02-002625 Charles Rogers vs. Department Of Corrections Status: Closed Recommended Order on Friday, November 15, 2002.

Summary: Petitioner did not show discrimination on two allegations he pled, and did show discrimination on a charge he did not plead.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES ROGERS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2625

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was h eld pursuant to notice in the above -

styled case by Stephen F. Dean, assigned Administrative Law

Judge of the Division of Administrative Hearings, on

September 12, 2002, in Starke, Florida.

APPEARANCES

For Petitioner: Charles Rogers, pro se

Post Office Box 331

Worthington Springs, Florida 32597

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated ag ainst based on his

race or in retaliation for participation in a protected activity

in violation of Chapters 760.10(1)(a) and (7), Florida Statutes.

PRELIMINARY STATEMENT

On or about December 10, 2001, Petitioner Charles Rogers

(Petitioner) filed a Charg e of Discrimination with the Florida

Commission on Human Relations (FCHR) alleging that Respondent

Department of Corrections ( Department ) had discriminated against

him. Petitioner specifically alleged that the Department

engaged in disparate treatment bas ed on his race and created a

hostile work environment. Petitioner did not specifically

allege retaliation for participation in a protected activity.

Because of the Department 's failure to timely respond to

FCHR's inquiries, FCHR issued a "cause" determina tion on May 14,

2002, citing adverse inference. Thereafter, Petitioner filed a

Petition for Relief on or about June 12, 2002, reiterating the

charges contained in his original complaint. The Petition was

forwarded to the Division of Administrative Hearin gs and a

hearing on the Petition was held in Starke, Florida, on

September 12, 2002.

At the hearing, the Petitioner presented evidence in

support of his two specified claims and, in addition, evidence

on retaliation for engaging in a protected activity.

Petitioner's Exhibits numbered 1 through 18 were admitted.

The Department presented a Proposed Recommended Order that

was read and considered. Petitioner did not file a post hearing

brief.

FINDINGS OF FACT

1. Petitioner, Charles Rogers, is a Caucasian male.

2. At all times relevant to this Petition, Petitioner was

employed by the Florida Department of Corrections as a

correctional probation officer. He was supervised by Susan

Bissett - Dotson, a Caucasian female.

3. In late August, Petitioner had a per son he supervised

come into his office to discuss pending warrants for the

person's arrest. When advised of these warrants, the

probationer ran, causing Petitioner to have to pursue him

through the office.

4. On September 6, 2001, as a result of the fore going

incident, Petitioner received a written reprimand for violation

of office policies and improper use of force. Petitioner failed

to follow a policy requiring notice to others in the office when

an offender might be arrested in the office. Adam Thoma s, the

circuit administrator, reviewed the use of force and determined

Petitioner had used force appropriately. Nevertheless, the

reprimand from Susan Bissett - Dotson contained reference to

improper use of force in addition to failure to follow office

proc edures.

5. Petitioner filed an internal grievance contesting that

portion of the reprimand referencing improper use of force. His

grievance was heard and the reprimand was reduced to a record of

counseling, deleting any reference to an improper use of fo rce.

Petitioner's pay, benefits, ability to be promoted, as well as

all other aspects of his employment were not affected either by

the original reprimand or the subsequent record of counseling.

6. Petitioner's caseload was reassigned four times within

a 14 - month period. These reassignments occurred between

August 29, 2000, and October 2, 2001. Only one of them took

place after his grievance. The reassignments did not involve a

physical move to a different office; rather, Petitioner received

a new se t of offenders to supervise whose files were in various

stages of development.

7. The reassignments did not involve any material changes

in his duties or responsibilities. There was no amount of

greater or less prestige associated with any of the casel oads he

received. The reassignments did require him to become familiar

with a new area and a new group of persons. Petitioner was

required to do extensive work to re - develop these files, which

task was onerous.

8. The decision to reassign Petitioner's caseloads was

taken in relation to the reassignment of other personnel based

upon several factors, including but not limited to: assignments

from the judiciary; the geographic location of the various

officers vis - à - vis supervised offenders; the officers' expressed

willingness to accept a new caseload; the officers'

qualifications to handle specialized caseloads; and the

equitable distribution of the cases. One of the reassignments

was caused when Petitioner was out for more than two weeks,

which requires a mandatory reassignment of cases. The desires

of Petitioner were not considered, although Ms. Bissett - Dotson

gave full consideration to the wants and desires of the others

who were moved.

