilty's responsibilities to include supervising the compensation area, which had been under Ms. Lewis' direct supervision. Ms. Hilty told Ms. Lewis that she did not want the additional duties of the compensation unit because she knew very little about compensation, and the two employees in the compensation unit were difficult to supervise. Ms. Lewis assured Ms. Hilty that she would work closely with Ms. Hilty and that Ms. Hilty could learn about compensation with her assistance. Ms. Hilty again asked that her position be classified as a manager and that her compensation be increased because of the increased duties. Ms. Lewis denied her request. Ms. Hilty did not mention that she felt that she was being discriminated against because of her age.
At the time Ms. Lewis placed the compensation area under Ms. Hilty's supervision, two managers were supervising other areas in the human resources department. Jim Palopoli, who was approximately 60 years old, was the Human Resource Information Systems and Records (HRIS) manager, and Charlotte Veaux, who is over 60 years old, was the human resources manager who oversaw the benefits section.
Mr. Palopoli was hired in 2002 by Lee County as a manager with a starting salary of approximately $60,000. Prior to his employment with Lee County, Mr. Palopoli had over
18 years of managerial experience and had taken some college courses. As a manager with Lee County, Mr. Palopoli supervised five employees.
Ms. Veaux was hired by Lee County in 1995 as a human resources analyst II. She moved up the ranks and was promoted to benefits manager in 1999. She has a bachelor's degree in business administration and had ten years of managerial experience prior to her employment with Lee County. Ms. Veaux's salary was in the high $60,000 to low $70,000 range. Ms. Veaux was supervising approximately six to eight employees. In October 2004, Ms. Lewis moved another employee to Ms. Veaux's section, but Ms. Veaux did not receive any additional compensation for the added duty.
The human resources manager position required the following education, experience, and licensing:
This position requires any combination of education, and experience equivalent to: graduation from an accredited four year university or college with a Bachelors degree in Human Resources, Business Administration, Public Administration, or related field. Three years of experience in Human Resources, Public Administration, or related field. Possession of a valid Florida Class "E" drivers license with an acceptable driving record is required.
The duties of the staff coordinator and the human managers were similar. It is clear from the position descriptions that the human resources manager was a position in which the incumbent would be expected to "exercise considerable independent judgement [sic] and decision making." The position of staffing coordinator required more supervision from the human resources director than the human resources managers. Both
Ms. Veaux and Mr. Palopoli had considerably more supervisory experience than Ms. Hilty and did not require as much supervision as Ms. Hilty. Ms. Hilty's inexperience resulted in some poor management decisions as set forth below.
As staffing coordinator, Ms. Hilty was a member of the Human Resources Management Team (Management Team), which included Ms. Lewis, Mr. Palopoli, and Ms. Veaux.1 In the spring of 2005, the Management Team made a decision to enforce a dress code in the Human Resources Department. The code would require the staff to dress in a professional manner. After the decision was made concerning the dress code and before the date of implementation of the dress code, Ms. Hilty wore jeans to work. Ms. Lewis confronted Ms. Hilty about wearing the jeans, feeling that it showed that Ms. Hilty was not supporting the management decision for the dress code. Ms. Hilty felt that she could wear the jeans because the date for the implementation of the dress code had not begun. Because Ms. Hilty was a supervisor and a
member of the Management Team, her wearing of casual attire could reasonably be construed by Ms. Lewis as showing lack of support for the management decision.
In the spring of 2005, the Management Team made a collective decision to require the employees of the human resources department to adhere to an 8 a.m.-to-5 p.m. work schedule rather than use a staggered work schedule, which had been the practice of the department. Ms. Hilty was not in support of the decision at the time it was made; however, she required her staff to adhere to the policy. One of the employees supervised by Ms. Hilty was not happy with the decision and asked to be heard on the issue with the deputy county manager. A meeting was scheduled with Ms. Hilty, the disgruntled employee, Ms. Lewis, and Mr. Hammond to discuss the matter. During the meeting, Mr. Hammond asked Ms. Hilty what she would do if she were the human resources director, and she replied that she believed in flexibility and working with the employees as long as there was adequate staff coverage.
Ms. Lewis viewed Ms. Hilty's response as another failure by Ms. Hilty to support a Management Team decision.
