02-001709 Janet Rodriguez vs. District Board Of Trustees Of Miami-Dade Community College Status: Closed Recommended Order on Wednesday, January 29, 2003.

Summary: Petitioner failed to prove that reasons given by Respondent for terminating her employment were pretextual. Recommended that Petitioner`s Petition for Relief be dismissed because she failed to prove she was victim of employment discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET RODRIGUEZ, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1709

)

DISTRICT BOARD OF TRUSTEES OF )

MIAMI - DADE COMMUNITY COLLEGE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on November 7 and 8, 2002, by video teleconference, with the

parties appearing in Miami, Florida, before Patricia Hart

Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Neil Flaxman, Esquire

Neil Flaxman, P.A.

550 Biltmore Way, Suite 780

Coral Gables, Florida 33134

For Respondent: Karen A. Bri mmer, Esquire

Hinshaw & Culbertson

One East Broward Boulevard

Suite 1010

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner

for exercising her rights under Sections 760.01 - 760.011, Florida

Statutes (2001), and, if so, the appropriate remedy.

PRELIMINARY STATEMENT

On December 3, 2001, Janet Rodriguez filed an Amended

Charge Of Discrimination with the Flori da Commission on Human

Relations ("FCHR") in which she alleged that she had been

discriminated against when she was terminated from her

employment with Miami - Dade Community College after having filed

two grievances complaining of sexual harassment. On Apr il 1,

2002, the FCHR issued a Determination: No Cause, and

Ms. Rodriguez filed a Petition for Relief and Request for

Administrative Hearing with the FCHR on April 29, 2002.

Ms. Rodriguez set forth the same allegations against Miami - Dade

Community College in her Petition for Relief as those she set

forth in her Amended Charge of Discrimination. On May 1, 2002,

the FCHR transmitted the petition to the Division of

Administrative Hearings for assignment of an administrative law

judge. 1 After one continuance, and pursuant to notice, the final

hearing was conducted on November 7 and 8, 2002.

At the hearing, Ms. Rodriguez testified in her own behalf

and presented the testimony of Joy C. Ruff, who holds, among

other positions, the position of interim Director of Employee

Relations at Miami - Dade Community College. Petitioner's

Exhibits 1 through 16 were received into evidence on stipulation

of the parties. Miami - Dade Community College presented the

testimony of Frank Meistrell, a former employee of Miami - Dade

Com munity College, and Olga Mejia Morales. Respondent's

Exhibits 1 through 9 were received into evidence without

objection. 2

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on November 27, 2002,

and the par ties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire recor d of this proceeding, the

following findings of fact are made:

1. Miami - Dade Community College is an employer within the

meaning of the Florida Civil Rights Act, Sections 760.01 -

760.011, Florida Statutes (2000).

General Information

2. In October 1998, M s. Rodriguez was hired as

Technical/Classified Staff at the Consolidated College Warehouse

("Warehouse") maintained by Miami - Dade Community College.

3. At the times material to this proceeding, the main

section of the Warehouse served as a storage facilit y for

furniture and equipment that was no longer being used on the

various campuses of Miami - Dade Community College. In another

section of the Warehouse, called the "surge" section, furniture

and equipment were stored temporarily, while portions of the

ca mpuses were undergoing renovations. Two employees were

responsible for doing the manual labor in the Warehouse, which

involved collecting furniture and equipment from the campuses,

storing them in the Warehouse, and retrieving them when

necessary.

4. A t hird section of the Warehouse was devoted to

collecting used computers that were being replaced on the

various campuses of Miami - Dade Community College. There were

four employees in this section of the Warehouse, including the

head of the section, Maggie Zilliner. The old computers were

collected from the campuses and logged into the property control

system. The computers were sorted into those that worked, those

that did not work but could be repaired, and those that could

not be repaired. Two of the f our employees were responsible for

doing the computer repairs.

5. The Warehouse also served as the site for storing

records generated on the various campuses of Miami - Dade

Community College. A large part of the work in this section

consisted of maintaini ng a computer record containing the

identification and location of the records stored in the

facility. In addition, records were retrieved and provided to

the campuses as requested, and documents were destroyed in

accordance with state regulations.

6. Fr ank Meistrell, who is now retired, was the Risk

Manager for Miami - Dade Community College and was in charge of

setting up and managing the Warehouse. He reported to Will

Bailey, who was at the time the Director of the Budget for

Miami - Dade Community Colleg e. The employees working in the

Warehouse were, at the times relevant to this proceeding, part -

time employees of Miami - Dade Community College with the

exception of James Roof, who held a full - time position as the

supervisor of operations for the Warehouse .

7. Mr. Meistrell was Mr. Roof's direct supervisor, and he

had recommended that Mr. Roof be promoted to the supervisor's

position at the Warehouse. Mr. Meistrell and Mr. Roof had both

worked for Miami - Dade Community College for many years, and, at

one t ime, their offices were close to one another. The

relationship between Mr. Meistrell and Mr. Roof was, however,

strictly a business relationship; Mr. Meistrell did not know

Mr. Roof socially and never interacted with Mr. Roof outside of

the office. Mr. M eistrell may have gone to lunch with Mr. Roof

one or two times over the years they worked together, and

Mr. Meistrell may, on occasion, have shared a sandwich with

Mr. Roof and other Warehouse staff.

