02-003286 Kimberly Holden vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, September 24, 2003.

Summary: Petitioner failed to show that the action taken against her was retaliation for her filing a grievance. Further, the Department showed a reason for Petitioner`s discharge which Petitioner did not show was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY HOLDEN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3286

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

proceeding on August 25, 2003, in Marianna, Florida, before

Stephen F. Dean, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kimberly Holden, pro se

2103 Vista Road

Marianna, Florida 32448

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against based on

retaliatio n for participation in a protected activity in

violation of Chapter 760.10(7), Florida Statutes.

PRELIMINARY STATEMENT

On or about August 29, 2001, Petitioner, Kimberly Holden,

filed a Charge of Discrimination with the Florida Commission on

Human Relatio ns (hereinafter “FCHR”) alleging that Respondent,

Department of Corrections (hereinafter “Department”), had

discriminated against her. Specifically, Holden alleged that

the Department discriminated against her based on her race, sex,

and in retaliation fo r complaining about Captain Tullis Scipper.

The Florida Commission on Human Relations failed to address

the charge within 180 days of its being filed, and Holden

subsequently submitted to FCHR an Election of Rights form

indicating that she wished to withd raw her petition and file a

Petition for Relief to proceed with an administrative hearing.

FCHR treated this Election of Rights as a petition and

transmitted Holden’s original charging documents to the Division

of Administrative Hearings (hereinafter “DOA H”).

The Department filed a Motion to Dismiss, noting that

Holden had not filed an actual petition. Subsequent to that

motion, on or about September 9, 2002, Holden filed a Petition

for Relief. In that petition, she reiterated her charge that

the Depart ment had discriminated against her based on her race,

sex, and in retaliation for complaints she had made about

Captain Tullis Scipper. Based on the filing of the petition,

the Department withdrew its Motion to Dismiss and filed a timely

answer to the pet ition, denying the substantive charges.

A hearing on the petition was held in Marianna, Florida on

August 25, 2003. At the hearing, Petitioner presented only her

own testimony. Respondent presented the testimony of Warden

Adro Johnson and Captain Tullis Scipper. All citations are to

Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner (Holden) is an African - American female.

2. At all times relevant to this petition, Holden was

employed in a probationary status by the Fl orida Department of

Corrections at Apalachee Correctional Institution (ACI) as a

Correctional Officer. Probationary officers are not entitled to

progressive discipline, but can be terminated for any reason.

3. At the hearing, Holden withdrew her claims that the

Department had discriminated against her based on her race and

sex.

4. On or about July 22, 2001, Captain Tullis Scipper

responded to a call from the Medical Unit at ACI. Upon his

arrival, he observed Officer Holden in front of the Suicide

Watc h Isolation Cell. She was cussing at the inmate with whom

she had a previous confrontation. Scipper explained to her that

she was not to argue or verbally abuse the inmate and that she

should stay away from the cell. On at least one other occasion

that night, Captain Scipper responded to the Medical Unit and

observed similar actions by Holden.

5. The next day, Captain Scipper received a call from

Warden Adro Johnson, who inquired as to what had happened in the

Medical Unit the night before. Warden Joh nson had received a

complaint from Nurse Carla Weeks that Officer Holden had been

cussing the inmates and he was checking into the complaint.

Warden Johnson asked Captain Scipper to bring Officer Holden to

his office.

6. The purpose of the meeting was n ot to ascertain whether

Officer Holden had been cussing at inmates. The Warden had two

eye - witness, staff accounts of her behavior. When confronted,

she advised Warden Johnson that she had become angry and had

cussed the inmate. Warden Johnson counseled Holden about her

behavior.

7. Warden Johnson testified that he felt that Holden was

unreceptive to his counseling and that she was argumentative.

He believed that she was not displaying the attitude that a good

officer displays when he/she is being counseled by a warden.

Holden also was upset and crying, and, as a result, Warden

Johnson informed her that she needed to adjust her attitude and

come back to see him the next day. Warden Johnson testified

that he had not made up his mind as to wh at action he would take

against Holden for her actions with the inmate.

8. After the meeting with Warden Johnson, Captain Scipper

observed Officers Holden and Shiver arguing with each other.

9. Holden testified that she had asked Shiver about why

her t our was changed, and this led to the incident observed by

Scipper.

10. In Scipper’s opinion, Holden was the “aggressor”

because she continued to advance on Shiver, even though Shiver

had his hands in the air and was stating words to the effect

that he di d not have anything to do with whatever they were

arguing about.

11. Knowing that Holden had just had a counseling session

with the Warden, Scipper was surprised that Holden would almost

immediately be involved in an altercation with a staff member.

