01-004316 Ladoris G. Tutson vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, March 25, 2003.

Summary: Petitioner`s request for an administrative hearing well beyond four years from date of alleged discrimination and is time-barred as a matter of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LADORIS G. TUTSON, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4316

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on January 28, 2003, in Fort Lauderdale, Florida, before

J. D. Parrish, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Randy A. Fleischer, Esquire

4 801 South University Drive

Suite 3070

Davie, Florida 33328

For Respondent: Sondra R. Schwartz, Esquire

John Copelan, Esquire

Department of Children

and Families

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the

Petitioner by failing to promote the Petitioner as set forth

in the claim.

PR ELIMINARY STATEMENT

On November 2, 2001, the Florida Commission on Human

Relations (Commission) forwarded the instant case to the

Division of Administrative Hearings for formal proceedings.

The Petitioner, Ladoris Tutson, named the Respondent,

Department of Children and Family Services, as the party that

had committed an unlawful employment practice. Essentially,

the Petitioner maintained she had been discriminated against

when she was not promoted at the South Florida State Hospital.

The Petitioner clai med damages in the amount of $50,000. The

last act of alleged discrimination took place in June of 1997.

Thereafter the matter took a tortuous route to the final

hearing that was conducted on January 28, 2003.

At the hearing, the Petitioner testified in her own

behalf and offered testimony from Henry Crawford, Daisy

Johnson, Judy Smith, and Pat Morrow. The Petitioner's

Exhibits numbered 1 - 25, 28, and 33 were admitted into

evidence. The Respondent presented testimony from Andrew

Reid, Barbara Nickels, a nd Annie Thomas. The Respondent's

Exhibits numbered 1 - 3 were admitted into evidence.

A transcript of the proceeding has not been filed. Both

parties timely filed Proposed Recommended Orders that have

been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner was an employee at the South Florida

State Hospital (the Hospital) from October 15, 1979, until

approximately October 31, 1998.

2. On the latter date, a private company assumed full

management of the hospital. F rom that time neither the

Respondent nor its predecessor (Florida Department of Health

and Rehabilitative Services) has maintained management or

administration of the facilities.

3. Prior to October 31, 1998, the Hospital was operated

by a State of Florida agency. As of October 31, 1998, the

Petitioner ceased to be a State of Florida employee.

4. The Petitioner is a black female.

5. On or about May 6, 1997, the Petitioner applied and

interviewed for a job at the Hospital. She sought the

position of Uni t Treatment and Rehabilitation Director.

6. At that time, the Hospital advertised two open

positions for Unit Treatment and Rehabilitation Director.

7. Three applicants were ranked for the open positions.

Among the three, the Petitioner was ranked third by the

selection committee.

8. At or near the same time, the administrator of the

Hospital received notice that he would have to cut positions

from his budget. This slashing of employee positions was in

response

to budget demands created at the ag ency level. It had nothing

to do with the job performances of employees at the Hospital.

9. In fact, the Petitioner has always received favorable

employee performance evaluations. She was a valued employee

at the Hospital and was considered to be hard working by peers

and supervisors alike.

10. Nevertheless, when faced with the directive to cut

positions, the administrator elected to eliminate open or

unfilled positions. Pertinent to this case is the slot that

the Petitioner would have filled had it no t been eliminated.

11. At least under one theory, the Petitioner would have

been promoted to Unit Treatment and Rehabilitation Director

had the position not been deleted. The promotion would have

happened because one of the higher - ranked applicants for the

job chose to reject the Hospital's offer of employment. Thus

as the third - ranked applicant, the Petitioner would have been

selected.

12. Notwithstanding the foregoing, the Petitioner

maintained she should have received the position of Unit

Treatment and Rehabilitation Director that was filled by an

individual named Driscoll. She maintains that although

Driscoll was the highest - ranked applicant, she was equally or

better qualified for the promotion.

13. Driscoll is a white male.

14. Prior to his employment at the Hospital, Driscoll

had served as the director of a short - term residential

facility. He had also been the director of case management

for a hospital and had supervised other case managers and

support staff. The Petitioner had no similar or equivalent

supervisory experience. The Petitioner had never supervised

employees to any level of supervision as demonstrated by

Driscoll at the time of the selection process.

15. The advertised opening sought an individual with "a

bachelor's degree and four years of professional direct

services experience in a social, rehabilitative or health care

treatment program, two of which must have been in a

supervisory capacity." The Hospital's consideration of the

Petitioner's role as a "lead worker" was a gene rous allowance.

Technically, the Petitioner did not meet the job description

requirements.

16. Additionally, the Petitioner's advanced degree did

not qualify her for the position of Unit Treatment and

Rehabilitation Director. The advertisement for the position

of Unit Treatment and Rehabilitation Director provided that a:

. . . masters degree in health,

special education or one of the behavioral

or rehabilitative sciences can substitute

for one year of the required [sic]

nonsupervisory experience. A do ctorate

degree in health, special education or one

of the behavioral or rehabilitative

sciences can substitute for the required

[sic] nonsupervisory experience.

17. The Petitioner did not hold either the referenced

master's degree or doctorate degree.

18. The Petitioner was not an equally qualified or a

superiorly qualified applicant for the position of Unit

Treatment and Rehabilitation Director.