8. Ms. Rodriguez was initially hired in October 1998 as a

part - time employee to work in general warehouse operations, when

the Warehouse was just getting established. Ms. Rodriguez's

only job experience prior to being hired to work at the

Warehouse was as a leasing agent for an apartment building, a

position she occupied from 1990 to 1999 and which involved some

clerical duties.

9. Once the Warehouse was somewhat organized,

Ms. Rodriguez worked as a technician in the computer section,

where she inventoried computers coming into the Warehouse and

removed the s oftware from the computers; Maggie Zilliner was her

immediate supervisor in the computer section.

10. In the fall of 1999, Ms. Rodriguez was asked to work

with other Warehouse employees, under the supervision of

Mr. Meistrell, to organize the layout of th e records section of

the Warehouse. After the records section became operational,

and at the times material to this proceeding, Ms. Rodriguez

worked in that section of the Warehouse. Mr. Roof was her

immediate supervisor.

11. Mr. Meistrell developed and distributed to the

campuses a manual for handling records that was based on the

state's record retention requirements. He obtained standardized

boxes for the storage of records, and he developed a form to be

used through Miami - Dade Community College to r ecord the contents

of each box. Personnel on the various campuses packed their

records in the boxes and completed the form recording the

contents of each of the boxes. One copy of the form was

retained, one copy was put in each box, and one copy was tape d

to the top of the box. Warehouse employees collected the boxes

from the campuses and delivered them to the Warehouse. The

boxes were stacked on pallets, and the pallets were stored on

racks in the Warehouse.

12. A Miami - Dade Community College faculty member, Sally

Musay, wrote a program for a database to keep track of the boxes

of records stored in the warehouse. The program was written in

English, and Ms. Rodriguez worked with the faculty member

developing the program, which required entry of, among other

items, the names of the Miami - Dade Community College employees

whose records were stored in the Warehouse, the year in which

each record was to be destroyed, and the location of the records

in the Warehouse.

13. In March 1999, Olga Mejia Morales ("M s. Morales") was

hired as a part - time employee in the Warehouse. Ms. Morales

began working for Miami - Dade Community College in April 1996 as

a student assistant in the Bursar's office at Miami - Dade

Community College's north campus. Her duties included ty ping,

filing, and answering the phone. In the spring of 1997,

Ms. Morales moved to the property control section at Miami - Dade

Community College's north campus, where she continued to work as

a student assistant. Her duties in this position included

filin g, inputting data into the computer, typing, and answering

the telephone. Ms. Morales worked at this position for two

years before applying for the part - time position in the

Warehouse.

14. During the time she worked as a student assistant,

Ms. Morales wa s attending Miami - Dade Community College, studying

business software applications.

15. When Ms. Morales came to work in the records section

of the Warehouse, she was very familiar with computers and with

various types of business software, such as Excel, Access, Power

Point, and Microsoft Word. Ms. Rodriguez introduced Ms. Morales

to the computer program developed by Ms. Musay to inventory the

boxes of records sent from the various campuses to the

Warehouse, although Ms. Morales was familiar with the type of

program because it was a variation of the Access program.

Because of her familiarity with the type of program used to keep

track of the records, Ms. Morales was able to suggest to

Ms. Musay some ways in which the program could be improved.

16. Both M s. Rodriguez and Ms. Morales input data into the

computer regarding the records, although Ms. Morales was more

proficient in using computers than Ms. Rodriguez as a result of

her studies in business software applications.

17. When requests for records wer e received from Miami -

Dade Community College campuses, the location of the boxes of

files to be retrieved would be obtained from the computer

program, and either Ms. Rodriguez or Ms. Morales or another

employee of the Warehouse would retrieve the boxes.

18 . Ms. Rodriguez was trained in the operation of a

forklift and was certified to operate one. Ms. Rodriguez used a

forklift to retrieve pallets on which the boxes of records were

stored when the pallets were stored on one of the higher storage

racks. Ms. Rodriguez also used a pallet jack to move pallets of

boxes around the warehouse, and she would pick up and move

individual boxes of records, which weighed 40 to 50 pounds.

19. Ms. Morales was not an employee at the Warehouse when

the forklift training wa s offered, and she did not know how to

operate a forklift. She did, however, know how to use a pallet

jack, and she used one routinely to move pallets of boxes around

the warehouse. When pallets were stored on the second or third

level, she often request ed that Rafael Rodriguez, an employee

who routinely operated a forklift in the Warehouse, retrieve

pallets of records for her.

20. Both Ms. Morales and Ms. Rodriguez prepared the boxes

for delivery to the office requesting them. Before Ms. Morales

began working in the records section, when the records storage

and retrieval system was first implemented, Ms. Rodriguez would

load boxes of records in her Jeep Cherokee and deliver them

herself to the person requesting the files. Once the records

section was b etter organized, a mail service picked up the boxes

and delivered them to the persons requesting the records, and

the mail service also returned the boxes of records to the

Warehouse.

21. In addition to her duties involving records storage

and retrieval, Ms. Morales did typing and general office work

for Ms. Zilliner and Mr. Roof, including answering the

telephone.

