01-004447 Lula D. Hannah vs. Department Of Health Status: Closed Recommended Order on Friday, March 15, 2002.

Summary: Petitioner did not prove racial discrimination based on a failure to promote or based on demotion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LULA D. HANNAH, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4447

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was cond ucted in this case on February 4,

2002, in Tallahassee, Florida, before the Division of

Administrative Hearings by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: Lula D. Hannah, pro se

4611 Givins La ne

Tallahassee, Florida 32303

For Respondent: Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way

BIN A02

Tallahassee, Florida 32399 - 1703

STA TEMENT OF THE ISSUE

The issue is whether Respondent committed unlawful

employment acts against Petitioner in violation of Section

760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner Lula D. Hannah (Petitioner) filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) on or about March 4, 1999. Said charge alleged that

Respondent Department of Health (Respondent) discriminated

against Petitioner based on her race and retaliated against her

for filing a prior grievance. Specifically, the charge alleged

as follows: (a) Respondent failed to promote Petitioner to an

Administrative Assistant I position on two occasions; and

(b) Respondent demoted Petitioner from a staff assistant

position to an administrative secretary position, giving

Petitioner's technical assistance responsibilities to white

females serving as a program management specialist and/or

operational management consultant manager.

On October 5, 2001, FCHR entered a Notice of Determination:

No Cause. This notice advised Petitioner that she could request

an administrative hearing by filing a Petition for Relief.

On November 9, 2001, Petitioner filed a Petition for Relief

with FCHR. The petition included the same allegations raised in

the Charge of Discrim ination with the additional allegation that

Respondent failed to hire Petitioner for the position of

management review specialist.

On November 15, 2001, FCHR referred the Petition for Relief

to the Division of Administrative Hearings.

The Division of Administrative Hearing issued an Initial

Order on November 19, 2001. The parties filed a Joint Response

to Initial Order on November 26, 2001.

On November 27, 2001, Respondent filed an Answer to

Petition.

The undersigned filed a Notice of Hearing on Nov ember 28,

2001. The notice scheduled the formal hearing for February 4,

2002.

On December 27, 2001, Respondent filed a Motion in Limine.

The motion alleged that Respondent did not hire anyone to fill

the management review specialist position until May 14, 1999,

two months after Petitioner filed her Charge of Discrimination.

The motion sought to exclude any evidence about the management

review specialist position because Petitioner did not include

allegations about that position in her Charge of Discri mination

and because FCHR has not had an opportunity to investigate the

new allegations.

On January 10, 2002, the undersigned issued an Order

granting Respondent's Motion in Limine.

On January 22, 2002, Respondent filed a unilateral Response

to Order of Pre - Hearing Instructions. This response did not

contain any proposed stipulated facts.

On January 22, 2002, Petitioner furnished Respondent with

copies of her proposed exhibits. On January 23, 2002,

Respondent filed Respondent's Position on Petiti oner's Exhibits.

On January 23, 2002, Respondent filed a Motion to Strike.

Said motion objected to a proposed stipulated fact contained in

Petitioner's unilateral Response to Pre - Hearing Instructions.

Petitioner filed her Response to Pre - Hearing Instr uctions on

January 28, 2002.

On January 28, 2002, Petitioner filed a Motion Not to

Strike. The undersigned granted Respondent's Motion to Strike

by order dated January 29, 2002.

On January 29, 2002, Petitioner filed her Response to

Respondent's Posi tion on Exhibits.

On January 29, 2002, Petitioner filed a Motion in Limine.

The motion sought to admit evidence relating to Petitioner's

allegations about Respondent's failure to hire Petitioner for a

management review specialist position. Petitioner admits in her

motion that she did not apply for the position until after she

filed her Charge of Discrimination. To the extent that

Petitioner's Motion in Limine seeks reconsideration of the Order

dated January 10, 2002, it is hereby denied. However, the

undersigned has considered, in the Findings of Facts below,

evidence presented by Petitioner showing that her duties and

responsibilities as a staff assistant were divided between three

white females in professional staff positions, including a

management review specialist position, in May 1998.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of two additional witnesses.

Petitioner offered Exhibit Nos. P1 - P7, P9 - P16, P18, and P27,

which were accepted into evidence .

Respondent presented the testimony of four witnesses.

