02-004524 Dorine Alexander vs. Boehm, Brown, Seacrest, Fischer &Amp; Lefever, P.A. Status: Closed Recommended Order on Friday, May 23, 2003.

Summary: Petitioner`s job performance indicated that she was not qualified to be a paralegal; Respondent did not discriminate against Petitioner based on her race by terminating her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORINE ALEXANDER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4524

)

BOEHM, BROWN, SEACREST, )

FISCHER & LEFEVER, P.A., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 24,

2003, in Ocala, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dorine Alexander, pro se

1421 Southwest 27th Avenue

Apartment No. 1807

Ocala, Florida 34474

For Respondent: Randy Fischer, Esquire

Boehm, Brown, Fischer & Harwood, P.A.

Post Office Bo x 4140

Ocala, Florida 34478

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice against Petitioner based on her race in

violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEM ENT

Petitioner Dorine Alexander (Petitioner) dual - filed a

Charge of Discrimination with the United States Equal Employment

Opportunity Commission (EEOC) and the Florida Commission on

Human Relations (FCHR). It appears that Petitioner filed copies

of the charge with FCHR in August 1999, on September 20, 1999,

and on November 30, 1999.

The Charge of Discrimination alleged that Respondent Boehm,

Brown, Seacrest, Fischer, & Lefever, P.A. (Respondent), had

discriminated against Petitioner based on her race.

On or about October 18, 2002, FCHR issued a Notice of

Dismissal and Right to Sue based on a determination by the EEOC

that it was unable to conclude that the information obtained

established a violation of law. The notice gave Petitioner the

opportunity to file a Petition for Relief within 35 days.

On November 15, 2002, Petitioner filed a Petition for

Relief with FCHR. The petition alleged that Respondent had

discriminated against her based on her race. The petition

alleged facts suggesting that Respond ent had created a hostile

work environment, imposed disparate discipline, and terminated

Petitioner's employment. FCHR referred the Petition for Relief

to the Division of Administrative Hearings on November 19, 2002.

The Division of Administrative Hearing s issued an Initial

Order on November 19, 2002. Petitioner filed a response to the

order on November 25, 2002. However, an Amended Initial Order

was issued on December 31, 2002, because the Respondent's copy

of the original order was returned to the Divi sion of

Administrative Hearings as "undeliverable." Respondent filed a

response to the Amended Initial Order on January 16, 2003.

Administrative Law Judge Barbara Staros issued a Notice of

Hearing dated January 28, 2003. The notice scheduled the

hearing for March 24, 2003. The Division of Administrative

Hearings subsequently transferred the case to the undersigned.

During the hearing, Petitioner testified on her own behalf

and offered 11 exhibits, which were accepted into evidence.

Respondent presente d the testimony of three witnesses and

offered 28 exhibits, which were accepted into evidence.

A Transcript of the hearing was filed on April 28, 2003.

Respondent timely filed its proposed findings of fact and

conclusions of law on May 6, 2003. As of t he date of this

Recommended Order, Petitioner has not made a post - hearing

submission.

FINDINGS OF FACT

1. Petitioner is an African - American female. Respondent

initially hired Petitioner through a temporary labor service.

Petitioner worked for approximat ely 60 days as a temporary

employee in the position of a medical transcriptionist preparing

medical chronologies.

2. At the end of the 60 - day period, Respondent decided to

eliminate Petitioner's position. Petitioner decided to enhance

her career opport unities by applying for a position as a

paralegal with Respondent.

3. In a letter dated June 19, 1996, Petitioner expressed

her interest in working for Respondent as a full - time employee.

According to the letter, Petitioner had worked for over 20 years

as a secretary/administrative assistant, including some

experience in the areas of management and supervision. The

letter, together with Petitioner's resum é , indicated that she

had experience as a legal secretary.

4. In a letter dated August 26, 1997, Respondent offered

Petitioner a job as a paralegal. Petitioner accepted the offer.