22. Ms. Rodriguez is fluent in both English and Spanish.

Ms. Morales's first language is Spanish, but she began studying

English in 1994. Al l of her courses at Miami - Dade Community

College were taught in English, and Ms. Morales also took formal

classes in English. At the times relevant to this proceeding,

Ms. Morales could understand, speak, and read English; her

command of spoken English ha s improved since September 2000.

23. During the times relevant to this proceeding, when a

telephone caller spoke only English, Ms. Morales would often ask

another Warehouse employee to handle the call. She was,

however, able to communicate adequately wit h Mr. Roof and

Ms. Zilliner, and she had no trouble doing her work. 3

Ms. Rodriguez's grievance

24. In May 2000, Ms. Rodriguez filed a complaint against

Mr. Roof, the supervisor of warehouse operations and her direct

supervisor, with Dr. Joy Ruff, Miami - D ade Community College's

Director of Employee Relations. The complaint was misplaced in

Dr. Ruff's office, and, in July, 2000, when Dr. Ruff realized

the error, she apologized and asked Ms. Rodriguez to re - file the

complaint, which Ms. Rodriguez did on Jul y 17, 2000.

25. In her complaint, Ms. Rodriguez described several

instances in which she believed Mr. Roof had acted

inappropriately towards her, and she confirmed to Dr. Ruff that

the basis for her complaint was discrimination on the basis of

gender, spe cifically sexual harassment.

26. Because he was Mr. Roof's supervisor, Dr. Ruff advised

Mr. Meistrell that Ms. Rodriguez had filed the grievance.

Mr. Meistrell told Dr. Ruff that he would make sure that

Dr. Ruff had access to all the Warehouse employees for

interviews and that the employees were paid for their time.

Mr. Meistrell had no further involvement in the investigation of

Ms. Rodriguez's complaint against Mr. Roof.

27. During the course of her investigation, Dr. Ruff

interviewed the employees wh o worked in the Warehouse. In their

statements to Dr. Ruff, which were given on July 11, 12, 13, 24,

and 28, 2000, several of the employees indicated that they had

heard Mr. Roof make inappropriate comments to and about

Ms. Rodriguez; three employees told Dr. Ruff that they had not

observed Mr. Roof make inappropriate comments to or about

Ms. Rodriguez, one of which was Ms. Morales.

28. In addition to denying ever having heard Mr. Roof make

any inappropriate comments to or about Ms. Rodriguez, Dr. Ruff's

notes reflect that Ms. Morales commented during her interview

that Ms. Rodriguez was a liar. This statement was not, however,

related to the complaint Ms. Rodriguez had made against

Mr. Roof; rather, Ms. Morales commented that Ms. Rodriguez lied

about the hours she worked and about Maggie Zilliner, the head

of the Warehouse's computer section. Specifically, Dr. Ruff's

notes reflect that Ms. Morales commented that she "observed

Janet coming in at 9 & leaving at 12, but tells people she's in

at 8 & out at 4 " and that she "sees Brian and Jorge (computer

technicians) talking & talking & Maggie (Zilliner) only one

working. Janet lies about Maggie & Maggie is a good woman."

29. At some point during the investigation, Dr. Ruff

suggested that Ms. Rodriguez work in the computer section of the

Warehouse, at her original job, so that she would be directly

supervised by Ms. Zilliner rather than Mr. Roof.

30. Dr. Ruff completed her investigation in late

July 2000, and she had a meeting with Mr. Meistrell, Mr. Roof's

supervisor, on August 2, 2000, during which she advised

Mr. Meistrell of her findings that Mr. Roof had made

inappropriate comments to Ms. Rodriguez but that he had not

engaged in discrimination based on sex. Dr. Ruff also told

Mr. Meistrell that discipli nary action would be taken against

Mr. Roof and that Mr. Roof would be required to write

Ms. Rodriguez a letter of apology.

31. Dr. Ruff met with Ms. Rodriguez on August 2, 2000, and

Dr. Ruff discussed with her, in detail, the results of the

investigation , including Dr. Ruff's conclusion that Mr. Roof had

made inappropriate comments to Ms. Rodriguez. Dr. Ruff advised

Ms. Rodriguez during the meeting that disciplinary action would

be taken against Mr. Roof by Miami - Dade Community College and

that he would be required to write her a letter of apology.

32. Dr. Ruff also documented attempts to arrange a meeting

with Mr. Roof on August 2, 2000, but Mr. Roof was not available.

Dr. Ruff did, however, discuss the investigation and her

conclusions with Mr. Roof i n August 2000, while she was on

vacation, and she advised him during the discussion that he

would be subject to disciplinary action, that he would be

required to write Ms. Rodriguez a letter of apology, and that he

should begin drafting the letter of apolo gy.

33. After she returned from vacation, Dr. Ruff prepared a

letter to Ms. Rodriguez dated September 1, 2000, in which

Dr. Ruff formally advised Ms. Rodriguez that she had completed

the investigation of Ms. Rodriguez's complaint against Mr. Roof

and had concluded that Mr. Roof had made inappropriate comments

to her in specific instances but that this behavior did not

constitute discrimination based on sex. Dr. Ruff further

advised Ms. Rodriguez in the letter that Mr. Roof would be

disciplined for his beh avior and that he would provide her with

a written apology.