Respondent offered Exhibit Nos. R1 - R31 (including R21A and

R21B), which were accepted into evidence.

The parties did not file a transcript of the proceeding.

Respondent filed its Proposed Reco mmended Order on February 15,

2002. Petitioner filed her Proposed Recommended Order on

February 25, 2002.

FINDINGS OF FACT

1. Respondent is an employer as defined in Section

760.02(7), Florida Statutes.

2. Petitioner is an African - American female. She is a

member of a protected class for purposes of determining a

violation of the Florida Civil Rights Act of 1992.

3. Petitioner began working for the Department of Highway

Safety and Motor Vehicles in April 1977 as a Clerk Typist I.

She was promot ed to Clerk Typist II in July 1977. From 1979 to

1988, Petitioner worked for the Department of Highway Safety and

Motor Vehicles as a clerk typist specialist.

4. Petitioner began working for the Department of

Education in May 1988 as a clerk typist spe cialist. The

Department of Education promoted her to secretary specialist in

November 1989, administrative secretary in May 1993, and staff

assistant in October 1996. Most of Petitioner's work with the

Department of Education involved the federal Child a nd Adult

Care Food Programs.

5. In October 1997, the Legislature transferred the

administration of the Child Care Food Program from the

Department of Education to Respondent. The specific language of

Chapter 97 - 260, Section 3, Laws of Florida, provided that

Respondent should give employees being transferred a preference

in hiring for comparable positions.

6. Phil Reeves is Respondent's Bureau Chief for the Bureau

of Child Nutrition Programs. He has held that position since

the Bureau's inception in October 1997.

7. Mr. Reeves assessed the Child Care Food Program after

it was transferred to Respondent. He determined that the

program was deficient in making timely payments of monies to

program recipients. Mr. Reeves decided that the program needed

to operate more efficiently.

8. Respondent hired Petitioner as a career service staff

assistant with a pay grade of 13. Initially, Mr. Reeves

supervised Petitioner's work in the Child Care Food Program.

9. Respondent prepared Petitioner's initial p osition

description based on her duties and responsibilities as a staff

assistant with the Department of Education. The initial

position description, which was effective on October 1, 1997,

states as follows in relevant part:

The employee in this positi on performs

administrative work for the Child and Adult

Care Food Program. The work requires a high

degree of initiative, independence,

judgment, accuracy and understanding of

office administration. The incumbent

complies with and monitors compliance (wh en

applicable) of the mandatory requirements in

Section 215.422, Florida Statutes, and

Chapter 3A - 24, Florida Administrative Code.

The incumbent is responsible for the

following tasks:

Assists in organizing the Child and Adult

Care Food Program requireme nts and

procedures based on Federal Regulations Part

226, including, but not limited to:

a. reviewing and noting any deficiencies on

sponsor applications and amendments, and

routing the applications for corrective

action or approval;

b. disseminating p rogram requirements;

c. logging in outreach and program needs as

they occur for needs and assessments; and

d. notifying sponsors of annual

reimbursement rates.

Collects data, transcribes or compiles,

formats, types and edits criteria and

standards, tech nical handbooks, statistical

reports, outreach and needs assessment

results, memoranda and monitoring reports.

Performs administrative duties related to

the total operation of the Child and Adult

Care Food Program:

a. prepares drafts of memoranda and

c orrespondence for administrative decisions

and policies, and

b. compiles data for administrative

decisions.

Assists with technical assistance by:

a. logging all technical assistance

activities including staff development;

b. scheduling technical assis tance for

sponsors through appropriate staff;

c. providing training and technical

assistance to new staff and sponsors;

d. reviewing activities, comparing to

standards and compiling and summarizing

findings for area specialists; and

e. providing staff w ith new or revised

assignments.

Responds to correspondence and inquiries for

information. Disseminates information on

the Child and Adult Care Food Program.

Coordinates staff activities including

employment workpapers and travel requests

for personnel .

Performs other related duties as assigned.

10. On or about February 9, 1998, Respondent updated

Petitioner's position description. Petitioner's actual duties

and responsibilities remained the same, but Petitioner's direct

supervisor became Dale K ishbaugh, an Operations and Management

Consultant Manager. The change in Petitioner's supervisor was

the result of a reorganization of the bureau.

