01-004348 Gloria J. Browdy vs. Department Of Corrections Status: Closed Recommended Order on Monday, March 11, 2002.

Summary: Petitioner failed to present sufficient evidence to show that Department had discriminated against her because of race, had retaliated against her because of participation in class action suit, or for filing Human Relations complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA J. BROWDY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4348

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, W illiam R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on January 14, 2002, in Brooksville,

Florida.

APPEARANCES

For Petitioner: Gloria J. Browdy, pro se

1 2042 Villa Road

Spring Hill, Florida 34609

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 25 00

STATEMENT OF THE ISSUE

Did Petitioner suffer an adverse employment action as a

result of an unlawful discrimination by the Department of

Corrections (Department) in violation of Subsection 760.10(1)(a)

and (7), Florida Statutes?

PRELIMINARY STATEMENT

P etitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commission) dated

February 3, 1999, which was received by the Commission on

February 5, 1999. In the Charge of Discrimination, Petitioner

alleges that the Departmen t discriminated against her because of

her race (African - American) and retaliated against her in

violation of the Florida Civil Rights Act of 1992, and Title VII

of the U. S. Civil Rights Act of 1964. As grounds for her

Charge of Discrimination, Petitione r alleges that: (a) she was

denied an advertised position of Correctional Officer at Sumter

Correctional Institution, when several less qualified white

officers were hired, and (b) she was retaliated against because

of being a member of the United States Class Action Lawsuit

against the Department, which Petitioner referred to as the "USA

Case." The Charge of Discrimination was assigned FCHR Number

99137 and a Determination: No Cause and a Notice of

Determination: No Cause were issued by the Commission on

October 5, 2001. On October 23, 2001, Petitioner filed a

Petition for Relief with the Commission. In her Petition for

Relief, Petitioner alleges that the Department violated the

Florida Civil Rights Act of 1992, as amended, by:

1. Refusing to rehire Petitioner due to her complaints of

unlawful employment practices;

2. Violating rules, regulations, and laws pertaining to

employment of applicants;

eating non - black applicants more favorably than

Petitioner;

4. Hiring less qualified non - black off icers during this

period of time; and

5. Retaliating against Petitioner for participating as a

member of the USA Case, a federal lawsuit against the

Department.

By a Transmittal of Petition dated November 5, 2001, the

Commission referred this ma tter to the Division for the

assignment of an Administrative Law Judge and for the conduct of

a hearing.

At the hearing, Petitioner testified in her own behalf and

presented the testimony of Barry Flint. Petitioner's Exhibits

1 - 5 were admitted in ev idence. The Department presented the

testimony of Mary Lynn Brady, but did not offer any documentary

evidence.

At the conclusion of the hearing, the Department advised

the undersigned that the Department would not be ordering a

transcript of the pr oceeding. However, Petitioner indicated

that she may order a transcript and requested that she be given

until January 18, 2002, to make a decision. On January 23,

2002, Petitioner advised the undersigned that she would not be

ordering a transcript. By o rder dated January 25, 2002, the

parties were allowed until February 13, 2002, to file their

respective Proposed Recommended Orders. The parties timely

filed their respective Proposed Recommended Orders under the

extended time frame. Petitioner's Motion to File Additional

Evidence was filed at the same time as Petitioner's Proposed

Recommended Order, and requested that additional evidence,

identified as Exhibits 1 - 28, be allowed in evidence. Petitioner

has failed to establish any grounds that would allow accepting

this additional evidence into the record. Therefore,

Petitioner's Motion to File Additional Evidence is denied.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. Petitioner is a female, African - American .

2. Petitioner was first employed by the Department from

June 8, 1990 through October 10, 1990. Petitioner notified the

Department by letter dated October 5, 1990, that she was

resigning h er position with the Department effective October 11,

1990.

3. Subsequently, Petitioner applied for a position as

correctional officer with the Department on April 3, 1998, and

again on October 23, 1998, but was not hired on either of these

occasions.