5. Randy Fischer, Esquire, explained the duties of a

paralegal to Petitioner and gave her a copy of a paralegal's job

description. The duties included, but were not li mited to, the

following: (a) drafting pleadings and correspondence;

(b) drafting discovery requests; (c) organizing files and

preparing file indexes; (d) investigating cases; (e) scheduling

depositions; (f) attending document productions, exhibit

exchange s, and pretrial conferences; and (g) assisting in legal

research.

6. Respondent gave Petitioner an employee handbook. The

handbook included, among other things, information about

attendance, discipline, and the firm's anti - discrimination

policies and p rocedures. Petitioner also received a paralegal

manual and billing guidelines.

7. Respondent's anti - discrimination policy communicated to

employees that sexual harassment, racial discrimination, or any

other type of discrimination would not be tolerate d. Respondent

had an "open door" policy by which employees could report

discrimination to the office manager or the office - managing

partner.

8. At all times material here, Mr. Fischer was the

office - managing partner, and Janet Siefert was the office

m anager. Petitioner never took advantage of the opportunity to

report any alleged racial discrimination to anyone on

Respondent's staff.

9. From the beginning of her employment as a paralegal,

Mr. Fischer communicated to Petitioner that she would be

exp ected to schedule, coordinate, and calendar activities for

attorneys. He frequently was critical of Petitioner's

performance because she failed to meet these expectations.

There is no persuasive evidence that Mr. Fischer's criticisms

were racially motiva ted.

10. Respondent regularly provided written performance

evaluations of employees. Petitioner's first review took place

in December 1997. The evaluation indicated that Petitioner's

attendance or dependability and teamwork were "highly

acceptable." H er performance in oral expression, writing

ability, decision - making ability, work product accurateness, and

work product volume was "acceptable." Petitioner "needed to

improve" in the following areas: (a) knowing subject matter;

(b) analyzing problems; ( c) obtaining information; (d) meeting

deadlines; (e) performing assignments resourcefully and

creatively; (f) recording billable time; (g) showing initiative;

and (h) following through on assignments. Petitioner's overall

rating on the evaluation was "acc eptable."

11. During the evaluation, Mr. Fischer counseled

Petitioner about her job deficiencies. He particularly

discussed Petitioner's need to follow appropriate guidelines for

billing. This was important because Respondent routinely had to

reduce P etitioner's excessive billing time in some areas. There

is no persuasive evidence that Petitioner was singled out in

terms of having billing time entries removed from the

timesheets.

12. In February 1998, Petitioner began having problems

with her atten dance and low work productivity. A written

disciplinary action dated February 11, 1998, outlined the

following deficiencies: (a) inattention to detail in handling

files by failing to schedule the continuation of a deposition;

(b) poor performance in hand ling the Angela Davis file;

(c) leaving the building during work hours without proper

authorization; (d) being late for work on numerous occasions;

and (e) taking numerous personal absences.

13. Regarding the Angela Davis file, Petitioner's failure

to f ollow instructions adversely affected Mr. Fischer's handling

of the file. Mr. Fischer became angry because it took

Petitioner two hours to drive from Ocala, Florida, to

Gainesville, Florida, with only a portion of the Angela Davis

file that he had request ed. However, there is no evidence that

Mr. Fischer's anger was racially motivated.

14. Petitioner admits that she occasionally left the

building during her work breaks to go to the bank or for other

personal reasons instead of spending that time in the e mployees'

break room. She asserts that she did not know she had to have

permission to do so and that she had to sign in and out.

According to Petitioner, other employees were allowed these

privileges without being reprimanded. Petitioner's testimony in

this regard is not credible.

15. Petitioner admitted during the hearing that her

attendance record was problematic due to personal problems. On

at least one occasion, Mr. Fischer agreed to let Petitioner make

up some of the time she had lost. There is no persuasive

evidence that Respondent's attendance policy was applied more

rigidly to Petitioner than to any other employee.

16. More importantly, Petitioner admitted that she was not

qualified to perform all of the duties of a paralegal when she

acce pted the position. It is clear that she had difficulty

learning "on - the - job."

