04-001197 Brenda E. Warren vs. Department Of Revenue Status: Closed Recommended Order on Friday, September 3, 2004.

Summary: An acrimonious workplace is not necessarily a "hostile workplace." The employer`s investigation of insubordination and disruptive conduct charges against employees is not the type of charge that supports a retaliation claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA E. WARREN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1197

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a di sputed - fact hearing was held on

June 16, 2004, in Gainesville, Florida, before Ella Jane P.

Davis, a duly - assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Brenda E. Warren, pro se

6406 Northeast 27th Avenue

Gainesville, Florida 32609

For Respondent: Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399 - 0100

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment

practice against Petitioner by subjecting her to discrimination

on the basis of her race (Black) or by retaliation.

PRELIMINARY STATEMENT

Petitioner’s Charge of Discrimination on the basis of rac e

and retaliation was filed October 29, 2002, with the Florida

Commission on Human Relations (Commission). Following the

Commission's "Determination: No Cause," on March 3, 2004,

Petitioner timely filed a Petition for Relief. The matter was

referred to the Division of Administrative Hearings on or about

April 8, 2004.

At hearing, Petitioner presented the oral testimony of

Sandra Sawyer, Tiffany Brown, Shneka Covington, né Shneka

Hendrick (or Hendreith), Barbara Bryant, Cloria Hill, Glenda

McConaghy (or McKinney), Tabitha Wiley, Candace Thomas, Brenda

Gandy, Jeff Smith, Sandy King, and Barbara Jordan and testified

on her own behalf. Petitioner’s Exhibits P - 1, 3, 4, 5, 6, 7, 8,

9, 16, and P - 28, were admitted in evidence.

Respondent presented the testimo ny of Barbara Jordan, David

Ostrander, Mark Kellerhals, and Sandy King. Respondent’s

Exhibits R - 1, 2, 3, and 4 were admitted in evidence. The record

was left open for the filing of the deposition of Bonnie Lazor,

which filing occurred on June 29, 2004. That deposition has

been admitted as Respondent’s Exhibit 5.

Joint Exhibits AA and ALJ - A also were admitted in evidence.

No transcript was provided.

Both parties timely filed Proposed Recommended Orders which

have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material and as of the date of hearing,

Respondent employed Petitioner, a Black female, as a Revenue

Specialist II at the Gainesville Service Center of the Child

Support Enforcement Program. She has had consistently good

evaluations.

2. In her Proposed Recommended Order, Petitioner has

limited her charge/petition to the period from September 29,

2000, until September 11, 2002, during which period she claims

to have suffered from a hostile work enviro nment, different

terms and conditions of her employment than similarly situated

Caucasian employees, and harassment.

3. At all times material, Barbara Jordan, a Caucasian

female, was the Service Center Manager and Petitioner’s third -

level supervisor.

4. Ms. Jordan became the Gainesville Service Center

Manager by involuntary transfer, when the employer transferred

the previous Service Center Manager to Lake City, in the midst

of gossip and allegations that he was guilty of favoritism. As

a result of his alleged favoritism, and/or as a result of

Petitioner’s concern that other employees had incorrectly

attributed to her the prior manager's transfer to Lake City,

and/or as a result of racial tensions and employee feuds of long

standing in the Gainesville S ervice Center; that location was

not a pleasant place to work, even prior to Ms. Jordan’s

arrival.

` 5. Among the pre - existing employee feuds was one between

Petitioner and Karen Smyder, a Caucasian female Revenue

Specialist III.

6. Although there wer e racial tensions and employee feuds

in the Gainesville Service Center prior to Ms. Jordan’s arrival,

Ms. Jordan was not informed of these problems prior to assuming

the position of Gainesville Service Center Manager.

7. Upon the evidence as a whole, it might reasonably be

said that Ms. Jordan was a “by - the - book” administrator, who did

not cut anybody any slack. While this managerial style is

seldom pleasant for subordinates, and some would question its

efficacy, it still is one of many acceptable forms of

management, provided it does not discriminate against any

employee for any of the reasons listed in Section 760.10(1),

Florida Statutes.

8. Among other acceptable policies, Ms. Jordan strictly

enforced the employer's attendance and leave requirement s.

9. To inform employees of the leave policy, Jeff Smith, a

Caucasian male supervisor who worked between Ms. Jordan and

Petitioner on the chain of command, sent an e - mail to employees

in September 2000, reminding them that they were not permitted

to lea ve the building during breaks or during regularly

scheduled work hours without supervisory permission, and that

they must use earned leave time for any time that they were away

from the building.

10. One month after Ms. Jordan’s arrival in the

Gainesvi lle Service Center, on September 28, 2000, Ms. Jordan

was informed that Brenda Gandy, a Black female Revenue

Specialist II, had left the office without prior permission for

a period of 45 minutes. When Ms. Gandy returned to the office,

Ms. Jordan admonish ed Ms. Gandy and instructed her to deduct the

time she was away from work from her accrued annual leave.

11. Ms. Gandy had worked with Ms. Jordan in another

location previously, as had Barbara Bryant, another Black female

Revenue Specialist II. Both w omen had pre - formed purely

subjective opinions that Ms. Jordan's managerial style was

racially motivated. (See Finding of Fact 60).

12. Ms. Gandy was upset by Ms. Jordan’s September 28,

2000, admonishment. She decided that Ms. Jordan’s admonishment

was discriminatory and based on her race. However, there were

no other examples of employees of any race who were permitted to

leave the Gainesville Service Center building without deducting

earned leave.

13. Although Ms. Jordan had consulted Karen Smyder to

determine if Ms. Gandy had left the building that day,

Ms. Smyder had not reported Ms. Gandy's absence to Ms. Jordan.

In fact, Sonnia Thomas, a Caucasian female Revenue Specialist

II, had reported Ms. Gandy’s absence to Ms. Jordan, but

Ms. Gandy appare ntly persisted in believing that Ms. Smyder had

reported her.

14. Later on September 28, 2000, Sonnia Thomas reported to

Ms. Jordan that she had overheard Ms. Gandy make threats against

Ms. Smyder, outside Ms. Smyder's presence, during a conversation

in which Ms. Gandy addressed other employees in Ms. Gandy’s

cubicle, which was next to Ms. Thomas’s cubicle. Sonnia Thomas

also advised Ms. Jordan that Petitioner, Barbara Bryant, and

Schneka Covington, another Black female Revenue Specialist II,

were presen t in Ms. Gandy's cubicle when Ms. Gandy made threats

against Ms. Smyder.

