STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PEGGY E. CHESTER, )
)
Petitioner, )
)
vs. ) Case No. 08-3934
) BROWARD OUTREACH CENTER/MIAMI ) RESCUE MISSION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on October 23 and 24, 2008, by video teleconference, with the parties appearing in Miami, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
APPEARANCES
For Petitioner: Peggy Chester, pro se
1441 Northwest 137th Street Miami, Florida 33167
For Respondent: William O. Solms, Esquire
DeMahy, Labrador, Drake, Payne & Cabeza, P.A.
2333 Ponce de Leon Boulevard, Suite 600 Coral Gables, Florida 33134
STATEMENT OF THE ISSUE
Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis
of race and by retaliating against her, in violation of the Florida Civil Rights Act of 1992, as amended, Sections 760.10 et seq., Florida Statutes (2006).1
PRELIMINARY STATEMENT
In a Petition for Relief dated August 6, 2008, Peggy Chester charged the Broward Outreach Center/Miami Rescue Mission ("Outreach Center") with having committed an unlawful employment practice by discriminating against her because of her race and by retaliating against her for stating allegations of racial discrimination by the Outreach Center against employees and clients. Ms. Chester alleged as follows:
RESPONDENT VIOLATED THE FLORIDA CIVIL RIGHTS ACT OF 1992, AS AMENDED, IN THE MANNER SPECIFICALLY DESCRIBED BELOW:
Conditions are less conducive for non-whites to achieve as opposed to whites. Overall working conditions are also far less favorable for non-whites as opposed to whites. Non-whites are subjected to less favorable treatment. (Especially non-white females).
THE DISPUTED ISSUES OF MATERIAL FACT, IF ANY, ARE LISTED BELOW:
As a member of a protected class, I experienced harassment and disrespect. This treatment was based on my race and whites were treated differently with respect to similar situations. The work environment was intimidating because white employees are able to operate outside of company boundaries and not be punished. Non-whites are punished for bringing forth this situation. I was constantly subjected to
ridicule for problems that I did not create. This is especially true with respect to problems that a white employee had in their respective department.
THE ULTIMATE FACTS ALLEGED & ENTITLEMENT TO RELIEF ARE AS LISTED BELOW:
I was retaliated against because I stated allegations of racial discrimination by the Respondent relative to employees and clients. I was then placed on (3) day suspension with pay and the white employee named in a portion of my complaint remained on the job during the investigation. The adverse action against myself was termination of my employment. This resulted three days after my complaint. The Respondent stated that this was its first time hearing my complaint. Although not written, I had made prior complaints. I was fearful for my job, which I did ultimately lose because of my filing a formal complaint. The Respondent also states that I had poor job performance. My performance evaluation was manipulated to appear as if I was not performing satisfactorily. In addition, my department's operation was placed under additional stress due to the advantages given to a white employee. I had previously made Human Resources aware of the Respondent's method of operation; however, this knowledge did not yield or produce change.
Respondent states that Mr. Hall assumed my duties after I was terminated. However, he immediately referred case management concerns to Ms. Law. The harassment and hostile work environment that was created for me was the prerequisite for giving my position to Ms. Law. In addition, Human Resources also assists the Respondent in disguising and/or covering up discrimination and unfair employment practices.
Ms. Chester requested an award of $300,000.00, to include
$200,000.00 in compensatory damages, including mental anguish, loss of dignity, and other intangible injuries.
The Florida Commission on Human Relations ("FCHR") transmitted Ms. Chester's Petition for Relief to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held on October 23 and 24, 2008.
At the hearing, Ms. Chester testified in her own behalf and presented the testimony of Francesca Fraser, Judith Dume Bell, and Paulette Shepherd; Petitioner's Exhibits 1 through 8 were offered and received into evidence, subject to the redaction of client names in Exhibits 4, 5, and 6. The Outreach Center presented the testimony of Roberta Geist, Scott Hall, and Ronald Brummitt. Respondent's Exhibits 2 through 4 were offered and received into evidence. The Outreach Center was to file Respondent's Exhibit 4 and serve a copy on Ms. Chester subsequent to the final hearing but failed to do so; Respondent's Exhibit 4 will not, therefore, be considered part of the record of this proceeding.
The three-volume transcript of the proceedings was filed with the Division of Administrative Hearings on February 2, 2009; a copy of the transcript had been filed with the Division of Administrative Hearings on January 20, 2009, by the Outreach
Center. Ms. Chester filed her Proposed Recommended Order on January 30, 2009; the Outreach Center filed its Proposed Recommended Order on February 2, 2009. On February 27, 2009, Ms. Chester filed a Motion to Dismiss Respondent's Proposed Findings of Fact and Conclusions of Law, in which she noted that the Outreach Center filed its Proposed Recommended Order one business day after the deadline. She requested that the Outreach Center's Proposed Recommended Order be dismissed and that judgment be entered in her favor. Because the Outreach Center's Proposed Recommended Order was only one business day late and because Ms. Chester did not show in her motion that she would be prejudiced by the late filing, the Motion to Dismiss is denied, and the submissions of Ms. Chester and of the Outreach Center have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Outreach Center is an organization serving the homeless in Broward County, Florida. It is associated with the Miami Rescue Mission and operates two centers in Broward County, one in Pompano Beach, Florida, and one in Hollywood, Florida.
It provides shelter, emergency services, and comprehensive
services to its clients, and receives its funding from private donations, in-kind gifts, contracts with governmental entities, and partnerships with local communities. At the times pertinent to this proceeding, the staff of Outreach Center's Hollywood center was multi-ethnic; approximately 50 percent of its employees were African-American, including two supervisors, and the rest of the staff consisted of Hispanics, whites and persons of other ethnic origins.
At the times material to this proceeding, Ronald Brummitt was the Executive Director of the Miami Rescue Mission/Broward Outreach Center; Scott Hall was the Director of the Hollywood center of the Outreach Center and reported to
Mr. Brummitt; and Martha Ayerdis was the Director of Human Relations for the Outreach Center. Mr. Brummitt and Mr. Hall are both white men.
Ms. Chester, who is an African-American woman, began working for the Outreach Center in early 2005 as a case manager in its Pompano Beach center. During part of the time she worked in the Pompano Beach center, Mr. Hall was the social services supervisor and supervised Ms. Chester. Mr. Hall and Ms. Chester had a very good working relationship when they worked together in Pompano Beach.
