04-001687 Adriane L. Hankerson vs. Escambia County Commissioners Status: Closed Recommended Order on Wednesday, June 8, 2005.

Summary: Political pettiness unrelated to race was insufficient ground to establish a prima facie case of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADRIANE L. HANKERSON , )

)

Petitioner, )

)

vs. ) Case No. 04 - 1687

)

ESCAMBIA COUNTY COMMISSIONERS , )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due no tice, a disputed - fact hearing was conducted in

this case on January 14, 2005 , in Pensacola , Florida, before

Ella Jane P. Davis, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Adriane L. Hankerson, pro se

8908 Glade Spring Lane

Ap artment 203

Charlotte, North Carolina 28216

For Respondent: Charles V. Peppler, Esquire

Escambia County Attorney's Office

14 West Government Street, Room 411

Pensacola, Florida 3 2502

STATEMENT OF THE ISSUE

Whether Respondent is guilty of an unlawful employment

practice, to wit: disparate employment conditions and

termination on the basis of Petitioner's race (African -

Amer i can) .

PRELIMINARY STATEMENT

On or about April 12, 2003, Petitioner filed a Charge of

Discrimination based solely on race with the Florida Commission

on Human Relations. On April 21, 2004, the Commission entered a

" Determination: No Cause. " Petitioner timely filed her

Petition for Relief , and the case was re ferred to the Division

of Administrative Hearings on or about May 13, 2004.

The cause was continued several times to accommodate the

parties and due to the s equential hurricanes of 2004.

At the disputed - fact hearing on January 14, 2005, the

Prehearing Stip ulation was admitted as Joint Exhibit A.

Petitioner testified on her own behalf and presented the oral

testimony of Ernie Magaha , Jean Kassab, Janice Kilgore,

Cheryl Lively, George Touart, and Wanda McBrearty. Petitioner's

Exhibits P - 1, P - 2, and P - 4 thro ugh P - 15, were admitted in

evidence. Respondent called no additional witnesses .

Respondent's Exhibits R - A through R - S were admitted in evidence.

A Transcript was filed on February 22, 2005. Respondent

filed a Proposed Recommended Order on March 28, 2005, which has

been considered. Petitioner indicated she would not file a

proposal.

FINDINGS OF FACT

1. Petitioner is an African - American female.

2. Petitioner was first associated with Escambia County as

an employee of a firm of certified public a ccount ant s, to which

firm Escambia County had outsourced an internal audit of a

specific County project for January 1999 through February 2000.

In that capacity , Petitioner had been a regular employee of an

independent contractor working for the County .

3. Thereafter, Petitioner was hired as an internal audit

consultant to work directly for the Clerk of the Circuit Court

in and for Escambia County from February 2000 through

April 2001. This was a regular employee position with the

County . Petitio ner apparently resigned this position because of

what she perceived to be a hostile supervisor, Jean Kassab,

Acting Director of Administrative Services for the County, or

due to what Petitioner perceived as a hostile work environment ,

unrelated to race.

4. Petitioner was hired by Respondent Escambia County

Board of County Commissioners (BCC) as an unclassified, at - will

employee for the specially - created position of Inspector General

(IG), with a start date of October 8, 2001. It is with regard

to this pos ition that she seeks relief in this case.

5 . On August 2, 2001, Commissioner B a nja n in had expressed

his desire to create the position of IG to act as a liaison to

the B CC in office at that time. Apparently, there was some

mistrust by B a njanin and other Commissioners of the way money

was being utilized throughout County government, including

expenditures by the Clerk's O ffice . Also, there was mistrust by

Commission members of each other , and some Commissioners had a

desire to use an IG who reported only to the BCC to "go behind"

each other's financial actions .

6 . On September 20, 2001, the B CC then in office voted

unanimously to create the IG position. That BCC was composed of

four Caucasian males and one African - American male.

7 . Prior to the Septemb er 20, 2001 , BCC vote, there was no

discussion or at leas t no significant discussion , about whether

creating an IG position would amount to duplicating internal

audits and services already provided by the Clerk's Office.

8 . At th e BCC's request , Wanda Mc Brearty, Deputy Finance

Director of the Clerk of the Court, prepared a description of

the duties of the IG. She did not recall any discussions at

that time concerning whether the Clerk's O ffice could provide

the same services as the IG.

9 . Upon the t est imony of Ernie Lee Magaha, Clerk of the

Court , and George Touart , who was hired as County Administrator

in late April 2002, it is found that the IG's job description

duplicated services that the Clerk of the Circuit Court is

required to provide , pursuant t o Article VIII of the Florida

Constitution.

