03-001232 Juliette C. Rippy vs. Department Of Corrections Status: Closed Recommended Order on Monday, August 25, 2003.

Summary: Petitioner asserted that she was the victim of an unlawful employment practice for being discharged because she was a black woman. Held: no discrimination was proved. She was discharged because she had an unexcused absence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIETTE C. RIPPY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1232

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provid ed, and a formal hearing was held on

July 15, 2003, in Tallahassee, Florida, with Petitioner

participating by telephone from Gainesville, Florida, and

conducted by Harry L. Hooper, Administrative Law Judge with the

Division of Administrative Hearings.

AP PEARANCES

For Petitioner: Juliette C. Rippy, pro se

1622 Northeast 19th Place

Gainesville, Florida 32609

For Respondent: Mark J. Henderson, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment

practice in the case of Petitioner.

PRELIMINARY STATEMENT

In March 2002, Pet itioner Juliette Rippy (Ms. Rippy), a

woman of the African - American race, filed an amended Charge of

Discrimination with the Florida Commission on Human Relations

(Commission) alleging that the Florida Department of Corrections

(Department) had committed a n unlawful employment practice.

Specifically she stated that she had been discharged for alleged

excess and unauthorized absences. She said this was an unfair

employment practice because a person of the white race who was

similarly situated, and who was arrested on a charge of driving

under the influence during the same time period, was not

terminated.

On March 27, 2003, Ms. Rippy filed a document with the

Department stating that she wished to withdraw her Charge of

Discrimination. Simultaneously sh e filed a Petition for Relief

and requested that her case be heard by the Division of

Administrative Hearings (Division).

The Commission filed the case with the Division on April 3,

2003. The case was set for hearing on May 21, 2003, in

Gainesville , Florida. Pursuant to a Motion to Re - set or

Continue Hearing by the Department, the hearing was re - scheduled

for July 7, 2003, in Gainesville, Florida, and all of the

parties appeared. However, the Commission failed to ensure that

a court reporter was p resent. While meeting in Gainesville, it

was agreed by the parties that the hearing would be re - scheduled

for July 15, 2003, in Tallahassee, Florida. Ms. Rippy agreed to

appear by telephone.

The case was heard as re - scheduled. Petitioner presente d

sworn testimony in her own behalf. The Department offered and

had admitted four exhibits and called one witness, Doug Watson,

the Assistant Warden at Florida State Prison, Starke, Florida.

A transcript was not prepared. Both Petitioner and

Respond ent timely filed their Proposed Recommended Orders on

July 24, 2003, and July 25, 2003, respectively. Their Proposed

Recommended Orders were considered in the preparation of this

Recommended Order.

Citations are to Florida Statutes (2001) unless othe rwise

noted.

FINDINGS OF FACT

1. Ms. Rippy commenced her employment with the Department

on June 30, 2000, as a correctional officer, at the Florida

State Prison Work Camp at Starke, Florida. She was terminated

on June 19, 2001.

2. The Departme nt of Corrections is a state agency that is

charged with providing incarceration that supports the

intentions of criminal law, among other things.

3. The Florida Commission on Human Relations administers

the Florida Civil Rights Act of 1992.

4. When Ms. Rippy was hired as a correctional officer on

June 30, 2000, she, and the Department, believed she was subject

to a one - year probationary period. During that time, the

parties believed she could be terminated without cause.

5. Subsequent to her employment she had unscheduled but

excused absences on as many as 15 occasions.

6. On June 12, 2001, Ms. Rippy requested that her

supervisor, Lt. J. L. Oliver, approve leave for her to commence

Sunday, June 17, 2001. Lt. Oliver did not approve this request

because to approve the request would cause the staffing level at

the facility to recede below permitted limits.

7. On Saturday June 16, 2001, at 6:00 p.m., Ms. Rippy

called Sergeant K. Gilbert, Third Shift Control Room Sergeant,

and told him that she was taking medication prescribed by a

doctor that she had seen that day and that she would be sleeping

and that as a result, she would be unable to report to work on

her shift which began at midnight, June 17, 2001. She also

volunteered that she would bring in a doctor's note excusing her

absence.

8. On Monday, June 18, 2001, Lt. Oliver asked her if she

had a doctor's note explaining her absence on June 17, 2001.

She replied that she had not been ill as reported to Sergeant

Gilbert, bu t had in fact attended a party. She told him that

she had not seen a doctor, was not on medication, and had

attended a "bachelorette party" on June 17, 2001. In other

words, she admitted that she had lied about the reason for her

absence. She admitted t his, under oath, at the hearing.

9. Lt. Oliver informed her that it was his intention to

charge her with unauthorized absence without pay, and possibly

to take other disciplinary measures.

10. Subsequently, persons higher in the chain - of - comman d

decided to terminate Ms. Rippy. This decision was made because

she had excess absences and because she had lied to persons in

authority. This occurred 11 days before everyone believed she

would have attained the status of permanent career service.

11. On June 21, 2001, Correctional Officer Corey M.

McMurry (Officer McMurry), a white male, was arrested in Starke,

Florida, for driving under the influence of alcohol. As a

result, on July 11, 2001, he was adjudicated guilty and

sentenced to twelve mo nths supervised probation, and suffered

other court - ordered sanctions.

