00-004169 Anita King vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, May 16, 2001.

Summary: There was no evidence submitted at the hearing which supported Petitioner`s allegations of discrimination or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITA KING, )

)

Petitioner, )

)

vs. ) Case No. 00-4169

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 4, 2001, in Perry, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner : Anita King, pro se

108 Alice Street

Perry, Florida 32347

For Respondent : Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent was the subject of an unlawful

discrimination action as defined in Chapter 760, Florida

Statutes.

PRELIMINARY STATEMENT

On January 26, 1998, Petitioner Anita King, filed a Charge

of Discrimination against Respondent Department of Corrections.

The Charge of Discrimination alleges that the Department

discriminated against her when it terminated her employment

because of her race, color, sex, and in retaliation for

previously filed complaints. Specifically, Petitioner alleged

that the Department had unlawfully terminated her employment on

February 7, 1997, and had unlawfully provided poor job

references to prospective employers after the termination.

The allegations of discrimination were investigated by the

Florida Commission on Human Relations (FCHR). On July 18, 2000,

FCHR issued its Determination, finding "no cause." On

August 22, 2000, FCHR granted an extension of time to

Petitioner, allowing until September 29, 2000, for her to file a

petition for relief.

Petitioner filed a Petition for Relief on September 26,

2000. The petition reiterated the allegations contained in her

Charge of Discrimination filed with FCHR. On October 26, 2000,

Respondent filed its Answer and Affirmative Defenses to the

Petition for Relief. The Department denied all allegations and

asserted that Petitioner was collaterally estopped from re-

litigating the issues of whether the Department had cause to

terminate her employment effective February 7, 1997, and whether

the termination represented disparate treatment. These issues

had previously been litigated by Petitioner at the Public

Employees Relations Commission (PERC). On October 8, 1997, PERC

issued a final order upholding the termination and finding no

disparate treatment.

On November 2, 2000, Respondent filed a moti on in limine

requesting that Petitioner be prevented from re-litigating the

issues set forth above that were previously decided by PERC. In

accord with Wright v. Department of Highway Safety and Motor

Vehicles , DOAH Case No. 92-5565, Recommended Order entered

October 27, 1993, and Final Order entered June 3, 1994 (adopts

Recommended Order in toto ), the motion was granted by order

dated December 6, 2000.

At the hearing Petitioner testified in her own behalf and

offered five exhibits into evidence. Respondent called three

witnesses but did not offer any exhibits into evidence. After

the hearing Respondent and Petitioner filed Proposed Recommended

Orders on May 3, 2001, and May 4, 2001, respectively.

FINDINGS OF FACT

1. Petitioner is an African-Americ an female. She was

certified as a corrections officer in March 1991.

2. In November 1995, Petitioner was employed by

Respondent, Department of Corrections, at Taylor Corrections

Institution in Perry, Florida, as a correctional officer with

the rank of sergeant. Prior to her employment at Taylor

Corrections Institution she had been a corrections officer at a

correctional facility in Jefferson County. Petitioner did not

have employment problems while working at the Jefferson County

facility.

3. Peti tioner's first year at the Taylor County

correctional facility was "O.K." However, Petitioner was not

well liked among her fellow officers. Between June through

October 1996, Petitioner was the subject of several complaints

from her fellow officers. These separate complaints were:

On June 12 or 13, 1996, King cursed at an

entire dormitory of inmates. On June 19

King was assigned to assist another officer

in conducting a recount of inmates. She

failed to assist the officer in conducting

the recount. On July 24, 1996, King was

assigned to escort the swill truck (a food

truck) by the control room sergeant. She

refused to accept the assignment and cursed

at the control room sergeant. A few days

later, she confronted another officer in a

hostile and threatening manner because the

officer had submitted an incident report

concerning King's conduct in cursing at the

control room sergeant. On October 9,

another sergeant asked King to sign a typed

incident report regarding King's loss of her

state-issued handcuff case. King initially

refused to sign the report. Shortly

thereafter, she tore up the report in the

presence of an inmate because she was

displeased with certain comments in the

report. On October 28, King cursed at a

coworker. Id. PERC Final Order dated

October 8, 1997.

4. In October 1996, Petitioner filed several internal

discrimination complaints against the agency generally opposing

unfair employment practices. The exact nature of these

complaints was not established by the evidence.

5 . On December 13, 1996, Petitioner received a notice of

disciplinary charges being brought against her based on the

earlier-filed employee complaints. The notice lists the charges

as follows:

Multiple charges are being brought against

you stemming from several investigations.