9. Petitioner alleges that he was yelled at in a meeting

for h aving an overdue assignment; he produced an e - mail berating

him for a late case; and records were introduced that showed the

case was not overdue. Records were introduced about the

redistribution of another officer's caseload. Of the 31 cases

reassigned, 20 were assigned to Petitioner. This occurred on

November 14, 2001.

10. Petitioner complained that he was not allowed to work

before 8:00 a.m. Ms. Bissett - Dotson was questioned as to

whether she allowed Petitioner to work prior to 8:00 a.m. She

stat ed that she had denied his request to work before 8:00 a.m.

because 8:00 a.m. to 5:00 p.m. was the standard work day for the

office, and it was necessary to have coverage during those

hours. Because of various requirements, such as working during

court, s ome officers had to be off during normal hours. Other

officers had to be out of the office more than others. All of

this affected when and whether one could deviate from standard

office hours.

11. On three occasions, Petitioner's firearms locker was

a ccidentally used by other officers. On at least one of these

occasions, a camera was locked in the locker along with

Petitioner's lock. Petitioner was not subject to any discipline

as a result of these incidents and Susan Bissett - Dotson was

approached by other probation officers on each of the occasions

and informed that each had been a mistake. Ms. Bissett - Dotson

was satisfied with these explanations.

12. While only one of the reassignments took place after

the grievance, clearly Ms. Susan Bissett - Dots on was not fair and

equitable in her treatment of Petitioner.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case.

14. Under the provisions of Section 760.10, Florida

Statutes , it is an unlawful employment practice for an employer:

(1)(a) [T]o discharge or to fail to refuse

to hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment beca use of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) [T]o discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this secti on, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

15. FCHR and the Florida courts have determined that

federal discrimination law should be u sed as guidance when

construing provisions of Section 760.10. See Brand v. Florida

Power Corp , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida

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

1st DCA 1991).

16. The Supreme Court of the United States established in

McDonnell - Douglass Corporation v. Green , 411 U.S. 792 (1973),

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

248 (1981), the analysis to be used in cases alleging

discrimination under Title VII and which are persuasive in cases

such as the one at bar. This analysis was reiterated and

refined in St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993).

17. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the eviden ce a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate,

non - discriminatory reason for the action taken against

Petitioner. Once this non - discriminatory reason is offered by

R espondent, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated in Hicks , before

finding discrimination, "[t]he fact finder must believe the

plaintiff's explan ation of intentional discrimination." 509

U.S. at 519.

18. 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 moti ve for the adverse employment action. Id.

19. Here, Petitioner has alleged race discrimination based

on both disparate treatment and hostile work environment. In

order to establish a prima facie case of disparate treatment

based upon race, Petitioner mu st establish: 1) That he is a

member of a protected class; 2) That he was qualified for his

position; 3) That he suffered an adverse employment action; and

4) That he was treated less favorably than similarly situated

employees who were not members of his protected class.

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

20. Section 760.10, Florida Statutes , provides that race

is a protected class. There is no dispute as to Petitioner's

qualifications for the position he holds. Thus, the first i ssue

to be analyzed is whether Petitioner suffered from adverse

employment actions. Petitioner introduced records and testimony

showing that the following adverse actions were taken against

him:

(a) That he received a written reprimand

for imprope r use of force.

(b) That he was chastised for having an

overdue investigation.

(c) That he was not allowed to start work

before 8:00 a.m., although others were.

(d) That his locker was tampered with on at

last three occasions.

(e) Th at his caseload was reassigned on a

least four occasions within a 14 - month

span.

However, Petitioner did not show he was treated differently from

co - workers who were not in his class. That is, Petitioner did

not show that members of other races were treated differently.

The person who was responsible for his "disparate" treatment was

a white female.

21. "[A] tangible employment action constitutes a

significant change in employment status, such as hiring, firing,

failing to promote, reassignmen t with significantly different

responsibilities, or a decision causing a significant change in

benefits." Burlington Indus., Inc., v. Ellerth , 524 U.S. 742,

760 - 61, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998). There must be

a serious and material change in t he terms, conditions, or

privileges of employment. See Davis v. Town of Lake Park , 245

F.3d 1232, 1239 (11th Cir. 2001).

22. A written reprimand for failure to follow procedures

is a serious job action. It is the step taken in corrective

action before d ismissal. It is not a trifle and falls within

the scope of a "tangible employment action."