12. Officer McMurry, at the time of his arrest, was a

probationary employee. He was served a written reprimand

because of his conviction of driving under the influence on

Decem ber 19, 2001. Ms. Rippy testified, without foundation,

that Officer McMurry's probation terminated on November 15,

2001, and that the Department did not learn of his arrest until

December 2001. Ms. Rippy's testimony provides a plausible

explanation for w hy more than five months expired from the time

of his conviction until the issuance of the written reprimand.

13. Ms. Rippy believes that the circumstances surrounding

her offense were substantially similar to those of Officer

McMurry. However, the chronic absenteeism of an employee,

including unexcused absences, is more likely to disturb the good

management of a correctional facility than an employee being

convicted of driving under the influence on one occasion.

14. Assistant Warden Doug Wats on believes that

correctional officers should be trustworthy. He believes that

the credibility is critical and that lying is an extremely

serious offense, when committed by a correctional officer.

15. Ms. Rippy was paid $13.30 per hour and received

substantial fringe benefits when she worked for the Department.

Following her termination she was unemployed until January 2002,

when she began working for a Wendy's restaurant for $5.75 per

hour. In April 2002, she obtained employment with a private

sec urity company named Securitas. She started at $6.40 and

received an increase to $7.00 per hour at a subsequent unknown

date, and she continues to be employed with the company.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdi ction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1) and Section

760.11(4)(b)(6) and (8).

17. The Florida Civil Rights Act of 1992, as amended,

found at Sections 760.01 - 760.11 and Section 509.092, was

patterned af ter Title VII of the Civil Rights Acts of 1964 and

1991, Title 42 U.S. Code, Section 2000, et seq ., as well as the

Age Discrimination in Employment Act of 1967 (ADEA), Title 29

U.S. Code, Section 623. Federal case law interpreting Title VII

and the ADEA i s applicable to cases arising under the Florida

Act. See Florida Department of Community Affairs v. Brant , 586

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

18. Section 760.10 provides in part as follows:

(1) It is an unlawful employment practice

for an employer:

( a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

nationa l origin, age, handicap, or marital

status.

* * *

19. It is apparent, therefore, that Section 760.10,

provides that it is an unlawful employment practice to discharge

someone on account of his or her sex or race.

20. In a case of alleged discrimination , the employee must

first establish that an unlawful employment practice has

occurred by proving by a preponderance of the evidence a prima

facie case of discrimination. A plaintiff establishes a prima

facie case of discrimination under Title VII by showi ng: (1) she

belongs to a minority; (2) she was subjected to an adverse job

action; (3) her employer treated similarly situated employees

outside her classification more favorably; and (4) she was

qualified to do the job . Demonstrating a prima facie case i s

not onerous; it requires only that the plaintiff establish facts

adequate to permit an inference of discrimination. Holifield v.

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

21. Ms. Rippy demonstrated that she was a member of a

protected class because she was a black woman. A termination of

employment is an adverse job action. She was clearly qualified

to accomplish the tasks assigned to her as a correctional

officer. However, she failed to prove similarly situated

employees outside her classification were treated more

favorably.

22. Correctional Officer McMurry's situation was different

from Ms. Rippy's. Ms. Rippy's absences caused scheduling

difficulties because proper staffing in a correctional

institution is very important. Undoubtedly her previo us

absences, most of which were excused, were nevertheless, cause

for concern by her supervisor. Because Ms. Rippy was a

probationary employee, her propensity for unscheduled absences

undoubtedly precipitated an awareness that if she became a

career servi ce employee she might be a problem which would

require substantial effort to remedy. This undoubtedly

influenced the decision to prevent her from attaining career

service status. Because she had an unscheduled, unexcused

absence and lied about it, discha rge could be considered the

appropriate response.

23. Officer McMurry's conviction of driving under the

influence did not cause staffing problems. His failure to

inform his superiors of his arrest and conviction in a timely

manner indicates that he, like Ms. Rippy, might have an issue

with trustworthiness, if he had a duty to report his arrest and

conviction. However, there was no evidence presented that

indicated that he was required to report his arrest. Because he

was not reprimanded for failing to report the incident and

reprimanded only for the substantive offense, it is concluded

that failure to report was not an offense. Also, by the time

Officer McMurry's supervisors learned of his misdeed, he was a

career service employee and, therefore, hi s supervisors did not

have the option of easily terminating him.

24. Ms. Rippy presented no evidence whatsoever of sex or

race bias on the part of the Department or its employees.

25. The facts adduced by Ms. Rippy did not in the least

prove a prima facie case. However, assuming arguendo that a

prima facie case was proven, the evidence failed to prove

discrimination occurred.

26. If the employee succeeds in proving a prima facie

case, the burden then shifts to the employer to articulate a

legitimat e, nondiscriminatory reason for the discharge of the

employee. Should the employer meet this burden, the employee

must then prove by a preponderance of evidence that the

legitimate reasons offered were a pretext for the employment

action and that, therefo re, the real reason was grounded in

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973 ).

27. The Department in this case demonstrated that the

attributes of reliability with regard to attendance, and

trustworthiness, were of prime impor tance to it. Ms. Rippy, by

failing to report for work when scheduled for work, and lying

about her reasons for failing to attend, demonstrated that she

was not possessed of those attributes. These are legitimate

reasons for discharging her.

28. No evide nce whatsoever was produced that would tend to

show that the Department's actions were a pretext for

discriminatory acts.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

Recommended that a final order be entered which dismis ses

Ms. Rippy's Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 25th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administr ative 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 25th day of Aug ust, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark Henderson, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

Juliette C. Rippy

1622 Northeast 19th Place

Gainesville, Florida 32609

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director

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 except ions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.