15. When Ms. Thomas reported what she claimed to have

overheard to Ms. Jordan, Ms. Jordan reasonably became concerned.

16. Ms. Jordan knew Ms. Gandy and Ms. Bryant, but

Ms. Jord an had only been at the Gainesville Service Center for

one month, and she did not know all of the named employees.

Therefore, the next day, September 29, 2000, she asked the

supervisors of all four employees named by Sonnia Thomas to

locate them and bring them to a meeting.

17. Ms. Jordan opened her meeting in a conference room at

the Service Center. Present with Ms. Jordan at this

September 29, 2000, meeting were Gene Merrow, a Caucasian male

Revenue Administrator I; Lee Ross, a Caucasian female Revenue

Administrator I; Petitioner; Ms. Gandy; Ms. Covington; and

Ms. Bryant.

18. Prior to the meeting, Ms. Jordan only knew the race of

two named non - supervisory employees: Gandy and Bryant, because

she had worked with them previously in a different locatio n.

Ms. Jordan did not know the race of the other lower level

employees prior to the meeting but, in point of fact, the four

persons alleged to have been in conversation at the time of

Ms. Gandy's alleged threats against Ms. Smyder were all Black,

as well as being all non - supervisory employees.

19. None of the Black subordinates called to the meeting

had advance warning of the purpose of the September 29, 2000,

meeting. They were caught off - guard when Ms. Jordan began by

addressing the allegations of thre ats toward Ms. Smyder.

Immediately, the four non - supervisory employees became very

upset and agitated by what they perceived as Ms. Jordan’s

surprise attack and accusatory tone. No racial terms were used

by Ms. Jordan, but the four non - supervisory employ ees

immediately formed the belief that Ms. Jordan's concerns were

racially motivated. They became more and more angry and argued

loudly and belligerently with Ms. Jordan, without permitting her

to stay on topic.

20. Ms. Jordan had called the meeting to d etermine if

threats against Ms. Smyder had, in fact, occurred. She had no

obligation to tell anyone in advance why she was calling a

meeting. Likewise, there was no reason she had to keep her

reason secret. It is probable that not all of the mid - level

C aucasian supervisors knew the full purpose of the meeting in

advance, although in hindsight, some Caucasian employees gave

subsequent statements to investigators that they knew or guessed

Ms. Jordan's purpose in calling the meeting, and these

statements fu eled Black employees' suspicions of racial

favoritism and conspiracies.

21. Ms. Jordan considered the meeting to be out of control

and attempted to end it. The Black subordinates would not grant

Ms. Jordan the floor. Rather than being intimidated, Ms. Jordan

walked out of the conference room. Because the Black employees

had ignored her instructions to calm down and listen, Ms. Jordan

viewed absenting herself from the room to be the only way to

defuse a volatile situation.

22. Later that same day, Sonnia Thomas reported

overhearing yet another conversation from Ms. Gandy's cubicle,

in which Ms. Gandy allegedly threatened Ms. Jordan by stating

that she would come to work with a gun and threaten Ms. Jordan

in a manner similar to what happened at “Colu mbine.”

“Columbine” was assumed by all concerned to be a reference to a

notorious tragic and fatal event involving school violence. As

a result of Sonnia Thomas’ now third report concerning Ms. Gandy

(leaving the building; threatening Ms. Smyder; and thr eatening

Ms. Jordan), Ms. Jordan reasonably became concerned about her

own safety and the safety of the workplace she was required to

manage.

23. Ms. Jordan requested that Sonnia Thomas report what

she had overheard to the employer's Office of the Inspect or

General (OIG), by filing a "Workplace Violence Report."

Ms. Thomas filed the Report. Among other accusations in the

Workplace Violence Report, Ms. Thomas alleged Petitioner had

spoken profane and racially charged language to Ms. Jordan and

to, or abou t, Ms. Smyder.

24. As part of the employer's zero tolerance workplace

violence policy, the employer’s central office in Tallahassee

placed Ms. Gandy on administrative leave. OIG investigators

David Ostrander, a Caucasian male, and Mark Kellerhals, also a

Caucasian male, went to the Gainesville Service Center to

conduct investigations in response to Ms. Thomas' Workplace

Violence Report.

25. Despite testimony to the effect that none of the

Gainesville employees enjoyed the subsequent OIG investigation,

there is no credible evidence to disprove Ostrander’s and

Kellerhals’ credible testimony that they simply used a standard

investigative protocol for conducting interviews. The

investigators took taped and sworn statements from subjects and

witnesses. The interviews were transcribed and are in evidence.

The investigators used standard lead - in language, and; at the

beginning of each interview, they informed each respective

interviewee of whether s/he was being interviewed either as a

"witness" or as a "sub ject" of the investigation.

26. A "subject" of an OIG investigation is a person who

has been accused of some misbehavior.

27. Ostrander and Kellerhals testified that the nature of

an interview of a subject is more accusatory and aggressive than

the na ture of an interview of a mere witness. Interviews of

subjects are conducted so as to determine the truth of the

allegations against that subject by provoking the subject.

Investigators typically deliberately antagonize subject

employees to elicit truthf ul answers. By contrast, OIG

interviews of mere witnesses are typically more refined and

courteous than interviews of accused employees.

28. Among others, Petitioner, Ms. Gandy, Ms. Covington,

and Ms. Bryant were interviewed.

29. There were two parall el investigations assigned to

Ostrander and Kellerhals: the first investigation concerned

Ms. Gandy’s alleged threats. The second investigation concerned

the allegedly disruptive conduct of the four employees (Gandy,

Petitioner, Covington, and Bryant) du ring the meeting presided

over by Ms. Jordan on September 29, 2000; this was assigned OIG

Case No. 000124. Each interview covered both sets of

allegations. Ms. Gandy and Ms. Bryant were subjects of both

investigations. Ms. Covington and Petitioner were subjects of

one investigation, the meeting with Ms. Jordan, and were

witnesses in the Gandy investigation.

30. All four Black employees were insulted by the tone of

the questions asked by Ostrander and Kellerhals. All four

believed that Ostrander and Kellerhals treated them as if they

were guilty and that Ostrander and Kellerhals treated them more

harshly because they were Black. However, all of the witnesses

at hearing agreed that the OIG investigators made no racial

comments or racial allusions, wha tsoever, during the interviews.

None of the four employees asked any Caucasian interviewees if

they believed the interviews were harsh. Therefore, there is

nothing beyond the Black interviewees’ subjective speculations

to suggest that their race, rather than their status as

“subjects,” motivated or determined the tone of the OIG

interviews.

