04-004025 Katrina R. Morgan vs. County Of Columbia, Florida Sheriff`s Office Status: Closed Recommended Order on Tuesday, November 8, 2005.

Summary: Petitioner failed to prove that Respondent subjected her to an illegal employment practice on the basis of sexual discrimination. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATRINA R. MORGAN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4025

)

COUNTY OF COLUMBIA, FLORIDA )

SHERIFF’S OFFICE, )

)

Respondent. )

)

RECOMMENDED ORD ER

Pursuant to notice, a formal hearing was held in this case

before Diane Cleavinger, Administrative Law Judge, Division of

Administrative Hearings, on April 26, 2005, and July 28, 2005,

in Lake City, Florida.

APPEARANCES

For Petitioner: T.A. Dele gal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

For Respondent: Leonard J. Dietzen, III, Esquire

Allen, Norton an d Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of an unlawful

employment practice in violation of Chapter 760, Florida

Statutes.

PRELIMINARY STATEMENT

On December 30, 2003, Petitioner, Katrina Morgan, filed a

charge of discrimination with the Florida Commission on Human

Relations (FCHR) alleging that on November 19, 2003, she was

subjected to sexual harassment by a supervisor a nd subsequently

terminated by Respondent in retaliation for complaining about

the incident. On September 24, 2004, FCHR issued a No - Cause

finding and advised Petitioner of her right to request an

administrative hearing. On October 28, 2004, Petitioner fi led a

Petition for Relief. The Petition essentially alleged the same

facts as the original Charge of Discrimination. The Petition

was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner testified in her own behalf and

pre sented the testimony of three witnesses. Additionally,

Petitioner offered 42 exhibits into evidence. Respondent

presented the testimony of five witnesses and offered 33

exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommend ed

Order on September 29, 2005. Respondent filed a Proposed

Recommended Order on September 28, 2005.

FINDINGS OF FACT

1. Petitioner, Katrina Morgan, is a female who was

employed by Respondent as a probationary Correctional Officer at

the Columbia Co unty Sheriff’s Office.

2. Petitioner first worked for the Columbia County

Sheriff’s Office from January 2001, through April 1, 2001, as a

Correctional Officer. At the time, Petitioner was aware that

the Columbia County Sheriff’s Office had a policy that required

a Correctional Officer to personally call his or her immediate

supervisor at least one hour before the scheduled start of the

shift if he or she is unable to report for duty. The policy

requires the officer to personally call so that inquir y can be

made into how sick he or she is and when the officer might

return. The information is necessary so that appropriate

numbers of staff can be scheduled and planned for.

Unfortunately, Petitioner’s son was involved in a serious

traffic accident tha t resulted in serious injuries to him. As a

result of her son’s injuries, Petitioner had many days of

absence from her employment. She frequently failed to notify

her supervisor when she was unable to report for duty. Such

failure violated the Columbia County Sheriff’s Office policy

regarding notification in such circumstances.

3. As a result of the policy violations by Petitioner, she

received several written warnings from her shift supervisor,

then Sergeant Donald Little. In addition to writte n warnings,

Sergeant Little spoke with Petitioner on the telephone about the

proper utilization of the Columbia County Sheriff’s Office call -

in policy. Eventually, after several such absences, Lieutenant

Johnson contacted Petitioner to tell her that he co uld not

permit Petitioner to stay employed with the Columbia County

Sheriff’s Office and offered her an opportunity to resign.

Petitioner verbally resigned her position with the Sheriff’s

Office on March 21, 2001, and later faxed her written

resignation t o the Sheriff’s Office on March 22, 2001.

4. After she left Columbia County, Petitioner was employed

by the Florida Department of Corrections where she had, also,

been previously employed. She worked for a period of

approximately five to six months with the Department of

Corrections and decided to return to the Columbia County

Sheriff’s Office because it would give her better working hours

for her family needs.

5. On April 28, 2003, Petitioner reapplied for employment

as a Corrections Officer w ith the Columbia County Sheriff’s

Office. Knowing her past performance would be an issue and that

attendance was an important issue at the jail, Petitioner stated

on her April 28. 2003, application as follows:

Was forced to give up my position with the

Co lumbia County Jail back in 2001. If given

the opportunity I will do whatever it takes

to be sure the Columbia County Jail can

depend on me. I will make sure I will

report to my shift on time, no matter what

the circumstances are, I hope you will give

me a second chance to prove you can count on

me.

6. In the process of reviewing Petitioner’s background

summary the Columbia County Sheriff’s Office became aware of

some serious areas of concern in her employment history.

