08-002596 Darcella D. Deschambault vs. Town Of Eatonville Status: Closed Recommended Order on Tuesday, February 17, 2009.

Summary: Petitioner failed to demonstrate that conflicts with her immediate supervisor and her subsequent transfer were incidents of unlawful discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARCELLA D. DESCHAMBAULT, )

)

Petitioner, )

)

vs. ) Case No. 08-2596

)

TOWN OF EATONVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 30 and

October 8, 2008, in Orlando, Florida, before Lawrence P.

Stevenson, a duly-designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Darcella D. Deschambault, pro se

611 Calibre Crest Parkway, No. 204

Altamonte Springs, Florida 32714

For Respondent: Joseph Morrell, Esquire

Town of Eatonville

1310 West Colonial Drive, Suite 28

Orlando, Florida 32804

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice contrary to Section 760.10, Florida Statutes

(2008), 1 by discriminating against Petitioner based on her color

and/or her age.

PRELIMINARY STATEMENT

On November 5, 2007, Petitioner Darcella D. Deschambault

("Petitioner") filed a Complaint of Employment Discrimination

against Respondent Town of Eatonville (the "Town"). Petitioner

alleged that she was harassed and transferred to a lesser

position based on her skin color and her age.

On April 21, 2008, the Florida Commission on Human

Relations ("FCHR") issued a Determination: Cause, finding

reasonable cause to believe that an unlawful employment practice

occurred in connection with Petitioner's involuntary transfer. 2

On May 23, 2008, Petitioner filed a Petition for Relief with

FCHR.

On May 28, 2008, FCHR referred the case to the Division of

Administrative Hearings. The hearing was scheduled to be held

on July 30, 2008. At the outset of the hearing, counsel for the

Town informed the undersigned that a key witness, Mayor Anthony

Grant, was unavailable to testify. The hearing proceeded with

such witnesses as were available and then was continued until a

date could be set for Mayor Grant's testimony. The hearing

reconvened on October 8, 2008, at which time Mayor Grant's

testimony was heard, as well as Petitioner's rebuttal testimony.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Gina King Brooks, a friend who owns a

business across the street from the Eatonville Town Hall.

Petitioner offered no exhibits. The Town presented the

testimony of Cathlene Williams, the town clerk; Roger Dixon, the

Town's public works director; and Mayor Anthony Grant. The

Town's Exhibits 1 through 8 were admitted into evidence.

A Transcript of the first portion of the hearing was filed

on August 25, 2008. A Transcript of the conclusion of the

hearing was filed on October 31, 2008. At the conclusion of the

final hearing, the parties were informed of the provisions of

Florida Administrative Code Rule 28-106.216 regarding the filing

of proposed recommended orders. Neither party filed a proposed

recommended order or requested an extension of the time period

for filing.

FINDINGS OF FACT

1. The Town is an employer as that term is defined in

Subsection 760.02(7), Florida Statutes.

2. Petitioner was hired by the Town in November 2004 as an

administrative assistant to Mayor Anthony Grant. Petitioner is

a dark-skinned African-American woman who was 51 years of age at

the time of the hearing.

3. Petitioner was interviewed and hired by a committee

appointed by Mayor Grant. The committee included town clerk

Cathlene Williams, public works director Roger Dixon, and then-

chief administrative officer Dr. Ruth Barnes. Mayor Grant did

not meet Petitioner until the day she started work as his

administrative assistant.

4. The mayor's administrative assistant handles

correspondence, filing, appointments, and anything else the

mayor requires in the day-to-day operations of his office. For

more than two years, Petitioner went about her duties without

incident. She never received a formal evaluation, but no

testimony or documentary evidence was entered to suggest that

her job performance was ever less than acceptable during this

period.

5. In about August 2007, Petitioner began to notice a

difference in Mayor Grant's attitude towards her. The mayor

began screaming at her at the top of his lungs, cursing at her.

He was relentlessly critical of her job performance, accusing

her of not completing assigned tasks.

6. Petitioner conceded that she would "challenge" Mayor

Grant when he was out of line or requested her to do something

beyond her job description. She denied being disrespectful or

confrontational, but agreed that she was not always as

deferential as Mayor Grant preferred.