11. One of the changes that Mr. Reeves decided to make

early in 1998 was to hire an Administrative Assist ant I (AAI).

Mr. Reeves wanted the AAI to report directly to him and to

assist him with professional duties. The person in the new AAI

position would generally be responsible for bureau

administrative functions, including purchasing and personnel,

repres enting Mr. Reeves at meetings, functioning as the office

proofreader, and functioning as the bureau's correspondence

liaison with Respondent's division office and the Office of the

Secretary.

12. On or about February 13, 1998, Mr. Reeves submitted a

Req uest for Recruitment Assistance form to Respondent's Bureau

of Personnel and Human Resource Management. The form provided

the following information for advertising the new position:

full time, career service, pay grade 15, open competitive

opportunity.

13. Respondent advertised the new AAI position on

February 16, 1998. The advertisement stated that the closing

date for the position was February 27, 1998.

14. The Department of Management Services (DMS) is

responsible for developing and issuing cla ss specifications.

The class specifications for AAI positions include factors that

require independent work assisting management in providing

analysis and research on a variety of administrative matters.

Persons in AAI positions perform a variety of duti es including,

but not limited to the following: (a) representing the

supervisor at meetings to furnish or obtain information;

(b) providing input and recommendations for the budget;

(c) performing fiscal, personnel, purchasing, statistical,

rep orting and other major office functions; and (d) reviewing

and coordinating implementation of statutes, rules, regulations,

policies, and procedures.

15. According to DMS's class specifications, persons in

AAI positions must have knowledge of administra tive principles

and practices, office procedures and practices, methods of data

collection, and effective communication principles and

techniques. Additionally, they must have the ability to prepare

correspondence and administrative reports, to understand and

apply applicable rules and policies, to utilize problem - solving

techniques, to plan and coordinate work assignments, to

communicate effectively, and to maintain effective working

relationships with others.

16. The position description for the AAI p osition at issue

here states as follows:

Under general supervision, acts as assistant

to the Chief, Bureau of Child Care Food

Services by performing many highly complex

administrative and technical duties

pertaining to all section of the bureau.

This po sition works independently in making

decisions and obtaining solutions to routine

problems, issues and other matters that fall

within established office policies and

procedures, guidelines, rules and laws

relating to personnel, budget, and fiscal

activitie s, purchasing, correspondence, and

document tracking/control, travel control

and coordination, and other administrative

duties.

Performs administrative activities in regard

to everyday operation of the program which

do not require action by the Chief.

Di stributes overflow clerical work as

necessary to assure equitable workloads and

completion of projects. Assigns and

monitors deadlines to ensure completion of

assignments and provides technical

assistance as required. Maintains log of

all incoming assign ments, routing to

appropriate staff with or without review of

the Chief, exercising own judgment as

necessary. Develops and implements

procedures and methods for the orderly

processing of paperwork among the various

sections for review and approval by the

Chief. Serves as the office proofreader on

all correspondence requiring the Chief's

signature.

Serves as the personnel liaison for the

Bureau. Prepares and maintains current

tables of organization, functional

statements, position descriptions,

performa nce standards and appraisals,

letters of agency staffing, and other

administrative documents. Prepares all

recruiting, advertising, and selection

letters for employment decisions, interview

schedules, and requests for payroll action.

Reviews, analyzes, a nd provides alternatives

to the Chief and management team on:

current office practices, section make - up,

work flow issues, and staffing needs.

Serves as lead support person for ad hoc

committees. Revises and prepares new

programmatic forms as directed.

Attends administrative support meetings to

assist with providing appropriate

departmental procedures. Performs general

service functions such as training for

office staff in such areas as correct

correspondence preparation, travel voucher

preparation, ne w administrative procedures,

and other administrative areas requiring in -

service training. Performs special

assignments, researches potential problems,

prepares necessary reports and recommends

solutions.

Responsible for establishing and overseeing

the m aintenance of a central file for Child

Care Food Service, following prescribed

departmental guidelines. Maintains various

policy, regulation, and directive manuals,

assuring that these stay current. Instructs

others in filing procedures, retention

schedu les, and storage of records

accordingly. Researches, files, and

retrieves information upon request. Routes

information to appropriate central files.

