03-001741 Bruce St. Hillaire vs. Department Of Corrections Status: Closed Recommended Order on Thursday, December 11, 2003.

Summary: Petitioner claimed reverse discrimination and retaliation. Recommended that petition be dismissed because the claims were not supported by the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE ST. HILLAIRE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1741

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provi ded, and a formal hearing was held on

August 27, 2003, in Daytona Beach, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Gayle S. Graziano, Esquire

244 North Ridgewood Avenue

Daytona Beach, Florida 32114

For Respondent : Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISS UE

Whether Petitioner suffered retaliation and reverse

discrimination committed by the Department of Corrections in

violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMEN T

In an Amended Charge of Discriminatio n dated February 22,

2002, Petitioner, Bruce St. Hillaire (Mr. St. Hillaire), claimed

he suffered unlawful employment practices in the nature of

discrimination based on race by the Florida Department of

Corrections (Department). On March 11, 2003, the Flo rida

Commission on Human Relations (Commission) entered a

"Determination: No Cause," which found that there was no

reasonable cause to believe that an unlawful employment practice

had occurred.

In a "Notice of Determination: No Cause," also filed by

the Commission on March 11, 2003, Mr. St. Hillaire was informed

that he had 35 days from the date of the Notice to request an

administrative hearing. In a Notice of Dismissal entered May 6,

2003, the Commission noted that Mr. St. Hillaire had not filed a

req uest for hearing within the allotted time and that his

petition must be dismissed. However, the record revealed that

the Commission had received a Petition for Relief from

Mr. St. Hillaire on April 10, 2003, which is less than 35 days

from March 11, 2003 . This Petition alleged racial

discrimination and retaliation, and while it did not

specifically request a hearing, the fact that there is within

the document a category entitled, "The disputed issues of

material fact, if any, are as listed below," indica tes that an

administrative hearing was requested.

The matter was forwarded to the Division of Administrative

Hearings on May 15, 2003. It was set for hearing on August 27,

2003, in Daytona Beach, Florida, and heard as scheduled. At the

conclusion of the hearing the parties agreed that depositions

and other evidence could be filed at any time before the close

of business on September 30, 2003. Pursuant to an order

subsequent to a motion filed by Petitioner on September 19,

2003, the time for filing supple mental matters was enlarged

until November 10, 2003, and proposed recommended orders were

required by November 21, 2003.

Petitioner filed the depositions of Harry Ivey, Velma

Yvette Brown, and Michael L. Chambers; a letter dated

February 12, 2002; and a s worn statement of Robert Gordon, on

November 20, 2003, ten days past the deadline for filing

supplemental matters. Respondent filed a Motion titled

Objection to Supplemental Pleadings asking that the supplemental

matter be ignored as not timely. Responde nt's Motion is granted

because the matters were filed beyond the final deadline.

Accordingly, the aforementioned matters will not be considered.

At the inception of the hearing Respondent moved to dismiss

the Petition because the last act of discriminatio n alleged

occurred more than 365 days before the Amended Charge of

Discrimination was filed. See § 760.11(1), Fla. Stat. In the

block of the Amended Charge of Discrimination which Petitioner

entitled, "Date Most Recent or Continuing Discrimination Took

P lace," Petitioner inserted February 8, 2001. He signed the

Amended Charge of Discrimination on February 22, 2002, and it

was stamped as filed with the Commission on February 28, 2002.

The Motion was not ruled upon at the time made because it

was not tim ely filed; because Petitioner did not have time to

prepare a response; and because the ruling depended on facts,

which had not yet been elucidated. See Fla. Admin. Code R. 28 -

106.204.

Section 760.11(1), Florida Statutes, states that, "Any

person aggrieved by a violation of 760.01 - 760.10 may file a

complaint with the commission within 365 days of the alleged

violation . . . ." The Amended Charge of Discrimination that

was forwarded to the Division of Administrative Hearings

demonstrates on its face that it was filed too late.