7. During the same time period, roughly July and August

2007, Petitioner also noticed that resumes were being faxed to

the Town Hall that appeared to be for her job. She asked

Ms. Williams about the resumes, but Ms. Williams stated she knew

nothing and told Petitioner to ask the mayor.

8. When Petitioner questioned the mayor about the resumes,

he took her into his office and asked her to do him a favor. He

asked if she would work across the street in the post office for

a couple of weeks, to fill in for a post office employee who was

being transferred to the finance department; as a team player,

Petitioner agreed to the move.

9. While she was working as a clerk at the post office,

Petitioner learned that the mayor was interviewing people for

her administrative assistant position. She filed a formal

complaint with the Town. For a time after that, she was forced

to work half-time at the post office and half-time in the

mayor's office.

10. On or about October 22, 2007, Petitioner was formally

transferred from her position as administrative assistant to the

mayor to the position of postal clerk in the post office. Her

salary and benefits remained the same.

11. At the hearing, Mayor Grant testified that he moved

Petitioner to the post office to lessen the stress of her job.

Based on his conversations with Petitioner, he understood that

Petitioner was having personal or family problems. He was not

privy to the details of these problems, but had noticed for some

time that Petitioner seemed to be under great stress. The post

office was a much less hectic environment than the mayor's

office, and would be more amenable to her condition.

12. Ms. Williams, the town clerk, testified that the mayor

told her that Petitioner was stressed and needed more lax duties

than those she performed in the mayor's office.

13. Mr. Dixon, the public works director, testified that

Petitioner had indicated to him that she was under pressure, but

she did not disclose the cause of that pressure. He recalled

that, toward the end of her employment with the Town, Petitioner

mentioned that she felt she was being discriminated against

because of her skin color.

14. Petitioner denied ever telling Mayor Grant that she

was feeling stressed. She denied telling him anything about her

family. Petitioner stated that the only stress she felt was

caused by the disrespect and humiliation heaped upon her by

Mayor Grant.

15. Petitioner's best friend, Gina King Brooks, a business

owner in the Town, testified that Petitioner would come to her

store in tears over her treatment by the mayor. Petitioner told

Ms. Brooks that she was being transferred to the post office

against her will, was being forced to train her own replacement

in the mayor's office, 3 and believed that it was all because of

her age and complexion.

16. Mayor Grant testified that he called Petitioner into

his office and informed her of the transfer to the post office.

He did not tell her that the move was temporary. He did not

view the transfer from administrative assistant to postal clerk

as a demotion or involving any loss of status.

17. Mayor Grant testified that an additional reason for

the change was that he wanted a more qualified person as his

administrative assistant. He acknowledged that Petitioner was

actually more experienced than her eventual replacement,

Jacqueline Cockerham. 4 However, Petitioner's personal issues

were affecting her ability to meet the sensitive deadlines

placed upon her in the mayor's office. The mayor needed more

reliable support in his office, and Petitioner needed a less

stressful work environment. Therefore, Mayor Grant believed the

move would benefit everyone involved.

18. Mayor Grant denied that Petitioner's skin color or age

had anything to do with her transfer to the post office.

19. Petitioner was replaced in her administrative

assistant position by Ms. Cockerham, a light-skinned African-

American woman born on October 17, 1961. She was 46 years of

age at the time of the hearing. Documents introduced by the

Town at the hearing indicate the decision to hire Ms. Cockerham

was made on March 26, 2008.

20. Ms. Williams testified that she conducted the

interview of Ms. Cockerham, along with a special assistant to

the mayor, Kevin Bodley, who no longer works for the Town.

21. Both Ms. Williams and Mayor Grant testified that the

mayor did not meet Ms. Cockerham until the day she began work in

his office.

22. Petitioner testified that she knew the mayor had met

Ms. Cockerham before she was hired by the Town, because Mayor

Grant had instructed Petitioner to set up a meeting with

Ms. Cockerham while Petitioner was still working in the mayor's

office. Mayor Grant flatly denied having any knowledge of

Ms. Cockerham prior to the time of her hiring. On this point,

Mayor Grant's testimony, as supported by that of Ms. Williams,

is credited.

23. To support her allegation that Mayor Grant preferred

employees with light skin, Petitioner cited his preferential

treatment of an employee named Cherone Fort. Petitioner claimed

that Mayor Grant required her to make a wake-up call to Ms. Fort

every morning, because Ms. Fort had problems getting to work on

time. Ms. Fort was a light-skinned African-American woman.