10 . Petitioner entered into her at - will job as IG on or

about October 8, 2001, at a salary of approximately $75,000.00

per year .

11. Petitioner testified that she immediately met with

resistance and unf riendliness on be half of members of the

Clerk's O ffice , but s he described nothing that was over t ly

racial. Most of the behavior she described was, if anything,

motivated by resentment of Petitioner's high salary and position

or motivated by apprehension of wh ich projects and whom she

might audit.

12. Petitioner also related that she suffered emotionally

due to written and oral opposition by Board staff, local media,

the general public, and eventually County Commissioners. On the

whole, these oral and written attacks appear to overwhelmingly

fall in the category of opposition to paying an IG such a high

salary for duplicative efforts , or opposition simply to paying

any County employee such a high salary.

13. Some attacks on Petitioner clear ly involved attacking

the Commissioners who had voted for creation of the IG position.

Some critics also attacked Petitioner's personal integrity and

competence on the past out - sourced audit she presented while she

had been employed by the firm of certifi ed public accountants,

or on other grounds . However, petty politics, rather than race,

seems to have been the motive , as well as the expression , of

these personal attacks.

14. On May 10, 2002, the BCC's make - up changed. Without

belaboring the history o f the gubernatorial removal for cause of

some old BCC members and appointment of some new BCC members, it

is enough to point out that the "new BCC " retained only

Commissioner Banjanin . The "new" BCC was then composed of one

African - American female, three Caucasian males, and one

Caucasian female.

1 5 . One of the last acts of the "old BCC " had been to hire

George Touart as its full - time, professional ly qualified County

Administrator. Mr. Touart is Caucasian. He was highly

qualified by education, training , and experience for the

position of County Administrator.

1 6 . Mr. Touart never attended a meeting of the old BCC and

never discussed the position of IG with any of its members.

1 7 . Mr. Touar t 's practical administrative experience led

him to perform th e equivalent of a process and position

inventory of all Escambia C ounty positions and functions. That

inventory revealed, and Mr. Touart recognized , that there was a

duplication of services assigned to Petitioner as IG , and those

services assigned by law to the Clerk of the Court. He also

determined that the County's Office of Economic Development was

duplicative of the marketing service s provided by the local

Chamber of Commerce.

18. He further discovered that many man - hours were being

wasted by each County Division replying to citizens and media

about the same subjects and , even so, correct information was

not always being provided. He felt that both problems could be

eliminated and that eliminating those problems would also reduce

much of the l ocal political wrangling and media frenzy.

Therefore, Mr. Touart created a Public Information Office and

conducted a nationwide search for a Public Information Officer .

He then hired the best applicant. There was no evidence that

Petitioner was qualifie d in that field or that she applied .

1 9 . Dee Dee Ritchie was the County's Caucasian , female

Director of Economic Development, a position of similar status

and salary to Respondent 's position as IG. That position also

had been created by the o ld B CC . Pe titioner identified

Ms. Ritchie as a n employee of the County who was similarly

situated to herself.

20 . Mr. Touart discussed with Ms. Ritchie his view that

her job as Director of Economic Development was duplicative of

the functions of the local Chamber of Commerce . He told her

that he was going to seek the abolition of her $75,000.00 per

year position. He offered her a position with the Cou nty 's

Department of Environmental and Neighborhood Services, where she

could use her professional education, train ing and experience as

an educat or, but Ms. Ritchie de clined and resigned. It was not

shown that Petitioner was qualified for th e position offered

Ms. Ritchie or that it paid $75,000.00 per year.

21. When, prior to May 10, 2002, the Gove r nor of Florida

h ad suspended some of the "old C ommissioners, " Mr. Touart had

assisted some of those old Commissioners' aides in making

lateral transfers to more secure similarly situated positions,

but no aide was making $75,000.00 per year , and none of them

were moved to $75,000.00 per year positions.

22 . Mr. Touart discussed with Petitioner his view that her

job was duplicative of duties constitutionally imposed on the

Clerk's office. It is not clear if he told Petitioner he was

going to seek to abolish her position , but clearly, she

understood that was his intent .

23. There were no similarly situated $75,000.00 per year

jobs within the County to which Petitioner could be reassigned.

24. However, there is no dispute that Mr. Touart suggested

that Petitioner c heck with the County's Human Resources Director

for other employment. He also spoke with Ms. McBrearty about

hiring Petitioner back in the Clerk's O ffice . However ,

Mr. Touart made no commitment of further employment to

Petitioner , and she made no commitm ent to him to take a lesser

C ounty job if one were offered.

25. Petitioner agreed at hearing that Mr. Touart could

have had budget considerations in mind in deciding to abolish

her position.