It is alleged by Petitioner, however, that he filed his

first Charge of Discrimination on June 25, 2001, alleging a last

act of discrimination or retaliation of February 8, 2001. This

could be a timely filing. A June 25, 2001 Ch arge of

Discrimination is not part of the record. Petitioner states he

was advised by Commission staff to file an amended charge of

discrimination and it was in response to that advice that

resulted in the untimely Amended Charge of Discrimination that

is in the record. Because the Charge of Discrimination is

denominated "amended," credence is given to Petitioner's claim.

Additionally, a Charge of Discrimination executed June 25, 2001,

that does not bear the stamp contemplated by Section 760.11,

Florida Statutes, was included in the material accompanying the

transmittal to the Division of Administrative Hearings.

Nevertheless, the Administrative Law Judge is required to make

findings only from the evidence of record. Accordingly, the

Commission should d ismiss the Petition as untimely, unless its

records support the contention that a June 25, 2001, Charge of

Discrimination was in fact timely filed.

However, in the interest of judicial economy, Findings of

Fact and Conclusions of Law are provided should th e Commission

records reveal that the June 25, 2001, Charge of Discrimination

was timely filed.

At the hearing, Petitioner offered two exhibits that were

admitted. Another exhibit, a collective bargaining agreement

between the State of Florida and the Florida Police Benevolent

Association, was, by agreement of the parties, filed late.

Petitioner called as witnesses Frances St. Hillaire (formerly

known as Frances Fredericks and Frances Anderson, and who will

be referred to as Frances Fredericks in this Recommended Order),

Arthur P. Fitzpatrick, Edward Charles Seltzer, Michael Gallon,

Linda Brooks, Art Fitzpatrick, Fred North, Adrian Stewart, and

John Seiferth. Petitioner testified on his own behalf.

Respondent offered three exhibits that were admitte d and

called as witnesses Robert Gordon and Linda Nolen.

A transcript was not ordered. Proposed Recommended Orders

were timely filed by both parties and were considered in the

preparation of this Recommended Order.

Citations to statutes are to Florida Sta tutes (2000) unless

otherwise noted.

FINDINGS OF FACT

1. Petitioner is a white male who was a probation officer

at the Department. He worked in the Fourteenth Judicial Circuit

for the first ten years of his career and then transferred to

the Seventh Jud icial Circuit, based in Daytona Beach, Florida,

where he had been employed for about eight and one - half years at

the time of the hearing.

2. The Department, in accordance with Section 20.315,

Florida Statutes, is the state agency charged with protecting

t he public through the incarceration and supervision of

offenders and the rehabilitation of offenders through the

application of work, programs, and services.

3. In early July 1999, Petitioner was working in the

Department's probation office on Palmetto Av enue, in Daytona

Beach, Florida. He was living with a woman named Tanya Folsom

who worked for the Department in its probation program, but not

in the same office. He was also romantically involved with a

woman named Frances Fredericks, who he later marri ed. At this

time, Ms. Fredericks was married to one Mr. Anderson, and was

known as Frances Anderson.

4. This triangular relationship became known in the office

in which Petitioner worked. Someone in Petitioner's office, who

has never been identified, wr ote a letter to Ms. Folsom,

revealing to Ms. Folsom Petitioner's ongoing relationship with

Ms. Frances Fredericks. The letter was written on stationery

that was the Department's property, placed in an envelope that

was the Department's property, and trans mitted to Ms. Folsom via

the Department's internal mailing system. Using Department

resources for personal business, is contrary to Department

policy.

5. When Ms. Folsom received the letter a number of ugly

consequences ensued. Ms. Folsom reacted with e xtreme hostility

to the information she received, even though Petitioner claimed

that their relationship had devolved into a mere friendship.

She evicted Petitioner from the quarters they had been sharing.

At a subsequent time, one Mr. Anderson, then Ms. Frederick's

husband, confronted Petitioner in the parking lot adjacent to

the office in which Petitioner worked, and in the presence of

Petitioner's office supervisor, Mr. Seltzer, socked Petitioner

in the jaw. The probation officer community, in which

Ms. Folsom and Petitioner worked, suffered disruption. Morale

amongst the workers was impaired.