4. Petitioner filed a Charge of Discrimination with the

Commission on February 3, 1999, alleging that the Department had

discriminated against her by denying her employment while hiring

less experienced white correctional officers and that the

Department had denied her employment in retaliation for her

participation in the USA Case against the Department. There is

sufficient evidence to show that Petitioner was a member of the

class action suit referred to as the USA Case.

5. On September 8, 1999, Peti tioner again applied for a

position as a correctional officer with the Department and was

hired as a correctional officer with the Department on

November 15, 1999. However, Petitioner abruptly resigned that

position on January 12, 2000, giving unfair tre atment as the

basis for her resignation.

6. Petitioner's testimony, which is credible, was that

sometime in 2000 she applied for a position as a correctional

officer with the Department by sending an application to the

Tampa Service Center (an administrat ive branch of the

Department) and that the Tampa Service Center requested that she

take a pre - employment drug test and physical.

7. Petitioner testified that since the Department

requested that she take the pre - employment drug test and

physical it was i ncumbent upon the Department to offer her the

position.

8. Petitioner failed to present sufficient evidence to

show that the Department's policies required that she be offered

a position once she was asked to submit to a pre - employment

physical and drug t est. Offers of employment by the Department

are conditional only and are contingent upon a satisfactory

background check.

9. However, before any job offer was extended to

Petitioner, the Tampa Service Center closed down and its records

were forwarded t o the Orlando Service Center (another

administrative branch of the Department). Subsequently,

Petitioner contacted the Orlando Service Center concerning her

application. The Orlando Service Center was unable to locate

any application from Petitioner or a ny data that could have been

electronically stored.

10. Nevertheless, sometime during the latter part of 2000,

Petitioner was allowed to resubmit her application to the

Orlando Service Center and was considered for a position. The

Orlando Service Center determined that Petitioner failed the

required background check based on Petitioner's short tenures on

two previous employment occasions followed by abrupt

resignations. Petitioner's application for employment was

rejected on this basis.

11. Petitioner presented evidence that an employee of the

Department, Scott MacMeeken had resigned on at least two

occasions and had been rehired. However, Petitioner failed to

present any evidence as to MacMeeken's race or whether MacMeeken

was equally or less qualifie d than Petitioner.

12. Likewise, Petitioner failed to present sufficient

evidence to show that white applicants for the positions which

Petitioner had applied for but was not hired, were equally or

less qualified than Petitioner.

13. Petitio ner failed to present sufficient evidence to

show that, during the period of time in question, the Department

hired less experienced white correctional officers over equally

qualified or more qualified non - white correctional officers, or

that the Departmen t, in its hiring process, during this period

of time, gave preference to white applicants for correctional

officer positions over non - white applicants for correctional

officer positions.

14. Petitioner failed to present sufficient evidence to

show that ei ther her race, African - American, or her

participation in any prior law suits, specifically the USA Case,

or the filing of the Complaint with the Commission formed the

basis for the Department's rejection of her applications in 1998

or 2000.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

16. Subsection 760.10(1)(a) and (7), Florida Statutes,

provides as follows:

(1) It is an unlawful employment practice

for an employer:

(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 employmen t, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, . . . 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 an investigation, proceeding, or

hearing under this section.

17. The Commission and th e 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 Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Florida Department of C ommunity Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

18. The United States Supreme Court established in

McDonnell - Douglass Corporation v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community

Affa irs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981), the analysis to be used in cases alleging

discrimination under Title VII of the U.S. Civil Rights Act of

1964, and which are persuasive in cases such as this one. This

analysis was re iterated and refined in St. Mary's Honor Center

v. Hicks , 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407

(1993).

19. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlaw ful discrimination. If a prima facie case is

established, the Department must articulate some legitimate non -

discriminatory reason for the action taken against Petitioner.

Once this non - discriminatory reason is offered by the

Department, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As stated in Hicks , before finding

discrimination,"[t]he fact finder must believe the plaintiff's

explanation of intentional discrimination." 509 U.S . at 519.

20. 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.