In the first case, you are being charged

with malicious use of profane or abusive

language toward inmates, visitors, or

persons under supervision, use of verbal

abuse of an inmate, conduct unbecoming a

public employee, and willful violation of

state statute, rule, directive, or policy

statement. Specifically on June 25, 1996,

an anonymous request was received by the

Superintendent's Office alleging that you

cursed the entire dormitory of inmates on

June 13, 1996. It was also alleged that you

had been gambling and would not pay off your

debts. This prompted an investigation into

these allegations. Several witnesses

including an inmate verified the above

allegations. The basis for these charges is

contained in the Institutional Investigation

Report #96-044, a copy attached and made a

part hereof. This conduct violates

Department of Corrections' Rules 33-

4.001(4)(a), 33-4.002(4)(9), and 33-

4.003(6)(20)(22)(24), F.A.C. , copies

attached and made a part hereof.

In the second case, you are being charged

with willful violation of state statute,

rule, directive, or policy statement,

conduct unbecoming a public employee,

unwilling to follow lawful orders or perform

officially designated duties, interference

with an employee, failure to follow oral or

written instructions, witness tampering

during an investigation, and retaliation.

Specifically on July 24, 1996, Sergeant J.

Pickles reported that while assigned as

Control Room Supervisor, he advised you via

radio that he needed an escort for the swill

truck. You responded by telephone and

stated "Why are you calling me? I'm not

escorting that fucking swill truck. I'm

busy in the Caustic Room. Get someone else

to do that shit." Officer V. Aman submitted

an incident report verifying the telephone

conversation since it was the dormitory in

which she was assigned to that you came to

use the telephone. On August 1, 1996,

Officer Aman also stated that you made

threats toward her in retaliation for

submitting her report, in which you admitted

to confronting this officer. The basis for

these charges is contained in Institutional

Investigation Report #96-052, a copy

attached and made a part hereof.

This conduct violates Department of

Corrections' Rules 33-4.001(4)(a), 33-

4.002(4)(11)(17), 33-4.003(22)(24)(32),

F.A.C., and Sections 914.22, 914.23, Florida

Statutes, copies attached and made a part

hereof.

In the third case, you are being charged

with willful violation of state statute,

rule, directive, or policy statement,

conduct unbecoming, unwillingness to perform

officially designated duties, substandard

quality of work, negligence, and failure to

follow oral or written instructions .

Specifically, on June 19, 1996, a recount

was ordered and you were informed by the

control room that your dormitory officer

needed assistance in the recount. The

officer stated that he waited approximately

ten (10) minutes for your arrival and

proceeded to recount without assistance. He

then submitted an report as to the incident.

You then submitted an incident report

concurring with the officer with the

exception that you observed the recount

from the Officer's Station. The basis

for these charges can be found more

specifically contained in the Institutional

Investigation #96-058, a copy attached

and made a part hereof. This conduct

violates Department of Corrections' Rules

33-4.001(4)(a), 33-4.002(4)(11) and

33-4.003(10)(13)(22)(24)(32), F.A.C.,

Institutional Post Orders 17.02(j),

06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4),

and Institutional Operating Procedures

3.03.3(C)(5)(11e), copies attached and made

a part hereof.

In the fourth case, you are being charged

with conduct unbecoming a public employee,

willful violation of state statute, rule,

directive, or policy statement, and

destruction or abuse of DC property or

equipment . Specifically on October 9, 1996,

you submitted an Incident Report for losing

your state issued handcuff case. On

October 13, 1996, after being typed,

Sergeant Chad Dees gave the Incident Report

to you to be signed. Upon receiving the

report, you allegedly stated "I will show

you what I will do with this," then tore the

report up and walked away. You admitted to

tearing up the report because of the

comments written by Captain Simons, but

denied making the comment alleged by

Sergeant Dees. Officer Tammy Alvarez

witnessed you tear up the report, but denied

hearing any statements made by you. The

basis for these charges is contained in the

Investigative Report #96-23008, a copy

attached and made a part hereof. This

conduct violates Department of Corrections'

Rules 33-4.001(4)(a), 33-4.002(25), and 33-

4.003(22)(24)(27), F.A.C. , copies attached

and made a part hereof.

6. All of these charges pre-date Petitioner's internal

complaints. On January 23, 1997, a predetermination conference

was held on the above charges. The evidence did not demonstrate

that the employee charges or the disciplinary action were

retaliatory in nature or based in discrimination. Moreover, the

factual basis of the charges was upheld in the PERC Final Order.

