00-003867 Marjorie R. Ross vs. Deland Housing Authority Status: Closed Recommended Order on Friday, October 17, 2003.

Summary: Petitioner failed to show that her discharge was pretextual or that she was treated differently from the white employees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARJORIE R. ROSS, )

)

Petitioner, )

)

vs. ) Case No. 00 - 3867

)

DELAND HOUSING AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

proceeding on August 21, 2003, in Deland, Florida, before

Stephen F. Dean, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Marjorie R. Ross, pro se

416 West New Hamp shire

Deland, Florida 32720

For Respondent: Wayne L. Helsby, Esquire

ALLEN, NORTON & BLUE, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against based upon

race?

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination because of race

with the Florida Commission on Human Relations (FCHR) on

February 6, 1997. When the FCHR did not resolve her claim,

Petitioner re quested a hearing before Division of Administrative

Hearings (DOAH), and the FCHR forwarded to the case to DOAH on

September 19, 2000. After various requests for extensions of

time the case was initially set for hearing on March 28, 2001.

On March 26, 20 01, Petitioner requested a continuance. After a

status report, the case was placed in abeyance on June 1, 2001.

Thereafter Respondent moved to dismiss, and the motion was

denied. On March 14, 2003, an order was issued to show cause,

and a Petition to se t the case for hearing was received. The

formal hearing was noticed for May 28, 2003. However, a motion

to continue was filed on May 22, 2003, which was granted. The

matter was reset for August 21, 2003.

At hearing Petitioner testified on her own beh alf.

Respondent introduced the testimony of Linda McDonnell.

Respondent tendered a folder containing 42 pages of documents,

which was received. Respondent introduced Exhibits numbered 1,

2, 3, 3A, 4, 5, 6, 6A, 6B, 6C, 6D, 7, 11, and 12. In addition,

Re spondent received permission to file as a late - filed exhibit,

a job description of the position of Public Housing Manager,

which was filed on August 27, 2003.

Respondent filed a Proposed Recommended Order which was

read and considered. All citatio ns are to Florida Statutes

(2002), unless otherwise indicated.

FINDINGS OF FACT

1. Respondent, Deland Housing Authority (the Authority),

provides subsidized housing to low - income families in Deland,

Florida. Linda McDonnell has been the Executive Dire ctor of the

Authority since approximately 1990.

2. Petitioner, Marjorie R. Ross, a black female, was

employed by the Authority as a Project Management Aide,

beginning on or about June 14, 1993.

3. At the time of Petitioner's hire, Greg Norton, the

Public Housing Manager, was her immediate supervisor.

4. Petitioner's job duties included, among others,

maintaining residents' records and files, computing and

inputting utility charges, preparing and issuing monthly rent

statements to residents, and preparing 14 - day notices (late rent

notices).

5. Petitioner's performance evaluation, for the period

August 21 to December 21, 1993, rated her overall performance as

"needs improvement." In comments attached to the evaluation, it

was noted that P etitioner "tried to do too many things at once,"

causing decreases in her productivity. The comments also stated

Petitioner "needs to make an effort to straighten her office

each day" and that her "greatest shortfall as an employee is the

manner in which she relates to the other employees."

6. From the date of this evaluation, tension existed

between Petitioner and McDonnell. For example, McDonnell

cautioned Petitioner about speaking to persons outside the

organization without permission.

7. On Se ptember 26, 1994, McDonnell approached Petitioner

to introduce a visiting HUD representative to Petitioner.

Petitioner did not speak with the representative, despite

McDonnell's repeated requests, because of McDonnell's previous

instructions not to speak without permission. Petitioner

received a written reprimand for her conduct.

8. On July 25, 1995, McDonnell gave Petitioner a memo that

documented Petitioner's habit of promising to create certain

projects and failing to complete them.