31. Petitioner provided the names of two witnesses during

her interview by Kellerhals and Ostrander, but the OIG

investigators did not interview either of them. The

investigators did not interview either of the people named by

Petitioner because neither of them had been present in the

conference room on September 29, 2000, during the meeting with

Ms. Jordan. The OIG investigators did interview all the people

actuall y present in the room that day. (See Finding of Fact

17.)

32. Sandra Sawyer, a Caucasian female supervisor,

testified that while the OIG investigators were in Gainesville

for interviews, she observed them laughing and joking with

Ms. Smyder for 30 minu tes. Ms. Sawyer told what she saw to

Petitioner and the other investigation subjects. She also wrote

a letter to the OIG "reporting" the investigators. The subjects

concluded that the behavior of the OIG investigators, as

characterized by Ms. Sawyer, sh owed that the investigators were

racially motivated and had showed favoritism toward Caucasian

employees.

33. However, at hearing, Ms. Sawyer conceded that she did

not overhear any of the content of the conversation she observed

among Smyder, Ostrander, and Kellerhals. Ostrander and

Kellerhals testified credibly that Ms. Smyder had information

regarding “The Eye,” a telephone monitoring system, which could

provide information necessary to confirm the location of various

employees during the events being investigated. They also

testified credibly that they had talked cordially for about 10

minutes, rather than 30 minutes, with Ms. Smyder about The Eye,

but had not discussed any other aspects of their investigation

with Ms. Smyder or any other Gainesville employee, Caucasian or

Black. They guessed it was this conversation which Ms. Sawyer

had observed from a distance. They further testified credibly

that they had not had any social contact with any employee of

the Gainesville office. Neither racial discr imination nor

unprofessional conduct by OIG investigators has been proven by

this conversation.

34. Petitioner and seven other employees were transferred

to the Call Center portion of the Gainesville Service Center in

January 2001. Ms. Jordan signed - off on Mr. Smith's transfer of

Petitioner because she thought Petitioner had requested the

transfer or otherwise was "okay" with it. In fact, Petitioner

had not requested the transfer and was not okay with it. Jeff

Smith testified that the proposed transfer was based upon the

transferees' personalities and abilities to perform the duties

of the Call Center. There was no evidence all of the

transferees were Black, and probably they were not all Black.

(See Finding of Fact 62.) However, upon the evidence as a whole

and the candor and demeanor of all the witnesses, it is found

that it is more likely that Smith, Ross, and Merrow, two of whom

had been present in the conference room on September 29, 2000,

were anxious to move Petitioner, whom they believed to be a

disruptive influence, from their part of the Gainesville Center

to another area. That said, there is no evidence that

Petitioner's proposed transfer was racially motivated; that it

was in retaliation for Petitioner's participation in the OIG's

investiga tions of Gandy, Bryant, Covington, and Petitioner; or

that the proposed transfer was in retaliation for any legal

actions or protests of Ms. Gandy. (See Findings of Fact 43 and

46.)

35. There also is no evidence that Mr. Smith treated

Petitioner any di fferently than he would have treated anyone

else when Petitioner told him she did not want to be

transferred. Petitioner did not want to transfer to the Call

Center in part because Karen Smyder and Sonnia Thomas worked

there. She told Mr. Smith that beca use of Smyder and Thomas,

the tensions in the Call Center would affect her health.

Mr. Smith instructed her to obtain a doctor’s note stating that

she could not work in the Call Center and that she should report

for work at the Call Center until she could demonstrate, by a

medical excuse, that she could not work there. However, at

Petitioner's request, Mr. Smith allowed Petitioner to use her

accrued annual leave to avoid working in the Call Center until

she obtained the medical excuse. When Petitioner pr ovided the

medical excuse, she was transferred to another position which

was not in the Call Center. Petitioner has not objected to that

transfer. Although personality conflicts may have had more to

do with Petitioner's proposed transfer to the Call Cent er and

ultimate transfer to another position than did good management

techniques, it was not demonstrated that this situation singled

out Petitioner on the basis of her race; that any rule was

applied inequitably among the races; or that the proposed or

ul timate transfer was in retaliation for her “witness” or

“subject” status in either OIG investigation up to that point.

36. Later, Petitioner applied for a promotion for which

Mr. Merrow did not interview her. Petitioner did not provide

any evidence that only Caucasian employees were interviewed or

hired for the position for which she had applied. The

employer's higher management did not contemporaneously know

about Mr. Merrow's failure to interview Petitioner. Sandy King,

a Caucasian female Revenue Administrator II, offered her opinion

that Mr. Merrow, who had been present in the September 29, 2000,

conference, had a personal dislike for Petitioner because he

viewed Petitioner as a disruptive employee.

37. Ms. Jordan was in the supervisory cha in of command for

all four Black employees investigated.

38. Flouting the authority of a supervisor is "disruptive

conduct," according to the employer’s disciplinary rules.

39. The OIG’s investigation of Ms. Jordan's subordinates,

Petitioner, Gan dy, Bryant and Covington, was closed March 2,

2001. It determined that there was reasonable cause to believe

that Petitioner and Ms. Covington had engaged in disruptive

conduct at the September 29, 2000, meeting with Ms. Jordan.

Petitioner and Ms. Coving ton each received an oral reprimand,

with no change of position, pay, benefits, or privileges. In

other words, there was no “real world” employment consequence

for Petitioner as a result of Sonnia Thomas' September 29, 2000,

Workplace Violence Report.

40 . The OIG’s investigation determined that Ms. Bryant had

been present when Ms. Gandy had made threatening comments in her

cubicle, and that Ms. Bryant had lied about the threats, and

that Ms. Bryant had lied about having engaged in disruptive

conduct duri ng the September 29, 2000, meeting with Ms. Jordan.

Ms. Bryant received a written reprimand. However, she also did

not lose any position, pay, benefits, or privileges.

41. The employer has a zero tolerance policy regarding

confirmed threats of violence . Employees are commonly

terminated when such threats are made.

42. The OIG’s investigation determined that Ms. Gandy had

made threats of violence toward Ms. Jordan, and Ms. Gandy was

dismissed. The date of her dismissal is not clear from this

record.

43. Ms. Gandy testified that Sonnia Thomas, who had made

the allegations of violence against her, resigned on January 9,

2001, shortly before Ms. Gandy’s unemployment compensation

hearing on January 13, 2001, and that Mr. Merrow hired Ms.

Thomas back on or about February 12, 2001 , approximately a month

after Ms. Thomas resigned. Ms. Gandy believed that Ms. Thomas

resigned to escape testifying for the employer at Ms. Gandy's

post - termination unemployment compensation hearing, and that Mr.

