04-000420 Blanca E. Carbia vs. Alachua County Status: Closed Recommended Order on Tuesday, July 27, 2004.

Summary: Petitioner did not prove discrimination on the basis of gender or national origin. Recommend dismissal of the charge of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLANCA E. CARBIA, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0420

)

ALACHUA COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on April 29 and

May 14, 2004, in Gainesville, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Bruce M. Smith, Esquire

L aw Offices of Bruce M. Smith, P.A.

Post Office Box 450

Gainesville, Florida 32602

For Respondent: William E. Harlan, Esquire

Alachua County Attorney's Office

Post Office Box 2877

Gainesville, Florida 32602 - 2877

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination fil ed by

Petitioner on October 29, 2002.

PRELIMINARY STATEMENT

On October 29, 2002, Petitioner, Blanca E. Carbia, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR), which alleged that Alachua County violated

Section 760.10 , Florida Statutes, by discriminating against her

on the basis of gender and national origin. The Charge of

Discrimination also alleged that she was subjected to different

terms and conditions of employment, wrongful denial of

promotion, and wrongful term ination as a result of retaliation.

The allegations were investigated, and on January 7, 2004,

FCHR issued its determination of "no cause" and Notice of

Determination: No Cause.

A Petition for Relief was filed by Petitioner on

February 3, 2004. FCHR tra nsmitted the case to the Division of

Administrative Hearings (Division) on or about February 5, 2004.

A Notice of Hearing was issued setting the case for formal

hearing on April 29, 2004. The hearing did not conclude on the

scheduled date, and the hearin g resumed and concluded on May 14,

2004.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Christy Crawford, Jay Butts, Penny

Lefkowitz, Hillary Hynes, Steve Gayler, Wayne Mangum, and Robert

Thompson. Petitioner offered Exh ibit Nos. 1 through 8 and

10 through 14, which were admitted into evidence. Petitioner

proffered Exhibit numbered 15. Respondent presented the

testimony of Bill Burrus and Penny Lefkowitz and proferred the

testimony of Barbara Brooks. 1/ Respondent offer ed into evidence

Exhibit Nos. 22, 24 through 26, 37, 52, 58, and 60, which were

admitted into evidence. Respondent proferred Exhibits numbered

15 and 63 through 65. Official Recognition was taken of

Chapter 72, entitled "Animals" of the Alachua County Co de; and

Chapters V and XIX, entitled "Appointments" and "Disciplinary

Policy" of the Alachua County Personnel Regulations.

A Transcript consisting of four volumes was filed on

June 10, 2004. The parties timely filed Proposed Recommended

Orders which ha ve been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is an Hispanic woman who was employed by

Respondent from December 1997 until her termination on

October 2, 2002. She worked in Alachua County Animal Services

(Animal Services) as an animal control officer.

2. Animal Services control officers are supervised by the

Animal Services field supervisor who reports to the director of

Animal Services.

3. Petitioner received a bachelor's degree in 1983 in

agriculture w ith a concentration in animal production and

agricultural management courses, has experience in animal

nutritional research, and has one published paper in that

field. 2/ Prior to working for the Alachua County, Petitioner

managed a small pest control busi ness. By the time she applied

for the supervisory position, she had obtained Florida Animal

Control Association (FACA) Level I, euthanasia, and chemical

immobilization certifications.

4. An animal control officer is responsible for enforcing

state laws a nd county ordinances regarding small animals.

Animal control officers impound animals at - large, issue warnings

and citations, handle citizen complaints, and investigate animal

bites and cruelty to animals.

5. Petitioner served as interim Animal Services supervisor

for a little over one month in June 2000.

6. When the position of Animal Services field supervisor

became vacant in December 2001, Petitioner applied for the job.

Penny Lefkowitz, a newly hired Animal Services officer, also

applied for the j ob.