Later in 2005, Ms. Chester transferred to the Hollywood, Florida, center of the Outreach Center. Prior to her
transfer, Mr. Hall became the Director of the Outreach Center's Hollywood center. Francesca Fraser, an African-American woman whom Ms. Chester had known when they both worked as case managers in the Pompano Beach center, was the social services supervisor at the Hollywood center when Ms. Chester began working there. Ms. Fraser began working with the Outreach Center in Pompano Beach in 2004; she was offered the social services supervisor position in Hollywood about a year and a half later. As the social services supervisor, Ms. Fraser supervised Ms. Chester.
Mr. Hall and Ms. Fraser both thought very highly of Ms. Chester, and they recommended to Mr. Brummitt that
Ms. Chester be promoted to lead case manager. Mr. Brummitt, who, as the Executive Director of the Outreach Center, had the power to hire, fire, and promote employees, approved
Ms. Chester's promotion.
The social services supervisor was a key person at the Outreach Center because, in addition to managing the case managers, the social services supervisor was responsible for ensuring that the required data were input into the Outreach Center's client-tracking database system and for extracting this data and preparing the monthly reports that were sent to the Miami Rescue Mission, the Outreach Center's parent organization. The data in the monthly reports were relied on to prepare the
quarterly reports and the annual reports. During the times pertinent to these proceedings, Mr. Hall prepared the quarterly and annual reports, which were provided to Broward County as a condition of the Outreach Center's receiving funding from the county.
Ms. Fraser liked her work at the Hollywood center of the Outreach Center. She felt, however, that her interaction with management, specifically, with Mr. Hall, was stressful and uncomfortable and became increasingly so. For Mr. Hall's part, he felt that, any time he questioned Ms. Fraser or tried to instruct her, she became defensive and gave him the impression that she felt insulted. Mr. Hall considered Ms. Fraser a very capable person, but their working relationship began to deteriorate because of the lack of communication between them.
After a time, Ms. Fraser decided that she had no alternative but to resign her position with the Outreach Center. She was experiencing a great deal of stress as a result of her dissatisfaction with her working relationship with Mr. Hall, and she became ill. Ms. Fraser missed a great deal of work because of her illness, and, during Ms. Fraser's absences, Ms. Chester stepped in and helped Mr. Hall complete Ms. Fraser's work.
Ms. Chester was a tremendous help to Mr. Hall during this time. After Ms. Fraser resigned, Ms. Chester acted as the de facto social services supervisor, and Mr. Hall worked with Ms. Chester
on the client-tracking database and worked with her to complete the monthly report due June 30, 2006.
Ms. Chester was promoted to social services supervisor at the Hollywood center effective July 1, 2006. Mr. Hall assumed that, when Ms. Chester was promoted to lead case manager, Ms. Fraser taught her how to use the client-tracking database system and how to supervise the case managers and had requested her assistance in the preparation of reports. He, therefore, did not provide Ms. Chester with any formal training with regard to the duties of the social services supervisor. He was, however, available to answer questions and work with her whenever she needed assistance, and he met with her regularly regarding various matters.
Ms. Fraser left behind a great deal of unfinished work when she resigned, and Ms. Chester had a lot to do to get the work current. At the same time that she was trying to learn the job of social services supervisor, Ms. Chester was also handling the cases that she had when she was the lead case manager, and she had also advised Mr. Hall of her intention to take college courses to further her education. Mr. Hall was concerned that Ms. Chester was overwhelmed, and he urged her to transfer her case files to one of the case managers and to concentrate on her administrative and supervisory responsibilities. In
Ms. Chester's opinion, the case managers under her supervision
had heavy caseloads, and Ms. Chester continued to work with clients.
When Ms. Chester was promoted to social services supervisor on July 1, 2006, Barbara Law was an intake case manager and was under the supervision of Ms. Chester. Ms. Law was promoted to resident services supervisor in August 2006. Ms. Chester believed that Ms. Law was given preferential treatment by Mr. Hall.
For example, Ms. Law brought her daughter into the office on occasion, when she had an emergency; on one occasion, the lead family case manager, who was under Ms. Chester's supervision, had to tell Ms. Law's daughter not to run around the building with the children of clients. Ms. Chester believed that Mr. Hall was showing favoritism to Ms. Law by permitting her to bring her child to the office, but this was not a privilege extended only to Ms. Law. Other employees were routinely allowed to bring their children to the office.
Ms. Chester felt that Ms. Law's family concerns were accommodated by Mr. Hall by allowing Ms. Law to bring her daughter to the office during work hours, but that Mr. Hall did not accommodate her family concerns. Ms. Chester referred to an incident that occurred during the first week of December 2006. Ms. Chester telephoned Mr. Hall on Monday, December 3, 2006, to advise him that she had a family medical emergency and would not
be at work that day. Ms. Chester told Mr. Hall that she would not take leave because she intended to make up the time by working on the following Saturday. Mr. Hall told Ms. Chester that this was fine. On Saturday, Mr. Hall received a call from one of the case managers asking for help with an emergency.
Mr. Hall told the case manager to report the problem to
Ms. Chester, but he was told that Ms. Chester was not at the Outreach Center. Mr. Hall telephoned Ms. Chester on Sunday to ask if she reported to work on Saturday, and she confirmed that she had not but gave no explanation. When she submitted her timesheet for the week, she reported that she had worked a 40- hour week. Mr. Hall wrote this incident up in a Disciplinary Action Report dated December 14, 2006, which was later amended on December 21, 2006.
On another occasion, when Mr. Hall was out of the office on vacation, Ms. Law told the case managers, including those who were supervised by Ms. Chester, to report any problems to Ms. Law in Mr. Hall's absence. Because of this instruction, case managers who were under Ms. Chester's supervision reported to Ms. Law rather than to Ms. Chester. In the opinion of one case manager, Ms. Law did well while she was in charge.
In addition to Ms. Chester's specific concerns related to Ms. Law, related above, Ms. Chester had ongoing concerns related to Ms. Law job performance. Before Ms. Law was promoted
to residential services supervisor, Ms. Chester was her supervisor. Ms. Chester complained to Mr. Hall about what she perceived as Ms. Law's insubordination, but, in her opinion, Mr. Hall did not take her concerns seriously.
