04-000509 Andrea Spainhour vs. Department Of Insurance Status: Closed Recommended Order on Wednesday, December 15, 2004.

Summary: Petitioner was terminated during her probationary period and offered no evidence proving that Respondent terminated her based upon her age or sex or retaliated against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA SPAINHOUR, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0509

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigo t,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on October 8, 2004, by videoconference

between sites in Fort Lauderdale and Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrea Spainhour, pro se

400 North Main Avenue

Clermont, Florida 34712

For Respondent: Mechele R. McBride, Esquire

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue presented is whether the Department committed an

unlawful employment practice by terminating Petitioner's

employment due to her age or her sex or by retaliating against

Petitioner.

PRELIMINARY STATEMENT

Petitioner Andrea Spainhour filed with the Florida

Commission on Human Relations an Employment Charge of

Discrimination alleging that Respondent Department of Insurance,

now known as the Departme nt of Financial Services, had

discriminated against her by terminating her employment. Upon a

determination by the Executive Director of the Commission that

there was no reasonable cause to believe that an unlawful

employment practice had occurred, Petiti oner filed her Petition

for Relief, and the Commission forwarded that Petition to the

Division of Administrative Hearings to conduct an evidentiary

proceeding.

Petitioner testified on her own behalf. The Department

presented the testimony of Mary Kowalski , Fred Chaplin,

Amy Peebles, Ashley Caron, and Michael Long. Additionally,

Petitioner's Exhibits numbered 1 - 15 and the Department's

Exhibits numbered 1 and 3 - 12 were admitted in evidence.

Both parties submitted P roposed R ecommended O rders after

the conclu sion of the hearing. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Fred Chaplin supervises the fire protection specialists

(fire inspectors) for the southeast region of the Bureau of Fire

Prevention, Di vision of State Fire Marshal, Department of

Financial Services. The headquarters for the southeast region

is in West Palm Beach, with a field office in Plantation.

2. For approximately five months there had been a vacant

fire inspector position in the southeast region, and

Ashley Caron, a fire protection specialist, was covering all of

the counties in the southeast region during that time. She

worked out of the Plantation field office where Amy Peebles was

the administrative assistant.

3. Michael Lo ng, another fire protection specialist,

worked out of the West Palm Beach office. He, like

Ashley Caron, was responsible for inspecting state - owned and

state - leased buildings and new construction. He was also

responsible for all fire alarms in the southe ast region whether

they were in new construction or in existing buildings. He

investigated fire alarm systems when he received complaints from

outside contractors or other fire inspectors.

4. When Petitioner Andrea Spainhour interviewed for the

vacant position in the southeast region, she was interviewed by

Caron, Long, and Joe Furiatto from the Department's Tallahassee

personnel office. Prior to her interview, Long had talked with

Peebles about whether they should re - post the vacancy since

there were only two candidates. He erroneously thought there

had to be a minimum of three applicants for a vacancy in order

to fill it.

5. Long, Caron, and Furiatto were impressed with

Petitioner during her interview. She had an excellent

background and extensiv e experience. The three interviewers

rated Petitioner, a 50 - year - old female, as superior to the other

applicant, a younger male, and recommended that she be hired.

When Petitioner accepted the offer of employment, Long, Caron,

Peebles, and Chaplin were a ll excited that Petitioner would be

working with them.

6. Petitioner's first day of work was May 7, 2001. She

reported to the Plantation office where Chaplin spent time with

her in orientation over the next several days. He advised

Petitioner that Caron would train her during May and June and

that Petitioner would become responsible for the inspections in

Miami - Dade County. He further advised Petitioner, as he had

before she began work, that she was a probationary employee and

that the Legislature was c onsidering "privatizing" fire

protection specialists. He further advised Petitioner that hers

was a job "out in the field," but that she was expected to come

into the office to pick up phone messages and mail, turn in

inspection reports, and sign document s. He told Petitioner the

guideline was that it would take approximately eight hours a

week to take care of duties in the office.