One of the responsibilities of the Management Team is to determine which employees' requests to attend conferences would be approved. In determining whether a request should be approved, the Management Team considers the value of the
seminar, the number of conferences the employee has attended, and the work load. In the summer of 2005, Ms. Hilty requested approval to attend an annual conference of a software vendor in September. The Management Team denied Ms. Hilty's request.
Ms. Hilty had attended the conference the previous year, and there were two major projects that were due to be completed by Ms. Hilty's unit in September.
Ms. Hilty asked Ms. Lewis to revisit the request to attend the conference, which had been denied by the Management Team. The request was brought before the Management Team for a second time, and, again, the Management Team denied her request. Ms. Hilty asked Ms. Lewis to again revisit the request, but
Ms. Lewis declined to do so and did not take it back to the Management Team.
On September 1, 2005, Ms. Lewis received a telephone call from Scott Letourneau, the president of NEOGOV, the software company sponsoring the conference which Ms. Hilty had requested to attend. Mr. Letourneau, unaware that Ms. Hilty's request to attend the conference had not been approved, was encouraging Ms. Lewis to allow Ms. Hilty to attend the conference. Mr. Letourneau had spoken to Ms. Hilty earlier in the day, but she had not advised him that she would not be attending. However, Ms. Hilty had advised someone on
Mr. Letourneau's staff that she was not going to attend, but the message had not been communicated to Mr. Letourneau.
A short while after the telephone conversation with Mr. Letourneau, Ms. Lewis confronted Ms. Hilty about the telephone call. Ms. Hilty advised Ms. Lewis that she did not know that Mr. Letourneau was going to call Ms. Lewis and that she had not asked him to call Ms. Lewis. Later the same day, Ms. Lewis received an e-mail from Mr. Letourneau stating that there had been a miscommunication with his staff and that when he called Ms. Lewis he did not know that Ms. Hilty had advised his staff that she would not be going to the conference. In his e-mail, Mr. Latourneau set forth a timeline of events concerning the conference. Among the events listed was a discussion between Mr. Latourneau and Ms. Hilty in June that Lee County would probably not be sending anyone to the conference. The timeline also indicated that during June and July Mr. Latourneau and Ms. Hilty had discussions about items that Ms. Hilty could present at the conference. It is clear from the timeline submitted by Mr. Latourneau that Ms. Hilty continued to discuss her attendance and participation at the conference after
Ms. Hilty had been informed by the Management Team that she would not be allowed to attend the conference.
Ms. Lewis scheduled a meeting with Ms. Hilty to be held on September 5, 2005, to discuss the conference situation.
Ms. Lewis asked Ms. Veaux and Mr. Palopoli to also attend the meeting as witnesses. It was not unusual to ask managers to attend such meetings as witnesses, and Ms. Veaux considered that as part of her job responsibilities. There is no Lee County policy that would prohibit Ms. Veaux and Mr. Palopoli from attending the meeting as witnesses.
At the appointed time for the meeting, Ms. Hilty came to the doorway of the conference room where the meeting was to be held. Ms. Lewis asked Ms. Hilty to come inside the conference room, but Ms. Hilty refused because Ms. Veaux and Mr. Palopoli were present. Mr. Palopoli asked Ms. Hilty to come into the conference room and close the door because the conversation was beginning to get loud and could be heard by nearby employees. Ms. Hilty again refused to enter the conference room. Ms. Lewis again asked Ms. Hilty to come into the room, and Ms. Hilty again refused to do so and walked away.
Later the same day, Ms. Lewis prepared a notice of proposed corrective action and delivered it to Ms. Hilty in the presence of Ms. Veaux. The proposed corrective action was a two-day suspension for Ms. Hilty's failure to meet with
Ms. Lewis as directed. Two days later, Ms. Lewis met with
Ms. Hilty to discuss the proposed corrective action. Ms. Lewis made the decision to suspend Ms. Hilty for two days without pay,
and Ms. Hilty was given a copy of the Corrective Action Notice, imposing the two-day suspension.
Ms. Hilty requested a meeting with Mr. Hammond,
Ms. Lewis' supervisor, to discuss Ms. Lewis' imposition of the suspension. Mr. Hammond did not give Ms. Hilty any relief.
Ms. Hilty filed a grievance concerning the suspension, and the grievance committee upheld the suspension.