Ms. Chester also felt that Ms. Law was given preferential treatment because Ms. Law received Mr. Hall's approval to place two families in one accommodation, while she was criticized by Mr. Hall for placing two families together. As a general rule, placing two families in the same accommodations was a serious breach of the Outreach Center's
rules. Mr. Hall approved Ms. Law's placing a new mother and her infant in accommodations with a family that the new mother had grown close to, so the family could help the new mother with her infant.
In an e-mail sent from Mr. Hall to Ms. Chester on August 30, 2006, Mr. Hall asked Ms. Chester to meet with him to discuss complaints he had received from clients that there were substantial delays in meeting their case managers. Mr. Hall considered this a very serious matter that was causing discontent among the Outreach Center's clients, and he approached Ms. Chester about the problem because she was the social services supervisor. In an undated response to
Mr. Hall's e-mail, Ms. Chester stated that she was getting complaints that Ms. Law was not meeting the needs of her
clients, apparently because Ms. Law had been involved in training other employees. She expressed confidence that, once Ms. Law resumed her regular case management duties, the situation would be resolved, but she alluded to divisions among the Outreach Center's staff.
Ms. Chester was very concerned that Ms. Law was not serving her clients appropriately, and Ms. Chester felt obligated to work with Ms. Law's clients. Ms. Chester was, therefore, trying to manage a caseload at the same time she had administrative and supervisory responsibilities. This caused a great deal of stress for Ms. Chester, and she was seen crying in the office on several occasions by one of the case managers she supervised.
On or about September 25, 2008, Mr. Hall, Ms. Chester, and Ms. Law met to discuss the problems that had been identified by Mr. Hall in the August 30, 2006, e-mail. The immediate problem between Ms. Chester and Ms. Law was resolved, and
Ms. Law left the meeting. Mr. Hall asked Ms. Chester to remain behind because he wanted to discuss a complaint that he had received about her using profanity in the workplace. One of Ms. Chester's case managers went to another supervisor and complained because the case manager did not want to get in trouble. The supervisor reported the complaint to Mr. Hall.
When Mr. Hall told Ms. Chester about the complaint, Ms. Chester
denied using profanity. Mr. Hall assured her that this was not a disciplinary matter and that, if she did not use profanity, he should forget about the complaint. Ms. Chester insisted on an investigation and on confronting the person who had lodged the complaint. Eventually, the supervisor who had received the complaint in confidence and reported it to Mr. Hall, a woman named Lolita Suarez, came forward, and Ms. Suarez and
Ms. Chester discussed the matter and came to a resolution.
On September 26, 2006, however, the day after the meeting, Ms. Chester wrote an e-mail to Mr. Brummitt in which she stated that she considered the complaint a personal attack, made without justification, because she "had concerns with a certain employee," apparently referring to Ms. Law. Ms. Chester described the complaint as "'tit for tat'" behavior, and she described the work environment as one that interfered with her ability to carry out her responsibilities. Ms. Chester further stated that Mr. Hall refused to divulge the name of the person complaining about her use of profanity, and she requested
Mr. Brummitt's intervention to "provide clarity with this situation."2 Ms. Chester sent a copy of the e-mail to Mr. Brummitt to Mr. Hall.
In an e-mail dated October 16, 2006, Mr. Hall wrote to Ms. Chester that he had just discovered the e-mail to
Mr. Brummitt. Mr. Hall stated that the e-mail to Mr. Brummitt
was inappropriate because it broke the "chain of command" set out in Section 2.1 of the Employee Handbook and that, if
Ms. Chester wanted a meeting with Mr. Brummitt, she was to request it through him, Mr. Hall. Mr. Hall emphasized that Ms. Chester had not been disciplined as a result of the
complaint, nor had there been any other consequences. Mr. Hall further stated that Ms. Chester's circumvention of the chain of command created a problem for Ms. Chester and Mr. Hall and that it would be necessary for them to meet to resolve the matter and, possibly, to include Mr. Brummitt.
Ms. Chester wanted to meet with Mr. Brummitt to discuss the manner in which Mr. Hall talked to and related to employees. She also wanted to speak with Mr. Brummitt because she had brought problems and issues to Mr. Hall's attention, but, in her opinion, Mr. Hall refused to address the problems or deal with them because, Ms. Chester surmised, he was uncomfortable with the matters she brought to his attention.
Ms. Chester wanted Mr. Brummitt to intervene and resolve the growing tension between her and Mr. Hall.
Ms. Chester made several requests to meet with
Mr. Brummitt on her own. Although Mr. Brummitt did not respond directly to Ms. Chester's requests for a meeting, he talked with her at one point and told her to follow the procedures in the employees manual and go through the system if she had any
complaints or concerns. According to the Employee's Manual, an employee was to go first to his or her immediate supervisor to resolve a problem; if the employee was not satisfied with the response of his or her immediate supervisor, the employee was to go to the Human Relations Director, Ms. Ayerdis, and she would discuss the problem and request a meeting with the Executive Director, Mr. Brummitt, if appropriate.
By October 2006, Mr. Hall had observed a number of problems with the case management and the team supervised by Ms. Chester. He was also receiving verbal complaints about Ms. Chester from other supervisors. He became concerned and asked Ms. Chester to meet with him to discuss a number of issues. Among other things, Mr. Hall intended to ask
Ms. Chester to transfer any cases she was managing at the time and spend her time doing the administrative duties required of the social services supervisor. He believed that Ms. Chester was overwhelmed and experiencing a lot of stress on the job, and he wanted to make it easier for her to perform her managerial and administrative responsibilities.
Mr. Hall and Ms. Chester met on or about October 15, 2006. Mr. Hall felt that Ms. Chester had become increasingly defensive whenever he brought any issues to her attention, and, at the October 15, 2006, meeting she become noticeably upset and then somewhat belligerent. As the meeting progressed,
Ms. Chester become increasingly belligerent, and Mr. Hall became angry and told Ms. Chester to leave his office.
Mr. Hall did not give Ms. Chester any indication that her employment was terminated and took no action to terminate her. Nonetheless, when Mr. Hall told Ms. Chester to leave his office, she left the Outreach Center's office and filed an unemployment compensation claim effective October 15, 2006.
Ms. Chester did not report for work on October 16, 2006, but she subsequently continued working, and Mr. Hall was not aware that she had filed an unemployment compensation claim until
Ms. Ayerdis told him that she had received notice that the claim had been filed. The claim was denied on November 6, 2006, on the grounds that Ms. Chester was fully employed and not eligible for unemployment benefits.