34. On September 5, 2002, Dr. Ruff provided Mr. Meistrell

with a draft of a formal letter of reprimand to be issued to

Mr. Roof. Mr. Meistrell, as Mr. Roof's supervisor, incorporated

the draft p rovided by Dr. Ruff into a memorandum of reprimand

addressed to Mr. Roof and dated September 5, 2000. Dr. Ruff

confirmed that Mr. Roof had received the written reprimand and

that it had been included in his personnel file.

35. The letter of complaint aga inst Mr. Roof sent via

facsimile to Dr. Ruff by Ms. Rodriguez on July 17, 2000, was not

signed. A note dated August 14, 2000, that appears in the

margin of Dr. Ruff's notes of her August 2, 2000, meeting with

Ms. Rodriguez states: "Schedule mtg w/ Janet Rodriguez -

signature on complaint."

Decision to terminate Ms. Rodriguez

36. In a memorandum dated July 26, 2000, Mr. Bailey,

Mr. Meistrell's supervisor and Director of the Budget for Miami -

Dade Community College, notified Mr. Meistrell that there was a

shortfall in Miami - Dade Community College's operating budget for

the 2000 - 2001 fiscal year of approximately $4 million, and he

directed Mr. Meistrell to conduct his operations within the

budget assigned to his areas of responsibility.

37. The salaries for part - time employees at the Warehouse

exceeded the amount budgeted for the 2000 - 2001 fiscal year by

approximately $75,000. It was, therefore, necessary for

Mr. Meistrell to reduce the staff at the Warehouse.

Mr. Meistrell developed a plan for reducing th e number of staff

at the Warehouse, and he advised Mr. Bailey of the plan and of

the corresponding reduction in the services that could be

provided by the Warehouse. Mr. Bailey approved Mr. Meistrell's

plan for staff reductions at the Warehouse, and Mr. M eistrell

implemented the plan.

38. Mr. Meistrell cut the program involving the repair of

old computers, and the two part - time computer technicians who

repaired the computers were terminated. Another employee of the

computer section had recently quit, so three employees were cut

from that section, leaving the supervisor of the computer

section as the only employee.

39. Mr. Meistrell decided that, for safety reasons, he

could not reduce the staff doing the manual labor in the

Warehouse from two employees t o one. He, therefore, decided to

reduce the staff of the records section of the Warehouse from

two part - time employees to one. At the time, Ms. Morales and

Ms. Rodriguez were the two part - time employees in the records

section, and Mr. Meistrell decided t o terminate Janet Rodriguez.

40. Mr. Meistrell was solely responsible for choosing the

individuals that would be terminated under the staff - reduction

plan, and he did not consult with anyone at the Warehouse

regarding who should be terminated.

41. In mak ing the decision to retain Ms. Morales and

terminate Ms. Rodriguez, Mr. Meistrell concluded that

Ms. Morales was better qualified than Ms. Rodriguez for the

position in the records section, based on his consideration of

the following factors:

a. Mr. Meist rell believed that both Ms. Rodriguez and

Ms. Morales understood the system for keeping track of the

records stored at the Warehouse, and both had participated in

the development of the program for keeping track of the records.

b. Ms. Morales was first em ployed by Miami - Dade Community

College as a student assistant in April 1996, and she worked as

a student assistant until she accepted the part - time position at

the Warehouse in March 1999. Mr. Meistrell believed that,

during her employment with Miami - Dade Community College,

Ms. Morales had acquired secretarial, administrative, and

general office skills. She was, in addition, certified in

business software applications. Mr. Meistrell believed that

Ms. Morales would be a long - term employee, given her lengt h of

service with Miami - Dade Community College.

c. Mr. Meistrell considered Ms. Rodriguez to be a good

employee who knew a great deal about the operation of the

records section of the Warehouse. He believed, however, that

Ms. Rodriguez had very little ex perience in general office work,

and he believed that, with her limited experience working at

Miami - Dade Community College, Ms. Rodriguez was not as familiar

with the source of the records and the operations of Miami - Dade

Community College in general as Ms . Morales. Mr. Meistrell

considered this lack of knowledge a drawback as the Warehouse

received more and more records from the various Miami - Dade

Community College campuses. In addition, Mr. Meistrell believed

that Ms. Rodriguez would not be a long - term employee because she

was attending college and was about to graduate with a

bachelor's degree.

d. In Mr. Meistrell's estimation, Ms. Rodriguez was not as

proficient as Ms. Morales in inputting data into the computer

and handling the paperwork relating to the records stored at the

Warehouse, and he believed that Ms. Morales's administrative and

organizational skills were superior to those of Ms. Rodriguez.

e. Both Ms. Rodriguez and Ms. Morales did typing and

filing for the computer section, but Mr. Meistre ll believed that

Ms. Morales was more proficient at this type of work than

Ms. Rodriguez. In addition, because Ms. Morales was familiar

with the property control system, Mr. Meistrell believed that

she could also assist the computer section by handling th e

paperwork and inputting data relating to the old computers being

sent to the Warehouse for the various Miami - Dade Community

College campuses.

f. Although Ms. Rodriguez was certified to use a forklift

and Ms. Morales was not trained in the use of a forkl ift,

Mr. Meistrell did not consider the use of a forklift to be a job

requirement for those working in the records section of the

Warehouse; usually, one of the employees of the furniture and

equipment section of the Warehouse would retrieve pallets of

box es from the higher levels. Pallet jacks were then used to

move the pallets of boxes around the Warehouse, and both

Ms. Rodriguez and Ms. Morales knew how to use a pallet jack.

g. Mr. Meistrell was aware that both Ms. Rodriguez and

Ms. Morales were biling ual in Spanish and English.