7. At that time, Ms. Lefkowitz had seven years of animal

control experience in Arizona as lead officer. In that

capacity, she was a sworn officer with firearm authority, a

field training officer, and handled over 1,000 calls per year in

that positi on. She held National Animal Control Association

(NACA) Level I and II certifications. She was euthanasia -

certified and had 25 years' experience breeding dogs and horses.

Ms. Lefkowitz has a high school diploma.

8. Ms. Lefkowitz was placed in the inter im field

supervisor position for a period of approximately three months,

during which time she received supervisory pay.

9. The record is not clear whether there was a separate

application process for the permanent position following the

appointment of the interim supervisor position. In any event,

Respondent hired Bill Burris as Animal Services supervisor in

March 2002. At the time he applied, Mr. Burris had nine years

of animal control experience in Arkansas, where he was the

animal control officer a nd shelter assistant. He held a high

school G.E.D. Additionally, he held NACA Level I, II, and III

certifications.

10. Petitioner's Charge of Discrimination regarding

failure to promote only references Ms. Lefkowitz's appointment

to the interim directo r position, "[i]n December 2001, a newly

hired officer, white female with less experience was hired as

interim supervisor ." It does not reference Mr. Burris as being

hired in the director position. Her Petition for Relief

alleges, "[t]hose less qualified individuals were hired and

promoted in violation of county/company policy." Thus, it is

not clear that Respondent hiring Mr. Burris for the permanent

position is properly within the scope of this case.

Nonetheless, the evidence presented at the hearing regarding

Mr. Burris' qualifications is addressed herein.

11. Mr. Burris held the position of field operation

supervisor from March 2002 until his resignation in

September 2003.

12. Based upon the evidence in the record, at the time the

decision was made to place Ms. Lefkowitz in the temporary

supervisory position, she and Petitioner met the qualifications

for the job. Ms. Lefkowitz had significantly more supervisory

and field experience than Petitioner. At the time he was placed

in the job, Mr. Burris met the qualifications for the job and

had significantly more supervisory experience than Petitioner.

Petitioner held a college degree, which neither Ms. Lefkowitz or

Mr. Burris had. However, according to Mr. Burris, a college

degree was not a minimum re quirement of the job, but two years'

animal control or animal shelter experience were required.

There is nothing in the record to contradict his testimony in

this regard.

13. When Mr. Burris became field supervisor, he held a

staff meeting and told the a nimal control officers he supervised

that he would start fresh as far as performance and discipline

issues. He handed them an empty folder and informed them that

he would only consider their past performance if he saw a

pattern that caused him to look at past personnel records.

14. Mr. Burris called staff meetings to discuss policies

that were not up - to - date or in need of updating. Prior to the

staff meeting, Mr. Burris sent a memorandum to the animal

control officers informing them that there would be a staff

meeting. Officers were expected to attend and were excused only

if they were on an emergency call. If an officer was absent

from a meeting, Mr. Burris would promptly notify them in

memorandum format as to what happened at the meeting.

15. When ch anges were made in policies or procedures,

Mr. Burris would put a copy of the policy changes in every

officer's box. Each officer had his or her box where they would

receive their mail. Each officer was expected to check that box

daily. The boxes were a ccessible to everyone so that when there

was a confidential document, such as payroll information, that

document was placed in an envelope and then put in the officer's

box.

16. Petitioner's mid - year performance review was due in

April 2002, approximately six weeks after Mr. Burris became the

supervisor. Petitioner received an overall rating of "exceeded

expectation." There are five categories of performance ratings,

and "exceeded expectation" is the second highest category. That

rating was consistent wi th ratings Petitioner received from

previous supervisors.

