00-002656 Leigh A. Bain vs. Escambia County Utilities Commission Status: Closed Recommended Order on Thursday, March 8, 2001.

Summary: Petitioner failed to prove prima facie case; no adverse employment event in context of cases interpreting Chapter 760, Florida Statutes. In any event, legitimate non-discriminatory reason existed and proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEIGH A. BAIN , )

)

Petitioner , )

)

vs. ) Case No. 00-2656

)

ESCAMBIA COUNTY UTILITIES )

COMMISSION , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This cause came on for formal pr oceeding, before

P. Michael Ruff, Administrative Law Judge of the Division of

Administrative Hearings. The hearing was conducted on

November 15, 2000, in Pensacola, Florida.

APPEARANCES

For Petitioner : R. John Westberry, Esquire

Holt & Westbe rry

1108-A North 12th Avenue

Pensacola, Florida 32501

For Respondent : Rosa Carson, Esquire

Carson & Adkins

2958 Wellington Circle, North, Suite 2000

Tallahassee, Florida 32308-6885

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Petitioner has been retaliated against by the Respondent in

violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Complaint of

Discrimination with the Florida Commission on Human Relations

(Commission) by the Petitioner Leigh A. Bain. The Petition in

essence alleged, pursuant to Section 760.11(1), Florida

Statutes, that the Escambia County Utilities Authority (ECUA)

had discriminated against the Petitioner by retaliating against

her for the previous filing of a claim for discrimination. The

investigation was conducted by the Commission and a

determination of "no-cause" was issued on November 24, 1999.

The Petitioner filed a Petition for Relief from an unlawful

employment practice on January 3, 2000. On January 31, 2000,

the Petition was dismissed by the Commission, and on

February 28, 2000, the Petitioner filed a Notice of Appeal with

the Commission. On June 28, 2000, the Commission rescinded its

previous dismissal order and transmitted the Petition to the

Division of Administrative Hearings. The Respondent filed a

Motion to Dismiss which was later amended. That motion was

denied with leave to present evidence with regard thereto at the

hearing.

The cause came on for hearing as noticed at which the

Petitioner presented her own testimony as well as that of

Jeffrey N. Bain, her husband. The Petitioner offered three

exhibits which were admitted into evidence. The Respondent

presented the testimony of four witnesses and seven exhibits

which were admitted into evidence. Respondent's Exhibit five,

an Affidavit of Grant Holmes, was admitted only as corroborating

hearsay. Judicial notice/official recognition was taken of

Section 760.11, Florida Statutes, Chapter 60Y-4 and

Chapter 60Y-5, Florida Administrative Code and Florida Rules of

Appellate Procedure 9.110, 9.190 and 9.20. Upon the conclusion

of the proceedings, a Transcript was ordered and the parties

were given the opportunity to submit Proposed Recommended

Orders. Those Proposed Recommended Orders were timely submitted

and have been considered in the rendition of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner, Leigh A. Bain, filed a Complaint with

the Commission on May 16, 1997, alleging retaliation under the

Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes.

The matter was investigated by the Commission and on

November 24, 1999, the Commission issued a Notice of

Determination of "no-cause."

2. On January 3, 2000, the Petitioner mailed and faxed a

Petition for Relief from an unlawful employment practice to the

Commission. The Petition was served by mail on ECUA on

January 3, 2000.

3. ECUA filed an Answer and a Motion to Dismiss on

January 24, 2000. Thereafter, on January 31, 2000, the

Commission issued a Notice of Dismissal stating that the

Petitioner had failed to file a timely petition, pursuant to

Rule 60Y-5.008, Florida Administrative Code, and that the

Petitioner had taken more than thirty-five days from the date of

service of the Notice of Determination to file a petition.

The Notice of Dismissal was filed with the Clerk of the

Commission on January 31, 2000.

4. On February 28, 2000, the Petitioner filed a Notice of

Appeal with the Commission. The Notice stated that it was being

filed in accordance with Rule 9.110(d) and Rule 9.130(c),

Florida Rules of Appellate Procedure, to appeal the Notice of

Dismissal of the Petition. On June 28, 2000, the Commission

rescinded its previous dismissal, re-opened the Complaint and

transmitted the Petition to the Division of Administrative

Hearings. In the rescission order the Commission stated that it

had previously dismissed the Complaint because the Petition had

not been filed within thirty-five days of service of the Notice

of Determination. The Commission then found that the Petition

had been timely filed on January 3, 2000, using the date of the

post-mark of the Petition and adding three days to the thirty-

five day time limit for mailing.

5. The Notice of Appeal had been filed with the Commission

but not with the Appellate Court. Moreover, the Commission

failed to transmit the record to the Appellate Court.

6. In the Petition for Relief Ms. Bain alleges that she

was a victim of sexual discrimination or harassment by her

supervisor, Steve Burgess. She reported the alleged

discrimination to her personnel director on October 4, 1996.

She contends that her supervisor retaliated against her on

November 11, 1996, by giving her a poor performance rating.

7. Petitioner began employment with ECUA in January 1987,

as Executive Secretary to Chuck Wigley, then Executive Director

of ECUA. She worked in that position until 1989 and then began

working for Steve Burgess who was then the Manager of Customer

Relations. She worked for Mr. Burgess until she was transferred

to the Engineering Department in June 1997. She was currently

employed as an Office Assistant IV in the ECUA Engineering

Department.