7. As referenced in the letter, Petitioner was the subject

of several investigations conducted by the Inspector General's

Office of the Department of Corrections. The role of the

Inspector General was to gather the facts and evidence involved

in a complaint. The Inspector General does not make any

recommendations as to discipline or determine if a rule or

statutory violation has occurred. Raleigh Sistruck, an

Inspector with the Inspector General's office conducted some of

the investigations of Petitioner. He did not personally know

Petitioner. There was no evidence that he treated Petitioner

differently than he did any other investigatory subject. Nor

did Inspector Sistruck engage in any conspiracy or act alone to

fabricate evidence against Petitioner or elicit false testimony

from witnesses. Indeed, the only evidence presented in this

case, is that Inspector Sistrunk followed standard investigatory

procedures in investigating the complaints against Petitioner.

8. In January, 1998, Petitioner was accused of soliciting

an inmate and another correctional officer to cause harm to

another inmate at the facility. The Inspector General's office

investigated that accusation. Again there was no evidence that

the inspectors engaged in any conspiracy to falsify or fabricate

evidence. Normal investigatory procedures were followed.

9. Based on the various complaints and the findings set

forth in various Inspector General investigations, Mr. Drake

decided to terminate Petitioner.

10. Petitioner received a letter of extraordinary

dismissal on February 7, 1997. The dismissal letter dismisses

Petitioner for:

This dismissal is the result of you being

charged with willfully engaging in conduct

which violates state statutes and Agency

rules; conduct unbecoming a public employee;

failure to conduct yourself in a manner

consistent with the welfare of inmates;

soliciting, bartering, dealing, trading with

or accepting a gift or other compensation

from an inmate(s); willfully treating an

inmate in a cruel or inhuman manner;

threatening or interfering with other

employees while on duty; failure to maintain

a professional relationship with inmates;

giving false testimony; and interfering with

an inmate.

Specifically, on or about January 10, 1997,

you solicited the assistance of inmate Tony

Jackson, DC#724515 and Correctional Officer

Jacqualyn Jackson-Beasley to cause harm to

inmate Mike Doty, DC#725094. As a result of

your actions and requests, Officer Jackson-

Beasley, inmate Jackson, inmate Mark Smith,

DC#724887, inmate Alberto Matta, DC#191523

and inmate Thomas Carrillo, DC#195319,

conspired and did plant a homemade knife,

with an approximate 14 inch blade, in inmate

Doty's cell in an effort to set him up.

When inmates Carrillo and Matta entered F-

Dorm with the knife, Officer Jackson-Beasley

signaled then with her fingers indicating

inmate Doty's cell number. She also acted

as a cover while the inmates planted the

knife in inmate Doty's cell. Once the knife

was planted, you and Officer Jackson-Beasley

had a telephone discussion during which you

instructed her to call Sergeant Gerald

Miller and have inmate Doty's cell searched.

Once Officer Jackson-Beasley reported the

information to Sergeant Miller, a search of

Doty's cell was made and the knife was

recovered. Sergeant Miller than notified

Captain William F. Buchtmann. After

questioning by Captain Buchtmann, inmates

Carrillo and Mata, both admitted their

participation in placing the knife in inmate

Doty's pillow and stated they were contacted

by inmates Jackson and Smith for assistance.

Carrillo was told by Jackson and Smith that

it was you who wanted inmate Doty taken care

of and they gave inmate Carrillo the

impression that if he took care of inmate

Doty, he would be paid $50.00 and be given

an undisclosed amount of marijuana for his

assistance.

The following day, January 11, 1997, you

stated to inmate Jackson words to the

effect, "They locked up inmate Smith" and

"That motherfucker talked" (referring to

inmate Matta ) You also stated to inmate

Jackson words to the effect, "It's not cool

for me to be seen talking to you."

On or about January 17, 1997, Officer

Beverly Pratt overheard you state to an

unidentified inmate, words to the effect,

"Something needs to be done with Doty." On

that same date, inmate Willie Jackson,

DC#041463, overheard you state to an

unidentified inmate, words to the effect, "I

am going to get Officer Jackson-Beasley and

Sergeant Miller."

When questioned under oath, on January 24,

1997, you gave false testimony when you

denied all allegations.

Additionally, the letter dismisses Petitioner for the earlier

disciplinary charges discussed at the predetermination

conference in December.

11. Mr. Drake, Superintendent of Taylor Correctional

Institute at the time, testified that Petitioner's termination

was based on his belief that she had in fact committed the

aforementioned rule and statutory violations. He stated that

the termination was not based on Petitioner's race or sex or any

other of her characteristics; rather, the termination was based

on rule and statute violations. There was no evidence which

demonstrated Mr. Drake engaged in any conspiracy to concoct

evidence against Petitioner or to falsely accuse her.

12. Angela Ratliff, Personnel Supervisor at the time,

testified that she did not have any conversation with Petitioner

wherein she told her that the Department, her supervisors or

coworkers were "out to get her" or words to similar effect.