17. On April 24, 2002, Mr. Burris held a staff meeting to

discuss a new policy regarding issuance of warnings and

citations. The new policy required officers to give animal

owners in violation of v accination or licensing requirements 15

days to come into compliance. Previous to this, some officers

had given animal owners 30 days to come into compliance. Under

extenuating circumstances and upon seeing reasonable attempts to

achieve compliance, the officer could extend an owner's deadline

by 15 more days. Testimony is conflicting as to whether

Petitioner attended this meeting. Petitioner insists she was

not at this meeting. Mr. Burris insists that she was and that

this issue was discussed in great detail. In any event,

Mr. Burris put the new policy in writing a few days after the

April 24, 2002, meeting, and the new written policy was given to

all the officers. The weight of the evidence establishes that

even if Petitioner did not attend the Apri l 24, 2002, meeting,

she would have been notified of the policy change shortly

thereafter.

18. On April 29, 2002, Petitioner issued a warning to a

dog owner, which allowed the dog owner 30 days to achieve

compliance with licensing and vaccinations for 24 d ogs.

According to Petitioner, she considered 30 days to be ample time

for the owner to come into compliance. Petitioner maintains

that at the time she issued this warning, she was not aware of

the change in policy from 30 to 15 days. She acknowledges th at

Mr. Burris later explained the change in policy to her. It is

clear that Mr. Burris informed Petitioner of this policy change

and directed her to follow these procedures.

19. In June or July 2002, Mr. Burris designed a policy and

procedure manual inc orporating all policies and procedures. A

manual was issued for each truck used by the animal control

officers.

20. On July 31, 2002, Mr. Burris issued a memorandum

entitled, "Bite Priority," to the animal control officers.

Following a staff meeting wh ere this memorandum was given to the

officers, an informal discussion took place around the dispatch

area. During this informal discussion, Petitioner questioned

Mr. Burris as to whether he had ever read a document called the

rabies compendium. Mr. Burri s described Petitioner as speaking

in a disrespectful, challenging tone. Ms. Lefkowitz witnessed

the exchange and described it as disrespectful and

condescending. 3/ This statement made in front of other officers

was inappropriate.

21. The "Bite Priorit y" memorandum reads, in pertinent

part, as follows:

All Bites will be priority. Stand - by

officers will be required to respond if the

bite is after hours during their on - call

shift. Bites will not be passed on to the

next day.

Shifts are 10 hour shifts, n ot 9 1/2 hours,

if you end up working over you are

compensated. Officers will not pass calls

off to the stand - by person. Priority calls

will be taken by Officers during their

regular shift.

The remainder of the memorandum dealt with off - premise bites.

22. In early August 2002, Mr. Burris decided to "work the

roads on a Saturday to take up some of the slack" because the

animal control officers were overworked. Late one afternoon,

Mr. Burris attempted to reach Petitioner on the radio, but was

unable to do so. He asked the dispatcher to contact Petitioner.

Petitioner acknowledges that she was contacted by the dispatcher

and received Mr. Burris' request to fill up the truck she was

driving and to leave the keys and the fuel card on Mr. Burris'

desk.

23. Petitioner had already filled up the truck that day in

the late morning. She did not fill up the truck again at the

end of the day, but described the truck as being seven - eighths

full at the end of her shift, after making ten to 12 calls after

stopping fo r fuel. Petitioner believed her actions complied

with Mr. Burris' instructions.

24. Mr. Burris described finding the truck the next

morning as half - full of gas. Mr. Burris concluded that

Petitioner did not follow his instructions. Mr. Burris'

conclusion in this regard was not unreasonable.

25. The truck incident gave rise to Mr. Burris' first

written warning about her conduct. On August 5, 2002,

Mr. Burris issued a memorandum to Petitioner for "failure to

follow verbal instruction." The memorandum note d a safety

concern in that he was not able to reach Petitioner by radio and

his concern that she did not follow his directive.

26. On August 6, 2002, Mr. Burris called Petitioner into

his office to discuss the written memorandum. Mr. Burris

described Peti tioner's behavior when he handed her the

memorandum to be disrespectful. As a result, Mr. Burris went to

the director's office to explain the circumstances surrounding

this incident. This resulted in a meeting in the director's

office at which the direct or, Mr. Burris, and Petitioner were

present.