Specifically, that she had b een terminated from the Department

of Corrections (DOC) New River Correctional Institute for

attendance problems, and that she had poor work performance and

problems with calling in at S&S Food Store. This history caused

an initial recommendation against rehiring Petitioner. However,

the Columbia County Sheriff’s Office was experiencing a severe

staff shortage and as a result was desperately in need of new

Correctional Officer. Because of the shortage, Petitioner was

offered employment with the Sheriff’s Office.

7. Petitioner was sworn in by the Sheriff as a

Correctional Officer on November 6, 2003, and given a second

chance to prove she was dependable. At this ceremony, the

Sheriff personally spoke with Petitioner about attendance issues

and that she was being given a second chance. In response,

Petitioner gave the Sheriff assurances that this time she would

comply with policies. The Sheriff told Petitioner that any

further attendance problems would be cause for termination.

8. On November 7, 2003, Petitioner began working in the

Respondent’s field training program under the direction of Field

Training Officer Howard. Beginning on November 19, she was

placed on the night shift and assigned Officer Siraq as her

field training officer.

9. The field training program uses daily observation

reports (DORs) to evaluate new officers through the field

training process. The program is a multi - week training program

that trains a new officer while on the job. Eventually, the new

officer will w ork all three shifts at the prison.

10. On November 19, 2003, Officer Siraq was not at work

due to illness. Therefore, Petitioner was assigned Officer Chad

Sessions as her field training officer. Petitioner was working

in the control room at the Co lumbia County Jail with Officer

Sessions, who engaged in a series of very explicit phone calls

in Petitioner’s presence. In his telephone conversations he

made a number of sexually explict statements, including stating

he was going to fuck the girl he was speaking about; that he was

“the candy man” and that he was coming to have sex with the girl

and that he would do so from behind. Petitioner told Officer

Sessions several times that she did not want to hear the sexual

comments, but he nonetheless continu ed in his conversation.

Officer Sessions engaged in three such phone calls lasting about

20 minutes. After repeating that she did not wish to have to

deal with these types of comments, Petitioner left the control

room approximately four times so that she did not have to listen

to Officer Sessions conversations.

11. On the daily observation report completed by Officer

Sessions for that date, Officer Sessions wrote that Petitioner

had engaged in several phone calls and breaks and that she

needed to improve on staying at her assigned post without as

many distractions. Petitioner spoke to Officer Sessions about

his comments on the Daily Observation Report and told him that

she did not agree with his statements and refused to sign the

document because of her disagreement with him. Officer Sessions

took the DOR to Corporal Barcia and informed Barcia that

Petitioner would not sign the agreement. He thereafter came

back to Petitioner and told her that Barcia had ordered the

Petitioner to sign the DOR. Petitioner signed the DOR, but did

not put any comments on the DOR in the “Trainee’s Comments”

Section regarding her disagreement with Officer Sessions or the

reason she left her post in the control room.

12. At the end of the shift on the morning of November 20,

2003, Petitioner drafted a memorandum to now Lieutenant Little

requesting time off from work. Petitioner did not mention the

incidents with Officer Sessions that had occurred on her shift.

In the memorandum, Petitioner stated that she had s poken with

Beverly Jackson during her swearing - in ceremony regarding

specific days off, and that Ms. Jackson had approved the time

off.

13. Also, Petitioner spoke to Officer Howard about the

incident on the morning after her shift that ended on

Novem ber 20, 2003. Petitioner told Officer Howard about Officer

Sessions’ remarks and the fact that she initially refused to

sign the DOR and Corporal Barcia’s orders to sign the DOR.

Officer Howard was concerned when Petitioner gave him this

information and told her that he would speak with Lieutenant

Little.

14. Officer Howard contacted Lieutenant Little to report

the information given to him by Petitioner. Lieutenant Little

was on vacation and received the call at home. Officer Howard

stated that he needed to report this complaint because

Petitioner stated she was uncomfortable with the language used

by Officer Sessions in the control room. Lieutenant Little

advised Officer Howard that the issue would be addressed upon

his return from vacation.

15. Upon returning to work on November 24, 2003,

Lieutenant Little called a meeting to discuss Petitioner’s

complaints about Officer Sessions’ DOR and phone calls.

Petitioner attended the meeting, along with Officer Howard and

Corporal Barcia. At this meeting, Petitioner stated that she

disagreed with the DOR that Officer Sessions had issued her for

November 19, 2003. Specifically, she disagreed with the ratings

she received on the DOR. Petitioner was asked why she had not

included her disagreements i n the “Trainee’s Comments” Section

of the DOR. After receiving no reply, Lieutenant Little

instructed her that she could make those comments on the DOR,

but that they would need to be initialed and dated accordingly.

In the comments Section, Petitioner w rote:

I had three phone calls, each one was no

longer than three - four minutes. The phone

calls were in regards to my children.