Merrow's re - hiri ng of Ms. Thomas was a discriminatory action

against herself. These dates were not corroborated and do not

seem reasonable in light of one OIG investigation's closing in

March 2001. (See Finding of Fact 39.) Further, it was not

explained how Ms. Thomas's testimony for the employer would have

assisted Ms. Gandy's unemployment case. It also was not

demonstrated how Ms. Thomas's resignation would have prevented

her testifying. Finally, whatever significance these events or

Ms. Gandy's interpretation of th em may hold for Ms. Gandy, it is

irrelevant to the instant case involving Petitioner.

44. Petitioner, Ms. Bryant, and Ms. Covington had been

listed in the September 29, 2000, Workplace Violence Report (see

Findings of Fact 23 - 24), as having been present w hen Ms. Gandy

made her threats against Ms. Jordan. They believed that being

named in the Workplace Violence Report authored by Sonnia Thomas

was unfair and racially discriminatory against them, regardless

of the outcome for them of the OIG investigation.

45. Even though it was Ms. Thomas who wrote the Report and

it was the employer, through its OIG, who, in effect, cleared

Petitioner and Ms. Covington of having any involvement in

Ms. Gandy's threats made in her cubicle, Petitioner wanted to

pursue some sort of remedy against Ms. Thomas for "falsely

accusing" her of using bad language toward Ms. Jordan and of

using bad language toward, or about, Ms. Smyder. This was in

part because Petitioner felt Ms. Thomas could not have known

what was said in the conf erence room on September 29, 2000.

46. Because they did not see the September 29, 2000,

Workplace Violence Report containing allegations they had used

profanity and racially charged language until after the OIG had

completed some or all of its investig ation/recommendation,

Petitioner and Ms. Gandy also concluded that a discriminatory

conspiracy existed. At some point, Ms. Gandy filed a civil

action against the employer, which she testified was scheduled

for trial in August 2003, and also filed a Charge of

Discrimination. Petitioner's involvement in either of these

actions, if any, was not explained.

47. Petitioner pursued a grievance against Sonnia Thomas

because of Ms. Thomas' Workplace Violence Report. Petitioner’s

grievance arising from the Work place Violence Report was filed

April 5, 2001, and denied as untimely. The Employee Relations

Manager, Patrick Schmidt, a Caucasian male, explained to

Petitioner that a grievance must be filed within 14 days of the

incident to which the grievance relates. Because Petitioner’s

grievance had been filed four months after the Workplace

Violence Report (see Finding of Fact 23), Petitioner's grievance

was considered untimely.

48. Petitioner testified that, in her opinion, because she

did not discover the exist ence of the Workplace Violence Report

until a few days before she filed her grievance, the employer

should be estopped from dismissing her grievance as untimely.

However, she did not include in her grievance request the date

she discovered the Report. Af ter being advised that her

grievance had been denied due to its untimeliness, she still did

not amend her grievance request to include the date she

discovered the Report and re - submit her grievance. The employer

only followed its standard policy in mainta ining the 14 - day time

limit, and Petitioner was not diligent in pursuing her

grievance. Moreover, there is no evidence that any Caucasian

employee has been permitted to file a grievance beyond the 14 -

day limit, and accordingly, there is no evidence of dis parate

treatment related to the employer's handling of this grievance.

49. Sometime in October 2001, Tabitha Wiley, a Black

female Clerk, overheard Ms. Smyder call Petitioner, “a fucking

bitch.” Petitioner and other employees testified that

Ms. Smyder an d Petitioner had a long history of animosity toward

each other. In the September 29, 2000, Workplace Violence

Report, Ms. Thomas had accused Petitioner of using profane and

racially - charged language towards Ms. Jordan and towards, or

about Ms. Smyder, (Se e Finding of Fact 23.) In October 2001,

Petitioner reported to her local supervisor, Lee Ross, and to

Phyllis Lambrecht, a Caucasian female Regional Manager, what Ms.

Wiley had recently overheard. Petitioner maintained Ms.

Lambrecht had told her to repor t to her any profanity from Ms.

Smyder. However, Petitioner did not file anything with OIG

against Ms. Smyder at that time.

50. In November 2001, Sonnia Thomas initiated an OIG

investigation against Petitioner for using foul, profane, and

racially - charge d language against Ms. Smyder apparently harking

back to the events of September 2000. Ms. Thomas' filing was

designated by the OIG as OIG Case No. 010206.

51. In response to Petitioner's October 2001, allegation

of Ms. Smyder's profanity, Ms. Lambrech t did not contact

Ms. Wiley to verify the incident as Petitioner thought she

would. Instead, in December 2001, Ms. Lambrecht and Ms. Jordan

met with Petitioner and Ms. Smyder and condemned their long

history of hostility toward each other, including thei r use of

profanity in the workplace. On December 6, 2001, Ms. Jordan

issued to both Ms. Smyder and Petitioner "memos of

understanding." The memos indicated that management could not

determine from their respective accusations whether it was

Petitioner or Ms. Smyder who was telling the truth about

Petitioner's October 2001, profanity allegations, but that if

any further trouble arose between Smyder and Petitioner, one or

both of them would be transferred to other Service Centers.

52. In January 2002, Ms . Thomas wrote to OIG to withdraw

OIG Case No. 010206 against Petitioner, which Ms. Thomas had

originated in November 2001. After inquiry, the OIG dropped its

investigation and closed OIG Case No. 010206 in February 2002,

because the situation had been ad dressed by local management.

53. In February 2002, Petitioner directly contacted the

OIG to file a complaint of "false report" against Sonnia Thomas

in response to Ms. Thomas' complaint of Petitioner's profane

language towards Ms. Smyder (see Findings of Fact 50 - 52), which

complaint Ms. Thomas had already withdrawn (OIG Case No.

010206), and which the OIG had closed. Petitioner spoke by

telephone with Bonnie Lazor, a Caucasian female Investigations

Manager with the OIG. Ms. Lazor tried to dissuade Petiti oner

from filing a formal complaint with the OIG, because Ms. Lazor

believed that all matters regarding the Gainesville Service

Center had been thoroughly investigated and that Petitioner’s

new proposed action was a repetitive request. However, at

Petitio ner’s insistence, Ms. Lazor opened OIG Case No. 010378,

and assigned it to Alan Haskins, a Caucasian male investigator.

Mr. Haskins interviewed Petitioner, who did not provide any new

allegations not covered in previous investigations. In

May 2002, Mr. Haskins closed his investigation of OIG Case No.