27. Petitioner acknowledges that she made the statement,

"I guess one out of a hundred is unacceptable" during this

meeting, and that she said it using a sarcastic tone.

28. Later on August 6, 2002, Mr. Burris issued Petitioner

another in - house written warning, the subject of which was

"improper conduct" about her conduct in the director's office,

which read in part:

I informed Dr. Caligiuri of Blanca's

discourtesy and or improper conduct. I had

Blanca meet wi th me in Dr. Caligiuri's

office to discuss her comment and the way in

which it was stated. During our

conversation in Dr. Caligiuri's office

Blanca used mild sarcasm, expressing, "I

guess one time out of a hundred is

unacceptable" as we discussed the impo rtance

of responding to her radio.

At this time, I do not want to write this up

as a group I #19 Discourtesy to another

employee or a Group II #7 Improper conduct

which would effect the employees

relationship with co - workers. However, if

this behavior c ontinues I will be left with

no alternative.

I know Blanca is capable of doing her job in

a professional manner. I only want this as

a written documentation of what occurred on

this day, to prevent future occurrences of

this same behavior.

29. Petitione r refused to sign the August 6, 2002,

memorandum.

30. On August 13, 2002, Animal Services received a call

about a dog bite at a residence. Animal control officer Jay

Butts was dispatched on the call. When he arrived, he saw two

or three dogs inside the h ome, and he could not determine which

dog was involved in the reported bite. The owner of the dog was

not at home. He left without leaving a written warning because,

"I did not have the correct owner or dog, so I didn't know which

dog or which owner to l eave a written warning to. . . So I

wanted to come back and find out which dog actually was involved

in the bite."

31. The following morning, Mr. Butts received information

from the Health Department regarding the dog's owner and learned

that the dog was not currently vaccinated or licensed.

Mr. Butts returned to the residence where the bite occurred.

He posted a notice to the dog's owner. Apparently the owner was

still not home because he posted a warning which included the

following necessary correcti ve action: "Your dog must be placed

into quarantine by 5:00 pm on 8 - 14 - 02 at our shelter or a

licensed vet. If you do not have this done today your animal

will be impounded and you will receive a citation of $200.00 per

day." The warning required the ow ner to correct the violation

by 5:00 p.m. that day. Officer Butts proceeded to handle other

calls until his shift was over. He did not make contact with

the dog's owner before his shift ended. His shift ended before

5:00 p.m.

32. The dog's owner called Animal Services after 5:00 p.m.

on August 14, 2002. Petitioner took the call. After speaking

to the dog's owner, she called a veterinarian and learned that

the dog's vaccination had expired by a few months. She did not

pick up the dog. She gave the fol lowing reason:

Yeah, it happened on property. The dog

was confined to his property. We had

contacted the owner. And basically even

though the vaccination had expired, even a

one - year vaccination is good for three

years. This is a known fact of any va ccine,

any rabies vaccine manufactured in the

United States, a one - year vaccine has an

efficacy of three years. So I take all that

matter into consideration when I have to

make a decision as to what to do with a bite

dog.

33. Petitioner told the dog's o wner that he had to comply

with the written warning given by Mr. Butts. According to

Petitioner, she told the dog's owner that he had to quarantine

the dog off the property either at the shelter or at a

veterinarian clinic. She also informed him that the only person

who could reverse that decision was her supervisor.

34. The next morning, August 15, 2002, the dog's owner

called Mr. Burris. Mr. Burris spoke to the dog's owner and then

questioned Petitioner to get her side of the story. He then

instructed Petitioner to pick up the dog. She did not pick up

the dog as instructed; another officer picked up the dog later

that day.

35. Mr. Burris gave a verbal warning to Officer Butts

regarding his handling of the dog - bite incident. Mr. Butts had

received pre vious disciplinary actions, including suspensions,

prior to Mr. Burris becoming the field supervisor.