7. Amy Peebles assisted Petitioner by answering her

questions, showing her how to use her Nextel telephone and the

computer , and creating forms on the computer so that Petitioner

could fill them out and e - mail them to her when Petitioner was

out of the office. Caron also assisted Petitioner by answering

questions and showing her how to fill out forms. Long told

Petitioner to call on him if she had any questions. Everyone

tried to make Petitioner feel part of "the team."

8. On May 10 Petitioner sent Chaplin an e - mail saying that

Caron and Peebles had given her a plant for her office and that

she already felt like part of the family. Although not

mentioned in the e - mail, Caron also gave Petitioner some shirts

like Caron and Long wore when they made inspections identifying

Petitioner as a fire inspector so she would be recognized as a

member of the fire inspectors team. Caron also gave Petitioner

a mapping program of Miami - Dade County that Caron had purchased

to assist Petitioner in becoming familiar with the locations of

facilities she would be inspecting.

9. When Chaplin advised Long and Caron by e - mail that they

had been c omplimented for their professionalism by the

construction administrator at the Department of Juvenile Justice

(DJJ), Long immediately advised Chaplin by e - mail that

Petitioner was also present at the referenced meeting and had

acted professionally and been an asset to the inspection team.

Chaplin forwarded those e - mails to Petitioner to let her know

that Long had included her in the compliment.

10. When Petitioner began making inspections, she did not

always submit the proper forms to Peebles or fill them out

properly so that Peebles could send the required letters to

those responsible for the inspected facilities. Peebles

reported this problem to Chaplin. Petitioner also made mistakes

on her vehicle logs that Chaplin corrected for her before

forwarding them to Tallahassee.

11. On June 12, Caron and Long car - pooled down to Miami -

Dade County to attend a meeting at Florida International

University (FIU). After the meeting, Long, who was responsible

for fire alarm systems in the region, took the opportu nity of

being in Miami - Dade to evaluate the fire alarm system at the

DJJ, which was located close to FIU, in order to ascertain how

long his final inspection of the system would take. Their visit

to DJJ was not an official visit and did not include an

ins pection. When Petitioner learned that they had gone to one

of "her buildings" without her, she thought they intentionally

excluded her from official business. She concluded they did not

want her in her position due to her experience.

12. At about th at same time, Caron asked Long for

assistance at one of her facilities in Broward. Prior to

Petitioner's employment, Caron had told Long she had some

concerns regarding a fire alarm system at the Coconut Grove

Playhouse. When they finished in Broward, Lo ng reminded Caron

he needed to look at the Playhouse; so, they car - pooled down to

Miami - Dade. This was an informal visit, and no official

inspection took place. Again, when Petitioner learned they had

gone to the Playhouse without her, she assumed they w ere

intentionally excluding her from official business meetings.

13. On July 25, 2001, Petitioner asked Chaplin to come to

the DJJ in Miami - Dade because she had some questions about the

Code. After they went through the facility and were in the

parking l ot, Petitioner began making allegations that gave

Chaplin concern. She said that Long and Caron were trying to

make her quit because they did not like her. She said she

resented their making courtesy visits without her. She told him

that Long and Caron were intentionally excluding her from

meetings. Chaplin told her that she was misinterpreting their

behavior and that he was sure there was a reasonable explanation

for their attending meetings without Petitioner.

14. She also told Chaplin that she had h ad a problem in

the past working with other females.

15. The following morning Chaplin directed Long and Caron

to cancel their appointments and come to his office. He told

them what Petitioner had said. They told him that the courtesy

visits were not scheduled meetings but spur - of - the - moment visits

when Long was in Miami - Dade. They were shocked at Petitioner's

accusations because they had selected her for her position and

had thought their relationships with Petitioner were good.

Chaplin directed the m to make Petitioner feel part of the team.

16. That same day Petitioner sent Chaplin an e - mail that

included a reminder that she was concerned about the matters she

had discussed with him the previous day.