17. On February 20, 1998, Mr. Fischer wrote Petitioner and

another paralegal a note regarding the importance of pulling a

file together and following directions. Mr. Fischer had gone to

mediation without the necessary file documents because

Petitioner and her co - worker had not followed his directions.

18. On March 12, 1998, Mr. Fischer reminded Petitioner and

another paralegal about the importance of providing him with

dai ly timesheets in a timely manner. Petitioner and her

co - worker were at least a week behind in providing him with

their timesheets.

19. On March 26, 1998, Petitioner used the firm's copy

machine and other supplies for personal reasons.

20. On Apri l 8, 1998, Petitioner was late to work due to a

flat tire.

21. In May 1998, Petitioner requested a more flexible work

schedule so that she could attend class in Orlando, Florida, one

afternoon each week. Mr. Fischer responded that her billing

hours were already low and that she was routinely late to work.

However, Mr. Fischer agreed to give her the time off for a

30 - day period if she documented her time at the office, improved

her productivity, and billed a minimum of 25 billed hours per

week.

22. In June 1998, Mr. Fischer had to remind Petitioner

again about the importance of keeping calendars for the

attorneys. Because Petitioner failed to follow instructions, no

attorney from Respondent's office attended a scene viewing.

23. In July 1998, Mr. F ischer sent Petitioner an e - mail

message criticizing her for not properly issuing a subpoena and

deposition notice. When he realized that Petitioner was not at

fault, he promptly apologized in a subsequent message.

24. On August 18 and 19, 1998, Petiti oner received two

personal facsimile transmissions at the office.

25. On August 25, 1998, Mr. Fischer gave Petitioner a

written disciplinary action and placed her on probationary

status. The discipline was based on the following reasons:

(a) Petitioner had been out of the office for various personal

reasons 31 times in the last 90 days; (b) Petitioner had

provided Respondent with inaccurate or incomplete reasons for

those absences; (c) Petitioner's productivity was below office

standards; (d) Petitioner had failed to properly schedule

activities and calendar events for an attorney; (e) Petitioner

had failed to follow repeated instructions in relation to file

handling, scheduling depositions, and scheduling meetings;

(f) Petitioner had used firm time to re ceive and review personal

facsimile transmissions, to discuss personal information, and to

participate in personal telephone calls; and (g) Petitioner had

inappropriately used firm resources.

26. On September 16, 1998, Mr. Fischer gave Petitioner

anothe r written disciplinary action. The memorandum outlined

continued problems with Petitioner's performance. One example

of Petitioner's poor performance involved her failure to

properly arrange for a deposition. Other examples involved

excessive billing fo r making summaries of records; the lack of

time billed for other case activities, such as setting and

noticing depositions and hearings; failure to resolve unpaid

costs on a case; and modification of timesheets after they had

been edited. The September 16 , 1998, disciplinary action also

reviewed continued problems with Petitioner's attendance and

attitude.

27. Respondent's paralegals are required to bill 100 - 105

hours per month. Some examples of Petitioner's billing hours

are as follows: (a) March 199 8, 97.3 hours; (b) April 1998,

58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998,

69.7 hours.

28. Respondent fired Petitioner on September 25, 1998.

Her termination was based on cumulative reasons, including low

productivity, failure to be attent ive to detail in the handling

of files, and frequent absences and tardiness.

29. During the time that Petitioner worked for Respondent,

Mr. Fischer fired Robin Carr, a white female, for similar

reasons that Petitioner was terminated: excessive absences ,

inappropriate use of personal time in the office, and excessive

personal telephone calls. Mr. Fischer also fired Art Monig, a

white male, for low work productivity. Ms. Carr and Mr. Monig

both worked as paralegals.

30. Petitioner testified that, on one occasion, Ms. Carr

and other employees were in the employees' break room discussing

the turnover of staff in the office. Petitioner testified that

Ms. Carr made the statement that Petitioner did not have to

worry about losing her job because she was a "token." In the

Petition for Relief, Petitioner alleges that Ms. Seifert made

this comment.