After Ms. Chester's promotion on July 1, 2006, Mr. Hall continued to prepare the quarterly reports, and he trained her to prepare these reports. Ms. Chester's only responsibility with regard to the quarterly reports was to
ensure that the required data from client files and the persons- served worksheet was entered into the client-tracking database system so that Mr. Hall could pull this information to include in the quarterly reports.
Ms. Chester submitted the July 2006, August 2006, and September 2006 monthly reports on time. Mr. Hall wrote e-mails
complimenting her and thanking her for getting the
September 2006 in early. Mr. Hall did not check the data and documentation backing-up the July and August reports, but, when he began to prepare the quarterly report that was due on October 15, 2006, he noticed that the data in the client- tracking database system did not match the information
Ms. Chester had included in the monthly reports. The monthly report was basically spreadsheet containing the accumulated data that had been entered into the client-tracking database system throughout the month, and the information in the database should have been reflected in each monthly report. The missing data related to intakes, discharges, and referrals to transitional housing, and the discrepancies between the data in the database and the data included in the monthly reports prepared by
Ms. Chester were significant. It was very important that the reports submitted to Broward County were accurate because the Outreach Center's funding was dependent on the information included in the reports.
Mr. Hall sent Ms. Chester several e-mails on October 16 and 18, 2006, advising Ms. Chester of the missing data and asking that she provide the backup documentation for
her monthly reports and account for the discrepancies. Mr. Hall suspected that Ms. Chester was pulling the data for the monthly reports from the client files themselves and that she was not
inputting the data into the client-tracking database system.
All of the information included in the monthly reports had to go into the database so that reports could be generated from the database, and Ms. Chester had been trained by Mr. Hall on inputting the data into the database. Ms. Chester never responded to the e-mails Mr. Hall sent on October 16 and 18, 2006, and she did not provide him with the backup documentation that he had requested.
Ms. Chester's 90-day review of her performance was due on or about October 1, 2006. Because of what he perceived as problems with Ms. Chester's job performance, especially after the September 25, 2006, meeting when he brought up the complaint about her use of profanity, Mr. Hall decided to delay the review for 30 days to allow Ms. Chester additional time to improve her performance.
Mr. Hall completed the review, and it was not favorable to Ms. Chester. Mr. Hall rated Ms. Chester below average in a number of categories, including quality of work, quantity of work, dependability, and customer contact. He rated Ms. Chester both below average and average on cooperation, noting that this had improved slightly. Mr. Hall rated
Ms. Chester above average in attitude and average in ability to learn new duties.
In the narrative portion of the review, Mr. Hall noted Ms. Chester's strengths as building strong and trusting relationships with the case managers she supervises, strong communication skills, and genuine compassion toward the homeless and dedication to helping them. Mr. Hall also observed that
Ms. Chester was well-like by some of her coworkers and fellow supervisors.
Mr. Hall made the following assessments of the weak points in Ms. Chester's job performance:
In the areas of performance and follow-through,
Mr. Hall stated that Ms. Chester had difficulties getting along with supervisors of other departments; was "visibly and emotionally very defensive" when concerns were brought to her attention and when she was given constructive criticism and correction of her performance; did not follow through with instructions or respond to e-mails; failed to respond to e-mails sent in October 2006 asking about missing data; failed to provide requested back-up documentation for data included in her monthly reports; despite having been reminded several times, failed to devise a work schedule for case managers so that all shifts during the week were covered; and failed to conduct regular crisis assessment team meetings.
In the area of program outcomes, Mr. Hall stated that the data missing from the client-tracking database caused the
Outreach Center to fall short of the outcomes required by its contract with the county; that the quarterly satisfaction survey of the Outreach Center's clients reflected the lowest percentage of satisfaction with case management services since the Outreach Center had been open; that, when Ms. Chester was told of the low survey results and asked how it could be improved, she stated that nothing could be done that had not been done already; and that Ms. Chester did not work out solutions for transfer of clients in emergency shelter to transitional shelter or independent living arrangements but offered extension of time to the clients, which had a negative effect on the outcomes required by the county.
In the area of interviews, Mr. Hall stated that
Ms. Chester was not able to build a solid and professional staff of case managers because she was unable to assess the strengths and weaknesses of persons interviewing for jobs. In Mr. Hall's view, Ms. Chester made decisions based on her emotions rather than on the candidate's qualifications and experience.
In the area of decision-making and judgment calls, Mr. Hall stated that some of Ms. Chester's decisions put the Outreach Center and its clients at risk. He specifically noted that Ms. Chester had agreed to allow a single woman client to take another family's children to a medical appointment; had placed two families in one family unit; and had placed a single
father with two sons, 16 and 13 years of age, in the women and children's center.
Mr. Hall stated that Ms. Chester went outside the chain of command by sending an e-mail to Mr. Brummitt without
Mr. Hall's approval and without notifying him, as required by the employee handbook; that she enabled poor performance by the case managers under her supervision; and that her excessive absences had placed the Outreach Center and the case management team in a difficult position.
Finally, Mr. Hall stated that he had attempted to help Ms. Chester improve her job performance by meeting with her weekly and sometimes daily to provide instruction on the particulars of her job. He stated, however, that communication between him and Ms. Chester had broken down "on her end" shortly after the meeting in which he had spoken with her about the complaint that she had used profanity in the workplace.3
Mr. Hall arranged to meet with Ms. Chester on November 3, 2006, to discuss the 90-day review. Prior to the meeting, Mr. Hall gave Ms. Chester the review and told her to read it over. He knew she would have problems with the review because of the negative assessment of her performance, and he anticipated that their meeting would be lengthy because there were a great many concerns to discuss. In addition to discussing Ms. Chester's weaknesses, Mr. Hall also expected to
discuss the adjustments that could be made to improve her performance and help her move into her administrative role.
Ms. Chester did not show up for the meeting with Mr. Hall. Instead, she refused to discuss the review with
Mr. Hall and requested a meeting with Mr. Brummitt. The meeting was scheduled for November 7, 2006.
In spite of the negative 90-day review he had given Ms. Chester, Mr. Hall considered her an excellent candidate for a supervisor's position even though they no longer had the close working relationship they once shared. Mr. Hall was concerned, however, about Ms. Chester's ability to transition from being a case manager to being a supervisor because she seemed unable to supervise the members of the case management team. In addition, from Mr. Hall's perspective, Ms. Chester was communicating with him less and less frequently, and he found that she was becoming more and more resistant to instruction.