Receives, checks for accuracy, records, and

maintains all leave and attendance forms,

supply requisiti ons, travel vouchers, and

other requests requiring expenditure of

funds to be approved by the Chief. Monitors

budget reports in order to assign budget

codes to purchase and supply requisitions,

travel vouchers, reimbursement vouchers, and

Information Reso urce Requests (IRR).

Tabulates and tracks biweekly OPS timesheets

and records.

Keeps Chief's and management team's

calendar, makes appointments, exercising own

judgment in individual situations. Makes

travel arrangements, including

transportation and lodging reservations.

Prepares travel reimbursement vouchers.

Assists with telephone calls and routes to

appropriate staff. Answers routine

inquiries concerning the bureau and in - house

procedures.

Supervises the work of the section and

provides leade rship, direction, and support.

Plans and organizes the work of staff to

ensure assignments are completed on time.

Reviews and reports on work performed,

conducts performance appraisals, and

performs other general supervisory duties.

17. In anticipa tion of reviewing the applications for the

new AAI position, Mr. Reeves created a document entitled

"Administrative Assistant I Scoring Methodology Initial

Applicant Ranking." Mr. Reeves used a similar document obtained

from another supervisor as a model and modified it to conform to

the duties and responsibilities for the new AAI position.

18. The initial applicant - ranking document allocated 80

percent of the weight to work experience in the following areas:

(a) ability to plan and organize meetings; (b) skill in

organizing files and records; (c) knowledge of departmental

personnel rules and regulations; (d) knowledge of travel

procedures such as scheduling and processing; (e) knowledge of

correct spelling punctuation and grammar, which received double

weight; (f) skill in typing; (g) ability to prioritize, organize

and schedule work assignments, which received double weight;

(h) ability to work independently, which received double weight;

(i) ability to work with others; and (j) ability to identify

ne eded training for support staff and preparation of training

materials.

19. The initial applicant - ranking document allocated 20

percent of the weight to quality of the application. The

applications were to be evaluated in regards to organization,

lucidi ty, cover letter, appearance, typographical errors, errors

in punctuation and grammar.

20. Respondent received approximately 90 applications for

the new position. It was not practical to interview all of the

applicants. Therefore, Mr. Reeves used his scoring methodology

to rank the applications, eventually deciding to interview the

top six candidates.

21. Petitioner was one of the applicants. Her application

consisted of the five - page state application with no

attachments. She received a score of 81 in the initial

applicant - ranking process. Mr. Reeves did not grant Petitioner

an interview because her score was not among the six highest -

ranking candidates.

22. Faye B. Oaks, a white female, was another of the

applicants. Ms. Oaks attached 11 page s of documentation to the

five - page state application. The attachments included her

resume, several certificates, and letters of

commendation/appreciation from her former employer, State

Comptroller Gerald Lewis. Ms. Oaks's work experience included,

but was not limited to, working as a Clerk Typist III,

Secretary III, Executive Secretary, AAI, AAII, and AAIII,

Personal Secretary I, and Program Assistant.

23. Ms. Oaks received a perfect score of 100 in the

initial applicant - ranking process. Mr. Reeves granted her an

interview.

24. In anticipation of conducting the interviews,

Mr. Reeves developed an interview - ranking document. In addition

to the categories of work experience set forth in the initial

applicant - ranking document, Mr. Reeves adde d the following

categories for consideration during the interviews: (a)

strengths; (b) weaknesses; (c) why an applicant believes he or

she is the best candidate; (d) whether the applicant is willing

to accept minimum salary; and (e) other.

25. Mr. Reev es interviewed Ms. Oaks on March 26, 1998.

She was exceptionally well qualified. After checking her

references, Mr. Reeves ultimately selected Ms. Oaks to fill the

new position. On March 30, 1998, Mr. Reeves sent Ms. Oaks a

letter confirming the offer o f employment, starting at the

minimum annual salary of $20,295.

26. Mr. Reeves filled the AAI position in a fair and just

manner. He succeeded in hiring the best qualified applicant for

the job when he employed Ms. Oaks.

27. Ms. Oaks accepted the po sition at the minimum salary.

Soon thereafter, Mr. Reeves learned that additional monies were

available to fund the position. Therefore, Mr. Reeves gave

Ms. Oaks a seven percent increase above the minimum starting

salary.