6. Petitioner blamed the occurrence of these unpleasant

events, not on himself, but on Officer Michael Gallon, a

probation officer who worked directly in the court system, and

Ms. Velma Brown, his immediate supervisor. He attributed blame

to them because he believed that they had rifled his desk and

found gifts destined to be given to Frances Fredericks, and

believed that one or both of them were responsible f or the

letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are

black.

7. Petitioner filed a complaint with the Department

demanding an investigation into the use of the Department's

stationery that was of a value of about a "half cent," according

to Petitioner. He also complained that court officers, both

black and white, were underemployed, and suggested that black

court officers were afforded advantages not given to white

officers. He asked his superiors to investigate the complaint

regarding both the letter and the court officer matter. He

prevailed upon the office manager to take action and when the

office manager declined to open an investigation, he brought the

matter to the attention of the circuit administrator, Robert

Gordon, and ultimately to the attention of those in the chain -

of - command all the way to the Department's Inspector General.

8. Mr. Gordon, in response to the turmoil precipitated by

the letter, reassigned Petitioner to DeLand, Florida, a distance

of about 30 miles, for 60 da ys. Petitioner, who referred to his

new post in the pejorative, "Dead Land," believed that officers

who were moved there, "never came back." Mr. Gordon told

Petitioner that he moved him because Petitioner needed a "change

of venue." This reassignment oc curred the end of July, 1999.

9. Article 9, Section 3, of the Agreement between the

State of Florida and Florida Police Benevolent Association

(Agreement) states that a transfer should be affected only when

dictated by the needs of the agency and only aft er taking into

consideration the needs of the employee, prior to any transfer.

Mr. Gordon complied with that requirement, and in any event, did

not transfer Petitioner. The Agreement states at Article 9,

Section 1 (C), that a move is not a "transfer" unl ess an

employee is moved, " . . . in excess of fifty (50) miles."

10. Petitioner was "reassigned" as that term is defined in

Article 9, Section 1 (C), of the Agreement. In any event,

Mr. Gordon did not move Petitioner because he was white. He

moved h im to a different post because Petitioner had created

turmoil in the probation officer community in Daytona Beach. In

any event, as will be discussed below, whether or not Mr. Gordon

complied with the Agreement is immaterial to this case.

11. Notwithstan ding Petitioner's beliefs with regard to

the outcome of his move to DeLand, he was reassigned back to the

Daytona Beach area at the end of 60 days and resumed his regular

duties. This occurred around early October, 1999.

12. Petitioner continued to press for an investigation

into his allegations. He brought the matter to the attention to

Harry Ivey, the regional administrator for the Department and

above Mr. Gordon in the chain - of - command. He discussed the

matter with a Mr. Jefferson, Mr. Ivey's deputy and believed

subsequent to that conversation, that an investigation would

occur. In fact, no one in the Department displayed any interest

in Petitioner's allegations about the de minimis use of the

Department's time and property in the preparation and tra nsfer

of the letter, or in his beliefs about the workload problems of

the court officers, or his claims of favorable treatment in the

case of Officer Gallon and Ms. Brown.

13. In December 2000, Petitioner was assigned to the

Ormond Beach Office, which was about six miles from the Palmetto

Avenue Office. The Ormond Beach Office had lost a supervisor

position due to reorganization and it was determined that

Petitioner possessed the skill and experience to replace that

senior leadership. The decision to re locate Petitioner was made

by Mr. Gordon.

14. In February 2001, Petitioner was transferred back to

his old office. A few months later he was promoted to

Correctional Probation Senior Officer and moved to another

office.

15. Between February 2000 and Feb ruary 2001, the operative

period, over 30 Correctional Probation Officers, Correctional

Probation Supervisor Officers, and Correctional Probation

Supervisors in the Seventh Circuit, were reassigned. Of these,

six were black, four were Hispanic, and 20 wer e white.