19. Nevertheless, when she was not chosen for the

position the Petitioner wrote a memorandum to the Commi ssion

to complain about the selection of Driscoll. The memorandum

stated:

A blatant campaign of racism reigns at

South Florida State Hospital. Most

recently, the hospital advertised for the

position of Unit Treatment and

Rehabilitation Director. Two (2) positions

were to be filled as a result of that

advertisement. Qualified applicants were

interviewed from within the hospital.

There were two (2) Afro - American and three

(3) Anglo - Saxon applicants. Of the two (2)

Afro - American applicants applying, I me t

all of the qualifications to fill one (1)

of the positions. Over the dissent of

others on the interviewing committee,

Patricia Espinosa Thomson (acting hospital

administrator) re - advertised the

position(s).

20. On September 12, 1997, the Commission acknowledged

receipt of the Petitioner's Memorandum of June 27, 1997, and,

in accordance with a Worksharing Agreement with the Equal

Employment Opportunity Commission (EEOC), the complaint was

forwarded to the Miami District Office of the EEOC. This

complai nt became the subject matter of the instant case. The

Commission's notice to the Petitioner provided:

Within 35 days of notice of EEOC's Letter

of Determination regarding the above

referenced complaint, you may request the

FCHR to review the final finding and orders

of the EEOC by requesting a Substantial

Weight [sic] Review.

21. There is no evidence regarding whether the Miami

District issued a Letter of Determination. It is undisputed,

however, that the Commission did not issue its Notice of

Determi nation until October 9, 2001.

22. The Notice of Determination represented that the

Respondent was advised of the Petitioner's claim in January of

1998. The Notice of Determination also recognized that the

Respondent had asserted that the claim was "time - barred" and

that it would not provide information regarding the claim.

23. Based upon the inference found in Rule 60Y - 5.003(4),

Florida Administrative Code, the Commission entered a

determination of cause.

24. The Commission apparently did nothing to tim ely

investigate the complaint, did not act within 180 days of its

filing, and did not notify the Hospital that its records

should be maintained in connection with the allegations of

this case.

25. When the Hospital went to private management all

public records that had been maintained were stored or

destroyed according to agency rules. There was no effort to

conceal or destroy records related to this matter. The

Hospital administrators faced the daunting tasks of trimming

the Hospital FTEs, preparing for and transitioning to the

private company, and organizing records for storage. There

was no effort to single Petitioner out for discriminatory

purposes.

26. When eventually questioned regarding this case, the

Department elected not to participate in the investigation as

under the then known precedent it was not required to do so.

The Department's decision predated Joshua v. City of

Gainesville , 768 So. 2d 432 (Fla. 2000).

27. Both parties claim prejudice as a result of the

delays in pursuing this cau se. The Petitioner maintains that

records that would have helped her assessment of the matter

have been either lost or destroyed. The Respondent maintains

that witness unavailability, loss of records, and the fact

that it does not even manage the Hospital anymore compounds

its inability to appropriately respond to the Petitioner's

claim.

28. What is certain is the fact that the Department

cannot award the position to the Petitioner. Further, even at

the time in question, the Hospital could not have awar ded the

position to the Petitioner since the position had been

eliminated. The only way the Petitioner could have gotten the

position would have been if Driscoll had been removed. And,

as previously noted, the Petitioner was not equal to or

superior to Driscoll in her qualifications for the position.

29. In June 2002, the instant case was heard on a motion

to dismiss. That motion was granted. The conclusions of law

from the Recommended Order of Dismissal found that the

Division of Administrative Heari ngs does not have jurisdiction

over the subject matter of this proceeding. Despite that

conclusion, the Commission entered an Order Remanding Petition

for Relief from an Unlawful Employment Practice. Accordingly,

this matter was re - opened and scheduled for hearing.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to this proceeding. As set

forth in the Recommended Order of Dismissal, the Division of

Administrative Hearings does not have jurisdiction over the

subject matter. Nevertheless, as directed by the Commission,

it is concluded:

31. The Petitioner bears the burden of proof in this

cause to establish an act of discrimination. She has failed

to meet that burden. The Petitioner's qualifications were

neither equal to nor superior to those of the applicant who

received the position. Moreover, had the Hospital not been

required to slash positions, the Petitioner would have been

placed in a position of Unit Treatment and Rehabilitation

Director. None o f the positions would be state - employee

positions today.

32. Section 760.10, Florida Statutes, makes it unlawful

for an employer to refuse to hire or promote an individual

based upon race or gender. In this case, the Petitioner

failed to establish that she was not chosen based upon her

race (black) or gender (female). The Department interviewed

her and the hiring committee ranked the Petitioner third. She

was not passed to third due to her race or gender.

33. Moreover, even if Petitioner were deemed to have met

an initial burden, the Respondent has articulated legitimate,

nondiscriminatory reasons for the selection of Driscoll.

Additionally, it has demonstrated and articulated a basis for

the elimination of the open position that could have been

given to Petitioner. Agency mandates based upon legislative

funding reductions caused the Hospital to eliminate the vacant

position. It was entirely appropriate that the open position

be cut (versus a filled position).

RECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a Final Order dismissing the Petitioner's

claim.

DONE AND ENTERED this 25th day of March 2003, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. Parrish

Administrative Law Judge

Division of Administrative

Hearings

The DeS oto 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 25th day of March, 2003.

COPIES FURNISHED :

Paul F lounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Randy A. Fleischer, Esquire

4801 South University Drive, Suite 3070

Davie, Fl orida 33328

Sondra R. Schwartz, Esquire

Department of Children and Family Services

201 West Broward Boulevard, Suite 502

Fort Lauderdale, Florida 33301

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.