28. Ms. Oaks started to wor k as an AAI with a pay grade

of 15 on April 17, 1998. Her starting salary was $835.23

bi - weekly. At that time, Petitioner was making $884.19

bi - weekly in her position as a staff assistant with a pay grade

of 13.

29. After hiring Ms. Oaks , Mr. Reeves learned that

Petitioner was unhappy because Mr. Reeves had not granted

Petitioner an interview. Mr. Reeves and Petitioner discussed

Petitioner's concerns. During the discussion, Mr. Reeves

attempted to explain the reasons why he did not inte rview

Petitioner.

30. Ms. Oaks served in the AAI position for approximately

five months. She decided to quit work for personal reasons.

31. In the meantime, Mr. Reeves became aware that

Petitioner was performing duties outside the class specificatio n

for a staff assistant. For example, Petitioner occasionally

interpreted program policy and provided program information to

contracting agencies. Mr. Reeves correctly determined that

professional staff should handle these duties.

32. In May 1998, Mr. Reeves reorganized the Bureau of

Child Food Services for the second time. Mr. Reeves made

several changes in the Bureau, one of which was to transfer

Petitioner to the audit section of the Child Care Food Program.

After learning about the transfer, Peti tioner and her union

representative met in June 1998 with her new supervisor, Ken

Sasser, Respondent's audit administrator. Subsequently,

Petitioner and the union representative met with Mr. Reeves in

July 1998. On both occasions Petitioner complained th at

Respondent had demoted her because Respondent had removed

Petitioner's technical assistance duties and replaced them with

the job responsibilities of an administrative secretary.

33. On or about July 27, 1998, Respondent updated

Petitioner's staff as sistant job description for the second

time. Mr. Sasser prepared the job description, which states as

follows in relevant part:

The employee in this position performs

administrative support work for the Audit

Section of the Bureau of Child Care

Nutritio n Services. The work requires a

high degree of initiative, independence,

judgement, accuracy and understanding of

office administration. The incumbent

complies with and monitors compliance (when

applicable) of the mandatory requirements in

Section 215.42 2, Florida Statutes, and

Chapter 3A - 24, Florida Administrative Code.

The incumbent is responsible for the

following tasks:

Compiles and analyzes the following data for

administrative decisions:

· · Assists the Audit Administrator with the

preparation of t he annual audit schedule.

· · Maintains the Audit Log Book.

· · Prepares a monthly status report of the

numbers of audits completed and the numbers

of audit reports issued for the Audit

Administrator and the Bureau Chief.

· · Maintains the Continuing Professi onal

Education (CPE) documentation of all audit

staff and ensures that the Government

Auditing Standards CPE requirements are met.

· · Maintains a permanent file of all final

audit reports issued by the Section.

· · Maintains a file of all audit working

pape rs for all audits issued, ensures that

the record retention requirements are met,

and ensures that the old audit working

papers are destroyed according to the

Department of Health and the Department of

State requirements.

· · Maintains a file of the summary of audit

closure memorandums and ensures that the

closure memorandum for each audit is

attached to the permanently maintained copy

of each final audit.

· · Maintains a file of all USDA memorandums

and other related correspondence and informs

the Audit Admi nistrator of any issues that

may affect the standard audit procedures or

the requirement for audits.

· · Coordinates the collection and

presentation of data as related to Single

Audit Act requirements.

Reviews, analyzes and prepares drafts of

memoranda and correspondence including the

draft and final audit reports.

Interprets established Department policy and

provides information for the resolution of

problems related to the various

administrative reports and documents used by

the Section including travel authorization,

travel vouchers, personnel reports, leave

reports, purchase requisitions, purchase

orders, receiving reports, monthly invoice

transmittals, travel checks, payroll checks,

etc., as appropriate.

Acts as the Section's day - to - day liaison to

the Bureau Chief's Administrative Assistant

I and with other departmental offices as

necessary. Investigates, researches and

resolves problems associated with the

section's administrative operations.

Coordinates the work of OPS positions

including the prepa ration and distribution

of the audit working papers to the

appropriate audit staff on a timely basis,

copying necessary files for the audit staff,

and filing of audit section documents.

Performs other related duties as assigned.