Mr. Hall did not doubt Ms. Chester's ability to do the job of social services supervisor, but he took into consideration the fact that Ms. Chester was handling a client caseload and taking classes to further her education at the same time that she was learning to be a social services supervisor. Mr. Hall believed that Ms. Chester was overwhelmed in the position of social services supervisor, and she appeared to be stressed all of the time. Mr. Hall became convinced that
Ms. Chester needed to work closely with a supervisor before she could successfully function as a supervisor, and he intended to remove her from the supervisory position for her own benefit and phase her back into that position.
Prior to the November 7, 2006, meeting, Mr. Brummitt, Mr. Hall, and Ms. Ayerdis discussed the situation with
Ms. Chester. After receiving input from Mr. Hall, Mr. Brummitt concluded that Ms. Chester was a valuable employee that he wanted to retain, and he decided to offer Ms. Chester the choice of remaining in the social services supervisor position or of returning to her former position as lead case manager, but at the same salary she was receiving as social services supervisor.
At the meeting held on November 7, 2006, which was attended by Mr. Brummitt, Mr. Hall, and Ms. Ayerdis,
Mr. Brummitt made his offer to Ms. Chester. Ms. Chester became upset because she considered the offer to return to her former position of lead case manager to be a demotion and to be disrespectful to her. Ms. Chester also took the offer to return to her former position at the same salary to be an indication that she was being underpaid as a supervisor.
Ms. Chester attributed the poor 90-day performance review to retaliation by Mr. Hall for her e-mail and request to meet with Mr. Brummitt in September 2006. In Ms. Chester's view, her performance had been satisfactory and any problems she
had were the result of lack of support from Mr. Hall and lack of training. Ms. Chester believed that black supervisors were not given the same level of support, training, and assistance that was given to white supervisors.
Ms. Chester rejected Mr. Brummitt's offer to return to her former position as lead case manager, and she chose to remain in the position of social services supervisor and gave Mr. Brummitt and Mr. Hall assurances that she could do the job. Mr. Brummitt warned Ms. Chester that the offer to return to her former position was a one-time offer and that her performance as social services supervisor must improve or she would be terminated from her employment with the Outreach Center.
Ms. Chester indicated that she understood.
Communication between Mr. Hall and Ms. Chester improved for a few weeks after the November 7, 2006, meeting, but Ms. Chester's job performance did not improve, in Mr. Hall's estimation:
Ms. Chester failed to register the case managers under her supervision for a scheduled training session. She nonetheless took them to the training location, where they were turned away and had to return to the Outreach Center.
When Ms. Chester turned over her client case files after the November 7, 2006, meeting, Mr. Hall found that there was a great deal of information missing from the files,
especially care plans for the clients, which Mr. Hall considered an extremely serious offense that impacted the Outreach Center's ability to serve its clients.
On November 14, 2006, Mr. Hall asked Ms. Chester to attend a mandatory meeting regarding referrals to a Broward County agency that assisted the chronically homeless to obtain permanent housing. This was a very important meeting, but
Ms. Chester forgot about the meeting and did not attend, with the result that the Outreach Center did not have a representative at the meeting.
On November 24, 2006, Mr. Hall wrote an e-mail to Ms. Chester discussing the failure of one of the case managers under her supervision to write case notes and place them in clients' files. This case manager had not prepared any case notes for approximately a year, and Mr. Hall considered this a very serious offense that jeopardized the Outreach Center's county funding. Mr. Hall told Ms. Chester to write a Disciplinary Action Report on this case manager, but she resisted doing so. On December 7, 2006, Mr. Hall wrote an e-
mail to Ms. Chester directing her to prepare the report, and she did so on December 8. 2006. She noted, however, that Mr. Hall had not allowed her to write a Disciplinary Action Report on
Ms. Law.
Ms. Chester was absent on Monday, December 3, 2006, because of a family emergency. As noted above, she advised
Mr. Hall that she would work the following Saturday, but she did not do so.
At a Crisis Assessment Team meeting led by Ms. Chester on or about December 6, 2006, Roberta Geist, the Outreach Center's lead therapist/counselor, was discussing the repeated failure of the case management team, which was multi-ethnic, to follow procedures with regard to clients who had relapsed.
Ms. Geist was frustrated at the lack of compliance with procedures and, intending to address the entire case management team, she referred to "you people." Paulette Williams Shepherd, a case manager who had been hired by Ms. Chester in mid- November 2006, took offense, construing the comment as referring to the African-Americans who were attending the meeting, and she immediately left the meeting. Persons who attended the meeting reported to Mr. Hall that Ms. Chester became irate and also left the meeting, although she returned a few minutes later, acting as though nothing had happened. Ms. Chester contacted the Human Relations Department about the incident, and she also told
Mr. Hall that she intended to file a formal complaint against Ms. Geist with her supervisor.
In a Disciplinary Action Report dated December 14, 2006, Mr. Hall charged Ms. Chester with violations related to
attendance, carelessness, and work quality. In the body of the report, he discussed three specific offenses: Ms. Chester's failure to include the proper documentation in the case files she had handled prior to November 7, 2006; her failure to attend the November 27, 2006, meeting; and her failure to report for work on Saturday, December 8, 2006, as promised, and to complete documentation for staff files for an audit conducted Monday, December 10, 2006.4 Mr. Hall wrote the Disciplinary Action Report in lieu of writing a review of Ms. Chester's performance subsequent to the her 90-day performance review, and he recommended that Ms. Chester be demoted to case manager effective December 18, 2006, or that she be terminated if she rejected the demotion.
A meeting was arranged for December 18, 2006, with Mr. Hall, Ms. Ayerdis, and Ms. Chester. Mr. Hall anticipated that they would discuss the contents of the Disciplinary Action Report, including performance issues; Ms. Chester's falsification of her timesheet for the week of December 2, 2006; and Ms. Geist's remark at the December 6, 2006, Crisis Assessment Team meeting, as well as Ms. Chester's response to the remark. The meeting lasted less than five minutes, however. Mr. Hall began the meeting by asking Ms. Chester about the December 2, 2006, timesheet; Ms. Chester immediately accused
Mr. Hall of being a racist and demanded an investigation into his discriminatory conduct towards her.