Additionally, Ms. Ratliff does not recall having any

conversations with prospective employers for Petitioner. The

Respondent's policy is to recite to a prospective employer

information contained in the employee's personnel file. The

Department does not offer opinions or recommendations about an

employee. Moreover, most of the information in the personnel

file is considered a public record and must be released to any

person or entity requesting the information. In any event,

other than broad general statements about seeking employment and

what she was told by others who did not testify at the hearing,

there was no evidence regarding any specific prospective

employer or the information, if any, the prospective employer

received from the Department.

13. There is no doubt that Petitioner feels very strongly

she was discriminated against. The problem with Petitioner's

case is a total lack of evidence to support her allegations.

Throughout the hearing she made allegations of discrimination.

However, no evidence apart from her allegations of which she had

no personal knowledge, was offered. For instance, the alleged

paper trail created against her or documents she claimed were

changed were not introduced into evidence. No witness was

called who wrote or filed such document or statement was called

to testify about any such document or statement or any alleged

change made to the document or statement. The paper noises or

pauses of tape-recorded interviews of witnesses taken during the

Inspector General's investigation did not support Petitioner's

claim that the witnesses were prompted or told what to say.

Such noises or pauses sounded exactly like pages being turned in

a notebook when one page is full and a new page is needed to

continue taking notes. The pauses sounded like a note taker

pausing the witnesses' statement in order to catch up the notes

to the witnesses' statement. Given these critical lapses in

evidence and the earlier PERC Final Order, the Petition for

Relief should be dismissed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of the

proceeding. Section 120.57(1), Florida Statutes.

15. Under the provisions of Section 760.10, Florida

Statutes, it is an unlawful employment practice for an employer:

(1)(a) [ t]o discharge 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. . . .

* * *

(7) . . . 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. . . .

16. FCHR and the Florida courts have determined that

federal discrimination law school be used as guidance when

construing provisions of Section 760.10, Florida Statutes. 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).

17. The Supreme Court of the United States established in

McDonnell-Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII and which are persuasive in cases such as the

one at bar. This analysis was reiterated and refined in St.

Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

18. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for its employment action. If the

employer articulates such a reason, the burden of proof then

shifts back to Petitioner to demonstrate that the offered reason

is merely a pretext for discrimination. As the Supreme Court

stated in Hicks , before finding discrimination, "[t ]he fact

finder must believe the plaintiff's explanation of intentional

discrimination." 509 U.S. at 519.

19. In Hicks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id.

20. In order to establish a prima facie case, Petitioner

must establish that:

(a ) She is a member of a protected group;

(b ) She is qualified for the position;

(c ) She was subject to an adverse

employment decision;

(d ) She was treated less favorably than

similarly-situated persons outside the

protected class; and

(e ) There is a causal connection between

(a) and (c).

Canino v. EEOC , 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith v. Georgia , 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.

1982); Lee v. Russell County Board of Education , 684 F.2d 769,

29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744

F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

21. Here, there is no dispute that Petitioner is a member

of a protected class, that she was qualified for her position,

and that she was subjected to an adverse employment action.

Petitioner has, however, failed to provide any evidence

whatsoever that she was treated differently from similarly

situated persons outside her protected class. Moreover, there

is an absolute dearth of evidence indicating any causal

connection between Petitioner's protected status and her

termination or alleged poor job references. Merely alleging

such a connection in the petition for relief is not sufficient;

there must be evidence of such discrimination in order to

establish a prima facie case. Thus Petitioner has failed to

establish a prima facie case for relief, and her case should be

dismissed.

22. In any event, even had Petitioner established a prima

facie case, the Department offered legitimate nondiscriminatory

reasons for its adverse employment action. Petitioner failed to

establish that the explanations were pretextual in nature. To

wit, Petitioner claims that she was discriminated against

because she was terminated. Respondent, however, offered

credible evidence that the termination was based on serious rule

and statutory violations. There was no evidence, direct or

otherwise, establishing that this explanation was pretextual or

even false. The termination and the violations had already been

upheld by PERC.

23. Additionally, although Petitioner alleges that

Respondent issued poor job references, she provided no evidence

of those instances. On the other hand, Respondent wholly denies

making any poor recommendations. Petitioner did not call any

witnesses with whom she had applied for employment. There was

no witness, with personal knowledge, who knew if any information

regarding Petitioner, adverse or otherwise, was obtained by any

prospective employer or what that information was. This lack of

evidence requires dismissal of the petition in this case.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 16th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2001.

COPIES FURNISHED:

Anita King

108 Alice Street

Perry, Florida 32347

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Azizi M. Coleman, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.