9. At the en d of July 1995, Norton resigned from the

Authority. On July 31, 1995, McDonnell conducted a staff

meeting relating to Norton's resignation. During the meeting,

McDonnell instructed Petitioner to only write receipts for rent

checks, but to refrain from en tering the receipts into the

computer. Despite this instruction, Petitioner subsequently

removed rent receipts from McDonnell's secretary's desk and

entered them into the computer. As a result, Petitioner

received a reprimand and was given a day off with out pay.

10. Petitioner received another written reprimand on

September 27, 1995, for failing to follow established Authority

policy regarding reporting absences. Authority policy required

employees to complete an absentee report upon returning to wor k

from an unscheduled absence. Petitioner failed to complete an

absentee report upon returning from an unscheduled absence on

September 25, 1995, and was not given pay for the absence.

11. Petitioner applied for the position vacated by Norton

as Publi c Housing Manager. The Authority hired Connie

Grobstein, a white female, in September 1995.

12. The stated reason for hiring Grobstein was her

experience in grant writing; McDonnell stated that writing

grants was an important part of the job. Grobst ein had little

if any experience with public housing.

13. Grobstein became Petitioner's direct supervisor and

Petitioner was asked to teach her the day - to - day operations of

the office.

14. During September 1995, Grobstein wrote several memos

to McDonnell regarding Petitioner's work performance and

attitude.

15. On December 21, 1995, Petitioner received a written

reprimand from Grobstein for, among other infractions, failing

to timely issue 14 - day notices. The reprimand stated, "any

additional violations of Authority procedures will lead to

further disciplinary actions up to and including termination."

16. On February 6, 1996, Grobstein and Petitioner had a

confrontation in front of a tenant regarding the start date of a

lease. Even though her office was several doors away, McDonnell

could hear Grobstein and Petitioner arguing about the lease. As

a result of the incident, McDonnell terminated Grobstein. 1/

17. Petitioner was suspended for one day as a result of

the argument with Gr obstein. While Petitioner was absent,

McDonnell discovered that several resident files, which

Petitioner was responsible for maintaining, were missing

necessary documentation.

18. McDonnell contacted the Authority's attorney, who

advised McDonnell that she had no choice but to terminate

Petitioner's employment.

19. On February 12, 1996, Petitioner's employment was

terminated. The stated reasons for her termination were:

consistent problems with her work performance; the incident with

Grobstein on F ebruary 6, 1996; refusing to follow instructions;

giving out rent credits/reductions without approval; attempting

to undermine McDonnell and the Authority; demonstrating a poor

attitude and an unwillingness to cooperate with others; and

failing to complete her work in a timely manner.

20. Respondent maintains a disciplinary policy for

Authority employees. Pursuant to this policy, employees may be

discharged for, among other reasons, insolence or

insubordination; failure to obey legitimate orders f rom a

supervisor; mistreatment (verbal, psychological or physical) of

a client or fellow employee; and neglect or willful disregard of

the responsibilities, duties and work rules of a position.

CONCLUSIONS OF LAW

21. The Division of Administrative Hear ings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1).

22. Under the provisions of Section 760.10, it is an

unlawful employment practice to discriminate against any

individual with respect to compensatio n, terms, conditions, or

privileges of employment because of such individual's race.

23. In construing provisions of Section 760.10, legal

principles and precedents relating to federal discrimination law

under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. Section 2000e, et seq. , have been incorporated and

adopted. See Brand v. Florida Power Corp. , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland

Regional Medical Center , 16 FALR 567, 574 (FCHR 1993).

In discrimination cases, Petitioner has the ultimate burden to

prove discrimination. Initially a Petitioner must establish a

prima facie case of discrimination through one of three

generally accepted methods: by direct evidence of discriminatory

intent by meeting the four - pronged McDonnell - Douglas test or by

statistical proof. Direct evidence is evidence that, if

believed, would prove the existence of discrimination without

inferen ce or presumption. Carter v. City of Miami , 870 F.2d

578, 581 - 82 (11th Cir. 1989). In the face of direct evidence,

an employer must prove that the same employment decision would

have been made absent any discriminatory intent.