Ms. Ayerdis agreed that she would conduct an investigation into Ms. Chester's allegation of discrimination against Mr. Hall. She told Ms. Chester to take a leave of absence with pay during the investigation. Ms. Ayerdis then closed the meeting.
Ms. Ayerdis scheduled a meeting with Ms. Chester on December 21, 2006. She had completed the investigation into Ms. Chester's allegation of racism and found no evidence that Mr. Hall had discriminated against Ms. Chester on the basis of
her race. A revised Disciplinary Action Report was prepared and dated December 21, 2006, in which Mr. Hall recommended that
Ms. Chester's employment be terminated effective December 21, 2006. Mr. Hall based his recommendation that Ms. Chester be terminated on her failure to perform up to expectations and her failure to correct the performance deficiencies identified in the 90-day performance review. Mr. Brummitt, who had the ultimate authority to terminate employees at the Outreach Center, and Ms. Ayerdis concurred with Mr. Hall's recommendation, and, at the December 21, 2006, meeting,
Ms. Ayerdis advised Ms. Chester that the investigation of
Ms. Chester's discrimination claims against Mr. Hall turned up no evidence to support her allegation that he was a racist.
Finally, Ms. Ayerdis notified Ms. Chester that her employment with the Outreach Center was terminated, effective immediately.
Mr. Brummitt was aware that Ms. Chester and Ms. Ayerdis were meeting on December 21, 2006, and that
Ms. Ayerdis would advise Ms. Chester of her termination at the meeting. It was close to Christmas, when the Outreach Center's employees received their bonuses, and Mr. Brummitt was concerned about Ms. Chester's not receiving her bonus. Mr. Brummitt decided that it was not fair to deny Ms. Chester the bonus, and he telephoned Ms. Ayerdis several times during her meeting with Ms. Chester to tell Ms. Ayerdis that Ms. Chester would receive the bonus and to confirm the amount of the bonus.
Summary of factual findings
The evidence presented by Ms. Chester is not sufficient to establish that she was the subject of unlawful discrimination or that she was terminated in retaliation for protected conduct. It is uncontroverted that Ms. Chester is a member of a protected class of persons, but she did not present sufficient persuasive evidence to establish that any similarly- situated employee of the Outreach Center was treated more favorably in any respect than Ms. Chester was treated.
Ms. Chester failed to produce any evidence establishing that Ms. Law received more training or support from Mr. Hall than he provided Ms. Chester, nor does the evidence establish that
Mr. Hall failed to discipline Ms. Law for the same or similar conduct for which Ms. Chester was disciplined. Rather, the evidence affirmatively establishes that Ms. Chester was terminated because of her unsatisfactory performance of the responsibilities of a social services supervisor.
Ms. Chester likewise failed to present sufficient evidence to establish that she was discriminated against in the form of a hostile work environment. Although she alleged that she was subjected to constant harassment because of her race, that she was intimidated by the work environment at the Outreach Center, and that she was ridiculed for problems that she did not create, Ms. Chester failed to present any persuasive evidence to support these allegations.
In addition, Ms. Chester did not present sufficient persuasive evidence to establish that she was terminated in retaliation for engaging in protected conduct. Ms. Chester did not present any evidence that she filed a discrimination complaint on account of Ms. Geist's reference to "you people," either with the Human Relations Department or with Ms. Geist's supervisor. Furthermore, the evidence affirmatively establishes that Mr. Brummitt warned Ms. Chester on November 7, 2006, when she refused to accept his offer to return to her position as lead case management, that she would be terminated if her job performance did not improve, and the proximity in time of her
discrimination complaint against Mr. Hall and her termination is not sufficient to establish that her termination was in retaliation for the complaint. Ms. Chester likewise failed to present any evidence beyond her conclusory statements to support her allegations that her difficulties with Mr. Hall arose as a result of her attempts to meet with Mr. Brummitt and that she was ultimately terminated in retaliation for telling the truth about what she considered bad working conditions and "things that were not right."5
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).
Section 760.10, Florida Statutes, part of the Florida Civil Rights Act of 1992, provided as follows:
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 or employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against 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.
Florida courts routinely rely on decisions of the federal courts construing Title VII of the Civil Rights Act of 1964, codified at Title 42, Section 2000e et seq., United States Code, ("Title VII"), when construing the Florida Civil Rights Act of 1992, "because the Florida act was patterned after
Title VII." Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998), citing, inter alia, Ranger Insurance Co. v. Bal Harbor Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989), and Florida State University v. Sondel, 685 So. 2d 923, 925, n. 1 (Fla. 1st DCA 1996).
Ms. Chester has the burden of proving by a preponderance of the evidence that she was the victim of employment discrimination. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition.
See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla.
4th DCA 1997) quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
Discrimination on the basis of race
Employment discrimination on the basis of race can be proven either through direct evidence of discrimination or through circumstantial evidence, which is evaluated within the framework of the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Logan v. Denny's Inc., 259 F.3d 558, 566-67 (11th Cir. 2001).
"Direct evidence of discrimination is 'evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption.' . . . 'Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race] constitute direct evidence of discrimination.' . . . 'For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision.’
. . .'Remarks by non-decision makers or remarks unrelated to the decision-making process itself are not direct evidence of discrimination.'” Bass v. Board of County Comm'rs, Orange County, Florida, 256 F.3d 1095, 1105 (11th Cir. 2001)(citations omitted). Based on the findings of fact herein, Ms. Chester
failed to present any direct evidence that she was discriminated against because of her race.
In the absence of direct evidence of discrimination, Ms. Chester must rely on the presumption set forth in McDonnell
Douglas to establish a prima facie case of discrimination on the basis of race by showing that (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified to do the job; and (4) she was treated differently than other, similarly situated Outreach Center employees. See Haas v. Kelly Servs. Inc., 409 F.3d 1030, 1035 (8th Cir. 2005);
Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). If Ms. Chester satisfies her burden of proving a prima facie case of discrimination on the basis of race, the burden of producing evidence then shifts to the Outreach Center to produce evidence articulating "a legitimate, non-discriminatory reason" for terminating Ms. Chester. Id. If the Outreach Center establishes a legitimate, non-discriminatory reason for terminating Ms. Chester, Ms. Chester must produce evidence proving that the non-discriminatory reason offered by the Outreach Center is pretext. Jones v. School Dist. of
Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999).