8. Steve Burgess is the current ECUA Field Services

Administrator. He is in charge of the ECUA division that deals

with the public. That division has two departments, the

Regional Services Department and the Customer Service

department. It has approximately 225 employees. Mr. Burgess

reports to Van Van Dever, the current ECUA Executive Director.

Mr. Burgess has worked for the Respondent for fourteen years.

9. On October 1, 1992, the Petitioner's job title was

changed from "Executive Secretary" to "Administrative

Secretary." Her salary remained the same and the grade was

changed from X10-6 to C18. This was part of a re-classification

effort for ECUA positions and pay grades when the ECUA became

part of Escambia County's Civil Service System. The re-

classifications of ECUA positions, within the county Civil

Service System, was approved by the county's Civil Service Board

and the ECUA Board.

10. On October 1, 1996, the Petitioner's job title was

changed to "Office Assistant IV." Her salary remained the same

as it had been when she was an Administrative Secretary and her

grade was changed from C18 to C20. This change was made in

accordance with a wage and re-classification study and was

approved by the county Civil Service Board.

11. The Petitioner describes her re-classification to

Administrative Secretary as bringing her and all department

secretaries to the same level so there was no longer a

distinction between what she had been and the other secretaries.

She viewed this action as a demotion for her or a promotion for

the other secretaries, with the result that they were all at the

same level after the re-classification. These re-

classifications, however, were not demotions for any

disciplinary or performance reasons.

12. The re-classifications of Ms. Bain's position in 1992

and 1996 occurred prior to the October 4, 1996, allegation of

sexual harassment. The last re-classification to Office

Assistant IV was effective on October 1, 1996, three days before

the Petitioner decided to submit the October 4, 1996, memorandum

concerning the harassment allegation. The Petitioner was upset

over the re-classification decisions made as to her. In a

May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in

reference to the re-classification of her position to

Administrative Secretary:

. . . However, all positions previously

classified as Secretary, Range 8, were also

upgraded to Administrative Secretary, Pay

Grade 18, which provided a substantial

salary increase for those applicable

employees. I was not pleased with the

inequity of this situation. Through no

fault or control of my own, my position was

now considered to be equivalent with one

that, for the previous five years, had been

two pay grades lower. My qualifications had

not changed; neither had those of the other

employees, and yet somehow we were all

considered to be equally qualified for the

same position. When I raised this issue, I

was told I had no reason to be upset as I

had been placed in the highest level

secretarial position that existed in the

Civil Service System. . . .

13. Ms. Bain continued to be concerned about the re-

classification of her position and requested that it be upgraded

to an Administrative Assistant position. She also filed an

appeal of her Civil Service position allocation and formally

requested that the Civil Service Board upgrade her position to

Administrative Assistant.

14. The Petitioner wanted Mr. Burgess, her supervisor, to

support the upgrade of her position but he would not do so. She

was dissatisfied with Mr. Burgess because he did not support a

higher classification for her. She felt that if Mr. Burgess

supported the upgrade she would have received it. Mr. Burgess

and Ms. Bain discussed her concerns and her request for a

position upgrade on April 22, 1996. Mr. Burgess explained to

the Petitioner at that time why he could not support the

upgrade.

15. On one of her visits to see Mr. Van Dever, the

Petitioner advised him that the relationship between her and

Mr. Burgess had been tense over the re-classification issue.

That matter was an issue all during 1996, between the Petitioner

and Mr. Burgess.

16. The Petitioner wrote in her comments on her 1996

evaluation that she believed that she was marked-down in

attitude because of her classification appeal. She did not go

to the committee that was conducting position audits, however,

to speak with the committee about the re-classification of her

position, even though this committee was to make recommendations

on subjects such as the upgrade of Ms. Bain's position. There

was an analogous Office Assistant IV position in the STR

Division. Like Mr. Burgess, however, Bernie Dahl, the STR

Director, did not support a position upgrade for his own Office

Assistant IV either.

17. Ms. Bain went to Mr. Van Dever to complain about three

incidents involving Mr. Burgess. The first incident occurred in

February 1993. She met with Mr. Van Dever and he seemed

supportive. He said that he would speak with Mr. Burgess about

the matter. He met with Mr. Burgess and Ms. Bain felt that

things seemed to improve. The next incident with Mr. Burgess

occurred a year later on January 20, 1994, when Mr. Burgess

allegedly became upset when he discovered that a letter had gone

out with a handwritten invoice attached to it. When Ms. Bain

called Mr. Burgess' attention to the fact that he had signed the

letter with the handwritten invoice attached he allegedly became

agitated and angry. She went to see Mr. Van Dever about this

incident. She felt that things improved once again after

Mr. Van Dever met with Mr. Burgess about this incident.

18. In September 1996, a third incident occurred about

which Ms. Bain complained to Mr. Van Dever. This incident arose

when Mr. Burgess asked Ms. Bain to forward his and her phone

lines when they had to be away from their desks to someone other

than Quanita Stallworth, who handled the ECUA switchboard. He

did this because he was concerned that Ms. Stallworth had too

many calls to handle when all the phone lines were transferred

to her at lunch and when employees were away from their desks.