24. Under cross-examination, Petitioner conceded that

Mayor Grant and Ms. Fort were friends, and that his favoritism

toward her may have had nothing to do with her skin color.

25. Petitioner claimed that there were other examples of

the mayor's "color struck" favoritism toward lighter-skinned

employees, but she declined to provide specifics. 5 She admitted

that several dark-skinned persons worked for the Town, but

countered that those persons do not work in close proximity to

the mayor.

26. As to her age discrimination claim, Petitioner

testified that a persistent theme of her conversations with

Mayor Grant was his general desire for a younger staff, because

younger people were fresher and more creative. The mayor's

expressed preference was always a concern to Petitioner.

27. Petitioner testified that she felt degraded, demeaned

and humiliated by the transfer to the post office. She has

worked as an executive assistant for her entire professional

career, including positions for the city manager of Gainesville

and the head of pediatric genetics at the University of Florida.

She believed herself unsuited to a clerical position in the post

office, and viewed her transfer as punitive.

28. In April 2008, Petitioner was transferred from the

post office to a position as assistant to the town planner.

Within days of this second transfer, Petitioner resigned her

position as an employee of the Town. At the time of her

resignation, Petitioner was being paid $15.23 per hour.

29. Petitioner is now working for Rollins College in a

position she feels is more suitable to her skills. She makes

about $14.00 per hour.

30. The greater weight of the evidence establishes that

there was a personality conflict between Petitioner and Mayor

Grant. Neither Petitioner nor Mayor Grant was especially

forthcoming regarding the details of their working relationship,

especially the cause of the friction that developed in August

2007. Neither witness was entirely credible in describing the

other's actions or motivations. No other witness corroborated

Petitioner's claims that Mayor Grant ranted, yelled, and was

"very, very nasty" in his dealings with Petitioner. 6 No other

witness corroborated Mayor Grant's claim that Petitioner was

under stress due to some unnamed family situation. The working

relationship between Mayor Grant and Petitioner was certainly

volatile, but the evidence is insufficient to permit more than

speculation as to the cause of that volatility.

31. The greater weight of the evidence establishes that,

due to this personality conflict, Mayor Grant wanted Petitioner

transferred out of his office. He may even have used the

subterfuge of a "temporary" transfer to exact Petitioner's

compliance with the move. However, the purpose of this

proceeding is not to pass judgment on Mayor Grant's honesty or

skills as an administrator. Aside from Petitioner's suspicions,

there is no solid evidence that Mayor Grant was motivated by

anything other than a desire to have his office run more smoothly

and efficiently. Petitioner's assertion that the mayor's

preference for lighter-skinned employees was common knowledge

cannot be credited without evidentiary support.

32. Petitioner's age discrimination claim is supported only

by Petitioner's recollection of conversations with Mayor Grant in

which he expressed a general desire for a younger, fresher, more

creative staff. Given that both Petitioner and Ms. Cockerham

were experienced, middle-aged professionals, and given that Mayor

Grant had nothing to do with the hiring of either employee, the

five-year age difference between them does not constitute

evidence of discrimination on the part of the mayor or the Town.

33. Petitioner was not discharged from employment. Though

Petitioner perceived it as a demotion, the transfer to the post

office was a lateral transfer within the Town's employment

hierarchy. Petitioner was paid the same salary and received the

same benefits she received as an administrative assistant to the

mayor. A reasonably objective observer would not consider

working as a clerk in a post office to be demeaning or degrading.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

35. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. Section 760.11(1),

Florida Statutes, provides that any person aggrieved by a

violation of the Act must file a complaint within 365 days of

the alleged violation.

36. Subsection 760.10(1)(a), Florida Statutes, states the

following:

(1) It is an unlawful employment practice

for an employer:

(a) 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.

37. Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

(7) "Employer" means any person [7] employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

38. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp.

1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

39. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the Town, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non-discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Respondent's offered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

40. In order to prove a prima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes,

Petitioner must establish that: (1) she is a member of the

protected group; (2) she was subject to adverse employment

action; (3) she was qualified to do the job; and (4) her

employer treated similarly-situated younger employees, or

lighter-skinned employees, more favorably. See , e.g. , Williams

v. Vitro Services Corporation , 144 F.3d 1438, 1441 (11th Cir.