He r elieved Holden of her duties for the rest of her scheduled

shift.

12. The next day Holden met as scheduled with Warden

Johnson. Captain Scipper did not attend this meeting. Johnson

had been informed of the previous day’s incident between

Officers Holden and Shiver. He asked Holden if she was willing

to change her attitude. He had not determined prior to the

meeting if he would take any action at all against Holden.

Johnson felt that Holden's response to him was disrespectful,

and that she did not have the right attitude. Johnson

terminated Holden based on what he perceived to be her poor

attitude. He knew that Holden was approaching the end of her

probationary status and that if he wanted to terminate her

before she attained career service status wit h its attendant

protections, he needed to do so at that time.

13. Petitioner complained in an incident report filed

before the Warden the first time that Captain Scipper refused to

listen to her when he counseled her about a prior staff

altercation.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1).

15. Under the provisions of Section 760.10, it is an

unlawful employment pr actice for an employer:

(7) . . . to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this section, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

16. In this case, although the petition states that Holden

is claiming race and sex discrimination, at hearing, Holden

specifically and unequivocally withdrew those particular

charges. An examination of the petition reveals that the only

remaining charge is one of retaliation. Specifically, Holden’s

original charging document alleges that she was retaliated

against because she reported an incident to Colonel C. Halley,

and sh e felt that this incident report aggravated Captain

Scipper as he stated that he did not like her “going over his

head.” A review of the petition filed also indicates that the

retaliation claimed involves Scipper and his treatment of her.

17. The Florida Commission on Human Relations and the

Florida courts have determined that federal discrimination law

should be used as guidance when construing provisions of Section

760.10. See Brand v. Florida Power Corp. , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Florid a Department of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

18. 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).

19 . Pursuant to this analysis, the Petitioner has the

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. If a prima facie

case is established, the Respondent must articulate some

legitimate, non - discrimi natory reason for the action taken

against the Petitioner. Once this non - discriminatory reason is

offered by the Respondent, the burden then shifts back to

Petitioner to demonstrate that the offered reason is merely a

pretext for discrimination. As the S upreme Court stated in

Hicks , before finding discrimination, “[the] fact finder must

believe the plaintiff’s explanation of intentional

discrimination.” 509 U.S. at 519.

20. In Hicks , the Court stressed that even if the fact

finder does not believe the p roffered reason given by the

employer, the burden remains with the Petitioner to demonstrate

a discriminatory motive for the adverse employment action. Id.

21. In order to establish a prima facie case of

retaliation, Holden must show that (1) she engaged in

statutorily protected activity, (2) an adverse employment action

occurred, and (3) the adverse action was casually related to her

protected activities. Little v. United Technologies , 103 F.3d

956, 959 (11th Cir. 1997).

22. Section 760.10 provides tha t it is unlawful to

discriminate “against any person because that person has opposed

any practice which is an unlawful employment practice under this

section, or because that person has made a charge, testified,

assisted, or participated in any manner in a n investigation,

proceeding, or hearing under this section.” Assuming for an

instance that Scipper retaliated against Holden because she

“went over his head” when she reported an incident to Colonel

Halley, there is no evidence that her reporting the inci dent was

a statutorily protected right. Further, there is no evidence

that Holden’s “going over Scipper’s head” was in any manner

related to her discharge.

23. The evidence was principally that Petitioner

complained in an incident report that Captain Scipper refused to

listen to her when he counseled her about a prior staff

altercation. There is no implication of a Chapter 760 right

being impinged by her report, or her discharge. With regard to

Captain Scipper’s alleged retaliation against Holden bec ause she

went over his head to file a complaint against Nurse Weeks,

Holden has failed to establish a cause of action legally and

factually.

24. Even if Holden had demonstrated a prima facie case of

retaliation, the Department offered a legitimate non -

dis criminatory reason for Holden’s termination. Warden Johnson

stated that he terminated Holden because of the poor attitude

demonstrated by Holden when he counseled with her for cussing an

inmate.

25. Holden presented no evidence demonstrating that this

ex planation was pretextual.

26. In summary, Holden’s position that she suffered

discrimination based on retaliation for engaging in an activity

protected by Chapter 760 is not supported by a preponderance of

the evidence.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 24th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

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 Clerk of the

Division of Administrative Hearings

this 24th day of September, 2003.

COPIES FURNISHED :

Kimberly Holden

2103 Vista Road

Marianna, Florida 32448

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 3 2399

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

Tallaha ssee, 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 t he agency that will

issue the final order in this case.