17. On the following day, Chaplin received a call from

Caron, who advised him that Peebles was quite upset and he

should call her. When Chaplin called, Peebles sounded

distraught and on the verge of tears. She told him that

Petitioner had been in the office and was really mad at Chaplin,

Long, and Caron. Peebles told him the negative things

Petitioner had said about her co - workers and her supervisor.

Peebles said she was somewhat afraid for her safety due to

Petitioner's behavior. Chaplin told her to write a report, and

she did.

18. Based upon the description of the incident between

Petitioner and Peebles, his own concerns from his meeting with

Petitioner two days earlier, and Petitioner's failure to

consistently submit accurate and timely vehicle logs and

inspection reports, Chaplin made the de cision to terminate

Petitioner. He was concerned that Petitioner was creating a

hostile atmosphere among her co - workers and with him.

19. Chaplin contacted his supervisor and then sent a memo

regarding Petitioner's behavior. A few days later he sent a

f ollow - up memo detailing other concerns he had regarding

Petitioner's job performance: inspection reports turned in late

or not at all, vehicle logs with errors, and failure to follow

standard office procedures. Petitioner's age and her sex were

not consid ered when Chaplin made his decision.

20. Chaplin's recommendation that Petitioner be terminated

was processed and approved through his chain of command.

Petitioner's employment by the Department was terminated

August 23. Since she was terminated during her probationary

period, she did not have any career service appeal rights.

21. Petitioner was replaced by a 50 - year - old male who was

even more qualified for the position than was Petitioner.

22. Only administrative assistants had access to the TMIC

com puter program. Although Petitioner wanted access, no fire

protection specialists could access that program. Petitioner

was told several times that she did not need to access TMIC and

that no inspector had access.

23. The "red book" contains information about the various

facilities in a geographic area that are inspected. It is only

a guide for inspectors to track when they last inspected a

facility. It is not a necessary tool for an inspector to

perform his or her job duties and only contains informati on also

available in the office files. Petitioner was not discriminated

against by not being given an updated red book until the end of

July since the information in it exists elsewhere in the office.

24. Petitioner believes that Chaplin discriminated against

her because he did not like her, did not want to hire her, and

provided her with a faulty vehicle. Prior to assigning the car

to Petitioner, he drove that vehicle for a few days, had it

cleaned, and had it serviced and inspected. He knew of no

pr oblems with that vehicle. When Petitioner later questioned

the condition of the tires, he told her to get the car checked

and bring him something in writing. He never received anything

in writing from her regarding the condition of the tires.

C ONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

26. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful emplo yment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of age or sex. Similarly, Section 760.10(7) provides that

it is an unlawful employment practice for an employer to

discriminate against any person bec ause that person has opposed

an unlawful employment practice or has charged an employer with

such a practice.

27. Petitioner alleges discrimination and retaliation by

being given faulty equipment, by not being trained, by having

information withheld from her by a younger female inspector, by

Chaplin giving her erroneous information, by Chaplin giving her

no guidance or training, by not being included in meetings, by

the withholding of her reports in order to prevent her from

turning them in on time, by no t being treated the way she should

have been treated, and by having her reports altered. However,

Petitioner has failed to prove that the Department discriminated

against her or that the Department retaliated against her.

28. Petitioner bears the burden of proof established by

the Supreme Court of the United States in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and in Texas Dept. of Community

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

established case law, Petitioner bears the initial burden of

establishing by a preponderance of the evidence a prima facie

case of discrimination. If a prima facie case is established,

the burden to go forward shifts to the employer to articulate a

legitimate, non - discriminatory reason for the employment action.

The employee then has the burden of showing that the business

reason is pretextual and that a discriminatory reason more

likely than not motivated the decision.