Based on the findings of fact herein, there is no dispute that Ms. Chester, as an African-American, is a member of a class of persons protected by Section 760.10, Florida
Statutes; that she was qualified for her position as a social services supervisor when she was hired; and that she was terminated from her employment with the Outreach Center. The first three elements of a prima facie case of employment discrimination have, therefore, been satisfied. Nonetheless, based on the findings of fact herein, Ms. Chester failed to meet her burden of establishing a prima facie case of discrimination on the basis of race. Ms. Chester presented no evidence tending to prove that any employee of the Outreach Center had the same or similar performance deficiencies or engaged in the same or similar conduct as Ms. Chester but was not terminated or disciplined. Additionally, based on the findings of fact herein, Ms. Chester failed to prove that any supervisory employee of the Outreach Center received more or better training or support in performing their job responsibilities than
Ms. Chester received.
Because Ms. Chester has failed to prove a prima facie case of discrimination on the basis of race, it is not necessary to determine if the Outreach Center carried its burden of establishing a legitimate, non-discriminatory reason for
Ms. Chester's termination. Even so, based on the findings of fact herein, the Outreach Center carried its burden of establishing that Ms. Chester was terminated because of her unsatisfactory job performance in the position of social
services supervisor. Ms. Chester was given the opportunity to return to her former position as lead case manager, but she refused to do so and promised that her job performance would improve in the face of warnings that, if her performance did not improve, she would be terminated. Ms. Chester's job performance did not, however, improve in the 30 days after the meeting on her 90-day performance review. To the contrary, Ms. Chester's performance continued to deteriorate, and this deterioration in performance was the direct cause of the decision to terminate her employment.
Finally, based on the findings of fact herein,
Ms. Chester failed to prove that her performance deficiencies were used as a pretext to terminate her on the basis of her race. Ms. Chester has, therefore, failed to prove by a preponderance of the evidence that, by terminating her employment, the Outreach Center committed an unlawful employment practice pursuant to Section 760.10(1)(a), Florida Statutes.
Hostile Work Environment
Ms. Chester also alleged in her Petition for Relief that she was subjected to a hostile work environment in which she was harassed, ridiculed, and treated with disrespect in the workplace, while white employees were treated differently in similar situations.
The court in Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003), discussed the elements that must be proven to establish discrimination based on a hostile work environment:
In order to prevail on a hostile work environment claim under Title VII, a plaintiff must show that "the harassment was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"
Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002)(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)); see
also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78 (1998)(stating that a hostile work environment is created "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."). We have explained that "[t]his test has objective and subjective elements: the misconduct must be 'severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Alfano, 294 F.3d at 374 (quoting Harris v. Forklift System., Inc., 510 U.S.
17, 21 (1993). Among the factors to consider when determining whether an environment is sufficiently hostile are "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. In determining whether a hostile environment exists, we must look at the "totality of the circumstances." Richardson, 180 F.3d at 437-38 [Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426 (2d Cir.
1999)]. "As a general rule, incidents must
be more than 'episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" Alfano, 294 F.3d at 374 (quoting Perry, 115 F.3d at 149). . . .
See also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002); Caruso v. City of Cocoa, 260 F. Supp. 2d 1191, 1218, 1221-22 (M.D. Fla. 2003); Gonzalez v. Florida Dep't of Highway Safety & Motor Vehicles, 237 F. Supp. 2d 1349-50 (S.D. Fla.
2002), aff'd without opinion, 2002 WL 1676549 (11th Cir. 2002); Lawrence v. Wal-Mart Stores, Inc., 236 F. Supp. 2d 1314, 1323-26 (M.D. Fla. 2002); LeBlanc, 214 F. Supp. 2d at 1331-32.
It is settled in Florida that, in order to prove discrimination as a result of a hostile work environment, Ms. Chester must show:
that [s]he belongs to a protected group;
that [s]he has been subject to unwelcome harassment; (3) that the harassment [was]
. . . based on a protected characteristic of the employee . . . ; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.
Miller, 277 F.3d at 1275.
Based on the findings of fact herein, Ms. Chester has satisfied the first element of a claim of hostile work environment because she is African-American, a protected group.
Based on the findings of fact herein, Ms. Chester has not, however, satisfied the remaining four elements of a claim of hostile work environment. She offered no evidence that the Outreach Center was "permeated with discriminatory intimidation, ridicule, and insult"; the only comment that Ms. Chester described as offensive and based on race was Ms. Geist's reference to "you people," and this comment was sufficiently ambiguous under the circumstances that it cannot be attributed to racial animus on Ms. Geist's part.
Ms. Chester presented evidence establishing that the working environment at the Outreach Center was stressful after she was promoted to social services supervisor and that she was often uncertain about how to carry out her duties new administrative and managerial responsibilities. The evidence also establishes that Ms. Chester's exchanges with Mr. Hall about her job performance became increasingly tense, but this can be attributed to the increasing difficulty that Mr. Hall had in communicating with Ms. Chester rather than Ms. Chester's race. None of the evidence presented by Ms. Chester, however, establishes that Ms. Chester experienced a discriminatorily abusive work environment at the Outreach Center. Consequently, Ms. Chester failed to prove by a preponderance of the evidence that she suffered discrimination on the basis of her race
because of a hostile work environment pursuant to Section 760.10(1)(a), Florida Statutes.
Retaliatory Discharge
An adverse employment action that is taken in retaliation for a person's having made a charge of discrimination constitutes an unlawful employment practice pursuant to Section 760.10(7), Florida Statutes. The court in Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993), observed that "[t]he burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973)." The court described that burden as
follows:
In order to prevail, the plaintiff must first establish a prima facie case by showing (1) statutorily protected expression, (2) adverse employment action, and (3) a causal link between the protected expression and the adverse action. . . .
Once a prima facie case has been established, the defendant may come forward with legitimate reasons for the employment action to negate the inference of retaliation. . . . If the defendant offers legitimate reasons for the employment action, the plaintiff then bears the burden of proving by a preponderance of the evidence that the reasons offered by the defendant are pretextual.
Goldsmith, 996 F.3d at 1163 (citations omitted).