36. However, on August 20, 2002, Mr. Burris initiated a

Notice of Proposed Disciplinary Action (Notice) to Petitioner in

which he recommended a three - day suspension without pay. The

reasons referenced in the Notice were willful negligence in the

performance of assigned duties or negligence which would

endanger the employee, other employees, or the public; and

refusal to perform assigned duties or to comply with written or

verbal instructions of a higher level supervisor. The narrative

of the Notice referenced the dog - bite incident and the August 6,

2002, improper conduct memorandum.

37. Mr. Burris explained his decision to give different

disciplinary actio ns to Officer Butts and Petitioner:

Q What should she have done with the dog?

A She should have impounded it immediately.

If the owner refused her, she should have

issued him a citation for failure to comply.

Q Jay Butts participated in this. We had

some testimony about that. Jay Butts

participated in this event two days prior

and one day prior to Ms. Carbia getting

involved. Why wasn't Butts given any

suspension on the same matter?

A Jay Butts was given the same verbal

consultation that Officer Carbia had

received. The only thing Jay Butts could

have done differently would have perhaps

left a posted notice the day of or given a

notice to the roommate with generic

information.

Jay Butts received consultation pertaining

to that. He did not recei ve disciplinary

action because he never made any contact

with the owner. The officer that made

contact with the owner and had the first

opportunity to take the dog was Officer

Carbia.

Q So there is a difference in the

seriousness of her offense and Jay Butts'

offense?

A Absolutely.

Q Hers was more serious?

A Yes.

38. As a result of the Notice, a grievance hearing took

place on August 26, 2002, in the director's office. Wayne

Mangum, who at that time was the union steward, Mr. Burris, and

Petitio ner were there, as well as the director, Dr. Caligiuri.

During the meeting, Petitioner explained her position. At some

point in the meeting, Dr. Caligiuri made a comment to the effect

that 80 years ago women could not vote. 4/ Petitioner found that

comme nt to be discriminatory toward women.

39. When asked whether Dr. Caligiuri's demeanor in that

meeting was aggressive or not cordial, Mr. Mangum replied that

his demeanor was "uncordial." In any event, Dr. Caligiuri's

comment was offensive and inappropriat e.

40. During the August 26, 2002, meeting, Mr. Burris

instructed Petitioner to discontinue striking the word "within"

from the form used when giving an animal owner a time frame

within which to bring in an animal to be impounded. She had not

been in structed regarding that previously.

41. Mr. Burris received a copy of a warning form dated

August 28, 2002, on which Petitioner had crossed out the word

"within" contrary to his instructions. He took no action at the

time since he thought it might have been a "slip of the pen."

He then received another warning form dated September 9, 2002,

regarding a dog bite which Petitioner had again altered by

crossing out the word "within."

42. Petitioner had written on the form that the warning

had bee n posted. Posting is a procedure officers follow when

the animal owner cannot be found. The notice is posted on the

door of the residence for the owner to find upon returning home.

Based upon his telephone call to the dog's owner and the

information on the form, Mr. Burris was of the belief that the

form had not been posted, and that Petitioner's indication on

the form that it had been posted was inaccurate.

43. Mr. Burris met with Petitioner regarding this

incident. Petitioner acknowledged at hear ing that she spoke to

the dog's owner, but was intimidated and confused when

questioned by Mr. Burris about whether or not she had spoken to

the owner. Petitioner contends that she did not lie to Mr.

Burris, that initially the owner did not come to the do or but

later did come to the door. According to Petitioner, she simply

neglected to cross out the word "posted" or ask the owner to

sign the form.