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

must establish that:

(a) She was qualified and applied for the

position;

(b) She was rejected despite her

qualifications

(c) other equally or less qualified

applicants who are not members of her race

were hired.

Bass v. Board of County Commissioners , 256 F.3rd 1095, 1104

(11th Cir. 2001); Taylor v. Runyon , 175 F.3rd 861, 866 (11th

Cir. 1999).

22. There is no dispute that Petitioner was:

(a) Qualified and applied for the

position of correctional officer; and

(b) Rejected despite her qualifications.

However, Petitioner failed to present sufficient evidence to

show that other equally or less qualified applicants who were

not members of Petitioner's race were hired. For this reason,

Petitioner has failed to establish a prima facie case.

23. However, had Petitioner established a prima facie

case, the Department offered a legitimate nondiscriminatory

reason for its refusal to hire Petitioner, namely that

Petitioner had been previ ously hired on two separate occasions

and on each occasion, Petitioner abruptly resigned after a short

tenure. There was no evidence establishing this explanation as

being pretextual.

24. Petitioner also alleges that the Department

discriminated aga inst her by refusing to hire her because of her

opposition to alleged unlawful employment actions by the

Department, filing a complaint with the Commission, and her

involvement with the USA Case. The elements of a prima facie

case for this "retaliation" a spect of Petitioner's claim are

different from those for her racial discrimination claim. A

prima facie case requires a showing of (1) participation in

actions protected by statute; (2) an adverse employment action;

and (3) a causal link between the prote cted actions and the

adverse employment decision. Bonham v. Regions Mortgage , 129 F.

Supp. 2d 1315, 1326 (M.D. Ala 2001).

25. Here, Petitioner engaged in a protected activity when

she became involved in the USA Case and when she filed her

Complaint with the Commission in 1999 for the Department's

failure to hire her in 1998. As such, Petitioner has satisfied

the first element of the prima facie case. The second element

of the prima facie case was satisfied when the Department

declined to hire Petit ioner after she made application for

employment with the Department through the Orlando Service

Center in November 2000.

26. However, Petitioner's prima facie case fails upon

application of the third element, whether there is a causal link

between t he Petitioner's protected actions and the adverse

employment decisions. The Eleventh Circuit has rejected an

interpretation of the "causal link" prong as "the sort of

logical connections that would justify a prescription that the

protected participation i n fact prompted the adverse action."

Simmons v. Camden County Bd. Of Education , 757 F.2d 1187, 1189

(11th Cir), cert . denied , 474 U.S. 981, 106 S. Ct. 385, 88 L.

Ed.2d 338 (1985). Instead, the Court construed "the 'causal

link' element to require merely that the plaintiff establish

that the protected activity and the adverse action were not

wholly unrelated." 757 F.2d at 1189. It is recognized that

employer knowledge of the prior protected activities could in

some circumstances satisfy this element; how ever, in the instant

case, the Department hired Petitioner in 1999 after her

participation in the USA Case and after the filing of her

Complaint with the Commission. Therefore, it stretches the

bounds of credulity that the Department would retaliate by

fa iling to hire Petitioner in 2000, yet not in 1999, when both

occasions were well after Petitioner's participation in the

protected activities. This, coupled with the lack of any other

evidence establishing a causal link between the Department's

refusal to hire Petitioner and her participation in protected

activities, requires a conclusion that Petitioner has failed to

establish the third element (retaliation) of the prima facie

case.

27. Petitioner's allegations that she suffered adverse

employment actions as a result of discrimination or retaliation

are not supported by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Commission enter a final order

dismissing Petitioner's Petition for Relief.

DONE AND ENTERED this 11th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 11th day of March, 2002.

COPIES FURNISHED :

Gl oria J. Browdy

12042 Villa Road

Spring Hill, Florida 34609

Violet D. Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Ernest L. Reddick, Esquire

Department of Correcti ons

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Cecil Howard, General Counsel

Florida Commission On Human Relations

325 John Knox Road

Bui lding 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 must be f iled with the agency that

will issue the Final Order in this case.