Ms. Bain was initially told to forward the phones to Linda

Sutherland. When she objected to forwarding her phone to

Ms. Sutherland, Mr. Burgess told her that she could forward it

to Linda Iverson or to someone other than Linda Sutherland

" . . . as long as its not going to Quanita . . .. "

19. After the Petitioner had been directed not to forward

the phones to Quanita Stallworth, Mr. Burgess discovered that

she had disregarded his instructions and forwarded her phone to

Ms. Stallworth. When he reiterated to the Petitioner that they

were not going to forward the phones to Ms. Stallworth, the

Petitioner told Mr. Burgess that " . . . then I'm going to go

see Van." Mr. Burgess told her to go ahead and see

Mr. Van Dever. The result of this incident was that

Mr. Van Dever allowed Ms. Bain to continue to forward her phone

to Quanita Stallworth.

20. Mr. Burgess and Ms. Bain had a meeting with

Mr. Van Dever after the phone forwarding incident. They were

both told that they needed to try to work together in a

professional way and they agreed that they would do so. There

was discussion during that meeting about attempting to locate

another position for Ms. Bain but there were no openings at the

time.

21. When the Petitioner went to Mr. Van Dever about the

incident concerning the phone on September 25, 1996, her

Complaint involved that particular incident, the switching of

the phones. She did not claim gender-bias discrimination in her

conversation with Mr. Van Dever.

22. The Petitioner does not recall mentioning, in any

conversation that she had with Mr. Van Dever, that she had filed

a sexual harassment complaint against Mr. Burgess. In her

conversations with either Mr. Van Dever or Mr. Burgess, the

Petitioner did not tell either Mr. Burgess or Mr. Van Dever of

filing any sexual harassment complaint against Mr. Burgess. She

did not give Mr. Burgess or Mr. Van Dever a copy of her

October 4, 1996, memorandum which contained her allegations of

sexual harassment against Mr. Burgess.

23. The issue she had taken to Mr. Van Dever in September

1996, was to the effect that she felt Mr. Burgess was a tyrant

and that he mistreated employees. When she went to Mr. Van

Dever to complain about him she raised a morale problem or a

problem among several employees whom Mr. Burgess supervised.

The morale issue due to Mr. Burgess was her whole reason for

complaining at that time. The morale issue is what the

Petitioner wanted Mr. Van Dever to look into and she identified

male and female employees for him to talk to in order to confirm

her complaint that Mr. Burgess mistreated employees.

24. The Petitioner has at various time, identified several

employees she believes have had significant problems with

Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and

Glenn Johansen. Mr. Van Dever told the Petitioner that he had

talked to everyone of the employees that she had identified and

that none of them agreed with her.

25. Nettie Williams, the ECUA customer Service and

Collections Manager, has worked for Mr. Burgess, her immediate

supervisor, since 1989. Mr. Van Dever questioned Ms. Williams

about an alleged morale problem in the customer service area in

the fall of 1996. He asked her whether she had had any problems

with Mr. Burgess and she told him that she did not and that any

issue she and Mr. Burgess had they would be able to sit down and

work out.

26. Kathy Gaut, the ECUA Internal Programs Coordinator,

directs training and other employee-related programs, internal

communications, the newsletter and any kind of employee

activities. She has been employed with ECUA for about seven

years. It is the nature of her job to be in touch with and

interact with a lot of employees. Mr. Van Dever often asked

Ms. Gaut about general employee issues because of her contact

with ECUA employees.

27. In October 1996 Mr. Van Dever asked Ms. Gaut whether

she was aware of any problems that employees might be having

with Mr. Burgess. She told Mr. Van Dever that she did not know

any problems employees were having with Mr. Burgess and that she

was not having any problems with him.

28. Mr. Van Dever asked her how she felt employees

regarded Mr. Burgess and if he intimidated people. She

responded that some people believed that he was abrupt or even

rude at times. She advised that his personality was such that

he could be very pleasant and convivial but when he had a

problem or a particular situation to address, he could come

across as being abrupt because he wanted to get right to the

point and get the job done and go on to the next subject. She

told Mr. Van Dever that she felt that some people may have a

problem with Mr. Burgess being abrupt with them because he was

so focused on getting his job done.

29. Ms. Gaut is aware of Mr. Burgess' management style and

his manner of dealing with people because she has been around

him in numerous director and staff meetings. She has observed

his interaction with employees at all levels of the company.

Mr. Burgess' management style is to get to the point and not

string out conversations about an issue when he is ready to get

a problem resolved.

30. Ms. Gaut has observed Mr. Burgess and Ms. Bain

interacting approximately 10 to 15 times over a five-year

period. Ms. Gaut never witnessed Mr. Burgess treating females

unfairly as opposed to males and has never herself experienced

gender bias from Mr. Burgess.

31. Ms. Nettie Williams was present when Mr. Burgess

directed the Petitioner not to forward her phone to Quanita

Stallworth. Ms. Williams has never witnessed what she felt was

gender bias on the part of Mr. Burgess and has never been

treated differently by Mr. Burgess because she was female.

