03-000137 Emory L. Mosley vs. Department Of Corrections Status: Closed Recommended Order on Tuesday, June 24, 2003.

Summary: Evidence failed to show that Petitioner was transferred to work camp or subject to a hostile work environment based on any activity protected under Chapter 760, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMORY L. MOSLEY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0137

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing wa s conducted in this case on April 9,

2003, in Tallahassee, Florida, before the Division of

Administrative Hearings by its Administrative Law Judge,

Diane Cleavinger.

APPEARANCES

For Petitioner: Emory L. Mosely, pro se

Post Office Box 8

Monticello, F lorida 32345

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against by the

Department of Corrections based on r ace, religion, disability,

age, or in retaliation for participation in an activity

protected under Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

In July 1999, Petitioner, Emory Mosley, filed a Charge of

Discrimination with the Florida Commission o n Human Relations

(FCHR), alleging that Respondent, Department of Corrections,

discriminated against him on the basis of race, religion,

disability, age, or in retaliation for his participation in an

activity protected under Chapter 760, Florida Statutes.

Petitioner alleged that he suffered an adverse employment action

in that he was transferred to a work camp in retaliation for

filing his complaint against discrimination. The allegations of

discrimination were investigated by FCHR, and on December 9,

200 2, FCHR issued its Determination, finding "No Cause."

On January 8, 2003, Petitioner filed his Petition for

Relief. In his petition, he reiterated the charges set forth in

his original complaint filed with FCHR and appears to add a

charge of sexual haras sment. The petition was forwarded to the

Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and

called two witnesses to testify. Petitioner also offered 17

exhibits into evidence. Respondent called two witnesses to

testify but did not offer any exhibits into evidence. After the

hearing, Respondent filed a Proposed Recommended Order on

April 21, 2003. Petitioner did not file a proposed recommended

order.

FINDINGS OF FACT

1. Petitioner, Emory Mosley, is an Afri can - American male

(Petitioner).

2. In 1989, Petitioner was hired as a correctional officer

by Respondent, the Department of Corrections (Department).

Initially, he was assigned to the main unit at Madison

Correctional Institution in Madison, Florida.

3 . By all accounts, during his first nine years with the

Department, Petitioner was well liked by the institution's

administration and his fellow officers. He was thought of as a

hardworking professional officer and as one of the best officers

at Madison Correctional Institution. New officers were

routinely sent to Petitioner for him to train.

4. In general and during Petitioner's employment, officers

are assigned to different shifts and work assignments at Madison

Correctional Institution so that offic ers can become familiar

with all aspects of the Madison Correctional system. However,

Petitioner was allowed to remain at the same post and shift for

his first nine years. Over nine years, such permanence in

Petitioner's assignment caused some resentment among other staff

because of the perceived favoritism exhibited by the

administration toward Petitioner.

5. At some point in his ninth year with the Department,

Petitioner began to perceive problems with other staff members.

He concluded that certain r ules were not being followed and

began to believe that co - workers were in some manner conspiring

against him, abusing inmates, and/or committing crimes related

to their duties at the institution. His relationships with

co - workers became strained. Staff and inmates began to complain

about Petitioner's behavior toward them. During this time,

Petitioner also complained to the warden about rule violations

by staff. However, the details of these complaints were not

revealed at the hearing. Petitioner's co mplaints did appear to

be in the nature of "whistle - blowing." The evidence did not

demonstrate that any of Petitioner's complaints involved any

activity protected under Chapter 760, Florida Statutes.

6. In July 1999, Colonel David McCallum transferred

Petitioner to the Madison Correctional Institution work camp.

The work camp was located a few hundred yards away from the main

unit. The duties of a correctional officer at the work camp are

primarily the same as those at the main unit with the differen ce

that there are significantly fewer inmates at the work camp. As

a result, many officers feel that the work camp is somewhat more

relaxed and an "easier" assignment than an assignment at the

main unit. To some officers, it is a desirable assignment. T o

other officers, it is not a desirable assignment. Opportunities

for promotion are not diminished at the work camp; pay and

benefits remain the same. The evidence did not show that

transfer to the work camp was an adverse employment action on

the part o f the Department.