010378, brought by Petitioner against Ms. Thomas. The OIG has

the authority to close a case if local management has already

dealt with the issue by some sort of corrective action.

54. Petitioner asserts th at Ms. Jordan's, Ms. Lazor's, and

Mr. Haskin's handling of the profanity issue was discriminatory.

Petitioner's point with regard to the memos of understanding is

that she was not guilty of bad or racial language as alleged in

the September 29, 2000, Work place Violence Report or as alleged

in OIG Case No. 010206, abandoned by Ms. Thomas, whereas

Ms. Smyder was guilty of using bad language toward, Petitioner;

and management refused to contact Ms. Wiley, failed to root out

the truth, and failed to discipline Ms. Smyder and all those who

sided with Ms. Smyder, most notably Sonnia Thomas. This

assertion is not persuasive. It is true that the employer's

local management did not indulge in a lengthy "swearing contest"

or assign guilt, but local management cauti oned the Black

Petitioner and the Caucasian; Ms. Smyder, equally concerning

profanity and false reports. Local management’s approach may,

or may not, have been perfectly just, but it was not disparate

treatment based on race. The OIG processed Petitioner 's

subsequent complaint against Ms. Thomas as far as reasonable

under the circumstances.

55. Candace Thomas is a Black female Revenue Specialist II

and apparently no relation to Sonnia Thomas. When Candace

Thomas and Petitioner worked in the Drivers Lice nse Revocation

Section, they recorded all of their work on a case in a computer

program called a “workbook.” Sandy King was their direct

supervisor. In September 2002, management was undertaking a

restructuring of the process that Ms. King supervised.

M r. Merrow wanted to have input into the restructuring. Without

Ms. King’s approval or knowledge, Mr. Merrow asked David

Southworth, a Caucasian male computer analyst, to look at the

work of Erica Brown, a Black female Revenue Specialist II; the

work of Ca ndace Thomas; and the work of Petitioner.

Mr. Southworth found irregularities in Petitioner’s workbook and

reported them to Mr. Merrow, who in turn reported them to

Ms. King. Ms. King insisted that all the employees involved

meet regarding Mr. Southworth ’s allegations. After reviewing

the program together, mis - postings to Petitioner's workbook that

could not be explained were found. Nonetheless, Ms. King

decided that Mr. Merrow’s allegations did not have merit because

the mistakes found did not amount t o an intentional or negligent

act of Petitioner. There also was some concern on Ms. King's

part that Mr. Southworth had manufactured some of these

mistakes. She took no further action against Petitioner, and

she instructed Mr. Merrow not to pursue the ma tter. Ms. King

was so disturbed by Mr. Merrow’s behavior that she reported it

to the regional manager directly above her in the chain of

command. Her report concerning Mr. Merrow ultimately led to his

termination. Petitioner suffered no consequences as a result of

this incident.

56. Petitioner presented evidence of several situations

which occurred between September 29, 2000, and September 11,

2002. Her position was that taken together these situations

demonstrated that the Gainesville Service Center constituted

either a hostile, harrassing workplace for her, personally, as a

Black, or that they showed that there was such animosity by

Ms. Jordan or other Caucasian supervisors toward Blacks, in

general, that the OIG’s and her superiors’ respective

inve stigations and disciplinary results were tainted by racial

discrimination.

57. After the September 29, 2000, meeting, Black employees

perceived anything that Ms. Jordan did as racially motivated.

However, Ms. Jordan rarely saw Petitioner. Ms. Jordan g ave

positive performance evaluations to Petitioner. None of the

employees who testified could recall any racist remarks made by

Ms. Jordan or by any other Caucasian supervisor. Lower - level

supervisors Mr. Smith and Ms. King testified that Ms. Jordan

neve r gave them any orders that discriminated against one race

of employees over another. During her long career with the

employer, Ms. Jordan has dismissed many more Caucasian employees

than Black employees.

58. Mesdames Hill, Brown, Wiley, and McConaghy di d not

observe any discriminatory acts directed toward Petitioner.

59. On one occasion, Tiffany Brown, a Black female Revenue

Specialist II, brought her very small child into the office.

People complained that the child was disruptive. Ms. Jordan

told Ms . Brown to take the child home. A few days later, Diane

while she was legitimately signed out for annual leave.

Ms. Jordan kept Ms. Lyons' twelve - year - old child in her own

office and away from other employees briefly Lyons, a Caucasian

female employee, w as called into the office while the mother

handled an emergency fax of business material for the employer.

On the basis of these two incidents, Ms. Brown filed a Charge of

Discrimination with the Commission, which was resolved through

mediation. Ms. Brow n never received any adverse employment

action based on the incident.

60. Ms. Bryant testified to three incidents, besides the

OIG investigations described supra , which she thought

demonstrated Ms. Jordan’s racial bias. First, when Ms. Bryant

worked f or Ms. Jordan in Lake City in the 1990's, Ms. Bryant

worked on the other side of the building from Ms. Jordan.

Monitoring Ms. Bryant’s work was one of Ms. Jordan’s supervisory

responsibilities, and once or twice a day she walked to

Ms. Bryant’s area of th e building to observe her. There were

also many other employees on that side of the building, whom

Ms. Jordan also observed. There is no evidence Ms. Jordan only

observed Black employees. This situation is both purely

subjective and too remote in time a nd place from the instant

case to be of any probative value. Also, one day while they

were both working in Gainesville, Ms. Jordan made Ms. Bryant

stop her usual work and put on her badge, because the employer’s

policy requires that employees wear their b adges at all times

while they are in the Service Center. There is no evidence

Ms. Jordan let Caucasian employees work without badges.

Therefore, this second incident presents no discriminatory bias.

According to Ms. Bryant, the third allegedly discrimin atory

action of Ms. Jordan was when Ms. Bryant received a memo of

counseling from middle manager Gene Merrow, due to a dispute

between Ms. Bryant and Ken Duncan, a Caucasian male computer

analyst. Ms. Bryant did not know whether or not Mr. Duncan was

like wise counseled, so no disparate treatment has been proven as

regards this incident, either.