Mr. Meistrell was also aware that Ms. Rodriguez's command of

spoken English was superior to that of Ms. Morales, but, in his

opinion, Ms. Morales could communicate adequately in person or

on the telephone with the staff in the Warehouse, including

Mr. Roof and Ms. Zilliner, and with Miami - Dade Community College

staff and others who spoke only English.

42. In a memorandum dated September 6, 2002, Mr. Meistrell

notified Mr. Roof, the head of warehouse operations;

Ms. Zilliner, th e head of the computer section of the Warehouse;

and Rafael Rodriguez, the head of the storage section of the

Warehouse, of the budget reduction and the decision he had made

to reduce the number of staff in the Warehouse. Mr. Meistrell

advised in the memo randum that, in addition to reducing the

number of employees at the Warehouse, the maximum hours of the

remaining Warehouse employees were restricted to 30 hours per

week.

43. Mr. Meistrell notified Ms. Rodriguez and the two

employees from the computer se ction of their termination on

September 6, 2000; he went to the Warehouse and gave the

termination letters to each of the three employees.

Ms. Rodriguez was advised that she would receive her salary

through September 17, 2000.

44. On September 6, 2000, a fter she was told of her

termination and while she was packing up her belongings to leave

the Warehouse, Ms. Rodriguez received a call from Dr. Ruff's

office asking that she visit Dr. Ruff's office to sign some

documents before she left. Ms. Rodriguez wen t to Dr. Ruff's

office, where she signed and dated the complaint that she had

sent to Dr. Ruff by facsimile on July 17, 2000. At this time,

Dr. Ruff presented her with a letter of apology prepared by

Mr. Roof and dated September 1, 2000.

45. Computer rec ords maintained by Miami - Dade Community

College's indicate that Ms. Rodriguez was actually terminated

from her employment on May 25, 2001. It was, however,

Mr. Meistrell's practice to keep many terminated part - time staff

on active status in the computer s ystem, at no cost to the

college, so that, if he needed a part - time employee to work for

a couple of weeks, he could call and offer work to one of the

people in the system without going through hiring formalities;

because they were retained in the computer on active status,

these employees could start working almost immediately.

Ms. Rodriguez was one of the Warehouse employees that

Mr. Meistrell kept on active status in the computer after her

termination - in - fact. When he was told that he had too many

peop le on active status in the computer, he cleaned out the

records, and Ms. Rodriguez's was one of the records he took off

of the computer.

46. Ms. Rodriguez has not been employed since her

termination from the Warehouse. Even though she has had

interviews, Ms. Rodriguez believes that prospective employers

lose interest in her when she explains that she has a pending

sexual harassment complaint against Miami - Dade Community

College.

47. No one has been hired to fill the positions held by

Ms. Rodriguez and th e two employees from the computer section

that were terminated on September 6, 2000.

Summary

48. Ms. Rodriguez presented evidence (1) that she filed a

grievance against her supervisor, Mr. Roof, with Miami - Dade

Community College in July 2000, charging th at he had sexually

harassed her in the workplace; (2) that she was terminated from

her part - time employment with Miami - Dade Community College on

September 6, 2000; and (3) that Mr. Meistrell was aware that she

had filed a grievance against Mr. Roof and not ified her of her

termination less than two months after she filed the grievance,

approximately one month after he was advised by Dr. Ruff that

Mr. Roof would be reprimanded for making inappropriate comments

to Ms. Rodriguez, one day after Mr. Meistrell pre pared a

memorandum of reprimand to Mr. Roof, and the same day

Ms. Rodriguez was given Mr. Roof's letter of apology.

49. Miami - Dade Community College in its turn produced

evidence that, because of a reduction in the funds allocated for

part - time salaries i n Miami - Dade Community College's budget for

Fiscal Year 2000 - 2001, Mr. Meistrell decided to re - organize the

operations of the Warehouse and to cut the staff of the records

section of the Warehouse from two employees to one employee.

Miami - Dade County also produced evidence that Mr. Meistrell's

decision to terminate Ms. Rodriguez rather than Ms. Morales was

based on the length of Ms. Morales's employment with Miami - Dade

Community College and his determination that Ms. Morales had

more experience in general office work and was better qualified

to carry out the duties of the remaining position in the records

section than Ms. Rodriguez.

50. Ms. Rodriguez's proof is insufficient to establish

with the requisite degree of certainty that the reasons

articulated by Mr. Meistrell were not the true reasons for her

termination and that her filing a grievance against Mr. Roof was

the true reason for her termination. Ms. Rodriguez did not

dispute Mr. Meistrell's explanation that budget cuts required

him to re - organize t he Warehouse and reduce the staff of the

records section to one part - time employee. Rather,

Ms. Rodriguez claimed she was more qualified for the position

than Ms. Morales; she implied that the removal of

Ms. Rodriguez's position from Miami - Dade Community College's

computer records on May 31, 2001, somehow undercut the

credibility of Mr. Meistrell's explanation of the reasons for

her termination; and she asserted that Ms. Morales strongly

supported Mr. Roof when she was interviewed by Dr. Ruff during

the in vestigation of Ms. Rodriguez's sexual harassment

complaint.