31. Ms. Carr did not testify at the hearing but

Ms. Seifert did testify and denies making such a statement or

ever hearing it made. Similarly, Jennifer Whitehea d, who was

Mr. Fischer's secretary from February 1997 through May 2001,

testified that she never heard anyone in the office make a

statement that Petitioner was a "token" or a "quota."

Nevertheless, Petitioner's testimony in this regard is

persuasive.

3 2. Petitioner admits that she never reported the

statement allegedly made by Ms. Carr to anyone in Respondent's

office. She admits that Mr. Fischer never made inappropriate

racial comments in her presence. Mr. Fischer's dissatisfaction

with Petitioner's performance may have caused Petitioner to be

uncomfortable from time to time, but there is no evidence that

his reactions to her poor performance were racially motivated.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings was

jurisdiction o ver the parties and the subject matter of this

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

Statutes.

34. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise d iscriminate against an individual on the basis of

race.

35. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . Cases interpreting Title VII

are therefore applicable to Chapter 760, Florida Statutes.

Brand v. Florida Power Corporation , 633 So. 2d 504, 509 (Fla.

1st DCA 1994); School Board of Leon County v. Hargis , 400 So. 2d

103 (Fla. 1st DCA 1981).

Disparate Treatment and Discriminatory Discharge

36. In Title VII discrimination cases involving disparate

treatment and/or discriminatory discharge, a complainant

generally bears the burden of proof established in McDonnell

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

Community Affairs v. Bur dine , 450 U.S. 248 (1981). Under this

model of proof, an employee bears the initial burden of

establishing a prima facie case of discrimination. If the

employee establishes a prima facie case, the burden shifts to

the employer to articulate a legitimate, non - discriminatory

explanation for the employment action. See Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991).

If the employer meets its burden of production, the employee

must prove that the employer's stated reason is a pret ext

because it is not worthy of belief or because a discriminatory

motive, more likely than not, motivated the decision. Chandler ,

582 So. 2d at 1186. The ultimate burden of persuading the trier

of fact that the employer intentionally discriminated again st

the employee remains at all times with the employee. St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993).

37. To prove a case of disparate treatment or

discriminatory discharge in this case, Petitioner must show the

following: (a) she is a member of a protected group; (b) she is

qualified for the position; (c) she was subject to adverse

employment decisions such as discipline for violation of office

rules and/or termination; and (d) she was treated less favorably

than similarly - situated persons ou tside the protected class and,

after she was fired, the position was filled by a person of

another race. See Anderson v. WBMF - 4 , 253 F.3d 561 (11th Cir.

2001); Crapp v. City of Miami Beach , 242 F.3d 1017 (11th Cir.

2001).

38. Petitioner is a member of a protected group. She

presented evidence that she was disciplined for breaking office

rules and that she was discharged. However, she has not met her

initial burden to show racial discrimination under theories of

disparate treatment or discriminatory disc harge for the

following reasons.

39. First, Petitioner failed to show that she was

qualified as a paralegal when she accepted the position in

August 1997. She never learned the skills she needed to become

proficient in work before she was terminated in S eptember 1998.

40. Second, Petitioner failed to show that similarly -

situated persons who were not members of the protected group

were treated more favorably. There is no evidence that

Caucasian paralegals were allowed to continually break office

rules and repeatedly fail to meet performance expectations

without being reprimanded.

41. Finally, Petitioner presented no evidence as to her

replacement. However, she admitted during the hearing that an

attorney, not another paralegal, wanted her office spa ce.

42. On the other hand, Respondent presented persuasive

evidence that Petitioner had routinely violated office rules

related to attendance, leaving the office building during office

hours, using office equipment for personal reasons,

inappropriate us e of company time, client billing procedures,

and work productivity in general. Mr. Fischer fired Petitioner,

after giving her repeated warnings, that her job performance

needed to improve and that she needed to comply with office

rules, procedures, and p olicies. Petitioner presented no

persuasive evidence that Respondent's reasons for discipline and

eventual termination were a pretext for racially motivated

discrimination.