26 . Ms. McBrearty discussed with Mr. Magaha, Clerk of the

Cour t, the possibility of hiring Petitioner. Due to the

"political fallout" and Petitioner's connection with the

suspended commissioners, Mr. Magaha did not think it appropriate

for him to hire Petitioner.

2 7 . Petitioner agreed that Ms. McBrearty's reluctan ce to

recommend hiring her was due to "political fallout" from

Petitioner's connection with the suspended commissioners and not

because of racial prejudice.

2 8 . Mr. Touart r ecommend ed to the new BCC that it abolish

the IG position at the same time he rec ommended abolishing the

Department of Economic Development.

2 9 . On June 20, 2002, the new BCC voted unanimously to

abolish the IG.

30 . Petitioner was informed of the vote by a letter dated

June 21, 2002, from Mr. Touart. The letter informed Petitioner

that the termination of her position would take place at the end

of 90 days. This was the County's standard practice for

termination of unclassified service.

31 . In an e - mail dated July 1, 2002, to Janice Kilgore,

who had been Acting County Administrat or prior to Mr. Touart's

appointment , Petitioner announced her intent to leave Escambia

County immediately and to set up her own accounting practice in

Fort Walton Beach , Florida . Indeed, Pe t itioner had hinted to

Mr. Touart at their earlier interview ( s ee Findings of Fact 22 -

24) that she wanted to leave the County and go back to Fort

Walton Beach, to "hang up her shingle."

32 . In response to Petitioner's e - mail, Mr. Touart

informed Petitioner that under the circumstances, she would be

given 90 days ' seve rance pay in stead of 90 days ' notice and

makeshift employment, and that her last day of employment would

be July 2, 2002.

33 . Petitioner established no damages as a result of

unemployment.

CONCLUSIONS OF LAW

34 . The Division of Administrative Hearings h as

jurisdiction over the parties and subject matter of this cause,

pursuant to Chapter 760, and Section 120.57(1), Florida

Statutes.

35 . Escambia County is an " employer " within the meaning of

the Florida Civil Rights Act of 1992, Chapter 760, Florida

Sta tutes.

3 6 . Petitioner , as an "aggrieved person , " under Chapter

760, Florida Statutes, has the duty to go forward and the burden

of proof , by a preponderance of the evidence, to show that

Respondent Employer intentionally discriminated against her

because of her race by abolishing the IG position and by not

finding her a comparable position. She has not met that burden,

nor has she proven that the "hostility , " which she failed to

adequately allege in her Petition , but which she encountered at

various time s , came from the E mployer or that the hostility was

racially motivated. T he personal attacks she experienced may

have been unjust, but no racial animus was demonstrated. The

attacks by voters, co - employees, politicians, and the media were

political , eith er in the public forum of citizen or media

debate , or w ere due to interoffice fear or jealousy of her high

salary and specially - created position. The opposition to her

appointment or to the amount of her salary may have been

hurtful , but it was not racial ly discriminatory. Proof that

amounts to no more than mere speculation and self - serving belief

on the part of the complainant concerning the motives of the

employer are not sufficient , standing alone, to establish a

prima facie case of intentional discrim ination. See Little

Republic v. Refining Co., Ltd. , 924 F.2d 93 (5th Cir. 1991);

Elliott v. Group Medical and Surgical Service , 714 F.2d 556 (5th

Cir. 1983); and Shiflett v. GE Finance Automation , 960 F. Supp.

1022 (W.D. Va. 1997).

3 7 . Petitioner has no t shown by a preponderance of the

evidence that racial discrimination was the motivating or

determining factor in the aboli tion of her position as IG.

3 8 . Petitioner allege d that other similarly situated

Caucasian employees were provided alternative posi tions within

the County and that this was a specific privilege denied to her

because of her race, but she has not provided any proof to that

effect . Rather , the evidence shows that no comparable position

existed and that she was not hired for lesser posit ions for

purely political , non - racial reasons.

3 9 . Accordingly, Petitioner has not established a prima

facie case under the test of McDonnell - Douglas Corporation v.

Greene , 411 U.S. 792 (1973).

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and

Charge of Discrimination herein.

DONE AND ENTERED this 8th day of June , 2005, in

Tallahassee, Leon County, F lorida.

S

___________________________________

ELLA JANE P. DAVIS

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 8th day of June , 2005.

COPIES FURNISHED:

Adriane L. Hankerson

8908 Glade Spring Lane

Apartment 203

Charlotte, North Carolina 28216

Charles V. Peppler, Esqu ire

Escambia County Attorney's Office

14 West Government Street, Room 411

Pensacola, Florida 32502

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.