On September 22, 2005, Ms. Lewis met with Ms. Hilty to discuss performance issues. The issues discussed were
Ms. Hilty's criticism of the Management Team's decision regarding the work schedule; Ms. Hilty's discussions with the conference vendor about the possibility of attending the conference after she had been told by the Management Team that she could not attend the conference; Ms. Hilty's failure to meet with the Management Team on September 6, 2005; and the poor work product by the compensation unit, which Ms. Hilty supervised.
Based on these shortcomings, Ms. Lewis demoted Ms. Hilty to an analyst position and reduced her salary by 29.8635 percent.
Ms. Hilty was sent formal notice of the demotion by memorandum dated September 23, 2005.
Ms. Hilty was depressed and went on family medical leave after her meeting with Ms. Lewis and never returned to work. She resigned effective October 18, 2005, and went to work for NEOGOV.
Lee County was a client of NEOGOV. After Ms. Hilty went to work for NEOGOV, Ms. Lewis was concerned about having to deal with Ms. Hilty at NEOGOV because of the animosity Ms. Hilty felt for Lee County. Ms. Lewis called Mr. Letourneau and expressed her concerns. He assured her that Ms. Hilty would not be dealing with the Lee County account.
In May 2006, Ms. Lewis and a number of other employees of Lee County received an e-mail from Ms. Hilty requesting them to respond to a survey. By this time, Ms. Hilty had filed a claim of discrimination against Lee County with the Human Relations Commission. Ms. Lewis called Mr. Latourneau and reminded him that previously he had agreed that Ms. Hilty would not be involved with Lee County's work. She told Mr. Latourneau that Ms. Hilty had filed a claim of discrimination against Lee County and that there was friction between Ms. Hilty and Lee County. She sent Mr. Latourneau a copy of the discrimination complaint.
The first mention by Ms. Hilty that she had been discriminated against based on her age was in her conversation with Ms. Lewis on September 22, 2005. Although Ms. Hilty argues in her Proposed Recommended Order that Ms. Hilty raised the argument of discrimination in her response to the suspension dated September 13, 2005, in the response, she stated: "I feel that I am being discriminated and retaliated against," but she
did not state that she was being discriminated against based on her age. On September 2, 2005, Ms. Hilty sent an e-mail to
Ms. Lewis stating: "I feel I'm being targeted against because you want me to leave this department and you think I'm being insubordinate because I'm not a 'yes person' and I'm not intimidated by your style of management."
Ms. Hilty first raised her claim of age discrimination when Ms. Lewis advised Ms. Hilty that she was going to demote Ms. Hilty. The tension between Ms. Hilty and Ms. Lewis was not because of Ms. Hilty's age, it was because Ms. Hilty had exercised poor judgment in her responses to management decisions, such as the dress code, the work schedule, and the conference. It was reasonable for Ms. Lewis to conclude that Ms. Hilty was not a team player and was attempting to undermine
Ms. Lewis' authority.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).
Ms. Hilty has brought a claim against Lee County pursuant to the Florida Civil Rights Act of 1992, as amended, Subsection 760.01, et seq., Florida Statutes (2004).2 Specifically, Ms. Hilty alleges age discrimination under
Subsection 760.10(1)(a), Florida Statutes, and retaliation under Subsection 760.10(7), Florida Statutes.
Subsection 760.10(1)(a), Florida Statutes, provides:
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.
Subsection 760.10(7), Florida Statutes, provides:
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
In evaluating claims arising under Section 760.10, Florida Statutes, federal laws against discrimination may be used for guidance. See Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Brand v. Florida Power Corp., 633 So. 2d 504, 506 (Fla. 1st DCA 1994); and Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
The United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where as here, Petitioner relies upon circumstantial evidence of discriminatory intent. The McDonnell Douglas is persuasive in this case, as is St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, Petitioner has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (1996). If Petitioner succeeds in establishing a prima facie case, the burden shifts to Respondent to articulate some legitimate, nondiscriminatory reason for its conduct. If Respondent carries the burden of rebutting Petitioner's prima facie case, then Petitioner must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. Hicks, 509 U.S. at 506-507; McDonnell Douglas, 411 U.S. at 802-803.