34. Respondent elimi nated some of Petitioner's

responsibilities when her position description was updated the

second time. For example, Respondent eliminated Petitioner's

technical assistance duties. The new AAI position description

indicates that Ms. Oaks was responsible f or providing technical

assistance as required.

35. Some of Petitioner's duties changed only because

Petitioner's new supervisor was the audit administrator and

Petitioner's work necessarily involved work performed in the

audit section. These duties inc lude, but are not limited to,

preparing reports related to audits, collecting data, preparing

drafts of memoranda and correspondence, and interpreting policy

related to administrative reports such as travel vouchers,

personnel reports, and purchase orders.

36. Respondent also assigned Petitioner some new duties

relating to specific work in the audit section. The new duties

include, but are not limited to, maintaining certain audit

files, documenting the audit staff's CPR, acting as liaison to

the new AA I, and coordinating work of OPS employees.

37. Petitioner's updated position description contains

few, if any, duties that are usually performed by an

administrative secretary (pay grade 12). An administrative

secretary in the audit section is primaril y responsible for

typing, processing, and distributing compliance audit reports.

An administrative secretary also performs the following duties:

(a) originates printing requests; (b) acts as the office

receptionist and answers the telephone when needed;

(c) processes and distributes administrative reports such as

travel vouchers, personnel reports, and purchase orders;

(d) acts as liaison to sections responsible for travel,

purchasing, accounts payable, and personnel; (e) opens and

distribu tes mail; and (f) assists with preparation of budget

reports.

38. Under the new position description, some of

Petitioner's duties overlapped with the duties of the new AAI (a

white female) and an Assistant Secretary position. However,

each of these pos itions contains duties and responsibilities

which are unique depending on the specific work to be performed.

39. Petitioner was not demoted in July 1998. She did not

experience a loss in pay, a change in pay grade, a change in

class title, a change in position number, or a change in work

location. Instead, the change in Petitioner's position

description appropriately reflected her specific duties and

responsibilities under the new organization of the Bureau of

Child Care Food Services and specifically under the supervision

of her new supervisor. The updated position description

contains duties and responsibilities that are consistent with

the types of duties usually performed by staff assistants.

40. Upon the departure of Ms. Oaks, Mr. Reeves sought to

advertise the position again. Respondent issued a new job

announcement with a closing date of September 19, 1998.

41. Respondent received approximately 60 applications for

the AAI position. The applicants included the following:

(a) Teresa Ann H all, a white female, who submitted a three - page

resume in addition to the standard state application;

(b) Petitioner, who submitted the standard state application

with a two - page resume; and (c) Sarah Crooms, an African -

American female, who was one of Petitioner's co - workers.

42. Ms. Hall began working for the state in 1993 as an OPS

administrative secretary. Since that time, she has worked as a

senior clerk, an OPS clerk typist, a senior word processing

systems operator, and an administrative s ecretary.

43. To rank the applications for the second time,

Mr. Reeves used the initial applicant - ranking document that he

had utilized previously with the addition of personal computer

skills as a category. Under the established scoring

methodol ogy, Ms. Hall's application received a total score

of 92. Petitioner's application received a total score of 76.

44. Petitioner's score of 76 included a score of 13 on the

category labeled "Quality of Application/R é sum é ." As to

Petitioner's applic ation, she misspelled the word "grammar" and

provided inconsistent dates of employment. As to her r é sum é ,

Petitioner misspelled "Tallahassee" one time, "compiles" two

times, and "inquiries" one time. Petitioner used inconsistent

and inappropriate verb te nses on her r é sum é .

45. Petitioner's score of 76 was above average in the

applicant pool. However, it was not sufficiently high to rank

in the top five of the group, which Mr. Reeves intended to

interview. The same was true of Ms. Crooms' application. Even

so, in an effort to maintain office morale, Mr. Reeves granted

courtesy interviews to Petitioner and Ms. Crooms.

46. Mr. Reeves used a slightly modified interview - ranking

document. He added a category for personal computer skills and

a question as to an applicant's leave balances to this document.

47. Mr. Reeves interviewed Petitioner on October 26, 1998.

She received an interview score of 103. On Petitioner's

interview ranking document, Mr. Reeves stated "SEE RESUME" in

regards to the categ ory for "knowledge of correct spelling,

punctuation, grammar, and proofreading."

