00-004876 Cassondra A Davis vs. Department Of Corrections, Brevard Correctional Institute Status: Closed Recommended Order on Monday, March 26, 2001.

Summary: Employee claimed unlawful discrimination; recommend dismissal of Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSONDRA A. DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 00-4876

)

FLORIDA DEPARTMENT OF )

CORRECTIONS, BREVARD )

CORRECTIONAL INSTITUTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge ,

Jeff B. Clark, held a formal hearing in this case on March 2,

2001, in Cocoa, Florida.

APPEARANCES

For Petitioner : No Appearance

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner, Cassondra Davis, suffered an adverse

employment action as a result of unlawful discrimination.

PRELIMINARY STATEMENT

Petitioner, Cassondra Davis, filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) against Respondent, Department of Corrections, on

April 7, 1997, alleging that the Department had discriminated

against her because of her race and sex and, also, retaliated

against her and exhibited bias. The last date of alleged

discrimination was April 10, 1996.

Petitioner alleged that Respondent had harmed her by virtue

of a white officer reporting an incident to her supervisor to

gain favor and to retaliate against her. She also alleged that

she reported an incident against a white male officer but was

told that nothing could be done unless she filed a sexual

harassment complaint. Lastly, she alleged that she was made to

unload a shotgun after a white female officer had made an

attempt to unload the weapon. She did not indicate the dates

that the alleged discriminatory acts occurred.

The allegations of discrimination were investigate d by

FCHR, and on October 30, 2000, the Commission issued its

Determination, finding "no cause."

Subsequent to FCHR's finding of no cause, Petitioner timely

filed her Petition for Relief on November 27, 2000, wherein she

altered the allegations of discrimination contained in her

original complaint. She now alleged that she was forced into

medical retirement by the Department of Corrections, that she

was placed in a special assignment from July 1990 to March 1995,

and that Respondent discriminated against her by forcing her to

file a harassment complaint against another officer and by not

timely transferring the officer.

On December 20, 2000, Respondent filed its Answer and

Affirmative Defenses for the Petition for Relief, wherein it

denied all allegations and noted that portions of Petitioner's

complaint were time-barred.

The cause was set for hearing on February 5, 2001, in

Cocoa, Florida. Petitioner, however, filed an unopposed motion

to continue the hearing on January 9, 2001. The motion was

granted and the parties were asked to confer and provide the

Administrative Law Judge with mutually agreeable dates for a new

hearing date. The Administrative Law Judge was notified that

March 2, 2001, was agreeable to all parties, and due notice was

provided that the hearing was rescheduled for that date. At

some point prior to March 2, 2001, Petitioner apparently moved

from Poinciana, Florida, to Honolulu, Hawaii. No notice of this

address change was filed with the Division of Administrative

Hearings.

Neverth eless, counsel for Respondent made the Division of

Administrative Hearings aware of Petitioner's move.

Subsequently, the Administrative Law Judge's office contacted

Petitioner and discussed with her the ability to file a motion

for telephonic appearance should she so desire. Petitioner

filed no such motion, instead filed a Petition to the Court

(received by the Division of Administrative Hearings on March 1,

2001) wherein she appears to suggest that this tribunal issue a

judgment based solely on the pleadings. She stated that it was

a hardship for her to continue and that the Administrative Law

Judge should rule based on previous filings. She concluded her

petition with a statement indicating that if the Administrative

Law Judge did not award her medical costs and debt relief, she

would have to withdraw her petition.

As the March 1, 2001, Petition to the Court did not appear

to be an unequivocal withdrawal of her complaint and no motion

for continuance, telephonic appearance, or other relief was

filed by Petitioner, it was determined that the hearing set for

March 2, 2001, would go forward.

On March 2, 2001, the hearing commenced at 9:00 a.m., in

Cocoa, Florida. There was no appearance by Petitioner. Counsel

for Respondent advised the Administrative Law Judge that

Petitioner had informed him that she would not be flying back to

Florida for the hearing.

Respondent presented one witness and offered three

exhibits, which were received into evidence. No transcript was

prepared. Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made.

1. Petitioner, Cassondra Davis, is a female African-

American.

2. At all times material, Petitioner was employed by

Respondent, Department of Corrections, at Brevard Correctional

Institution (Department).

3. Petitioner's last day of actual work at the Department

was April 10, 1996. Susan Blais, Personnel Manager at Brevard

Correction Institution during the relevant time frame, testified

that because of medical problems, Petitioner was unable to

return to work after April 10, 1996, until her physician

released her to return to work.

4. Petitioner never presented a medical return-to-work

release. Instead, she utilized her entitlement to Family

Medical Leave Act leave. Once this leave was exhausted, rather

than terminate Petitioner, the Department wrote to her

physician, Dr. F. F. Matuk, on September 16, 1996, requesting a

diagnosis of Davis' condition, as well as an opinion as to

whether she could perform the duties of a correctional officer

as outlined in a job description enclosed with the request for

opinion. (Respondent's Exhibit 1)

5. Dr. Matuk responded to the Department by letter date d

September 20, 1996, stating that Petitioner had several work

restrictions, including no weight manipulation over 20 to 30

pounds, avoidance of driving over 30 to 40 minutes, avoidance of

neck extension, and allowances for extended periods of rest. He

did not believe that Petitioner was able to perform the duties

of a correctional officer but stated that she would most likely

be able to perform a sedentary desk job. (Respondent's Exhibit

2)

6. Susan Blais testified that no such desk jobs were

available at that time.