61. Cloria Hill, a Black female former employee, testified

that Ms. Jordan discriminated against her by initiating an

investigation against Ms. Hill for use of the employer's

telephone to conduct her personal business. There were two of

the employer's phones in Ms. Hill’s cubicle, one for personal

use and one for the Call Center line. Because Ms. Hill worked

in the Call Center, she was expected to be on the Call C enter

line most of the time. So, when Ms. Jordan noticed that

Ms. Hill was often on her personal line instead, and also

received complaints from other employees that Ms. Hill was

conducting personal business during working hours, Ms. Jordan

initiated an O IG investigation regarding Ms. Hill’s telephone

usage. Mr. Ostrander was assigned to that investigation. He

checked the telephone line described to him as Ms. Hill’s line

and asked Ms. Hill to explain in an affidavit the nature of the

calls listed on the affidavit, which calls appeared not to be

work - related. This is the standard OIG investigative practice

for alleged misuse of the employer's telephones. After Ms. Hill

responded, the OIG's investigation cleared Ms. Hill. The

suspected telephone number was assigned to Deborah Sheffield,

whose race was not provided by testimony. The telephone calls

Ms. Sheffield had made also turned out to be business - related.

Ms. Hill then filed a Charge of Discrimination, largely because

she thought Ms. Sheffield shou ld be investigated because she,

Ms. Hill, had been investigated. The Commission determined that

Ms. Hill’s charge was without reasonable cause. The record is

silent as to whether Ms. Hill filed a Petition for Relief.

However, the sum of all this is that Ms. Hill did not suffer any

adverse employment actions by the employer as a result of the

OIG investigation which cleared her, and she had no knowledge of

any discrimination against Petitioner.

62. Glenda McConaghy, a Caucasian female former employee,

te stified in a conclusory manner that Ms. Jordan treated Black

employees differently than she treated Caucasian employees.

However, Ms. McConaghy did not personally witness the events

underlying her beliefs. She based her opinion on stories she

had heard f rom other employees. The only incident she recalled

from personal knowledge was that when she and Ms. Hill were

transferred to the Call Center, Ms. McConaghy received notice

and Ms. Hill did not receive adequate notice which upset

Ms. Hill. Ms. McConaghy did not know if Ms. Hill had been on

leave prior to this transfer or if the notice seemed sudden for

that reason. Accordingly, the failure to notify Ms. Hill, at

worst, appears to be a merely thoughtless or inconsiderate

managerial oversight which was un related to race.

63. Ms. McConaghy believed that Mr. Merrow did not assist

her as a supervisor due to her association with Black employees,

but her mere speculation was not corroborated. Also,

Ms. McConaghy admitted that the employer had dismissed

Mr. Merrow in 2002 due to other employees' complaints. (See

Finding of Fact 55 . ) She had no knowledge of any discrimination

against Petitioner.

64. Tabitha Wiley worked at a front counter where clients

came into the Gainesville Service Center. There were t hree

clerks at the same counter area and three telephones. One

employee, Betty, a Caucasian female, needed a telephone to

accomplish her job duties. The other two employees, Ms. Wiley

and Anna, a Hispanic female, did not need individual telephones

to con duct their job duties. Ms. Jordan needed another

telephone line for business purposes elsewhere in the Service

Center. Jeff Smith suggested that Ms. Jordan move Ms. Wiley’s

telephone to the location where it was needed in order to save

the employer the c ost of installing a new telephone line.

Ms. Wiley told Ms. Jordan that she needed a telephone assigned

to her individually so that her children could check with her

throughout the day. Ms. Jordan told Ms. Wiley that she could

share Anna’s business teleph one for that purpose or she could

use her own personal cell phone. As a result, Ms. Wiley filed a

union grievance, contending that “her” business phone had been

taken away because she was Black. At the union’s suggestion,

the parties agreed, within 24 ho urs of the grievance being

filed, that Ms. Wiley would share a business telephone with

Anna, which had been Ms. Jordan’s proposal in the first place.

Since the employer provided telephone equipment to its employees

for business purposes, Ms. Wiley’s posit ion on this matter was

untenable from its inception. The employer offered a sound

business reason for its decision to remove the telephone. There

has been no proof the employer's reason constituted a

discriminatory pretext. The employer further compromi sed in

order to accommodate Ms. Wiley. The situation was addressed and

resolved by the employer to Ms. Wiley's satisfaction. There was

no discriminatory employment practice demonstrated by these

events.

65. The Gainesville Service Center has a training room

that contains new computers. There were complaints that

employees who were using the room for special projects were

laughing and talking loudly and disturbing other employees.

Ms. Jordan determined that the room provided a “constant party

atmosphere ” when employees gathered there. The entrance to this

room was near an exit door on a hallway separated from the main

hallway. It was difficult to monitor who went in and out of the

computer room. During 2000 - 2002, there were contract employees

from Tac achalee, who used the nearby exit, as well as child

support clients in the building. Someone could remove a

computer from the training room without being observed if the

room were not locked.

66. Candace Thomas was working in the training room one

day with another Black employee. Both employees had computers

at their respective desks and could have accomplished the same

employment tasks in their cubicles. On that day, Ms. Jordan

sent Sandy King to tell whoever was in the training room to

leave it and lock it. Ms. Thomas testified that Caucasian

employees had been in the room the day before and had not been

asked to leave, so she believed that she and others were only

asked to leave the second day because they were Black. She

believed that when Ms. Ki ng said something to the effect of,

“You need to leave this room and lock it. We’ve already had two

computers stolen,” it was an accusation of theft against

Ms. Thomas and her Black co - worker. In fact, Ms. King's

statement was a neutral one. Ms. King te stified credibly that

at the time, two laptops had already been stolen from another

building. Ms. Jordan testified credibly that she was not aware

that anyone had used the room on the previous day. This

incident demonstrates no disparate treatment on the basis of

race, no harassment, no hostility, and no retaliation.

67. One day, Ms. Jordan told Candace Thomas that she

resembled Condoleeza Rice, a Black female who is the National

Security Advisor. Ms. Jordan further remarked that Ms. Rice

must be very s mart because she worked with the President of the

United States in the White House. Ms. Thomas interpreted

Ms. Jordan's comment as a disrespectful racial slur, to the

effect that Ms. Jordan believed that the White House only hires

smart Black people but i s free to hire dumb Caucasian people.

Ms. Thomas was also offended because she did not think she

favored Ms. Rice. Although beauty may be in the eye of the

beholder, Ms. Thomas's interpretation of Ms. Jordan's comments

is a purely subjective reaction wit h no reasonable basis. If

anything, comparing an employee to a smart, high - ranking, public

official is more in the nature of a compliment than a derogatory

slur.

CONCLUSIONS OF LAW

68. The Division of Administrative Hearings has

jurisdiction over the p arties and the subject matter of this

cause pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes.

69. Petitioner is an "employee," and Respondent is an

"employer" as those terms are defined in Section 760.02, Florida

Statutes.