44. On September 18, 2002, Mr. Burris signed and provided

a Notice of Proposed Disciplinary Action to P etitioner which

proposed her termination from employment. The stated reasons

for the proposed action were willful negligence in the

performance of assigned duties or negligence which would

endanger the employee, other employee, or the public;

deliberate falsification and or destruction of county records;

and refusal to perform assigned duties or to comply with written

or verbal instruction of a higher level supervisor. The Notice

referenced the August 28, 2002, warning notice with the word

"within" cros sed out; the September 10, 2002, warning notice

with the word "within" crossed out; the written word "posted" on

a warning when she had personally spoken to the dog's owner; and

the meeting on August 26, 2002, which resulted in her three - day

suspension. T he Notice concluded:

This is the same type of circumstance

concerning the same written instruction

after meeting with Blanca and her union rep.

This time Blanca was untruthful in her

statements, even after I gave her three

opportunities to tell me that she had

personally spoken to the dog owner. By

writing "posted" on the notice which

indicates the owner was not home, she

falsified a county document. Blanca hand

delivered the notice to the dog owner and

did not impound the dog when she had the

opportun ity.

45. Petitioner was terminated from her employment with

Respondent effective October 2, 2002.

46. There is no evidence in the record that Petitioner

complained to anyone that she felt she was discriminated against

on the basis of her gender or nati onal origin. The only

evidence presented regarding her national origin was

Petitioner's brief testimony:

Q Were there any other Hispanics employed

at animal services during the time frame

that Mr. Burris was there?

A No.

Do you feel that your national origin had

something to do with the way Mr. Burris

treated you?

A Certainly just — basically I felt that I

was treated differently, yeah.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties and subject matte r in this case.

§§ 120.569 and 120.57, Fla. Stat. (2003).

48. Subsection 760.10(1), Florida Statutes (2003), states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis o f gender or national origin.

49. In discrimination cases alleging disparate treatment,

the p etitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Departmen t of Community

Affairs v. Burdine , 450 U.S. 248 (1981). 5/ Under this well -

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , the petitioner, is able to make

out a prima facie case, the burden to go forward 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)

(court discu sses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. Alexander v. Fulton

County, Georgia , 207 F.3d 130 3 (11th Cir. 2000).

50. Once the employer articulates a legitimate non -

discriminatory explanation for its actions, the burden shifts

back to the charging party to show that the explanation given by

the employer was a pretext for intentional discrimination . "The

employee must satisfy this burden by showing directly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief." Department of

Corrections v. Chandler , supra , at 1186; Alexander v. Fulton

County, Georgia , supra . Petitioner has not met this burden.

51. In a failure to promote context to establish a prima

facie case of discrimination, the charging party must prove that

(1) she is a member of a protected minority; (2) she was

qualified and applied for the promotion; (3) she was rejected

despite these qualifications; and (4) other equally or less

qualified employees who are not members of the protected

minority were promoted. Lee v. GTE Florida, Inc. , 226 F.3d

1249, 1253 (11th Cir. 2000), relying upon Taylor v. Runyon , 175

F.3d 861, 866 (11th Cir. 1999).

52. Petitioner arguably has met her burden of proving a

prima facie case regarding the issue of promotion in the context

of nation al origin. She is a member of two protected classes

(she is Hispanic and a female), and she was qualified for and

applied for the promotion. Although Ms. Lefkowitz had more

relevant experience, it is arguable that Ms. Lefkowitz, who is

not a member of th e protected class (she is a white female),

was an employee equally or less qualified. However, there

obviously was no gender discrimination against Petitioner when

Ms. Lefkowitz was promoted to the temporary position.

53. Respondent presented evidence t o explain

Ms. Lefkowitz' promotion to the temporary position.

Ms. Lefkowitz was qualified for the job. She had more years of

animal control experience and more lead officer and training

experience than Petitioner.

54. While there was much evidence pres ented as to

Mr. Burris' qualifications, hi s hiring appears to be outside the

scope of the Charge of Discrimination. The Charge of

Discrimination specifically alleges that a "white female with

less experience" was promoted to the job. Mr. Burris was not

p romoted, he was hired. The Petition for Relief generally

references the hiring of "less qualified individuals," but in

the context of being "in violation of county/company policy."