1998); McKenzie v. EAP Management Corp. , 40 F. Supp. 2d 1369,

1374-75 (S.D. Fla. 1999).

41. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

42. Petitioner established that she is a member of a

protected group, in that she is a dark-skinned African-American

female, and she is 51 years of age. The Town did not contest

that Petitioner was qualified to perform the job of

administrative assistant.

43. Petitioner failed to objectively establish that she

was subject to adverse employment action. In Burlington

Industries, Inc. v. Ellerth , 524 U.S. 742, 761 (1998), the

United States Supreme Court adopted the concept of "tangible

employment action," which is useful in this case:

A tangible employment action constitutes a

significant change in employment status,

such as hiring, firing, failing to promote,

reassignment with significantly different

responsibilities, or a decision causing a

significant change in benefits. Compare

Crady v. Liberty Nat. Bank & Trust Co. of

Ind. , 993 F.2d 132, 136 (CA7 1993) ("A

materially adverse change might be indicated

by a termination of employment, a demotion

evidenced by a decrease in wage or salary, a

less distinguished title, a material loss of

benefits, significantly diminished material

responsibilities, or other indices that

might be unique to a particular situation"),

with Flaherty v. Gas Research Institute , 31

F.3d 451, 456 (CA7 1994) (a "bruised ego" is

not enough); Kocsis v. Multi-Care

Management, Inc. , 97 F.3d 876, 887 (CA6

1996) (demotion without change in pay,

benefits, duties, or prestige insufficient)

and Harlston v. McDonnell Douglas Corp ., 37

F.3d 379, 382 (CA8 1994) (reassignment to

more inconvenient job insufficient).

44. It could be argued that Petitioner's transfer from

administrative assistant to postal clerk constituted

"reassignment with significantly different responsibilities,"

but that argument is less than persuasive in light of Ellerth

and the cases cited therein, which point toward demotion, less

distinguished titles, and material loss of benefits and

responsibilities as criteria indicating "materially adverse

change."

45. While Petitioner felt personally insulted by the

transfer, the greater weight of the evidence established that

the transfer was a lateral move. Petitioner was taken out of

the fast-paced mayor's office and placed in the staid environs

of the post office, with no change in salary or benefits. A

lateral transfer to a less exciting position does not constitute

an adverse employment action for purposes of establishing

unlawful employment discrimination under Chapter 760, Florida

Statutes.

46. Petitioner also presented no evidence that age or skin

color played any role in her on-the-job difficulties or her

eventual transfer out of the mayor's office. Petitioner has not

established a prima facie case of employment discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that the Town of Eatonville did not

commit any unlawful employment practices and dismissing the

Petition for Relief.

DONE AND ENTERED this 17th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of February, 2009.

ENDNOTES

1/ Citations, hereinafter, shall be to Florida Statutes (2008)

unless otherwise specified.

2/ Petitioner had also alleged that there was a hostile work

environment based on her sex, and inequitable treatment based on

her gender related to mandatory attendance of female employees

at "etiquette" training. FCHR found no cause to believe that

discrimination occurred in connection with these allegations,

and Petitioner did not pursue them at the hearing in this

matter.

3/ Petitioner testified that for an unspecified time, she was

forced to work half-time at the post office and half-time in the

mayor's office, but did not specifically state that she was

brought back in order to train her replacement as the mayor's

administrative assistant.

4/ Petitioner's resume showed that she had 17 years of

experience in positions similar to the one she held in Mayor

Grant's office. Ms. Cockerham had 12 years of relevant

experience, meaning that she was far from a novice.

5/ The undersigned cautioned Petitioner that he could not base

findings of fact on her assertions that "everybody knows" the

mayor's preferences, unless she was willing to testify as to

specific instances of discriminatory practices.

6/ Ms. Brooks' testimony on this point was not based on first

hand knowledge. She knew only what Petitioner told her

regarding events in the mayor's office.

7/ "Person" includes "any governmental entity or agency."

§ 760.02(6), Fla. Stat.

COPIES FURNISHED :

Derick Daniel, Executive Director

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Joseph Morrell, Esquire

Town of Eatonville

1310 West Colonial Drive, Suite 28

Orlando, Florida 32804

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Darcella D. Deschambault

611 Calibre Crest Parkway, No. 204

Altamonte Springs, Florida 32714

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.