48. Mr. Reeves interviewed Ms. Hall on October 10, 1998.

Mr. Reeves gave Ms. Hall an interview score of 122.

49. After the interviews, Ms. Hall was the leading

candidat e. Mr. Reeves checked Ms. Hall's references and offered

her the job with a ten percent increase to her salary, which is

customary for promotions.

50. When Ms. Hall began working as an AAI on November 20,

1998, her starting salary was $900.61 bi - weekly. At that time,

Petitioner's salary was $922.65 bi - weekly.

51. Ms. Hall received an additional promotion in

December 2000. Another of Respondent's bureau chiefs hired her

as an AAII.

52. Mr. Reeves sincerely believed that he hired the most

qualif ied applicant after reviewing the applications and

conducting the second interviews. Although portions of the

application and interview process were unavoidably subjective,

Mr. Reeves relied heavily on objective factors such as "Quality

of Application/Res ume." This was an important category to

Mr. Reeves because the new AAI would serve as the Bureau's

proofreader and prepare documents for Mr. Reeves' signature.

53. There is no persuasive evidence that Petitioner was

better qualified than Ms. Hall. Additionally, there is no

evidence that Mr. Reeves based any hiring decision on the race

of the applicants.

54. Petitioner worked under Mr. Reeves' direct or indirect

supervision in the Child Care Food Program until Respondent

transferred the program's audit section to Respondent's Office

of the Inspector General in 2000. At the time of the hearing,

Petitioner was still working for Respondent as a staff assistant

in select exempt service.

CONCLUSIONS OF LAW

55. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 760.11(4), Florida

Statutes.

56. Section 760.10(1), Florida Statutes, makes it unlawful

for an employer to refuse to hire or promote any pers on because

of such person's race. Section 760.10(7), Florida Statutes,

makes it unlawful for an employer to retaliate against employees

for opposing any practice which is an unlawful employment

practice. Petitioner asserts that Respondent violated both o f

these statutes.

57. The legislative scheme contained in the Florida Civil

Rights Act of 1992, as amended, Chapter 760, Part I, Florida

Statutes, incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. Section 2000e, et seq . FCHR and the Florida courts have

determined that federal discrimination law provides guidance for

construing the Florida Civil Rights Act of 1992, as amend ed.

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

1205, 1209 (Fla. 1st DCA 1991).

58. The Supreme Court established and later clarified the

burden of proof in discrimination cases in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973) , Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981), and

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

McDonnell Douglas , Petitioner has the initial burden of proving

a prima facie case of racial discrimination. Bryant , 586 So. 2d

at 1209.

59. In the instant case, Petitioner's prima facie case of

racial discrimination consist of proving the following: (a) she

belongs to a racial minority; (b) she applied and was qualified

for the AAI positions; (c) Respondent rejected Petitioner on

both occasions despite her qualifications; and (d) Respondent

hired a person outside the protected class, with equal or lessor

qualifications. Petitioner met this burden in regards to her

applications for the AAI positions.

60. A fter a complainant satisfies the initial burden, the

employer

. . . need only articulate -- it need not

prove -- the existence of a legitimate,

nondiscriminatory reason for its action.

The plaintiff then retains the burden of

persuading the court that the of fered reason

is a pretext and that a discriminatory

reason more likely motivated the employer in

its actions.

Texas Department of Community Affairs v. Bryant , 586 So. 2d at

1209.

61. The petitioner always retains the ultimate burden of

persuasion. T exas Department of Community Affairs v. Burdine ,

450 U.S. at 254 - 256.

62. In this case, Respondent provided persuasive evidence

that Mr. Reeves hired Ms. Oaks and Ms. Hall because he believed

they were the best qualified candidates. Evidence in the rec ord

supports Mr. Reeves' decisions. Moreover, it is clear that

Mr. Reeves questioned Petitioner's ability to act as the

proofreader for the bureau based on the number of spelling

mistakes, typographical errors, and/or grammatical errors in her

applicat ion and resume.

63. On the other hand, Petitioner has not presented

persuasive evidence that Respondent's reasons for hiring

Ms. Oaks and Ms. Hall were a pretext to mask race

discrimination. Petitioner has not met her ultimate burden of

persuasion of racial discrimination based on Respondent's

failure to promote her to the AAI positions.