32. On October 4, 1996, the Petitioner met with ECUA Human

Resources Director Grant Holmes and submitted a memorandum dated

that day in which she complained about Mr. Burgess' conduct

toward her. In that memorandum she recites three incidents

which allegedly involved inappropriate behavior by Mr. Burgess :

the February 1993 incident, when Mr. Burgess had interrupted an

attorney in an interview of the Petitioner to tell her to take

care of the mail; the January 1994 incident over the handwritten

invoice and the September 24, 1996 incident over the forwarding

of the phones. In the October 4, 1996 memorandum, Ms. Bain

states that she believed Mr. Burgess' conduct towards her was a

form of sexual harassment in that Mr. Burgess allegedly engaged

in intimidation of her and tended to view a certain type of

behavior by males as acceptable, while the same type of conduct

by a female he viewed as unacceptable.

33. The basis for her belief that Mr. Burgess treated

males differently from her was an incident involving Gabe Brown.

34. Mr. Burgess had an incident with Gabe Brown when an

ECUA board member reported that a male customer service

representative had been rude to a customer. The board member

told Mr. Burgess that he needed to investigate it right away.

Mr. Burgess went to the customer service department and called

the only two male customer service representatives out of the

office and talked with them in the hallway to find out which one

had talked with a customer who had complained to the ECUA board

member. Mr. Brown was not the one who had the conversation with

the complaining customer. Upset, Mr. Brown later came to

Mr. Burgess and complained to him that he was embarrassed

because Mr. Burgess had singled him out in front of all the

other employees as if he had done something wrong.

35. Mr. Burgess thought about the incident and felt that

Mr. Brown was right about his handling of the situation.

Mr. Burgess therefore apologized to Mr. Brown.

36. Mr. Burgess has apologized to the Petitioner as well.

Once when he called a meeting with the Petitioner and the

meeting deteriorated, he apologized to her because he felt he

was responsible for the conduct of the meeting as the

supervisor. He also apologized after the February 1993 incident

when he interrupted the Petitioner and called her out of a

meeting with an attorney. On that occasion, Mr. Van Dever

instructed him to apologize. However, Mr. Burgess accepted the

responsibility for his conduct and was sincere in his apology.

37. Mr. Holmes asked the Petitioner, during the meeting

with her on October 4, 1996, whether she was claiming that Mr.

Burgess had engaged in unprofessional and sexual conduct toward

her and she told Mr. Holmes that Mr. Burgess had not done so.

The substance of the claim that the Petitioner made was gender

bias, although she called it sexual harassment. In the October

4, 1996 memorandum the Petitioner stated that she could only

assume that her Civil Service appeal in May of 1996 had

something to do with the way Mr. Burgess treated her.

38. In an October 8, 1996, meeting with Mr. Holmes and

Mr. Van Dever, the Petitioner requested that she be removed from

Mr. Burgess' supervision. This was also discussed at a later

meeting on that same day with Mr. Burgess and Mr. Van Dever.

Shortly after the October 8, 1996, meeting, Mr. Holmes discussed

with Ms. Bain his efforts in attempting to relocate her in

another Office Assistant IV position. Mr. Holmes had asked the

other employees in the same classification if they would agree

to be moved from their current positions and exchange work

assignments and locations with Ms. Bain. All elected not to do

so. Mr. Holmes also sent Ms. Bain information on other open

positions county- wide. Ms. Bain met with Mr. Holmes and Linda

Walen. Mr. Holmes met with Ms. Bain again in January 1997 to

discuss the job search for the Petitioner and to tell her that

he had been unable to find anything for her.

39. After she filed her retaliation complaint with the

Commission, Ms. Bain was transferred to the Engineering

Department in the same position. She has the option to apply

for position openings throughout the ECUA organization and is

not restricted only to promotions within the Engineering

Department. ECUA employees, including those in the same

position as Ms. Bain, can be promoted to positions anywhere

within the ECUA organization. Employees in the Petitioner's

position, Office Assistant IV, have gone from the ECUA STR

Department to the Purchasing Department and from an Office

Assistant IV position to a Purchasing Agent position.

Ms. Bain's assignment to the Engineering Department does not

preclude her from promotional opportunities that may open up

anywhere in the ECUA organization. The Petitioner has had no

problems with perceived bias or other difficulties in her

employment in the Engineering Department.

40. Mr. Burgess, as Ms. Bain's supervisor, did her

performance evaluation in 1996. He gave what he thought was an

overall good evaluation. In the ECUA ratings scale a "good"

rating is not an "average" rating but is a rating that can be

from 70% to 95% out of a possible 100%. For those areas where

Mr. Burgess marked her evaluation "good," he felt that Ms. Bain

was in that range and that she had indeed done a good job in

those areas. Her performance rating in 1996, which she signed

on November 12, 1996, was a total weighted score of 3.4 with a

"good" rating in the following five categories: "Attitude,"

"Communication," "Human Relation Skills," "Initiative/

Creativity" and "Safety." The Petitioner received an

"Excellent" rating in the areas of "Quality," "Productivity" and

"Care of Facilities & Equipment." There were no negative

ratings in any category. The 3.4 score was almost half-way

between a "good" and an "excellent" overall rating. As shown by

Mr. Burgess' rating comments on the 1996 evaluation, depicted in

Petitioner's Exhibit 2, he felt that, due to the problems

Ms. Bain had with the Civil Service re-classification of her

position, she did not go the "extra mile" during 1996. She did

her job and did what was asked of her but did not take the

initiative to do anything other than what was asked of her.