Racial Harassment

43. To show hostile work environment, Petitioner must

prove tha t: (a) she belongs to a protected group; (b) she had

been subject to unwelcome harassment; (c) the harassment was

based on a protected characteristic; (d) the workplace is

permeated with discriminatory intimidation, ridicule, and insult

sufficiently sever e or pervasive to alter the terms or

conditions of employment and to create an abusive working

environment; and (e) the employer is liable either directly or

vicariously for the abusive environment.

44. To satisfy the fourth element, an employee must pr ove

that: (a) he or she subjectively perceived the conduct to be

abusive; and (b) a reasonable person objectively would find the

conduct at issue hostile and abusive. Harris v. Forklift

Systems, Inc. 510 U.S. 17, 21 - 22 (1993).

45. To determine whether an employee felt harassed

subjectively, a court may look to see if the employee reported

the incident, quit, avoided the workplace, reacted angrily or

exhibited some physical or psychological reaction to the

environment. Daniels v. Essex Group, Inc. , 937 F.2d 1264,

1272 - 73 (7th Cir. 1991).

46. To determine whether the conduct at issue objectively

is hostile or abusive, a court should look at the totality of

the circumstances using several factors including: (a) the

frequency of the conduct; (b) its s everity; (c) whether it was

physically threatening or humiliating or whether it was merely

offensive; and (d) whether it unreasonably interfered with the

employee's job performance. Harris , 510 U.S. at 23. These

factors taken together must reveal conduct extreme enough to

"amount to a change in terms and conditions of employment."

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998).

47. Regarding an employer's liability for hostile

environments, the court in Faragher , 524 U.S. at 807, stated as

f ollows:

An employer is subject to vicarious

liability to a victimized employee for an

actionable hostile environment created by a

supervisor with immediate (or successively

higher) authority over the employee. When

no tangible employment action is tak en, a

defending employer may raise an affirmative

defense to liability or damages, subject to

proof by a preponderance of the evidence,

see Fed. Rule Civ. Proc. 8(c). The defense

comprises two necessary elements: (a) that

the employer exercised reasonabl e care to

prevent and correct promptly any sexually

harassing behavior, and (b) that the

plaintiff employee unreasonably failed to

take advantage of any preventative or

corrective opportunities provided by the

employer or to avoid harm otherwise.

48. H ere, Petitioner, as an African - American, is a member

of a protected group. She has shown that she was subject to at

least one unwelcome, race - related comment. She has not shown

that Mr. Fischer or anyone else in the office engaged in abusive

and unprofes sional behavior, race - related or otherwise.

49. To the extent that Petitioner was subject to one

unwelcome race - related comment that she was a "token" or a

"quota," Petitioner has not proved that she subjectively and

objectively viewed the comment as ab usive and hostile. She did

not report the comment to anyone in authority or show any

physical or emotional reaction. The comment arose in a break

room discussion and was not stated in a derogatory, name - calling

intimidating manner meant to berate or taun t Petitioner. There

is no evidence that her job performance was materially altered

after she heard the comment.

50. Finally, Petitioner has not shown a basis for

Respondent's liability. Ms. Carr was not Petitioner's

supervisor and the making of the co mment did not result in a

tangible employment action. Respondent had an open door anti -

discrimination policy. Petitioner was aware that she could have

reported the unwelcome comment to Mr. Fischer or Ms. Seifert.

She did not complain to anyone in the of fice about the comment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 23rd day of May, 2003, in

Tallahassee, L eon County, Florida.

___________________________________

SUZANNE F. HOOD

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 23rd day of May, 2003.

COPIES FURNISHED :

Dorine Alexander

1421 Southwest 27th Avenue

Apartment No. 1807

Ocala, Florida 34474

Denise Crawford, Agen cy Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Randy Fischer, Esquire

Boehm, Brown, Fischer & Harwood, P.A.

Post Office Box 4140

Ocala, Florida 34478

Cecil Howard, General Counsel

Florida Com mission 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.