55. In any event, Mr. Burris was amply qualified for the

job, and his rele vant experience exceeds that of Petitioner. He

had nine years of animal control and supervisory experience, and

she had less than five years' total experience in animal control

and only one month as interim supervisor when she applied for

the position. H e held higher national level certifications.

Accordingly, even if the hiring of Mr. Burris can be construed

to be properly within the scope of this proceeding, Petitioner

has not made a prima facie case in that Mr. Burris'

qualifications were superior, no t equally or less qualified.

Lee v. GTE Florida , supra .

56. Moreover, Petitioner's arguments regarding failure to

follow county personnel policies are misplaced. Whether or not

Respondent violated its personnel policies, including

Ms. Lefkowitz' promotio n, and any failure by Respondent to label

actual verbal warnings as verbal warnings for purposes of

cumulative discipline, is beyond the scope of this proceeding,

which is limited to whether Respondent discriminated against

Petitioner. "The employer may f ire 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 ." (Emphasis supplied.) Department of

Corrections v. Chandler , supra at 1187, quoting Nix v. WLCY

Radio/Rahall Communications , 738 F.2d 1181, 1187 (11th Cir.

1984).

57. Regarding its decision not to hire Petitioner for the

job, Respondent has met its burden of production by articulating

a legitimate, non - discriminatory explanation of the emplo yment

action taken. That is, the candidate(s) selected had more

desired experience than Petitioner.

58. Next in the shifting - burden analysis is whether or not

the reasons given by Respondent were merely pretext. Where a

respondent proffers a reason able motivation for a promotional

decision, it is not up to a court to question the wisdom of the

employer's reasons. Lee v. GTE Florida Inc. , supra , relying

upon Combs v. Plantation Patterns , 106 F.3d 1519, 1543 (11th

Cir. 1997); Damon v. Fleming Superma rkets of Florida, Inc. , 196

F.3d 1354, 1361 (11th Cir. 1999)(emphasizing that courts "are

not in the business of adjudging whether employment decisions

are prudent or fair").

In a failure to promote case, a plaintiff

cannot prove pretext by simply show ing that

she was better qualified than the individual

who received the position that she

wanted . . . [D]isparities in

qualifications are not enough in and of

themselves to demonstrate discriminatory

intent unless those disparities are so

apparent as virtually to jump off the page

and slap you in the face.

Denney v. City of Albany , 247 F.3d 1172, 1187 (11th Cir. 2001),

quoting Lee v. GTE Florida, Inc. , supra at 1253 - 54. There are

no disparities between Petitioner's qualifications and those of

Ms. Le fkowitz and Mr. Burris that would "jump off the page and

slap a person in the face." The primary difference in

Petitioner's qualifications from Ms. Lefkowitz and Mr. Burris is

Petitioner's college degree. Her college degree, while a

legitimate factor to be considered in an employment decision,

was not a requirement for the job.

59. Petitioner has not met her burden of showing that a

discriminatory reason, more likely than not, motivated the

decision or by showing that the proffered reason for the

employ ment decision is not worthy of belief. Consequently,

Petitioner has not met her burden of showing pretext.

60. Dr. Caligiuri's comment at the August 26, 2002,

meeting is insufficient to support the conclusion that

Petitioner was subjected to different t reatment or harassment

based upon her gender. First, the comment could not be related

to the promotional decision as the comment was made long after

that. More significantly, a mere utterance of an ethnic or

racial remark that engenders offensive feeling s in an employee

does not sufficiently affect terms, conditions, or privileges of

employment to constitute a violation of Title VII. See Henson

v. City of Dundee , 682 F.2d 897, 904 (11th Cir. 1982).

Petitioner has failed to establish that there was anyth ing more

than the single comment regarding gender. Thus, Petitioner has

failed to prove that this comment was sufficiently severe or

pervasive as to alter a term of employment or create an abusive

work environment. See Faragher v. City of Boca Raton , 524 U.S.