51. Ms. Rodriguez's perception that she was more qualified

for the one remaining position in the records section of the

Warehouse than Ms. Morales does not discredit the reasons given

by Mr. Meis trell for his decision to terminate Ms. Rodriguez.

Mr. Meistrell's explanation of the factors that he considered in

reaching the decision to terminate Ms. Rodriguez rather than

Ms. Morales establishes that he chose Ms. Morales based on his

determination t hat she was more qualified for the position that

Ms. Rodriguez, given his understanding of the duties that the

person in the position would be required to perform and of the

office skills and work experience of Ms. Morales and

Ms. Rodriguez. Second, altho ugh the evidence supports the

finding that Ms. Rodriguez's position was not removed from

Miami - Dade Community College's computer files until May 25,

2001, Ms. Rodriguez does not dispute that she was terminated in

fact on September 6, 2000, and she has fail ed either to

establish that the deletion of her position from the computer

records in May 2001 was more than a ministerial act or to

explain how the delay in deleting her position from the computer

records supports in any way her contention that she was

te rminated because she filed a claim of sexual harassment

against Mr. Roof. Finally, Ms. Rodriguez presented no evidence

tending to show that Mr. Meistrell knew the details of

Ms. Morales's statement to Dr. Ruff regarding Ms. Rodriguez's

sexual harassment c omplaint against Mr. Roof.

52. Ms. Rodriguez has failed to produce proof sufficient

to permit the inference that Mr. Meistrell intentionally

discriminated against her when he decided to terminate her

employment in the records section of the Miami - Dade Com munity

College Warehouse. Not only did she fail to present sufficient

evidence to discredit Mr. Meistrell's explanation of the reasons

underlying his decision to terminate Ms. Rodriguez, she failed

to establish that Mr. Meistrell's decision was influenced in any

way by the fact that she filed a sexual harassment grievance

against Mr. Roof. The evidence presented by Miami - Dade

Community College is sufficient to establish that Mr. Meistrell

did not have a close personal relationship with Mr. Roof, did

not s eek Mr. Roof's input regarding whether Ms. Rodriguez or

Ms. Morales should be terminated or discuss the matter with him,

and did not make Mr. Roof aware of his decision to terminate

Ms. Rodriguez prior to September 6, 2000. 4

CONCLUSIONS OF LAW

53. The Di vision of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2002).

54. Section 760.10, Florida Statutes (2000), part of the

Florida Civil Rights Act, provides as follows:

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

pract ice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

55. Florida courts routinely rel y on decisions of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Section 2000e et seq. , United States

Code, ("Title VII"), when construing the Florida Civil Rights

Act, "because the Florida act was patterned after Title VII."

Harper v. Blockbuster Entertainment Corp. , 139 F.3d 1385, 1387

(11th Cir. 1998), citing, inter alia , Ranger Insurance Co. v.

Bal Harbor Club, Inc. , 549 So. 2d 1005, 1009 (Fla. 1989), and

Florida State University v. Sondel , 685 So. 2d 923 , 925, n. 1

(Fla. 1st DCA 1996).

Timeliness

56. The first legal issue that must be addressed is the

timeliness of Ms. Rodriguez's complaint of discrimination to the

FCHR. Section 760.11(1), Florida Statutes (2000), provides that

"[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the commission within 365 days of the

alleged violation, . . ." As set forth in the findings of fact

herein, Ms. Rodriguez was in fact terminated from her employment

at the Warehouse on Septemb er 6, 2000. She filed her complaint

with the FCHR on December 4, 2001. Accordingly, the complaint

was, on its face, filed more than 365 days after the violation

alleged by Ms. Rodriguez.

57. It is, however, settled that the time limitation on

filing a c omplaint under Title VII is not jurisdictional but,

rather, is "a requirement that, like a statute of limitations,

is subject to waiver, estoppel, and equitable tolling." Zipes

vans World Airlines, Inc. , 455 U.S. 385, 393 (1982); see

also National Rai lroad Passenger Corp. v. Morgan , 536 U.S. 101

(2002).

58. The first time Miami - Dade Community College actually

raised the issue of timeliness in this proceeding was in its

proposed Findings of Fact and Conclusions of Law, which was

filed after the conclus ion of the final hearing. Counsel for

Miami - Dade Community College mentioned the timeliness issue

twice during the final hearing, but did not directly raise or

argue the issue. 5 Because the issue was not raised prior to or

even during the final hearing, it is concluded that Miami - Dade

Community College waived any challenge to the timeliness of

Ms. Rodriguez's complaint to the FCHR.

Discrimination

59. The court in Goldsmith v. City of Atmore , 996 F.2d

1155, 1162 - 63 (11th Cir. 1993), observed that "[t]he burden of

proof in Title VII retaliation cases is governed by the

framework established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." The court

described that burden as follows:

In order to prevail, the plainti ff must

first establish a prima facie case by

showing (1) statutorily protected

expression, (2) adverse employment action,

and (3) a causal link between the protected

expression and the adverse action. . . .