64. Petitioner alleges that Respondent committed racial

discrimination and/or engaged in retaliatory conduct by demoting

her or by assigning her to a position w ith less responsibility.

Petitioner did not meet her prima facie burden of proving

discriminatory or retaliatory demotion/assignment.

65. In order to make a prima facie case of discriminatory

demotion/assignment, Petitioner must prove the following: ( a)

she is a member of a racial minority; (b) she was qualified for

the position she held; (c) she suffered an adverse employment

action such as demotion and/or assignment to a position of less

responsibility; and (d) she was replaced by someone of

comparab le qualifications not a member of her protected class.

See Sturniolo v. Sheaffer, Eaton, Inc. , 15 F.3d 1023, 1025 (11th

Cir. 1994); Underwood v. Northport Health Services , 57 F. Supp.

2d 1289, 1300 (M.D. Ala. 1999).

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

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

in a statutorily protected activity; (b) she suffered an adverse

employment action such as demotion and/or assignment to a

position with less responsibility; and (c) the

demotion/rea ssignment was causally related to the protected

activity. See Harper v. Blockbuster Entertainment Corp. , 139

F.3d 1385, 1388 (11th Cir. 1998).

67. Rule 60K - 14.001, Florida Administrative Code, contains

the following definitions:

(15) Demotion -- Movin g an employee from a

position in one class to a different

position in another class having a lesser

degree of responsibility and a lower pay

grade.

68. Section 110.203, Florida Statutes, contains the

following definitions:

(19) "Demotion" means the ch anging of the

classification of an employee to a class

having a lower maximum salary; or the

changing of the classification of an

employee to a class having the same or a

higher maximum salary but a lower level of

responsibility as determined by the

Depart ment of Management Services.

69. Respondent did not demote Petitioner because there was

no change in her class title or pay grade. Petitioner was and

continues to be a staff assistant with a pay grade of 13. The

duties she performs are consistent wit h the work performed

routinely by staff assistants.

70. The question remains whether Petitioner suffered an

adverse employment act when Respondent transferred Petitioner to

the audit section and updated her position description. Record

evidence indicat es that Petitioner's new position description

did not result in an assignment with less responsibility.

71. When Respondent updated Petitioner's position

description in July 1998, Respondent did not change Petitioner's

class title, pay grade, or positio n number. It is true that

some of Petitioner's former duties were assigned to a white

female in another class (AAI) with a higher pay grade. However,

the new AAI position contains many duties with a degree of

responsibility much higher than the duties ev er performed by

Petitioner.

72. Some of the duties remained unchanged when Respondent

updated Petitioner's position description. Other staff

assistant duties, specifically tailored to work in the audit

section, were added to Petitioner's position descr iption. Few,

if any, of the new duties are similar to the duties of employees

in a different class (Administrative Secretary) with a lower pay

grade. Under the new position description, Petitioner continues

to perform the work of a staff assistant, modif ied only to

reflect the specific work to be performed under the bureau's

reorganization plan. Petitioner's duties changed somewhat but

they did not involve less responsibility.

73. To the extent that Petitioner proved her prima facie

case of discrimina tory or retaliatory assignment to a position

with less responsibility, Respondent presented a legitimate

nondiscriminatory reasons for updating Petitioner's position

description. First, Respondent presented evidence that

Petitioner had been performing som e duties that should have been

performed by professional staff. Second, Respondent presented

evidence that from the bureau's inception, Mr. Reeves intended

to reorganize the bureau to make it more efficient. Third,

Respondent presented evidence that it u pdated Petitioner's

position description to reflect the specific duties of a Staff

Assistant in the audit section under the second reorganization

plan.

74. On the other hand, Petitioner presented no persuasive

evidence that Respondent's reasons for tran sferring her to the

audit section and updating her position description were a mere

pretext for a discriminatory or retaliatory action. The greater

weight of the evidence indicates that Respondent did not

discriminate against Petitioner based on her race or retaliate

against her due to her complaints to Mr. Reeves.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

That Respondent enter a final order dismissing the Petition

for Relief.

DONE AND ENTERED thi s 15th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 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 15th day of March, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Rela tions

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399 - 1703

Lula D. Hannah

4611 Givins Lane

Tallahassee, Florida 32303

C ecil Howard, 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.