70. Petiti oner basically alleged three types of

discrimination: (1) the disparate treatment of herself and all

other Black employees by the OIG, Patrick Schmidt, Barbara

Jordan, and Gene Merrow; (2) hostile work environment for all

Black employees in the Gainesvill e Service Center; and (3)

retaliation against Petitioner for her involvement in the

investigation of Brenda Gandy.

71. In cases alleging racial discrimination based on

disparate treatment, a petitioner bears the burden of proof

established in McDonnell - Do uglas v. Green , 411 U.S. 792 (1973);

Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248

(1981). Under this model of proof, a petitioner bears the

initial burden of establishing a prima facie case of

discrimination. If she meets her initial burden, the burden to

go forward shifts to the employer to articulate a legitimate,

non - discriminatory explanation for the employment action. Dept.

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

If the employer meets its burden of production, the petitioner

must then persuade the court that the employer’s proffered

reason is a pretext for intentional discrimination.

72. To establish a prima facie case of racial

discrimination based on disparate treatment, a petitioner must

show the follow ing: (a) she belongs to a racial minority; (b)

she was subjected to adverse employment action(s); (c) she was

qualified for her position; and (d) the employer treated

similarly situated employees outside the protected class more

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

73. In order to show an adverse employment action, a

petitioner must establish that the action caused a serious and

material change in the terms of her employment. Lindsay v.

Burlington Northern Santa Fe Railway Co, 2004 Westlaw 443773

(11th Cir. 2004); Davis v. Town of Lake Park, Florida , 245 F.3d

1232 (11th Cir. 2001).

74. Petitioner herein is a Black female and is qualified

for her position. All testimony indicates that she meets or

exceed standards. Sh e meets the first and third criteria. She

did not meet the burden of production for adverse employment

action and disparate treatment from similarly situated non -

minority employees.

75. Petitioner proffered two adverse employment actions:

an oral reprim and for disruptive conduct with regard to the

disharmonious screaming match that occurred in Ms. Jordan’s

conference room on September 29, 2000, and a memo of counseling

dated December 6, 2001, with regard to an alleged exchange of

profanities between hers elf and Ms. Smyder. Petitioner did not

suffer any loss of pay, benefits, or privilege as a result of

either management action. Therefore, there was no serious and

material change in the terms of her employment. Petitioner

alleged that she suffered dispa rate treatment by the OIG

investigators because they were harsh in questioning her during

her interview and because they were seen joking and laughing

with Karen Smyder, but no improper or unprofessional interchange

between the OIG investigators and Karen Smyder was proven.

Petitioner was the subject of one investigation and a witness in

another investigation. The two investigations were merged for

interviewing purposes. There is no question that the OIG

investigators were aggressive and perhaps harsh, w ith the

subjects of their investigation(s), of which Petitioner was one

subject. Any differing treatment between Petitioner and other

employees was based on their respective statuses as a witness or

a subject (accused) and not on their races. Ms. Smyder was

never a subject of either investigation.

76. Petitioner alleged that Patrick Schmidt treated her

disparately by denying her April 2001 grievance as untimely

filed. Petitioner’s grievance concerned the 2000 Workplace

Violence Report filed by Sonn ia Thomas. The Report was dated

September 29, 2000. Petitioner did not file a grievance until

April 5, 2001. Petitioner’s grievance was untimely, and she did

not amend it to cure any elements of untimeliness based on late

notice.

77. Petitioner alleged that she suffered disparate

treatment in the fall of 2001, by the OIG because Bonnie Lazor

was reluctant to assist her in opening a new charge against

Ms. Sonnia Thomas concerning the charge against Petitioner that

Ms. Thomas had recently withdrawn. None theless, Petitioner had

to concede that the investigation of Ms. Thomas she requested

was opened and that Mr. Haskins only closed it after

interviewing Petitioner. The fact that Investigator Haskins

closed his investigation without reaching the solution t hat

Petitioner proposed is not the decisive point. Haskins found

that management had already addressed the matter by a memo of

understanding to Petitioner. Evidence shows that Ms. Smyder

simultaneously received a similar memo of understanding. The

memos of understanding do not demonstrate diseparate treatment

or any other form of discrimination. Under the circumstances,

Ms. Thomas’ withdrawn allegations were moot, and Petitioner had

no cause to pursue an action against her.

78. Most of the situations i nvolving other employees are

irrelevant to these instant proceedings because they did not

involve Petitioner even peripherally; because none of them rise

to the level of an unfair employment practice on the basis of

race; and because no retaliation nexus w as established.

79. Petitioner alleged that Barbara Jordan had a pattern

of treating Black employees disparately, but she was unable to

prove this allegation. Although Petitioner presented numerous

incidents experienced by Black employees, she failed t o

establish that Caucasian employees of the Gainesville Service

Center received different or better treatment than did Black

employees. With the exception of Ms. Gandy, none of the

employees lost any pay or benefits. Petitioner failed to

establish a prim a facie case of disparate treatment upon racial

grounds for any employee.

80. To establish a prima facie case for a hostile work

environment, a petitioner must provide evidence that shows: (a)

she belongs to a protected group; (b) she and other Blac k

employees have been subject to unwelcome harassment; (c) the

harassment was based on a protected characteristic; (d) the

workplace is permeated with discriminatory intimidation,

ridicule, and insults sufficiently severe or pervasive to alter

the terms or conditions of employment and to create an abusive

working environment; and (e) the employer is responsible under

either a theory of vicarious or direct liability. Miller v.

Kenworth of Dothan, Inc. , 277 F.3d 1269 (11th Cir. 2002);

Lawrence v. Wal - Mart St ores, Inc. , 236 F. Supp. 2d 1314 (M.D.

Fla. 2002).

81. Petitioner and the other employees whom she alleged

suffered disparate treatment are Black and thus all are members

of a protected class. Therfore, Petitioner has met part (a) of

the prima facie case. The accused harassers are members of the

employer's management, its OIG, and its Employee Relations

Office. The employer is liable for their actions if it knows

about them. Therefore, Petitioner has met part (e) of the prima

facie case for hostil e work environment.

82. Petitioner has offered a litany of minor complaints

from witnesses alleging that the treatment they received was due

to their race. Petitioner, therefore, has met part (b) of the

prima facie case.

83. However, to satisfy items (c ) and (d), Petitioner must

prove that she and the other employees subjectively perceived

the conduct, and that a reasonable person objectively would find

the conduct, at issue to be hostile or abusive. Lawrence v.