16. Although the four reassignments experienced by

Petitioner may have inconvenienced him, Petitioner presented no

evidence of any damages. The facts reveal that Petitioner's

misfortunes were precipitated by his unwise amorous activities

within his workplace. They were not the result of any effort by

the Department to retaliate against him or to discriminate

against him because he was white.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties an d the subject matter of this

proceeding pursuant to Section 120.57(1), and Sections

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

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

unlawful employment practice for an employer:

(1)(a) . . . to discharge or to fail or

refus e to hire an 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,

national origin, age, handicap, or marital

s tatus.

* * *

(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 man ner in an

investigation, proceeding, or hearing under

this section.

19. This language was patterned after Title VII of the

Civil Rights Act of 1964. Therefore, case law construing Title

VII is persuasive when construing Section 760.10. See Gray v.

Russ ell Corp., 681 So. 2d 310 (Fla. 1st DCA 1996); Florida

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

1st DCA 1991).

20. As noted above, Section 760.11(1), states that, "Any

person aggrieved by a violation of 760.01 - 760.10 may file a

com plaint with the commission within 365 days of the alleged

violation . . . ." If Petitioner is found by the Commission to

have filed a Charge of Discrimination immediately subsequent to

Petitioner having completed it, the reassignment to DeLand in

July 199 9, and the return to Daytona Beach, were not brought to

the attention of the Commission in a timely manner and should

not be considered by the Commission. If the reassignment from

Daytona Beach to Ormond Beach and then back to Daytona Beach are

found to b e as a result of racial discrimination or retaliation,

and if the Commission finds that a Charge of Discrimination was

filed immediately subsequent to June 25, 2001, then this

allegation is not barred by Section 760.11(1).

Discrimination

21. The United S tates Supreme Court set forth the

procedure essential for establishing claims of discrimination in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 93 S. Ct. 1817,

36 L. Ed 2d 668 (1973), which was then revisited in detail in

Texas Department of Community Af fairs v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the

Burdine formula, the employee has the initial burden of

establishing a prima facie case of intentional discrimination,

which, once established, raises a presumption that the employer

discriminated against the employee. The pre - eminent case in

Florida remains Department of Corrections v. Chandler , 582 So.

2d 1183 (Fla. 1st DCA 1991).

22. A plaintiff establishes a prima facie case of

discrimination under Title VII b y showing: (1) he belongs to a

minority; (2) he was subjected to an adverse job action; (3) his

employer treated similarly situated employees outside his

classification more favorably; and (4) he was qualified to do

the job . Demonstrating a prima facie ca se is 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).

23. Petitioner's race is white. Whites are not a minority

or generally in a prot ected minority class. However, whites can

be a protected group under Title VII of the Federal Civil Rights

Act, and Chapter 760. In order to prove discrimination as a

white person, Petitioner must prove a prima facie case of

intentional disparate treatme nt when background circumstances

support the suspicion that the defendant is that unusual

employer who discriminates against the majority. See Parker v.

Baltimore & Ohio R.R. Co. , 652 F.2d. 1012 (D.C. Cir. 1981). In

accord Notari v. Denver Water Dept. , 97 1 F.2d 585 (10th Cir.

1992). Generally, with regard to "reverse discrimination," see

Ehlmann v. Florida A & M University , Case No. 96 - 2855 (DOAH June

26, 1997).

24. In order for Petitioner to prevail in his charge of

discrimination, he must demonstrate t hat he was victimized by

that unusual employer that discriminates against whites.

Petitioner's chain - of - command started with his immediate

superior, Ms. Brown, a black woman. However, Mr. Seltzer, his

office supervisor, and Mr. Gordon, the circuit admini strator

were of the white race. There is no evidence that either

Mr. Seltzer or Mr. Gordon, or for that matter, Ms. Brown, were

prejudiced against white people.

25. Reverse discrimination in the type of setting in which

Petitioner worked, could arise sh ould there be a strong policy

in favor of affirmative action resulting in discrimination

against nonwhites, as was discussed in Parker , above. However,

evidence that over - active affirmative action was in play was

completely absent in this case.