775 (1998); Harris v. Forklift Systems, Inc. , 510 U.S. 17

(1993).

61. Finally, Petitioner's Charge of Discrimination alleges

that after she was suspended, she complained that she was being

treated differently than male employees and was ultimately

terminated in retaliation. The McDonnell Douglass Corp. v.

Green, supra , shifting burden of proof framework is applied in

cases alleging retaliation. Goldsmith v. City of Atmore , 996

F.2d 1155, 1162 - 63 (11th Cir. 1993).

62. Petitioner offered no eviden ce expressly directed

toward her retaliation claim. Petitioner's Proposed Recommended

Order does not provide any meaningful argument or citation to

the retaliation claim other than the mere assertion that she was

retaliated against. Based on the Findings of Fact herein and

applying the shifting burden framework described above,

Petitioner has failed to establish that her termination was

retaliatory or that her termination was motivated by

discriminatory intent.

63. In summary, Petitioner has failed to car ry her burden

of proof that Respondent engaged in discrimination based upon

gender or national origin toward Petitioner when it denied her

the promotion to interim field supervisor or field supervisor.

Petitioner has also failed to carry her burden of pro of as to

her allegations of disparate treatment in the workplace or of

wrongful termination resulting from retaliation. Petitioner's

speculation and personal belief concerning the motives of

Respondent are not sufficient to establish intentional

discrimin ation. See Lizaro v. Denny's, Inc. 270 F.3d 94, 104

(2d Cir. 2001). ("Plaintiffs have done little more than cite to

their mistreatment and ask the court to conclude it must have

been related to their race. This is not sufficient.")

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Charge of Discrimination and Petition

for Relief.

DONE AND ENTE RED this 27th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 27th day of July, 2004.

ENDNOTES

1/ The record is unclear as to whether Ms. Brooks' deposition

had been taken prior to the hearing. In any event, the

undersigned was never given possession of a transcript of any

deposition of Ms. Brooks.

2/ Petitioner's testimony differed somewhat from her resume in

describing her college degree. Her resume stat es that she has a

bachelor of science in agriculture and that she completed more

than 40 hours in agriculture and animal science courses with a

concentration in animal production and agricultural management

courses. At hearing, Petitioner testified that s he had a

bachelor of science with a major in animal science. In any

event, having a college degree was not a requirement for the

job.

3/ In her Proposed Recommended Order, Petitioner questions

Ms. Lefkowitz' credibility suggesting that "motive is clearl y an

issue." This suggestion is based on Mr. Burris' testimony that

on the day of the hearing, he was an applicant with Respondent

for the position of director of Animal Services. Because

Mr. Burris could again be her supervisor and because they were

fri ends, her testimony was suspect. Having considered the

testimony presented and the demeanor of the witnesses, this

suggestion has been considered and is rejected.

4/ Dr. Caligiuri did not testify. However, his statement to

Petitioner is admissible purs uant to Section 90.803(18)(d) of

the Evidence Code as an admission by a party's agent.

Mr. Mangum's testimony regarding this comment is consistent

with Petitioner's and, therefore, supplements or explains

Petitioner's testimony in this regard. See § 120. 57(1)(c),

Fla. Stat. (2003).

5/ FCHR and Florida courts have determined that federal

discrimination law should be used as a guidance when construing

provisions of Section 760.10, Florida Statutes (2003). See

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

1st DCA 1994).

COPIES FURNISHED :

Bruce M. Smith, Esquire

Law Offices of Bruce M. Smith, P.A.

Post Office Box 450

Gainesville, Florida 32602

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

William E. Harlan, Esquire

Alachua County Attorney's Office

Post Office Box 2877

Gainesville, Florida 32602 - 2877

Cecil Howard, General Counsel

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 exceptions

to this Recommended Order should be filed with the agency th at

will issue the final order in this case.