Wal - Mart Stores, Inc. , supra . Clearly, P etitioner and the other

employees subjectively believe that they are victims of

discrimination. However, to prove that a reasonable person

would perceive the conduct as hostile or abusive, Petitioner

must also prove that the totality of the circumstances

constitutes a hostile work environment, using several factors,

including: (1) the severity of the conduct; (2) the frequency;

(3) whether it was physically threatening or humiliating or

whether it was merely offensive; and (4) whether it unreasonably

inte rfered with the employee’s job performance. The conduct at

issue must be so extreme as to amount to a change in terms and

conditions of employment. Farringer v. City of Boca Raton , 524

U.S. 775 (1988).

84. The “bottom line” here is that Petitioner mus t show

some real - world effect, as opposed to merely subjective

speculation on the part of those who believe they have been

discriminated against. Even "[e]vidence that only suggests

discrimination or that is subject to more than one

interpretation does no t constitute direct evidence of

discrimination." Chambers v. Walt Disney World Co. , 132 F. Supp

2d 1356 (M.D. Fla. 2001). See also Standard v. A.B.E.L.

Services, Inc. , 161 F.3d 1318 (11th Cir. 1998), and Merritt v.

Dillard Paper Co. , 120 F.3d 1181 (11th Cir. 1997). Under no

circumstances is proof that, in essence, amounts to no more than

mere speculation and self - serving belief on the part of the

complainant concerning the motives of the employer sufficient,

standing alone, to establish a prima facie cas e of intentional

discrimination. See Little Republic v. Refining Co. Ltd. 924

F.2d 93, (5th Cir. 1991); Elliott v. Group Medical & Surgical

Service , 714 F.2d 556 (5th Cir. 1983); and Shiflett v. GE

Finance Automation , 960 F. Supp. 1022 (W.D. Va. 1997).

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

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

protected expression; (b) she suffered an adverse employment

action such as a demotion or dismissal; and (c) the adverse

employment action wa s causally related to the protected

activity. Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385 (11th Cir. 1998).

86. Petitioner claimed that she suffered “retaliation” as

a result of her role as a witness in the Gandy investigation.

However , the OIG investigations of Petitioner and Ms. Jordan's

other three subordinates for the September 28 - 29, 2000, period

are not the type of protected employee activity upon which a

retaliation claim may be based. These investigations were in

the nature of disciplinary action originated by the employer

against Petitioner and the others. They were not originated by

discriminatory charges brought by the employees against the

employer or its management. Even assuming arguendo , but not

ruling, that Petitioner' s, Gandy's, Bryant's, and Covington's

conduct in the September 29, 2000, meeting with Ms. Jordan

constituted a protected protest against discrimination,

Petitioner did not demonstrate in the instant proceeding that

she suffered any adverse employment actio n as a result. She was

not demoted. She was not dismissed. She was not affected as to

pay or benefits.

87. Petitioner’s assertion that she made clear to her

supervisors that she did not want to be transferred to the Call

Center because she believe d Sonnia Thomas and Karen Smyder would

harass her is accepted. It also is accepted that the transfer

was proposed against her will. However, since seven employees,

not all of them Black, were simultaneously transferred, it is

clear that neither Blacks no r Petitioner were singled out. At

worst, there may have been some personal animosity involved in

the proposed transfer. This is the opposite side of the

"favoritism" coin discussed in Chandler v. Dept. of Corrections ,

supra . Petitioner may reasonably ha ve been perceived as a

disruptive employee because of what was ultimately proven to be

her prior disruptive conduct at the September 29, 2000,

conference. Furthermore, Petitioner was permitted every

opportunity to make her case against transfer to the Cal l

Center, and she was not transferred to the Call Center after she

presented her doctor’s excuse. Neither the proposed nor the

alternative transfer resulted in any change of pay, benefits, or

status for her. Therefore, there is no evidence arising from

t he proposed transfer that any Caucasian employee received

greater consideration in assignment of position or that

Petitioner was retaliated against by its proposal. Also,

Petitioner apparently did not object to her ultimate transfer.

No racial bias, hara ssment, or retaliation has been shown by

this incident.

88. It was proven that Mr. Merrow did not interview

Petitioner for promotion, but his failure to interview was not

discovered by Mr. Merrow's superiors until after it had

occurred, which prevent s the employer's vicarious liability.

See Miller v. Kenworth of Dothan, Inc. , and Lawrence v. Wal - Mart

Stores, Inc. , both supra . There also is no evidence that

Mr. Merrow interviewed any Caucasian employee for that position.

One may conjuncture that he disliked Petitioner personally, but

no racial bias or retaliation has been shown here.

89. Petitioner received only an oral reprimand for her

disruptive conduct during the meeting on September 29, 2000,

after she had been a subject of the OIG investi gation of that

event and after she had been a witness in the OIG investigation

of whether or not Ms. Gandy had made threats against Ms. Smyder

and/or Ms. Jordan, but Petitioner's reprimand was not tied to

her participation in the investigations. Petitione r's reprimand

was the result of Petitioner's own disruptive behavior. That

others perceived as disruptive her September 29, 2000, actions

and her actions subsequent thereto and made management decisions

accordingly, does not amount to retaliation.

90 . Most of the ill - feeling in the Gainesville Service

Center is the result of employees not understanding that when an

OIG investigation results in eliminating an accused person from

certain charges, that finding also resolves the accusation

itself and, in effect, also determines that the accusing or

reporting employee, who started the investigatory wheels in

motion, was mistaken, inaccurate, or just plain wrong. It is

not necessary for the accused employee to then file a

grievance/request/complaint that a new OIG investigative file

with a new number, be opened in order to prove that the

reporting employee was mistaken, inaccurate, or just plain

wrong. The conclusion that the accuser was mistaken,

inaccurate, or just plain wrong is subsumed in the result o f the

first investigation if it does not discipline the accused

employee. Herein, the “tit for tat” mentality of many persons

overwhelmed their good judgment so that minor or subordinate

accusations and counter - accusations flew right and left, even

after the OIG had resolved all material accusations. Local

management's or the OIG’s declining to make repetitive

investigations, or to make any lengthy determination(s)

concerning minor or immaterial accusations, or their failure to

resolve major investigation s upon mere “She said. No, she

said,” types of evidence, is not proof of racial discrimination,

harassment, hostile work environment, or retaliation.

91. Petitioner has failed to carry her burden of proof and

persuasion.

RECOMMENDATION

Based up on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Petitioner’s Charge of Discrimination and

Petition for Relief.

DONE AND ENTERED this 3rd day of September, 2004, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(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 3rd day of September, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on H uman Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Brenda E. Warren

6406 Northeast 27th Avenue

Gainesville, Florida 32609

Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399 - 0100

Cecil H oward, Esquire

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 Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.