Mr. Burgess felt that the re-classification issue affected her

output at work and her overall attitude on the job so that he

could not give her a higher evaluation like he had done in 1995

when he rated her as "Excellent."

41. Ms. Bain submitted a memorandum dated November 12,

1996, in response to the 1996 evaluation. Ms. Bain states, in

that memorandum, that she and Mr. Burgess were "beyond the point

of talking about this (see my memorandum to Grant Holmes dated

October 4, 1996) . . .." While the Petitioner references her

October 4, 1996 memorandum in the November 12, 1996 memorandum

in response to her evaluation, she does not reference sexual

harassment or the fact that she had filed a discrimination

complaint against Mr. Burgess.

42. Mr. Burgess did not counsel Ms. Bain during 1996 about

a deterioration in her attitude because overall he rated her as

having a good attitude. He did not feel that her attitude

warranted counseling. He felt that Ms. Bain was doing her job

and did not feel that she was doing bad things. Further,

Ms. Bain was not happy with the re-classification situation and

Mr. Burgess did not want to "stir anything up." The 1996 rating

did not indicate a significant deterioration in the Petitioner's

attitude. Her attitude was not excellent in terms of the rating

scale, so Mr. Burgess did not feel that he could give her a 4

rating as he had done in 1995.

43. In the previous year, 1995, Mr. Burgess had given her

Superior ratings in four categories because he felt that she had

gone out of her way to do extra things and to take on extra

tasks. In 1995, he evaluated Ms. Bain, giving her a total

weighted score of 4.1 with a "Excellent" rating in all

categories except for a "Superior" in a category of "Care of

Facilities & Equipment." He made comments on her 1995

evaluation to the effect that Ms. Bain continued to do excellent

high-quality work.

44. In 1992, the Petitioner received a total weighted

score of 3.6 with a "good" rating in "Attitude,"

"Communication," and "Human Relation Skills." She received an

"Excellent" in "Quality," "Productivity," "Initiative/

Creativity," "Safety," and "Care of Facilities & Equipment." In

1993 she received a total weighted score of 3.7 with good or

excellent ratings in all categories.

45. In 1994, Mr. Burgess rated her with a total weighted

score of 4.0 with an "Excellent" rating in all categories.

46. In 1997, Bill Johnson, the Director of the

Engineering Department, gave Ms. Bain a total weighted score of

3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996,

the evaluation which she alleges is retaliatory. Mr. Johnson

gave her a "good" in all categories. There is no evidence that

she has had any friction since transferring to the Engineering

Department.

47. In 1998 Mr. Johnson gave her again a total weighted

score of 3.2 and a "good" rating in all categories except for

"Quality" for which she was given a "Superior" rating. In 1999,

Mr. Johnson gave her a total weighted score of 3.5 and gave her

a "good" in all categories except for "Communications,"

"Quality," and "Productivity" for which she was given "Superior"

ratings.

48. In the year 2000, Mr. Johnson gave her a total

weighted score of 3.5 with a "good" in all categories except for

"Communication," "Quality" and "Productivity" for which she was

again given "Superior" ratings. Mr. Johnson's ratings of

Ms. Bain were not adverse actions or discriminatory and such has

not been claimed by her.

49. Since 1992, the Petitioner has received a "good"

rating in "Attitude" on all evaluations except for the 1994 and

1995 evaluations when she received "Excellent" ratings in that

category by Mr. Burgess. Her current supervisor, Bill Johnson,

has never rated her higher than "good" in the "Attitude"

category. Thus, in the nine-year period, she has received a

"good" rating in "Attitude" on seven out of nine ratings.

50. Mr. Burgess was not aware that Ms. Bain had filed a

sexual harassment complaint or any kind of discrimination

complaint against him at the time he completed the 1996

evaluation. Although he knew that Ms. Bain had gone to

Mr. Van Dever concerning his directive to her that she should

not forward her phone to Quanita Stallworth at the switchboard,

and although he was later told that Mr. Van Dever was

investigating whether there was a morale problem in his

division, he did not actually know that a sexual harassment

complaint had been filed regarding him. He learned of it when

the Petitioner filed her retaliation complaint with the

Commission and referenced a previous "sexual harassment"

complaint that she had filed on October 4, 1996, with the ECUA.

51. Mr. Burgess found that she had submitted the

October 4, 1996, memorandum when she made reference to it in a

November 12, 1996, memorandum which she wrote in response to the

November 11, 1996, performance evaluation. However, he did not

learn that she claimed to have filed a sexual harassment

complaint against him until the ECUA was notified of her

retaliation charge by the Human Relations Commission.

52. Mr. Holmes never told Mr. Burgess that the Petitioner

had called her complaint a sexual harassment complaint or

gender-based discrimination complaint. Neither Mr. Holmes or

Mr. Van Dever told Mr. Burgess about the contents of the

October 4, 1996, memorandum.

