03-002737 Lynda D. Wynn vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, December 11, 2003.

Summary: Petitioner failed to show that she was treated differently from others not in a protected class and the grounds given for her discharge were pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNDA D. WYNN, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2737

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above - styled

case on October 1, 2003, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings in Tallahassee, Florida.

APPEA RANCES

For Petitioner: Lynda D. Wynn, pro se

Post Office Box 3452

Tallahassee, Florida 32315

For Respondent: Marshall G. Wiseheart, Esquire

Department of Environmental Protection

Office of General Coun sel

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISS UE

Whether the Respondent committed unlawful employment

practices contrary to Section 760.10, Florida Statutes, in

dismissing the Petitioner.

PRELIMINARY STATEMENT

On or about November 8, 2001, the Petitioner filed a claim

of discrimination with the Florida Commission on Human

Relations. This claim was investigated in due course and a

determinati on of cause was made by the Commission. Thereafter,

the Commission forwarded the case together with the Petitioner's

Petitioner for Relief to the Division of Administrative Hearings

on or about July 28, 2003. On August 8, 2003, the matter was

noticed for hearing on October 1, 2003, and heard as noticed.

At the final hearing, the Petitioner testified in her own

behalf, and introduced into evidence Petitioner's Exhibits 1

through 5. The Respondent presented the testimony of Dianne

Redd and Mary Spivey, an d introduced the Respondent's Exhibits 1

and 2.

Both sides filed post - hearing briefs which were received on

October 13 and 14, 2003, which coincided with the last illness

of my father, who died October 21, 2003. This occasioned a

delay in the considera tion of the parties' briefs and the

preparation of this order.

FINDINGS OF FACT

1. The Petitioner, Lynda D. Wynn, is an African - American

female who was hired by the Office of Greenways and Trails

(OGT), a division of the Department of Environment al Protection

(DEP), on September 21, 2001, as an Other Personnel Services

(OPS) employee. She was paid $14.00 per hour.

2. OPS employees do not enjoy career service protection,

and may be discharged without cause except that they cannot be

discharged f or a reason contrary to law.

3. The Petitioner had been employed by the DEP in another

capacity in another division of the agency prior to her

employment with OGT's public information office. She was

discharged from the first position and re - employed in the Public

Information Office (PIO) when Dianne Redd, the head of the PIO

was out on leave. Redd had no input into the hiring of the

Petitioner, and returned to find Wynn on her staff.

4. The Petitioner was employed as a Public Information

Specialist . No evidence was received regarding the

qualifications for this position. The Petitioner's previous

position was as a planner and her education and experience is

principally in this area.

5. Upon reporting for work, the Petitioner was assigned

with other employees of OGT to clean up an area in the rear of

the agency's headquarters' building to create a walking trail.

This was outside, physical labor clearing brush, spreading wood

chips, and preparing the trail. Many of the people in the

office avoi ding working on this project, but the Petitioner

worked on the project frequently in order to meet the dedication

deadline. This was her welcome to OGT's PIO.

6. In addition to working on the project, she was tasked

to solicit donations for a luncheon to accompany the opening to

coincide with Green Way's Month in October.

7. Leading up the various activities for Greenway's Month,

there were staff meetings. At one of these staff meetings, the

head of the public information office, Dianne Redd, asked the

Petitioner to pick a historic character, research the person's

life, and role play that person in preparation for opening of

the Palatka Visitor's Center to "see how you'll fit in."

8. The Petitioner choose Mary McLeod Bethune as her

character. Bet hune was famous African - American educator who was

the first African - American woman to hold high office in the

Federal government. She is famous in Florida as the founder of

Bethune - Cookman College.

9. The Petitioner, along with others in the office,

pre pared displays and characters in keeping with historic

characters like folk - healers or herbalists and historic

personalities like Bethune. The Petitioner and others created

displays and exhibits and developed costumes appropriate to

their characters for t heir participation in the opening of the

OGT office in Palatka. A master plan for the location of

various exhibits was prepared by Shelton Ansley, who did not go

to Palatka.

10. Ms. Redd, the Petitioner, and many of the others in

the office made the trip to Palatka to participate in the

opening of the visitor's center. The group broke in two, and

the Petitioner, Mary Spivey, and Susan Walker stayed at the

visitor's center and Redd and some other employees went out to

find some additional props for th e opening which featured women

in Florida history.

11. The master plan prepared by Ansley was not provided to

the Petitioner and the others setting up the exhibits. They did

not receive specific guidance from Redd on how to set up their

displays, and th ey set them up inside the visitor's center. By

the time Redd returned, their displays were nearly completely

set up. Redd had determined previously, but had not

communicated to the Petitioner and Spivey that the space inside

the center was being reserved for local exhibitors.

