04-002691 Annette Carroll vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, November 3, 2004.

Summary: Petitioner failed to show any discriminatory animus on the part of Respondent in terminating Petitioner`s employment. Recommend Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNETTE CARROLL, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2691

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Chattahoochee, Florida, on October 13, 2004. The following

appearances were entered:

For Petitioner: Annette Carroll, pro se

10202 Northwest Third Street

Bristol, Florida 32321

For Respondent: Kathi Lee Kilpatrick, Esquire

Department of Children and

Family Services

Florida State Hospital

Post Office Box 1000

Chattahoochee, Florida 32324

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was

subjected to an unlawful employment pract ice by Respondent due to

Petitioner's race, age, sex, or as retaliation in violation of

Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relatio ns (FCHR)

on April 22, 2003, alleging her termination by Respondent was the

result of discrimination on the basis of her age, race, color, sex

and age.

On or about June 30, 2004, the FCHR issued its determination:

No Cause.

On or about July 26, 2004, Petitioner filed a Petition for

Relief with the FCHR. Subsequently, on or about August 2, 2004,

the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in her own

behalf and presented two witnesses . Respondent presented one

witness and three exhibits.

No transcript of the final hearing was provided. Both

parties were offered the opportunity to file proposed findings of

facts and proposed conclusions of law. Respondent filed a

Proposed Recommend ed Order, which has been reviewed and considered

in the preparation of this Recommended Order. No post - hearing

submission was filed on behalf of Petitioner.

FINDINGS OF FACT

1. Respondent employed Petitioner, a 56 - year - old African -

American female, a s a Food Support Worker at Florida State

Hospital in Chattahoochee, Florida, at all times relevant to

these proceedings.

2. Petitioner was promoted to the position of Food Service

Worker on May 10, 2002, with probationary status until May 10,

200 3.

3. On February 12, 2003, Petitioner was terminated from

her employment for failure to satisfactorily complete her

probationary period in the career service.

4. In the course of her employment with Florida State

Hospital, Petitioner was a ware of the strict safety guidelines

implemented by Respondent to protect employees from injury.

Petitioner also knew that violation of the safety rules could

result in dismissal of an erring employee. Violations of these

policies had resulted in dismiss al of both non - minority and

minority employees in the past.

5. On February 9, 2003, due to an unsafe act and violation

of Respondent’s safety rules, Petitioner proceeded to cut the

tip of her left thumb in the process of slicing cabbage.

Petitio ner was not using a cutting glove, a mandatory

requirement of the safety rules.

6. As a result of this rule violation, Respondent

terminated Petitioner’s employment on February 12, 2003.

7. At final hearing, Petitioner admitted the cutting

injury to her finger, but contended that termination of

employment had not been effected for other younger white

employees for similar offenses in the past. These allegations

of Petitioner were non - specific and uncorroborated; they are not

credited.

CON CLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these proceedings.

§§ 120.56(9) and 120.57(1), Fla. Stat.

9. Chapter 760, Florida Statutes, the "Florida Civil

Rights A ct of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

10. The adverse effectuation of an employee’s

compensation, conditions and privileges of employment on the

b asis of race is an unlawful employment practice.

11. The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscrimina tory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 ( Fla. 1st DCA 1981).

12. The testimony and other evidence produced by

Petitioner are not sufficient to establish that racial

discrimination by employees or supervisors of Respondent toward

Petitioner occurred. Petitioner failed to show that Respondent ’s

basis for her termination, violation of safety rules, was pre -

textual in any way.

13. Petitioner violated safety rules established by

Respondent and suffered a termination of employment as a

consequence of that violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

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

Tallahassee, Leon County, Florida.

S

DON W. 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 3rd day of November, 2004.

COPIES FURNISHED :

Annette Carroll

10202 Northwest Third Street

Bristol, Florida 32321

Kathi Lee Kilpatrick, Esquire

Department of Children and

Fami ly Services

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

Jacqueline H. Smith, Esquire

Department of Children and

Family Services

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

Denise Crawford, Agency Clerk

Florida Commission on Huma n Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recomm ended Order should be filed with the agency that

will issue the final order in this case.