Once a prima facie case has been

established, th e defendant may come forward

with legitimate reasons for the employment

action to negate the inference of

retaliation. . . . If the defendant offers

legitimate reasons for the employment

action, the plaintiff then bears the burden

of proving by a preponder ance of the

evidence that the reasons offered by the

defendant are pretextual.

Goldsmith , 996 F.3d at 1163 (citations omitted).

60. Based on the findings of fact herein, Ms. Rodriguez

established a prima facie case of discrimination. First, she

filed a grievance against her supervisor accusing him of sexual

harassment, a charge that is considered a type of discrimination

based on sex prohibited by Section 760.10(1)(a), Florida

Statutes (2000). See Scelta v. Delicatessen Support Services,

Inc. , 57 F.Sup p.2d 1327 (M.D. Fla. 1999). Second, she was

terminated from her employment with Miami - Dade Community

College. Third, Mr. Meistrell was aware when he decided to

terminate Ms. Rodriguez that she had filed the grievance, and

she was terminated approximately two months after she filed the

grievance, one month after Dr. Ruff found that Mr. Roof had made

inappropriate comments to her, and on the same day she received

Mr. Roof's letter of apology. See Goldsmith , 996 F.2d at 1163 -

64, (citing Yartzoff v. Thomas , 809 F.2d 1371 (9th Cir. 1987)

for the proposition that "evidence that employer knew of

employee's protected activities, combined with a proximity in

time between protected action and the allegedly retaliatory

action, is sufficient to establish prima facie case of

retaliation.").

61. Based on the findings of fact herein, Miami - Dade

Community College produced evidence that Ms. Rodriguez was

terminated for a legitimate, nondiscriminatory reason, in

accordance with the shifting burden of production set forth i n

McDonnell Douglas . The reasons for Ms. Rodriguez's termination

articulated by Miami - Dade Community College were that

Mr. Meistrell was required to reorganize the staffing of the

Warehouse because of budget cuts for the 2000 - 2001 fiscal year,

specificall y cuts in the amount budgeted for salaries for part -

time employees; that Mr. Meistrell decided that it was necessary

to reduce the number of employees in the records section from

two persons to one person; and that he chose to terminate

Ms. Rodriguez becau se he concluded that Ms. Morales was the

person best qualified for the one remaining position.

62. Because Miami - Dade Community College produced evidence

of a legitimate, nondiscriminatory reason for Ms. Rodriguez's

termination, Ms. Rodriguez was given th e opportunity, as

required by the United States Supreme Court in Reeves v.

Sanderson Plumbing Products , 530 U.S. 133, 143 (2000), citing

Texas Department of Community Affairs v. Burdine , 450 U.S. 248,

253, 255, 256 (1981) and St. Mary's Honor Center v. Hic ks , 509

U.S. 502, 507 - 08, 511 (1993),

"to prove by a preponderance of the evidence

that the legitimate reasons offered by the

defendant were not its true reasons, but

were a pretext for discrimination." . . .

That is, the plaintiff may attempt to

establish that he was the victim of

intentional discrimination "by showing that

the employer's proffered explanation is

unworthy of credence." . . . Moreover,

although the presumption of discrimination

"drops out of the picture" once the

defendant meets its burden of production,

. . . the trier of fact may still consider

the evidence establishing the plaintiff's

prima facie case "and inferences properly

drawn therefrom . . . on the issue of

whether the defendant's explanation is

pretextual."

(Citations omitted.)

63. "The ultimate burden of proving by a preponderance of

the evidence that the reason provided by the employer is a

pretext for prohibited, retaliatory conduct remains on the

plaintiff." Pennington v. City of Huntsville , 261 F.3d 1262,

1266 (11th Cir. 2001), citing Olmsted v. Taco Bell Corp. ,

141 F.3d 1457, 1460 (11th Cir. 1998). Proof sufficient to

"permit the trier of fact to conclude that the employer

unlawfully discriminated" consists of the "plaintiff's prima

facie case, combined with sufficient e vidence to find that the

employer's asserted justification is false." Reeves , 530 U.S.

at 148.

64. All of the evidence presented by Ms. Rodriguez has

been carefully considered, and it is concluded that, based on

the finding of fact herein, Ms. Rodriguez has failed to prove by

a preponderance of the evidence that the reasons offered by

Miami - Dade Community College for her termination were false.

Ms. Rodriguez's perception that she was more qualified than

Ms. Morales for the remaining position in the recor ds section of

the Warehouse is not relevant. As the court in Vickers v.

Federal Express Corp. , 132 F.Supp.2d 1371, 1381 (S.D. Fla.

2000), observed: "The issue of pretext has nothing to do with

the employee's perception of fairness. See Webb v. R & B

Hol ding Co. , 992 F.Supp. 1382, 1387 (S.D. Fla. 1998)('The

employee's perception of himself . . . is not relevant. It is

the perception of the decision maker that is relevant. . . .')."