12. There is conflicting testimony about Redd's reaction;

however, she had her employees strike their displays and prepare

to move them outside. Regardless of whether she was angry with

the Petitioner and Spivey, Redd was not ha ppy.

13. Spivey, who portrayed an herbalist, pointed out that

her exhibit contained leaves and light materials that were

subject to being blown away outside. Redd retained Spivey's

exhibit inside.

14. The Petitioner was asked to move her exhibit to an

area adjacent to a rustic, board and batten structure housing a

large pump. This structure was the approximate size of a

sharecropper's cabin. The Petitioner pointed out to Redd that

putting the Bethune exhibit next to such a structure would send

the wrong message about Bethune who was the antithesis of a

sharecropper. The Petitioner told Redd that she rather not to

display the exhibit than display it next to the "outhouse." 1/

15. Redd permitted the display to be left in the van and

not displayed; however, the local exhibitors did not materialize

and the display was set up later inside the visitor's center.

It is unclear who decided to display the exhibit and who set it

up; however, it was setup inside the visitor's center.

16. Sherry Graves port rayed Marjorie Kinnan Rawlings, and

prepared her costume; however, she did not complete her display.

Julie Roberts elected to portray a farmer's daughter, and

developed a costume which she wore to the event. No

disciplinary action was taken regarding Gra ves' failure to

complete her project. Some items were collected on the porch to

provide the rustic farm atmosphere, but it was not developed

whether Robert's was expected to do more and failed to.

17. The opening concluded on Saturday evening, and

every one loaded the vehicles to return to Tallahassee. As

everyone was leaving, Redd thanked them for their efforts and

told them that they could take a half - day off on Monday, but to

call in and advise the office whether they would be taking the

morning or af ternoon. It is unclear whether this instruction

was delivered directly to the Petitioner by Redd, or through one

of the other employees.

18. The Petitioner called in on the following Monday.

There is a conflict about the message that was left by the

P etitioner on Redd's answering machine. It was erased. The

Petitioner stated that she said that she said she would not be

in and if the office needed her, they could reach her at her

home. Redd stated the Petitioner called her and left a message

that she would not be in that Monday morning, but would call

back. The Petitioner did not attend work on Monday.

19. OPS employees have regularly assigned hours of work,

and do not earn leave. However, they do earn overtime, and the

time worked on Saturday constituted overtime. Agencies develop

internal policies for the payment of overtime, but generally

employees must make prior arrangements to take time off from

work.

20. Redd testified regarding the Petitioner's termination.

Redd terminated the Pet itioner because she took all of Monday

off when Redd only authorized employees to take off half - a - day.

Redd had had previous problems with the Petitioner and her

attendance. The Petitioner claimed, among other things, that

others in the office messed aro und with her "in and out" sign.

21. An Employment Termination Critique was completed by

Redd on the Petitioner. This form reflects that the Petitioner

failed to accomplish assignments, that her work product was

below expectations, that her work was n ot accurate, and that she

failed to report for work regularly and punctually. The

Petitioner did not agree with the assessment as reflected in her

comments on the form.

22. Redd pointed to the Petitioner's failure to type

labels, tables, and invitations as examples of tasks that took

too long to complete. Redd also stated that there were problems

with the Petitioner failing to sign out three or four times.

Redd indicated that Petitioner's display on Bethune was not very

good. There was no specifics of the Petitioner's failure to be

accurate, and no documentation of counseling on these failings.

23. The Petitioner was employed by the PIO for between

five and six weeks. During the first couple of weeks, as stated

above, the Petitioner was engaged in building the office trail.

24. The Petitioner was the only African - American employee

of the six persons employed in the PIO.

25. There are only three other African - American employees

employed state - wide by the office of OGT. There are thirty - five

empl oyees in the Tallahassee office of OGT.

26. African - Americans are not proportionally represented

in the OGT.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to Chapter 760, Part I, and Section 120.57(1),

Florida Statutes (2002).

28. The employee has the burden to establish a prima facie

case of intentional discrimination by a preponderance of the

evidence. If the employee makes this showing, a presumption is

raised that the employer discriminated against the employee, and

the burden shifts to the employer to present sufficient evidence

to raise a genuine issue of fact as to whether the employer

discriminated against the employee . See McDonnell Douglas

Corporation v. Green , 411 U.S. 792 (1973).

29. The employer may show a legitimate, non - discriminatory

reason for the adverse employment decision; a reason which is

clear, reasonably specific, and worthy of credence. Because th e

employer has the burden of production and not of persuasion, it

is not required to persuade the fact finder that its decision

was actually motivated by the reason given. If the employer

shows a legitimate reason for the action worthy of credence,

then t he employee must persuade the fact finder that the

proffered reason for the employment decision is a pretext for

intentional discrimination. The employee may satisfy this

burden by showing directly that a discriminatory reason more

likely than not motivat ed the decision, or indirectly by showing

that the proffered reason is not worthy of belief. See

Department of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st

DCA 1991).