Based on the findings of fact herein, Ms. Chester failed to prove a prima facie case of retaliation with respect to her allegations that she was terminated because she complained about Ms. Geist's reference to "you people" and because she approached Mr. Brummitt directly and sought to meet with him about the problems and negative work environment she perceived at the Outreach Center. Neither of these actions constitutes an unlawful employment practice pursuant to
Section 760.10(7), Florida Statutes. First, the evidence fails to show that Ms. Chester made a complaint of discrimination against Ms. Geist or participated in an investigation of any such complaint. In addition, the evidence fails to show that Ms. Chester's attempts to circumvent the established policies for dealing with problems and concerns in the workplace and to speak directly with Mr. Brummitt were related to any "protected expression."
Based on the findings of fact herein, Ms. Chester has established a prima facie case of discriminatory retaliation with respect to her complaint against Mr. Hall. First,
Ms. Chester engaged in protected expression when she accused Mr. Hall of being a racist at the December 18, 2006, meeting, and demanded an investigation by Ms. Ayerdis. Second,
Ms. Chester was terminated from her employment with the Outreach Center. Third, Mr. Hall was aware when he decided to recommend
that Ms. Chester be terminated in the December 21, 2006, revised Disciplinary Action Report that she had accused him of discrimination on the basis of her race, and Ms. Chester was terminated three days after Ms. Chester demanded an investigation of her charges against Mr. Hall. See Goldsmith, 996 F.2d at 1163-64, (citing Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) for the proposition that "evidence that employer knew of employee's protected activities, combined with a proximity in time between protected action and the allegedly retaliatory action, is sufficient to establish prima facie case of retaliation.").
Because Ms. Chester proved a prima facie case of discriminatory retaliation, the Outreach Center was required to prove that Ms. Chester was terminated for a legitimate, nondiscriminatory reason, in accordance with the shifting burden of production set forth in McDonnell Douglas. Based on the findings of fact herein, the Outreach Center has satisfied its burden by proving that Ms. Chester was terminated because of her unsatisfactory job performance. Ms. Chester's job performance was rated unsatisfactory in her 90-day performance review; the Outreach Center's dissatisfaction with her job performance was conveyed to Ms. Chester at the November 7, 2006, meeting with Mr. Hall, Ms. Ayerdis, and Mr. Brummitt; Mr. Brummitt advised Ms. Chester that, if she refused to accept his offer to return
her to her position as lead case manager and remained in the social services supervisor position, her performance would have to improve or she would be terminated; and Ms. Chester's job performance had not improved as of December 21, 2006.
Because the Outreach Center produced evidence of a legitimate, nondiscriminatory reason for Ms. Chester's termination, the burden of production shifted to Ms. Chester
"to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." . . .
That is, the plaintiff may attempt to establish that [s]he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." . . . Moreover, although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production,
. . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual."
Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143 (2000), citing Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253, 255, 256 (1981) and St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 507-08, 511 (1993).
"The ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct remains on the
plaintiff." Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001), citing Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir. 1998). Proof sufficient to "permit the trier of fact to conclude that the employer unlawfully discriminated" consists of the "plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false." Reeves, 530 U.S. at 148.
All of the evidence presented by Ms. Chester has been carefully considered, and it is concluded that, based on the finding of fact herein, Ms. Chester failed to prove by a preponderance of the evidence that the reasons offered by the Outreach Center for her termination were false. Ms. Chester's perception that she was treated unfairly and with disrespect after she was promoted to social services supervisor is not relevant. As the court in Vickers v. Federal Express Corp., 132
F. Supp. 2d 1371, 1381 (S.D. Fla. 2000), observed: "The issue of pretext has nothing to do with the employee's perception of fairness. See Webb v. R & B Holding Co., 992 F. Supp. 1382, 1387 (S.D. Fla. 1998)('The employee's perception of himself . .
. is not relevant. It is the perception of the decision maker that is relevant. ')."
Nor is it sufficient to discredit the reasons given by the Outreach Center for Ms. Chester's termination that
Ms. Chester established the "causal link" element of her prima facie case through evidence of the temporal proximity of the her accusation of discrimination against Mr. Hall, the completion of the investigation, and her termination. Although this showing was sufficient to support the inference that the complaint and the termination were not wholly unrelated for purposes of her prima facie case, the showing that must be made to establish the "causal link" element of a prima facie case of discrimination is much less stringent than the showing that must be made to establish that the reason given for adverse employment action is a pretext for discrimination. See Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996)("The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a 'but for' cause of the adverse employment decision."). Based on the findings of fact herein, Ms. Chester failed to establish anything more than the temporal proximity of her termination and the accusation, investigation, and resolution of her complaint against Mr. Hall; she has not proven by a preponderance of the evidence that she would not have been terminated "but for" the discrimination complaint.
Because, based on the findings of fact herein,
Ms. Chester failed to prove by a preponderance of the evidence that the reason given by the Outreach Center for her termination were unworthy of belief and a mere pretext for discrimination,
Ms. Chester has failed to sustain her burden of proving that her termination was in retaliation for engaging in a protected activity and, therefore, an unlawful employment practice prohibited by Section 760.10(7), Florida Statutes (2000).
Cf. Reeves, 590 U.S. at 149 ("A prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability.").
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Peggy Chester against the Broward Outreach Center/Miami Rescue Mission be dismissed.
DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida.
PATRICIA M. HART
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 31st day of March, 2009.
ENDNOTES
1/ All references herein to the Florida Statutes are to the 2006 edition unless otherwise indicated.
2/ Respondent's Composite Exhibit 2, memorandum dated December 18, 2006, to Martha Ayerdis forwarding e-mail correspondence.
3/ Respondent's Composite Exhibit 2, Report on New Employee.
4/ Mr. Hall misstated the dates corresponding to the Saturday and Monday to which he referred. Saturday was December 8, 2006, and Monday was December 10, 2006.
5/ Transcript, volume 1, page 118-119.
COPIES FURNISHED:
Denise Crawford, Agency Clerk
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Peggy Chester
1441 Northwest 137th Street Miami, Florida 33167
William O. Solms, Esquire DeMahy, Labrador, Drake, Payne
& Cabaza
2333 Ponce de Leon Boulevard, Suite 600 Miami, Florida 33134
Larry Kranert, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 03, 2009 | Agency Final Order | |
| Mar. 31, 2009 | Recommended Order | Petitioner failed to prove discrimination based on race; hostile work environment; or retaliatory discharge. Respondent produced evidence that she was terminated because of poor job performance. The Petition for Relief should be dismissed. |