23. Petitioner presented evidence that his caseload was

reassigned on at last four occasions in 14 months. Respondent

asserts the reassignments did not constitu te adverse employment

actions because none of the reassignments resulted in a physical

transfer to a different office, and none of the caseloads had

any more or less prestige associated with them. However, there

was considerable additional work involved i n establishing a new

caseload. It is noted that one of the changes was the result of

Petitioner's being out for more than two weeks and only one

change occurred after Petitioner filed his grievance. The

reassignments resulted in a material and substantia l change in

the terms and conditions of employment because of the added work

required and constituted adverse employment actions.

24. Although the Department presented some legitimate

reasons for the reassignments, it was clear that Ms. Susan

Bissett - Do tson did not consider Petitioner's desires and

concerns in making these reassignments or in assigning him added

work.

25. Petitioner also complained of being chastised for late

work when it was not late. This constituted a "counseling."

This, together with the original reprimand, reflect a strained

relationship between Petitioner and Ms. Bissett - Dotson. This is

reflected in her disapproval of Petitioner's request to start

work before 8:00 a.m.

26. Taken as a whole, Ms. Bissett - Doxson's actions

cons titute material and substantial changes in the terms and

conditions of Petitioner's employment and, accordingly,

constitute adverse employment actions. It is, however, noted

that this treatment preceded the grievance; although it

materially worsened after Petitioner grieved the written

reprimand she gave him.

27. Petitioner complains of a hostile work environment. A

hostile work environment claim is established upon proof that

"the workplace is permeated with discriminatory intimidation,

ridicule, and in sult that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment." Harris v. Forklift Systems. Inc. ,

501 U.S. 17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993). In

order to establish a prima facie case of a hostile work

environment based on race, Petitioner must show that (1) he

belongs to a protected group; (2) he has been subject to

unwelcome harassment; (3) the harassment was based on a

protected characteristic of his; (4) the haras sment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment; and (5) the employer is responsible for

such environment under either a theory of vicarious or of direct

l iability. Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002). Here, Petitioner has failed to provide

evidence that the alleged harassment was based on race. None of

the instances cited by Petitioner and set forth above have even

an indirect correlation or connection to race.

28. Petitioner next presented evidences of retaliation by

Respondent after Petitioner filed his grievance contesting his

written reprimand and after he filed his FCHR complaint. This

was not alleged in Petit ioner's Complaint. In order to

establish a prima facie case of retaliation, Petitioner must

show that (1) he engaged in statutorily protected activity;

(2) an adverse employment action occurred; and (3) the adverse

action was causally related to his pro tected activities.

Little v. United Technologies , 103 F.3d 956, 959 (11th Cir.

1997).

29. With regard to retaliation for the filing of

Petitioner's grievance, Section 760.10, Florida Statutes ,

provides that it is unlawful to discriminate "against any pe rson

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 in an investigation, proceeding, or hearing under

th is section." I find that filing of a grievance pursuant to

agency personnel rules to oppose a written reprimand improperly

given is protected by the state's career service statutes.

Petitioner was engaged in a statutorily protected act in filing

a grieva nce.

30. It appears that some of the actions taken against

Petitioner were in the retaliation to the grievance which he

filed on the written reprimand. It is noted that not all of the

events about which Petitioner complained occurred after his

grievanc e. While not all of the actions raised occurred after

the grievance, the reprimand, the e - mail, the last reassignment

all occurred after his grievance. The tempo of adverse actions

increased after that date.

31. It is noted that there is a procedural pr oblem with

this aspect of Petitioner's evidence. He did not claim,

directly or otherwise, retaliation in his original complaint

filed with FCHR or in his Petition that is the subject of the

September 12, 2002, hearing. For that reason alone, this claim

m ust fail; however, it is noted that personnel changes

instituted by the Department have changed Petitioner's

supervisor and that the Department indicated at hearing a

sensitivity to Petitioner's claims.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order indicating clearly that exercise of career service

and other employment rights guaranteed by statute are subject to

Section 760.10, Florida Statutes , protection, and that the

Petition herein is dismissed not because it was not proved, but

because it was not properly pled.

DONE AND ENTERED this 15th day of November, 2002, in

Tallahassee, Leon County, Florida.

_________________________________ __

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this 15th day of November, 2002.

COPIES FURNISHED :

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Charles Rogers

Post Office Box 331

Worthington Springs, F lorida 32597

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, 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 wi th the agency that

will issue the final order in this case.