53. Mr. Burgess did not know until early June 1997 that

the Petitioner had alleged that he had sexually harassed her

because when he found out about the sexual harassment complaint,

he had just been nominated to be president of the local Chapter

of the American Cancer Society, in late May 1997. When he

received notification that Ms. Bain was claiming sexual

harassment, he went to the leaders of the American Cancer

Society and offered to resign or have them not name him as

president so as not to cause the Society any embarrassment.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

The Motion to Dismiss

55. The Respondent filed an Amended Motion to Dism iss

contending that the Commission was without authority to rescind

its previous Order of Dismissal. It appears that the Commission

failed to transmit the Notice of Appeal to the District Court of

Appeal nor did it transmit the record to the District Court of

Appeal. It is true, however, that jurisdiction vests in the

appellate court upon the timely filing of a Notice of Appeal

either in the lower tribunal or in the appellate court. Frank

Edelen Buick Company v. Calvin , 389 So. 2d 649 (Fla. 1st DCA

1980). Before the record is transmitted, however, the lower

tribunal has concurrent jurisdiction to render orders on

procedural matters, other than extensions of time. See Florida

Rules of Appellate Procedure 9.600(a). The Commission's action

in rescinding and re-opening the case was akin to the type of

action contemplated by Rule 9.600 to correct an obvious

Commission error. The Commission misinterpreted its own rule

and miscounted the time that had elapsed for the filing of the

Petition for Relief and issued the Notice of Dismissal. In its

order rescinding the Notice of Dismissal, it then interpreted

its rule differently so as to allow as timely the filing based

on the post-mark date, as being within the rule's and the

statute's time limit. The court in Taylor v. Department of

Business and Professional Regulation , 520 So. 2d 557 (Fla.

1988), recognized that an agency has inherent authority to

correct clerical errors and errors arising from mistake or

inadvertence in its own orders. The court stated in the Taylor

case that:

It makes not sense to us that, when an

administrative order does not reflect the

clear intention of the agency because of an

inadvertent error, the only way the error

can be corrected is for the aggrieved party

to file an appeal and request the reviewing

body to relinquish jurisdiction to allow the

agency an opportunity for its order to speak

to the truth.

Taylor at p. 560. Thus it would seem that because of more

mistakes, the failure to transmit the Notice of Appeal and the

record to the District Court of Appeal, that the Commission,

inadvertently or otherwise, retained authority to rescind its

Final Order and re-open the case on the basis that the original

Final Order or Notice of Dismissal was based upon an inadvertent

error or mistake. Thus, the Amended Motion to Dismiss should be

denied.

56. The subject alleges retaliation, in alleged violation

of the Florida Civil Rights Act of 1992, Chapter 760, Florida

Statutes. Florida employers are prohibited from discriminating

against employees on the basis of sex. Section 760.10(1)(a),

Florida Statutes. Employers are further prohibited from

discriminating against employees for opposing any practice which

is violative of Chapter 760, Florida Statutes, or because an

employee has made a charge of discrimination. Section

760.10(7), Florida Statutes.

57. Chapter 760 is modeled after Title VII of the Federal

Civil Rights Act of 1964. Florida courts have accordingly held

that Federal case law will be persuasive guidance on issues

arising in cases under Chapter 760, Florida Statutes. See

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1981).

58. The Petitioner has the ultimate burden of proof as

determined by the court in Texas Dept of Community Affairs v.

Burdine , 450 U.S. 248 (1981). Therefore, the Petitioner must

either present direct evidence of discrimination or must prove a

prima facie case. See Wright v. Southland Corp. , 187 F.3d 1287

(11th Cir. 1999). No direct evidence of retaliation was

presented in this case.

59. In order to make out a prima facie case of

retaliation, the Petitioner must show: (a) that she engaged in

statutorily protected activity; (b) that she suffered an adverse

employment action and (c) that the adverse employment action was

causally related to the protected activity. See Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998).

60. The Petitioner failed to establish a prima facie case.

She failed to show that she was engaged in statutorily protected

activity. In order to do so she would be required to show that

the October 4, 1996, memorandum complaining of sexual

harassment, was based on a good faith, reasonable belief that

ECUA had engaged in employment practices in violation of

Chapter 760, Florida Statutes. Harper supra , at 1388.

61. The Petitioner was required to show that her belief

that ECUA had engaged in unlawful practices was objectively

reasonable in light of the facts and record presented. It is

not enough for her to allege her belief to be honest and

bona fide. The record evidence must show that her belief was

objectively reasonable. Little v. United Technologies, Carrier

Transicold Division , 103 F.3d 956, 959-60 (11th Cir. 1997). The

Petitioner is charged with substantive knowledge of the law when

judging the reasonableness of her belief that ECUA had engaged

in unlawful employment practices. Harper supra , at 1388, FN2.