26. It is found as a fact that no one was prejudiced

against Petitioner because he was white. Any actions considered

adverse by Petitioner occurred because of his decision to be

romantically involved with two different women in the same

close - knit work community.

27. As was said in Nix v. WLCY Radio/Rahall

Communications , 738 F.2d 1181, 1187 (11th Cir. 1984), in the

context of employment decisions to discharge, "The employer may

fire an employee for a good reason, a bad reason, a reason based

on erroneous facts, or for no reason at all, as long as its

action is not for a discriminatory reason." If an employer can

fire an employee for any nondiscriminatory reason, it follows

that it is permissible to reassign an employee to DeLand, if the

action is deemed necessa ry due to turmoil in the workplace

caused by the employee's poor judgment.

28. With regard to the second prong of the prima facie

case, it is found that a reassignment to a workplace a short

distance from his current workplace is not an adverse action.

I t may have been inconvenient for Petitioner to drive from

Daytona Beach to DeLand each workday for a period of 60 days but

it was the type of routine inconvenience all workers experience

sooner or later. It appears that his reassignment to DeLand,

and to Ormond Beach, was predicated on the needs of the

Department, and his assignment back to Daytona Beach, was at

least in some respects connected to the Department's plan to

promote Petitioner, a plan which resulted in Petitioner's

promotion soon after the mo ves.

29. As to the third prong, there is no evidence that

Petitioner was treated differently from other employees. As

noted above, personnel in Petitioner's circuit were routinely

reassigned.

30. Petitioner was qualified to do his job.

31. Accordingly it is found as a fact that Petitioner did

not prove a prima facie case.

32. If one assumes arguendo that Petitioner did make out a

prima facie case, there were legitimate, nondiscriminatory

reasons for reassigning Petitioner. As a result of his

injudicio us decision to maintain a relationship with two

different women in the same work community, including one who

was married, he experienced the natural and probable

consequences of his actions. The consequences included turmoil

in his office, an attack by a n unhappy husband in a parking lot

adjacent to his workplace, and reassignments.

33. Petitioner has made no showing that any of the reasons

given by the Department for its employment actions, were

pretextual. Accordingly, it is found as a fact that the

D epartment did not discriminate against Petitioner.

Retaliation

34. To prove a prima facie case of retaliation, Petitioner

must show the following: (a) he engaged in statutorily

protected expression; (b) he suffered an adverse employment

action; and (c) t he adverse employment action was causally

related to the protected activity. See Harper v. Blockbuster

Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir. 1998).

35. Petitioner's complaint was twofold. He complained

about the misuse of state property in the transmission of

information about his personal life to Tanya Folsom and he

complained that certain probation employees who worked in

certain courts were under - employed. These were statutorily

protected communications.

36. With regard to the second prong, for the reason

discussed above, proof is absent that he suffered an adverse

employment action.

37. With regard to the third prong, if one assumes

arguendo that an adverse employment action was taken against him

by the Department, the causation w as the result of Petitioner's

actions, not because the Department was retaliating against him.

Summary

38. All of the allegations forwarded in the Amended Charge

of Discrimination, standing alone, are barred by the passage of

time and should not be consi dered by the Commission. If the

Commission considers the Charge of Discrimination signed

June 25, 2001, the Commission should consider only the

employment actions in December 2000, and February 2001,

involving the reassignment to Ormond Beach and back to Daytona

Beach. In the latter instance, if the Commission decides to

consider the entire matter as a continuing course of action, it

is found that neither reverse discrimination nor retaliation

occurred.

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

Law, it is

RECOMMENDED that

1. Petitioner's Amended Charge of Discrimination be

dismissed because it was not timely filed.

2. Dismissal on its merits if the June 25, 2001, Charge of

Discrimination is determined to have been tim ely filed.

DONE AND ENTERED this 11th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 11th day of December, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Hum an Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Gayle S. Graziano, Esquire

244 North Ridgewood Avenue

Daytona Beach, Florida 32114

Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO S UBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days f rom 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.