7. Petitioner submitted a letter of resignation to the

Department in July 1997, wherein she attributed the resignation

to medical reasons. (Respondent's Exhibit 3)

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause

pursuant to Section 120.57(1), Florida Statutes.

9. Under the provisions of Section 760.10, Florida

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

(1)(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.

10. The Florida Commission on Human Relations and the

Florida courts have determined that federal discrimination law

should be used as guidance when construing provisions of Section

760.10, Florida Statutes. See Brand v. Florida Power

Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA 1994) ; Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

11. The Supreme Court of the United States established in

McDonnell-Douglass 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).

12. 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 the action taken against

Petitioner. Once this non-discriminatory reason is offered by

Respondent, the burden 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.

13. 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 the plaintiff to demonstrate a

discriminatory motive for the adverse employment action.

14. 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;

(b ) 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, (11th Cir. 1983); Smith v.

Georgia , 684 F.2d 729, (11th Cir. 1982); Lee v. Russell County

Board of Education , 684 F.2d 769, (11th Cir. 1982), appeal after

remand, 744 F.2d 768, (11th Cir. 1984).

15. Here, as Petitioner failed to appear at the hearing,

she was necessarily unable to establish any of the requisite

elements for a prima facie case. For that reason alone, her

case should be dismissed. Nevertheless, a brief analysis of her

claim is set forth below.

16. First, it is important to identify what, if any,

adverse employment actions Respondent is alleging. Such actions

do not encompass each and every minute aspect of one's

employment; rather, an adverse employment action should be

viewed as an "ultimate" employment decision. Courts have

generally determined that these "ultimate" decisions are limited

to hiring, firing, granting leave, discharging, promoting, and

compensating employees. Mattern v. Eastman Kodak Company , 104

F.3d 702 (5th Cir. 1997) ; Landgraf v. USI Film Products , 968

F.2d 427 (5th Cir. 1992).

17. Here, Petitioner alleges that she was put into a

special assignment from July 1990-1995. As this alleged

discriminatory act occurred prior to April 7, 1996, the claim is

not timely filed. In any event, Petitioner presented no

evidence indicating that such an assignment occurred, that it

constituted an adverse employment action, or that the action was

taken because of her race, sex, or any other characteristic.

Nor was there any evidence that the assignment was the result of

any impermissible retaliation.

18. Petitioner also alleged that the Department allowed a

co-worker to continue at work after he harassed her. She

alleges that she was forced to file a complaint against the

officer and that the Department did not timely transfer the

alleged harasser. Because she did not appear at the hearing,

Petitioner necessarily presented no evidence that any such

harassment ever occurred, that the Department discriminated

against her in any manner in its handling of the alleged

situation, or that any adverse employment action ever occurred.

It should also be noted that this claim too would be untimely in

that it relates to events that allegedly occurred in 1995.

Lastly, it is noted that Petitioner voluntarily has resigned

from the Department, so it is apparent that the issue would now

be moot.

19. What is then left is the crux of Petitioner's

complaint--her belief that she was forced into medical

retirement by the Department of Corrections. Although she does

not articulate it as such, it must be presumed that she is

alleging constructive discharge (given her resignation, without

this assumption, there would be no adverse employment action).

When claiming constructive discharge, however, Petitioner must

demonstrate that the employer intentionally rendered the working

conditions so intolerable that the employee was compelled to

quit involuntarily. See Buckley v. Hospital Corporation of

America, Inc. , 758 F.2d 1525, 1530 (11th Cir. 1985). The trier

of fact must be persuaded that the working conditions were so

difficult or unpleasant that a "reasonable person in the

employee's shoes would have felt compelled to resign."

Garner v. Wal-Mart Stores, Inc. , 807 F.2d 1536, 1539 ( 11th

Cir. 1987). Here, because of her non-appearance, Petitioner

necessarily failed to meet this burden.

20. The only evidence submitted at hearing regarding

Petitioner's separation from the Department was that she

resigned. Moreover, the unrebutted evidence is that, because of

injuries, Petitioner was unable to perform the duties of a

correctional officer at the time of her resignation. After

Petitioner had exhausted her leave under the Family Medical

Leave Act, the Department wrote to her physician seeking an

opinion as to whether she could perform her duties. Dr. Matuk

stated that she could not perform such duties. Credible

evidence was also presented indicating that no clerical

positions were available at that time. Nevertheless, the

Department at no time took any adverse employment actions

against Petitioner.

21. Instead, on or about July 20, 1997, Petitioner

submitted a resignation letter. In that letter, she indicated

that the resignation was for medical reasons. As there has been

no evidence that the resignation was in any manner coerced or

improperly induced, this claim too must fail.

22. In summary, Petitioner's position that she suffered

adverse employment actions as a result of discrimination is not

supported by any evidence.

RECOMMENDATION

Based upon the foregoing 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 26th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 26th day of March, 2001.

COPIES FURNISHED :

Azizi M. Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Cassondra A. Davis

1009 Cannes Drive

Poinciana, Florida 34759-3918

Cassondra A. Davis

1216 Pua Lane, No. 107

Honolulu, Hawaii 96817-3821

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

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.