30. The Petitioner raises in her post - hearing brief a

claim pursuant to Sect ion 760.10(7), Florida Statutes, based

upon alleged discrimination because the claimant has opposed a

practice which is an unlawful employment practice, or because

the person has made a charge, testified, assisted, or

participated in any manner in an inves tigation, proceeding, or

hearing under this section.

31. This claim is related to the Petitioner being asked to

move her exhibit outside to a rustic looking building which the

Petitioner considered inappropriate for the purposes of the

display, and the Petitioner being treated differently than her

colleagues. The Petitioner claims a causal relationship between

this controversy and her discharge.

32. Assuming for a moment a controversy regarding the

placement of the exhibit, there is no factual basi s to place the

Petitioner's opposition to Redd's decision within "a practice

which is an unlawful employment practice." Redd had a non -

discriminatory reason for her decision to place the exhibits

outside; and, while there may have been a disagreement abou t

where the display should have been placed, it was resolved

before the opening by moving the Bethune display back indoors.

Lastly, there is no evidence that this incident was a basis for

the termination decision.

33. Section 760.10(1)(a), Florida Sta tutes, provides that

it is an unlawful employment practice for an employer to

discharge an employee because of race.

34. The Petitioner must show that she is a member of a

protected class; she was qualified for the position; suffered an

adverse employmen t action; she was treated less favorably than

similarly situated employees outside her protected class; and

there is a causal connection between the adverse treatment and

her being a member of a protected class.

35. The Petitioner proved two elements o f the four part

test. The Petitioner showed that she is an African - American, a

protected class, and that she was discharged. The Petitioner

did not show she was qualified for the position she held, 2/ and

she did not show that she was treated differently from others

who similarly situated in a non - protected class (Disparate

Treatment).

36. Regarding qualifications for her position, the

Petitioner did not present evidence about the job criteria for

her position. However, the issue is the Petitioner's di scharge,

and none of the reasons given for the Petitioner's discharge

related to her lack of qualifications. The reasons for the

Petitioner's discharge relate to how she performed her duties in

terms of timeliness, and her accountability for her time, i.e . ,

properly signing in and out and requesting absences from work.

The Petitioner's failure to establish her qualifications for her

position is not a bar to her claim under the factual predicate

for this case.

DISPARATE TREATMENT

37. The Department presented testimony that it discharged

the Petitioner because she took additional, unauthorized time

off on Monday following working overtime Saturday. The

Department introduced a termination critique which mentions

other issues, to include late and incom plete projects and

failing to properly account for attendance.

38. The Department did not establish what the Petitioner's

working conditions were; however, regarding that Monday, the

Department asserts that the Petitioner was only authorized four

hours of compensatory time off. No evidence was presented by

the Petitioner that this was not the requirement or that she was

excused from the requirement by any other rule. No evidence was

presented by the Petitioner regarding whether any of the

employees wh o were at the opening of the visitor's center took

more than four hours off from work on the following Monday. 3/ No

evidence was introduced by the Petitioner regarding any

misunderstandings or miscommunications of the work requirements

for that Monday.

39. When questioned about the stated grounds for

termination as reflected in the critique, Redd's references were

vague or general and there was no documentation of any of the

alleged incidents of late work or incomplete work. However, the

Petitioner int roduced no evidence of others who had not

completed projects or were late with projects and who also had

problems with attendance. In sum, the Petitioner did not

introduce evidence to rebut the putative reason for her

discharge or to show that she was tre ated differently from

similarly situated employees who were not members of a protected

class.

40. The Petitioner is obligated to demonstrate that her

treatment was different from similarly situated employees who

were not members of a protected class, an d to demonstrate that

stated reasons for her termination were pretextual. This later

showing involves not only showing that the reasons were not

true, but that the real reason for termination was

discriminatory. Having failed to make these required proof s,

the Petitioner has not carried her burden of proof of her claim

of discrimination.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Petitioner's Claim for Relief be dismissed.

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

ENDNOTES

1/ The building, as stated, was a pump house, and, as such, an

outbuilding; however, it was not an "outhouse."

2/ Although the Petitioner's Proposed Recommended Order recites

some facts about the Petitioner's personnel qualifications, the

record does not refl ect presentation of this evidence or

stipulation to this material.

3/ The Petitioner's Proposed Recommended Order asserts that some

employees took off six hours on that Monday; however, the record

does not reflect this evidence as being presented at hear ing.

COPIES FURNISHED :

Marshall G. Wiseheart, Esquire

Department of Environmental Protection

Office of the General Counsel

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lynda D. Wynn

Post Office Bo x 3452

Tallahassee, Florida 32315

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkw ay, 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 th is Recommended Order should be filed with the agency that

will issue the final order in this case.