24. Absent direct evi dence of discrimination, Petitioner

must show that she is a member of a protected group, is

qualified for the position, and was subject to an adverse

employment action; that the position was filled by a person of

another race or that she was treated less f avorably than

similarly - situated persons outside the protected class; and that

there is a causal connection between Petitioner's race and the

adverse employment action. McDonnell Douglas Corporation v.

Green , 411 U.S. 792 (1973) and Texas Department of Co mmunity

Affairs v. Burdine , 450 U.S. 248 (1981), and again in the case

of St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S. Ct.

2742 (1993). The FCHR has adopted this evidentiary model.

Kilpatrick v. Howard Johnson Co. , & FALR 5468, 5475 (FCHR 1985) .

25. Petitioner showed she was not promoted to Norton's

job. Petitioner is the member of a protected group, and the

person hired to file Norton's job was white. Petitioner was

asked to show the new hire how to handle the daily operations of

the office . Petitioner established a prima facie case of

discrimination.

26. Respondent must articulate some legitimate,

nondiscriminatory reason for the challenged employment decision.

Respondent is required only to "produce admissible evidence

which would allo w the trier of fact rationally to conclude that

the employment decision had not been motivated by discriminatory

animus." Texas Department of Community Affairs v. Burdine , at

257.

27. In this case, Respondent's stated reason for hiring

the white fem ale was her skill in writing grant proposals. It

was also stated that a college degree was a criterion for the

position, and Respondent filed the job description as a late -

filed exhibit. This description recites that a bachelor's

degree is required or, i n lieu thereof, five years of

experience. Petitioner did not have the degree or the

experience.

28. Once the employer articulates a legitimate reason for

the action taken, the burden shifts back to Petitioner to

provide the reason offered by Respon dent is not the true reason

for the adverse employment action, but is merely a pretext.

29. Respondent showed that Grobstein was hired because of

her experience in writing grants, an important part of the job,

and that Petitioner did not meet the minimum qualifications.

Petitioner did not refute this evidence. Therefore, Petitioner

did not establish a prima facie case that she was denied a

promotion because of race.

30. Petitioner also showed that she was terminated.

Respondent was obligated to artic ulate a non - discriminatory

reason for her termination. Respondent has offered legitimate,

nondiscriminatory reasons for Petitioner's termination. The

burden to articulate a legitimate nondiscriminatory reason for

the action is one of production, not of p ersuasion. Reeves v.

Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097, 2105 (2000);

St Mary's Honor Center v. Hicks , at 509.

31. Respondent showed that Petitioner was disruptive and

uncooperative after Grobstein was hired. This resulted in

Grobstein' s firing, and shortly thereafter Petitioner's firing.

Petitioner failed to come forward with credible evidence that

there was a causal connection between her race and her

termination. Petitioner has failed to identify any non - minority

employees who were treated differently than she was treated

under similar circumstances. To the contrary, the facts show

that the authority terminated Grobstein after the February 6,

1996, incident.

32. In summary, Respondent offered admissible evidence

that it terminated Petitioner's employment because she

repeatedly ignored the instructions of her supervisors, failed

to perform the duties of her job, was insubordinate to

supervisors and violated the Authority's policies.

33. Petitioner failed to introduce any evidenc e that

remotely suggests Respondent's legitimate, nondiscriminatory

basis for her termination was a pretext for discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Petitioner's Petition for Relief.

DONE AND ENTERED this 17th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

_________________________________

STEPHEN F. DEAN

Administrative Law J udge

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 17th day of October, 2003.

ENDNOTE

1/ There had been a previous incident involving a dispute

between Petitioner and Grobstein after which McDonnell advised

Grobstein that a reoccurrence would result in Petitioner's

termination.

COPIES FURNISHED :

Marjorie R. Ross

416 West New Hampshire

Deland, Florida 32720

Wayne L. Helsby, Esquire

ALLEN, NORTON & BLUE, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Cecil Ho ward, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3230 1

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.