( the 11th Circuit rejected the plaintiff's argument that they

should not be charged with substantive knowledge of the law and

stated, "We reject the plaintiff's argument because it would

eviscerate the objective component of our reasonableness

inquiry. [ citation omitted] If plaintiffs are free to disclaim

knowledge of substantive law, the reasonableness inquiry becomes

no more than speculation regarding their subjective

knowledge."). Although the Petitioner claimed that Mr. Burgess

had sexually harassed her, she could not and did not have a good

faith, reasonable belief that he had actually sexually harassed

her. On the day she submitted the memorandum in which she

accused him of sexual harassment, she acknowledged to Mr. Holmes

that he had not made sexual advances toward her nor engaged in

any sexually offensive behavior and that was not the substance

of her claim. While the Petitioner continued to refer to the

Complaint as "sexual harassment," even in her Petition for

Relief, she stipulated at the hearing that the complaint was

based on gender bias and not on sexual harassment. There is no

evidence that any conduct she complained of constituted sexual

harassment and she did not have a reasonable belief that Mr.

Burgess had engaged in sexual harassment. Thus, the submission

of the memorandum of October 4, 1996, was not statutorily

protected activity, at least as a protest of sexual harassment,

for purposes of the later retaliation claim involved in this

case.

62. That memorandum also does not support a conclusion

that she had a good faith, reasonable belief that ECUA had

engaged in gender bias or had permitted a hostile work

environment based on gender bias. The Petitioner complained

about three incidents which allegedly took place in February

1993, January 1994 and September 1996. Although she testified

that other similar incidents occurred between the 1994 incident

and the 1996 incident, she did not present any evidence

probative of them.

63. The three cited incidents allegedly involved

Mr. Burgess reacting in an upset manner to something that the

Petitioner had done or failed to do. The Petitioner claims that

his conduct constituted intimidation and discriminatory

behavior. However, the only basis for her conclusion that the

conduct was discriminatory was that on one occasion she heard

Mr. Burgess apologize to a male subordinate, Gabe Brown, who was

upset with Mr. Burgess' handling of a matter and how it

reflected on him. The Petitioner felt that this was evidence of

discriminatory bias because she allegedly could not have

confronted Mr. Burgess in the same way and because Mr. Burgess

had not apologized to her, except only after being ordered to

apologize. This conduct on the part of Mr. Burgess, if true,

does not demonstrate gender bias and does not support an

objective, reasonable belief that the employer engaged in gender

bias. Especially because the employer, upon learning of the

incident, directed Mr. Burgess to apologize to Ms. Bain.

64. The Petitioner also admitted that she believed

Mr. Burgess mistreated subordinate employees whether they were

male or female. Further, the Petitioner complained to the

Executive Director about Mr. Burgess on at least three occasions

and did confront him and speak-up to him as Mr. Brown had done.

The result was that Mr. Burgess apologized on at least two

occasions to her. After her meetings with the Executive

Director she admits that Mr. Burgess' conduct toward her

improved. Thus, there is established no significant difference

in how Mr. Burgess treated Mr. Brown and how he treated

Ms. Bain. She therefore, could not have an objectively

reasonable belief that his conduct was discriminatory based on

gender bias since he engaged in similar conduct with both males

and females. There is also no showing that she had an

objective, reasonable belief that ECUA condoned or permitted

gender bias against her since she did not notify ECUA of any

claim of discriminatory bias or conduct until after the

September 1996 incident. Further, by her own testimony, when

she voiced complaints about Mr. Burgess to the Executive

Director even before that time, the Executive Director counseled

with Mr. Burgess and on two occasions he apologized and she

acknowledged that "things" improved. This supports the

conclusion that ECUA, irrespective of the cause of the conduct

or notice of a claim of gender bias, readily attempted to render

the situation in Ms. Bain's favor. Thus, it cannot be concluded

that the ECUA condoned or permitted gender bias or a hostile

work environment.

65. The alleged conduct the Petitioner complains of, three

incidents over a period of three and one-half years in which

Mr. Burgess allegedly yelled, fumed, glared at her or hit his

finger on the desk, is not sufficiently severe or pervasive to

constitute a hostile work environment. See Sparks v. Pilot

Freight Carriers, Inc. , 830 F.2d 1554 (11th Cir. 1987). In

order to maintain an action for a hostile work environment, the

alleged conduct must be extreme and pervasive. A hostile work

environment is one that is "permeated with discriminatory

intimidation, ridicule and insult." Oncale v. Sundowner

Offshore Svcs., Inc. , 118 S.Ct. 998, 1001 (1998). Thus,

Ms. Bain could not have had an objectively reasonable belief

that Mr. Burgess or ECUA engaged in or permitted a hostile work

environment. Therefore, she could not show that she engaged in

statutorily protected activity in filing the discrimination

complaint and complaining of discrimination. Thus, she cannot

show that ECUA retaliated against her for engaging in protected

activity.

66. The Petitioner also failed to show that she suffered

an adverse employment action as a result of engaging in

statutorily protected activity. She claims that her annual

performance rating for 1996 was adverse to her because it was

lower than the previous year's evaluation and lower than what

she typically received. The November 1996 performance

evaluation is, however, not an adverse employment action. The

total weighted score of 3.4 was between a "good" rating and an

"excellent" rating. Compared to all of her other ratings

between 1992 to the year 2000, her 1996 ratings in the

categories are not significantly lower or atypical so as to

constitute an adverse employment action.

67. The Petitioner did not offer persuasive evidence that

she suffered adverse consequences because of the rating.

Although she testified that she would have received "more leave

days and possibly more salary, depending on how it was

computed," had she been rated higher, she failed to explain how

she felt this would have occurred and failed to support that

assertion with preponderant evidence.