65. Nor is it sufficient to discredit the reasons given by

Mr. Meistrell for Ms. Rodriguez's termination that Ms. Rodriguez

established the "causal link" element of her prima facie case

through evidence of the temporal proximity of the filing of her

grievance, the completion of the investigation, the delivery of

Mr. Roof's let ter of apology, and notice of her termination.

Although this showing was sufficient to support the inference

that the grievance and the termination were not wholly unrelated

for purposes of her prima facie case, the showing that must be

made to establish the "causal link" element of a prima facie

case of discrimination is much less stringent than the showing

that must be made to establish that the reason given for adverse

employment action is a pretext for discrimination. See Long v.

Eastfield College , 88 F.3d 300, 305, n. 4 (5th Cir. 1996)("The

ultimate determination in an unlawful retaliation case is

whether the conduct protected by Title VII was a 'but for' cause

of the adverse employment decision."). Based on the findings of

fact herein, Ms. Rodriguez has failed to establish anything more

than the temporal proximity of her termination and the filing,

investigation, and resolution of her grievance; she has not

proven by a preponderance of the evidence that she would not

have been terminated "but for" th e filing of her grievance.

66. Because, based on the findings of fact herein,

Ms. Rodriguez has failed to establish by a preponderance of the

evidence that the reason given by Mr. Meistrell for her

termination were unworthy of belief and a mere pretext fo r

discrimination, she has failed to sustain her burden of proving

that her termination was an unlawful employment practice

prohibited by Section 760.10(7), Florida Statutes (2000).

Cf . Reeves , 590 U.S. at 149 ("A prima facie case and sufficient

evidence t o reject the employer's explanation may permit a

finding of liability.").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Pe tition for Relief

filed by Janet Rodriguez.

DONE AND ENTERED this 29th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 29th day of January, 2003.

ENDNOTES

1 / Rule 60Y - 5.008(5)(a), Florida Administrative Code, requires

that, in a case involving allegati ons of employment

discrimination, the respondent "shall file an answer with the

Commission within 20 days of service of the petition." The FCHR

transmitted the Petition for Relief and Request for

Administrative Hearing to the Division of Administrative

He arings shortly after it was filed, before the expiration of

the 20 - day time period for filing an answer. No answer to the

petition has been transmitted to the Division of Administrative

Hearings either by the FCHR or by Miami - Dade Community College.

2 / Respondent's Exhibit 6 is a composite exhibit consisting of

the response Miami - Dade Community College submitted to the

Commission, and it contains 16 separately numbered sections.

Sections 7, 8, and 9 correspond to Respondent's Exhibits 7, 8,

and 9, and c opies of these sections of Respondent Exhibit 6 were

not separately provided and labeled as Respondent Exhibits 7, 8,

and 9. Accordingly, reference should be made to Respondent's

Exhibit 6 for these three exhibits.

3 / Ms. Morales was unable to understan d the question "What would

you define as the essential functions of your position?" posed

by Ms. Rodriguez's attorney during cross - examination. While

this shows that Ms. Morales is not as fluent in English as

Ms. Rodriguez, it does not tend to show that M s. Morales's grasp

of English was insufficient to perform her job responsibilities.

4 / Ms. Rodriguez testified that, one day in August 2000, while

she was inputting data into her computer, a co - worker came to

her and told her that Mr. Roof wanted her com puter taken away.

Ms. Rodriguez testified that, when she refused to give up her

computer, the co - worker summoned Mr. Roof and that Mr. Roof, in

her presence, placed a telephone call to Mr. Meistrell and

"asked him if I [Ms. Rodriguez] was not off the payr oll."

(Tr. at 78.). Ms. Rodriguez further testified that she

immediately telephoned a "Ms. Thompson," whom she identified as

Dr. Ruff's supervisor, and told Ms. Thompson of the incident.

Ms. Rodriguez claimed in her testimony that Ms. Thompson called

Mr . Meistrell at his home on a Sunday, and that she had called

Ms. Thompson to find out "what had come of the incident" but

that she "never heard anything else of that." (Tr. at 79.).

Ms. Rodriguez's testimony about this incident is

uncorroborated: M s. Rodriguez did not present the testimony of

the co - worker who was allegedly dispatched by Mr. Roof to remove

her computer; she did not present the testimony of Mr. Roof; and

she did not present the testimony of Ms. Thompson, the person

she purportedly sh e telephoned immediately after the incident.

Even though Ms. Rodriguez identified Ms. Thompson as Dr. Ruff's

supervisor, Ms. Rodriguez's counsel did not inquire during

cross - examination of Dr. Ruff whether Ms. Thompson had discussed

this matter with her. And, finally, even though Mr. Meistrell

was subject to cross - examination by Ms. Rodriguez's counsel, no

inquiry was made regarding the telephone call Mr. Roof allegedly

made to Mr. Meistrell asking if Ms. Rodriguez was still on the

payroll. Because it is uncorroborated, Ms. Rodriguez's

testimony regarding this alleged incident is not credited.

5 / Transcript at 14 - 15; 187.

COPIES FURNISHED:

Neil Flaxman, Esquire

Neil Flaxman, P.A.

550 Biltmore Way, Suite 780

Coral Gables, Florida 33134

Karen A. Bri mmer, Esquire

Hinshaw & Culbertson

One East Broward Boulevard

Suite 1010

Fort Lauderdale, Florida 33301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, Gener al Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.