7. Colonel McCallum, who thinks highly of Petitioner,

transferred Petitioner to the work camp because he believed that

Petitioner needed a change of scenery because of the problems he

was having with staff and inmates at the main unit. He believed

that he was doing Petitioner a favor by transferring him because

of the more relaxed atmosphere at the work camp. The transfer

was also made due to complaints from staff that Petitioner was

receiving preferential treatment in that he was allo wed to

maintain the same post and shift for such a long period of time.

Colonel McCallum was not aware of any complaints by Petitioner

to the warden of alleged rule violations at the time that

Petitioner was transferred. The evidence did not show that

Pe titioner was transferred in retaliation for any activity

protected under Chapter 760, Florida Statutes.

8. Petitioner's supervisor at the work camp was Lieutenant

Patricia Herring, an African - American female. Herring

emphatically denied at the hearing t hat the work camp was in any

manner run as a type of concentration camp as opined by

Petitioner and did not relate any race relation problems at the

camp. The camp was run in a less strict manner than the main

unit, especially in relation to the procedure used during the

counting of inmates. These more relaxed methods greatly

disturbed Petitioner, and he constantly agitated the work

environment about such relaxed methods that he perceived as

"rule violations."

9. Herring testified that Petitioner was in subordinate and

disrespectful to her during his time at the work camp. She

believed that his disrespect came from his unhappiness with

having a female supervisor. Petitioner received a written

reprimand as a result of his insubordination and disrespect

t oward Herring.

10. Unquestionably, Petitioner and Herring had a serious

conflict between their personalities. There was no evidence

that any conflict was based on discrimination or retaliation.

11. Ms. Herring also testified that Petitioner received

the same treatment as all other officers, vis - à - vis, shift and

post assignments. There was no substantive evidence that

Petitioner was treated differently in the assignments he was

given at the work camp. There was no evidence that Petitioner

sought accommo dation for his diabetes or high blood pressure.

12. Petitioner retired from the Department, effective

December 1, 1999. He admitted at hearing that his retirement

date had nothing to do with any actions allegedly taken against

him by the Department; rath er, he planned to retire on

December 1, 1999, well before any problems with the Department

began because that date ensured that he would receive retirement

benefits based on ten years of service. There was no

substantive evidence presented at the hearing that Petitioner

was discriminated or retaliated against. Therefore, the

Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause. Secti on 120.57(1), Florida Statutes.

14. Under the provisions of Section 760.10(1), Florida

Statutes, it is unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any in dividual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) . . . to discriminate against any

person be cause 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 sect ion.

15. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

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

1st DCA 19 94); Florida Department of Community Affairs vs.

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

16. The Supreme Court of the United States established in

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

and Texas Department of Community Affair s 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. 50 2

(1993).

17. Pursuant to this analysis, Petitioner has the burden

of establishing by preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate,

non - d iscriminatory reason for the action taken against

Petitioner. Once this non - discriminatory reason is offered by

Respondent, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Su preme Court stated in Hicks , before

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

plaintiff's explanation of intentional discrimination."

Hicks , 509 U.S. at 519.

18. In Hicks, the Court stressed that even if the

fact - finder does not bel ieve the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id.

19. Here, Petitioner has alleged race, age, and religious

discrimination based on both dispa rate treatment and hostile

work environment. In order to establish a prima facie case of

disparate treatment based upon race, age, or religion,

Petitioner must establish:

1. That he is a member of a protected

class;

2. That he was qualified for his posi tion;

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

20. Section 760. 10, Florida Statutes, provides that race,

age, and religion are protected classes. There is no dispute as

to Petitioner's qualifications. Thus, the first issue to be

analyzed is whether Petitioner suffered from adverse employment

actions. Petitioner app ears to have two primary complaints:

(1) that he was transferred to Madison Correctional Institution

work camp; and (2) that he received a written reprimand for

insubordination.