29. In order to establish a prima facie case, Petitioner

must prove that (1) she is a member of a protected class, (2)

she was qualified for her position, (3) she suffered an adverse

employment action, and (4) she was treated less favorably than

similarly - situated employees who were not members of her

protected class. Holifield v. Reno , 115 F.3d 1555 (11th Cir.

1997). Petitioner has failed to establish a prima facie case of

discrimination.

30. Petitioner offered no evidence that she was terminated

due to her sex. Rather, the evidence shows that when Petitioner

was hired, she was cho sen over the other candidate, a male.

Further, her position was in a field office at which only two

other employees were assigned, and those employees were both

female. The only mention of gender during the final hearing in

this cause involved the eviden ce that on July 25 in her meeting

with Chaplin, Petitioner told him that she had had problems

working with other females in the past.

31. Petitioner offered no evidence that she was terminated

due to her age. Rather, the evidence shows that when Petiti oner

was hired, she was chosen over the other candidate, who was

younger than Petitioner. Further, when Petitioner was

terminated, she was replaced by a candidate who was the same age

as Petitioner. The fact that Petitioner accepted a position in

an offi ce where the other employees were younger does not prove

her claim that she was discriminated against based upon her age.

32. Assuming arguendo that Petitioner had established a

prima facie case, her claim still fails because the Department

has articula ted legitimate, non - discriminatory reasons for its

actions, and Petitioner has failed to meet her burden of showing

that the reasons the Department gave are a pretext for

discrimination. The Department offered credible evidence in

response to each specifi c raised by Petitioner.

33. For example, in response to her allegation that she

was denied access to TMIC, the evidence is clear that no

employee in her position had access to that system. In response

to her allegation that she could not perform her du ties because

the red book was not updated, the evidence is clear that the red

book was not required to perform those duties. In response to

her allegation that she was excluded from meetings, the evidence

is clear that her presence was not necessary at th e two

impromptu courtesy visits made by another fire protection

specialist responsible for inspecting systems Petitioner was not

responsible for inspecting. Lastly, Petitioner's allegation

that she was not trained conflicts with her more - pervasive

positio n that she was more knowledgeable than her co - workers and

her supervisor, and she failed to identify any training she

lacked other than training on TMIC which was not within her area

of responsibility.

34. Rather, the evidence is clear that Petitioner wa s

having difficulty getting along with the other employees and was

having difficulty following required procedures. Due to an

angry outburst wherein Petitioner questioned the competency of

her supervisor and her co - workers, the only employee physically

pr esent in the Plantation field office was afraid of her. The

Department's decision to terminate her during her probationary

period was a legitimate business decision based on non -

discriminatory reasons, and Petitioner has not proven a single

reason articul ated by the Department to be pretextual.

35. An employer may terminate an employee for a good

reason, for a bad reason, for a reason based upon erroneous

information, or for no reason at all, as long as the termination

was not based upon a discriminatory reason. See Dept. of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991),

and the cases cited therein. The Department has articulated

good reasons for Petitioner's termination, and Petitioner has

not shown that any of those reasons was discrimin atory by any

direct evidence, statistical evidence, or even circumstantial

evidence.

36. In addition to claiming discrimination, Petitioner

asserts that her termination constituted unlawful retaliation.

Retaliation claims are analyzed under the same burd en - shifting

approach as are discrimination claims. However, Petitioner's

lack of evidence to support her allegations of discrimination

makes it difficult to analyze her claim of retaliation as a

separate event from her claim of discrimination. There is

s imply no evidence that Petitioner engaged in a protected

activity or that there was a causal link between that protected

activity and her termination. Stavropoulos v. Firestone , 361

F.3d 610 (11th Cir. 2004).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Petitioner failed in her burden of proof and dismissing the

petition filed in this cause.

DONE AND ENTERED this 15th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 15th day of December, 2004.

COPIES FURNISHED:

Andrea Spainhour

400 North Main Avenue

Clermont, Florida 34712

Mechele R. McBride, Esquire

Division of L egal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 23201

Denise Crawford, Agen cy Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 23201

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.