6 8. Moreover, subsequently she received lower evaluations

than the 1996 evaluation, which is the only one she claims is

retaliatory. She received these later evaluations from

Bill Johnson in 1997 and 1998. She testified, however, that she

had not been mistreated or discriminated against by

Bill Johnson. Thus, she does not claim that Bill Johnson's

evaluation or adverse employment actions are discriminatory. If

the lower evaluations in 1997 and 1998 (3.2) are not adverse

employment actions, then certainly the higher evaluation rating

in 1996 by Mr. Burgess (3.4) cannot be an adverse employment

action.

69. The Petitioner requested that she be removed from

Mr. Burgess' supervision. Ultimately she was, by being

transferred to the Engineering Department. She does not claim

that her transfer to that department, where she remained in the

same position of Office Assistant IV, was retaliation. She does

allege that being moved to the Engineering Department deprived

her of promotional opportunities. However, the evidence showed

that ECUA employees can apply for and receive promotions

throughout the ECUA organization and are not restricted to

promotions only within their current department.

70. Even if the 1996 evaluation could be deemed to be an

adverse employment action, she failed to show a causal

connection between Mr. Burgess' rating and the October 4, 1996,

memorandum claiming sexual harassment. At the time he completed

the 1996 evaluation, Mr. Burgess did not know that she had filed

a sexual harassment complaint or any kind of discrimination

complaint against him. The Petitioner offered no credible

evidence to contradict Mr. Burgess' testimony on this point and

she agreed that the October 4, 1996, memorandum and her

allegations of sexual harassment were not mentioned or discussed

in any of the meetings that she had with Mr. Burgess or

Mr. Van Dever. It was not until after she received the 1996

evaluation that she wrote a memorandum which referenced the

October 4, 1996 memorandum.

71. The evidenc e shows that the complaint she made to

Mr. Van Dever about Mr. Burgess was to the effect that

Mr. Burgess was a tyrant and mistreated his employees and that a

morale problem existed in his division. When Mr. Van Dever

conducted an informal investigation of her complaint, he

inquired whether there was a morale problem with Mr. Burgess.

The Petitioner acknowledges that these were the issues that she

took to Mr. Van Dever and that she did not discuss gender bias

or any allegations of sexual harassment with Mr. Burgess or

Mr. Van Dever. While she alleged sexual harassment in the

October 4, 1996, memorandum to Mr. Holmes, she told Mr. Holmes

on that same day that she was not claiming sexual harassment.

72. In order for the 1996 evaluation to be an act of

retaliation, Mr. Burgess would have to have had knowledge that

Ms. Bain had filed a complaint against him grounded in

discrimination which he did not have. See Assily v. Tampa

General Hospital , 814 F.Supp. 1069 (M.D. Fla. 1993).

73. Even if it was det ermined that a prima facie case of

retaliation had been established, the ECUA demonstrated a

legitimate, non-retaliatory basis for the performance evaluation

given by Mr. Burgess in 1996. The evidence shows that

Mr. Burgess based that rating on Ms. Bain's performance.

Mr. Burgess felt that the Petitioner, while still doing a good

job, did not put forth extra effort that it takes to receive an

"Excellent" or "Superior" rating as she had in the past. He

attributed this to her disappointment about her position being

re-classified and because she did not get the position upgrade

she desired.

74. The evidence supports the conclusion that the rating

is not pretextual. The Petitioner's performance and attitude

were affected by the disappointment and concern over the re-

classification and Mr. Burgess' lack of support for her

requested position upgrade. The memorandum that she authored

concerning the re-classification shows that she resented the

fact that other secretaries were now considered her equal and

received substantial pay increases (although not to levels above

hers). She viewed that situation as a demotion. The tone of

her memorandum shows hostility and resentment towards

Mr. Burgess. Her memorandum says that she basically felt that

she had been mistreated as a result of the re-classification and

that her main objective was a position upgrade.

75. The fact that Mr. Johnson rated her even lower in two

subsequent years to the last rating by Mr. Burgess also supports

the conclusion that Mr. Burgess' articulated reasons for why he

gave Ms. Bain the rating he did in 1996 were legitimate and not

pretextual.

76. In summary, it cannot be concluded that the Petitioner

established a prima facie case of discrimination through

retaliation. Moreover, the Respondent established a legitimate,

non-discriminatory reason for the rating made in 1996, and,

indeed, in the subsequent years. The Petitioner failed to

adduce persuasive evidence that that legitimate, non-

discriminatory reason demonstrated by the Respondent was

pretextual.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record and the pleadings and

arguments of the parties, it is, therefore,

RECOMMENDED:

That a final order be entered by the Flor ida Commission on

Human Relations finding that the Petitioner failed to establish

that she was the victim of discriminatory retaliation and

dismissing the Petition in its entirety.

DONE AND ENTERED this 8th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

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 8th day of March , 2001.

COPIES FURNISHED:

R. John Westberry, Esquire

Holt & Westberry

1108-A North 12th Avenue

Pensacola, Florida 32501

Rosa Carson, Esquire

Carson & Adkins

2958 Wellington Circle, North, Suite 2000

Tallahassee, Florida 32308-6885

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi Coleman, Acting Agency Clerk

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.