21. In this case, neither action was shown to be an

adverse employment actio n since no pay benefits or other

significant conditions of employment were affected by either

action. Moreover, even if these actions constituted adverse

employment actions, Petitioner failed to show that he was

treated less favorably than similarly situa ted employees who

were not members of his protected classes. In fact, vis - à - vis

the transfer, the evidence showed that it was highly unusual for

an officer to remain in the same position, as Petitioner had,

without a transfer for over nine years. In any event, no

evidence was presented indicating that disparate treatment

existed in the issuance of the written reprimand or the

transfer. Thus, a prima facie case has not been established.

22. Moreover, even if a prima facie case had been

established, the D epartment articulated legitimate

non - discriminatory reasons for the alleged adverse employment

actions. Petitioner was transferred because he was having

problems with staff and inmates at the main institution.

Colonel McCallum believed that Pet itioner could benefit from a

fresh start, particularly given that he had not been transferred

in over nine years. Colonel McCallum also testified that staff

had begun to complain that Petitioner was receiving preferential

treatment in that he had not been transferred in such a long

period of time. The reprimand was issued because Petitioner was

insubordinate and disrespectful toward his superior officer.

Petitioner presented no evidence indicating that these

explanations were pretextual in nature.

23. P etitioner also complains of discrimination based on a

hostile work environment. A hostile work environment claim is

established upon proof that "the workplace is permeated with

discriminatory intimidation, ridicule, and insult, 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. , 510 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, 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 harassment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discrimatorily abusive

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

such environment under either a theory of vicarious or of direct

liability. Miller v. Kensworth of Dothan, Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002).

24. Again, Petitioner has failed to provide evidence that

any alleged harassment was based on race, age, disability,

religion or retaliation. None of the instances cited by

Petitioner have even an indirect correlatio n or connection to

anything protected under Chapter 760, Florida Statutes.

25. Petitioner next complains of retaliation by Respondent

after he complained to the warden about unspecified rule

violations. In order to establish a prima facie case of

retalia tion, 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

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

956, 959 (11 th Cir. 1997).

26. Petitioner has failed to demonstrate that he engaged

in statutorily protected activity. Section 760.10, Florida

Statutes, provides that it is unlawful to discriminate "against

any person because that person has opposed any practice whi ch 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." Here, there is no evidence that

Petitio ner's alleged complaints to the warden about rule

violations were in any manner related to discrimination charges

or participation in any other matter contemplated by

Chapter 760, Florida Statutes. Thus, his prima facie case for

retaliation necessarily fa ils.

27. Petitioner also complains that he was discriminated

against based on alleged disabilities. He claimed to have

several ailments, among them diabetes and high blood pressure.

In order to establish a prima facie case based upon disability

or handi cap discrimination, Petitioner must show that he:

1. Has a disability;

2. Is qualified, with or without reasonable

accommodations, to perform the essential

functions of her job;

3. Identified for the employer a reasonable

accommodation; and

4. Was unla wfully discriminated against

because of her disability.

28. Here, Petitioner failed to identify a disability in

that he failed to demonstrate that he was substantially limited

in the performance of a major life activity as a result of any

of his medical conditions. Indeed, at least vis - à - vis his work,

all the medical evidence demonstrated that he could work without

restrictions. Moreover, Petitioner never requested a reasonable

accommodation for any of his medical conditions. Lastly, there

is no eviden ce whatsoever that any adverse employment actions

were taken against Petitioner based on his various medical

conditions.

29. In summary, Petitioner's position that he suffered

discrimination based on race, religion, age, disability, and

retaliation is not supported by a preponderance of the evidence.

Moreover, to the extent that Petitioner attempted to demonstrate

discrimination based on sex at the hearing, such a theory was

not set forth in the original complaint of discrimination and is

beyond the scope of the instant petition. In any event, there

was no evidence whatsoever that adverse employment actions were

taken against Petitioner based on his sex or that a hostile work

environment based on sex existed.

RECOMMENDATION

Based on the foregoing Findin gs of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

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

Tallahassee, Leon County, Florida.

____________ _______________________

DIANE CLEAVINGER

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of June, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Emory L. Mosley

Post Office Box 8

Monticello, Florida 32345

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Sui te 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 ag ency that

will issue the final order in this case.