In order to establish a prima facie case of an unlawful employment practice in the instant case, Ms. Hilty must establish that: (1) she is a member of a protected class;
(2) she was qualified for employment as a human resources manager; (3) Lee County failed to promote her to the position of human resources manager with a salary increase; and (4) Lee County treated other similarly situated employees outside her protective class more favorably.
The Florida Civil Rights Act prohibits discrimination based on any age. See Williams v. Sailorman, Inc., Case
No. 02-3995 (DOAH August 15, 2003), adopted in toto by Final Order (June 2, 2004).
Ms. Hilty has established that she was a member of a protected class. She was considerably younger than the persons holding the human resources manager positions. She did establish that she met the minimum education, training, and licensing requirements for the human resources manager position. The position required a minimum of three years' experience in human resources. Counting her experience as a human resources assistant for a condominium while in college, Ms. Hilty had less than four years' experience in the field of human resources.
Ms. Hilty established that Lee County did not promote her to the position of human resources manager. Ms. Hilty did establish that the persons occupying the positions of human resources managers were considerably older than she was. Thus, she has established a prima facie case of discrimination.
Lee County has established nondiscriminatory reasons for not reclassifying Ms. Hilty's staffing coordinator position to that of human resources manager and promoting Ms. Hilty to the reclassified position. The staffing coordinator position was not the same in all respects as the human resources manager position. The staffing coordinator position required more direct supervision from the director of human resources. Although, Ms. Hilty barely met the minimum job requirements for a position of human resources manager, she was far less qualified than Mr. Palopoli and Ms. Veaux, who held human resources manager positions. Ms. Hilty's job performance under Ms. Lewis reflected Ms. Hilty's inexperience and poor judgment. Ms. Hilty received a two-day suspension because of her insubordination and was demoted based on her poor management skills. Ms. Hilty has not established that Lee County's reasons for not placing her in a human resources manager position was based on age discrimination.
In order to establish a prima facie case of retaliation, Ms. Hilty must establish the following: (a) she engaged in statutorily protected expression; (b) she suffered an adverse employment action; and (c) the adverse employment action was causally related to the protected activity. See Harper v.
Blockbuster Entertainment, Corp., 139 F.3d 1385, 1388 (11th Cir.
1998).
The first time that Ms. Hilty advised Lee County that she felt that she was being discriminated against based on her age was on September 22, 2005, when she and Ms. Lewis discussed Ms. Lewis' decision to demote Ms. Hilty. Although Ms. Hilty did say in her response to her suspension that she was being "discriminated" against, she did not make an allegation that she was being discriminated against based on her age or any other protected class. It is clear that Ms. Hilty felt that Ms. Lewis wanted Ms. Hilty to leave because Ms. Hilty was not a "yes" person and was not intimidated by Ms. Lewis' management style. The demotion and the suspension were a result of Ms. Hilty's insubordination and poor job performance, not as a result of discrimination based on her age.
Ms. Lewis did call Mr. Latourneau after Lee County staff received an e-mail under Ms. Hilty's name. It had been agreed before Ms. Hilty filed a complaint of discrimination that Ms. Hilty would not work on the Lee County account because of the friction between Ms. Hilty and staff at Lee County. When Ms. Lewis received the e-mail purportedly from Ms. Hilty, she called Mr. Latourneau to remind him of the agreement and to tell him that Ms. Hilty had filed a claim of discrimination against Lee County. There was no evidence presented to establish that an adverse employment action was taken against Ms. Hilty as a result of Ms. Lewis' discussion with Mr. Latourneau. Ms. Hilty
has failed to establish that Lee County retaliated against her for filing a claim of discrimination.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lee County did not discriminate against Ms. Hilty based on age and did not retaliate against Ms. Hilty for filing a discrimination charge and dismissing her petition.
DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida.
SUSAN B. HARRELL
Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2007.
1/ When Ms. Lewis was hired as human resources director, the training coordinator reported directly to her and attended the Management Team meetings for about a month. The training coordinator went on family medical leave and did not attend any further management team meetings.
2/ Unless otherwise stated, all references to the Florida Statutes are to the 2004 version.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Andrea R. Fraser, Esquire Jack N. Peterson, Esquire Lee County Attorney's Office Post Office Box 398
Ann Poe Angel, Esquire Angel & Angel, P.A.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