(Staying in assigned post) Ofc[.] Sessions

had me escorting I/M’s back and forth and

taking paperwork to Ms. Morgan and other

sections. When Ofc[.] Sessions was on the

phone I would exit the main control room

because I didn’t want to hear about his

personal business. [Initialed: KM and

dated 11 - 24 - 03]

16. With regard to her complaints regarding Officer

Sessions’ pers onal phone conversations, Petitioner was very

vague in her recount at the meeting. Lieutenant Little asked

Petitioner to state with particularity her complaint. She was

asked to reduce her complaints to writing and to be as factual

and detailed as she co uld so that Lieutenat Little could

properly investigate the matter. Petitioner claims that

Lieutenant Little instructed her not to be detailed about the

incident. However, Petitioner’s recollection is not given any

weight. He instructed her to write the incident report at a

sergeant’s desk that was available to write her report.

Corporal Barcia sat in the room with Petitioner while she wrote

the report since the office was also used by him. Petitioner

claimed she felt intimidated by the presence of Cor poral Barcia.

However, Corporal Barcia did nothing to intimidate her. He did

not ask questions about her report or read her report.

Petitioner’s testimony regarding her feelings of intimidation is

not credible. Lieutenant Little forwarded the report up the

chain of command to Captain Smithey.

17. Officer Sessions was disciplined for his conduct and

reprimanded in writing regarding his unprofessional phone

conversations of November 19, 2003. Officer Sessions was also

required to write a letter of apology to Petitioner. The letter

of apology was also placed in Officer Sessions’ personnel file.

Petitioner testified she never received Officer Sessions’ letter

of apology.

18. At some point after his return from vacation,

Lieutenant Little recei ved Petitioner’s memo requesting leave

from work. After he reviewed the memo and noted Petitioner’s

statements regarding Ms. Jackson’s approval, Lieutenant Little

contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson

told Lieutenant Little that she had not given any such approval

and would not have done so since she did not have the authority

to grant leave. Based on the information from Ms. Jackson and

the fact that Ms. Jackson has no authority to approve leave

requests for any Columbia County Sheriff’s Office employees,

Lieutenant Little concluded that Petitioner was untruthful in

her statements in the memorandum about time off. Such

untruthfulness was a serious matter regarding Petitioner’s

appropriateness to remain employed with the Sheriff ’s Office.

Lieutenant Little was also very concerned with the fact that

Petitioner was already requesting time off since her attendance

had been an issue in the past and she was being given a second

chance for employment.

19. In the meantime, as par t of the field training

program, Petitioner was assigned Officer Harris as her field

training officer for a different shift.

20. On November 28, 2003, only eight working days after

being sworn in by the Sheriff, Petitioner became ill with a flu -

type illness. There was no credible evidence that she was

incapacitated by this illness to the point that she could not

personally call her supervisor as the policy required. As in

the past, Petitioner failed to report for duty and failed to

properly call - in to her supervisor. This failure violated the

Columbia County Sheriff’s Office policy for such absences.

21. On November 29, 2003, Officer Harris, noted on

Petitioner’s DOR that she exhibited unacceptable performance

with regard to Columbia County Sheriff’s Office policies and

procedures; namely, Petitioner needed to utilize the proper

chain of command when calling - in. Petitioner wished to explain

why she did not follow the call - in policy. Below Officer

Howard’s comments, Petitioner inserted comme nts in a section of

the DOR designated for field training officers’ use. Because

her comments were in the inappropriate Section Petitioner was

instructed to white - out the comments and to place them in the

proper section titled, “Trainee’s Comments.” The original,

whited - out statement read:

The morning I called in Officer Howard was

contacted first when I called main control .

Mrs. Harris wasn't in yet and didn't have

her number. When I called back at the main

control, I was directed to speak with

Corpor al Green .

The comments that Petitioner rewrote in the “Trainee’s Comments”

Section on the same date were significantly changed by

Petitioner to read as follows:

The morning I was unable to come to work my

husband contacted Ofc[.] Howard [and] was

instruct ed to call Mrs. Harris[.] [W}hen he

called Mrs. Harris wasn’t in yet so he was

instructed to call back in 20 min[utes]. He

was told to relay the message to me, for me

to call Cpl. Green. I did so at 1:30 p.m.

According to this account by Petitioner, she only made one phone

call at 1:30 p.m. to her supervisor well - after the start of her

shift and in violation of the Sheriff’s Office policy.

22. Petitioner’s phone records reveal that five telephone

calls were made on November 28, 2003, with four o f them to the

Columbia County Sheriff’s Office Jail. Petitioner testified

that her husband, Ralph Morgan, made the first three telephone

calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to

her comments written on her November 29, 2003, DOR, th e

Petitioner testified that she telephoned the Jail two times that

day, once at 6:24 a.m. and again at 1:20 p.m. However,

Petitioner’s memory of the calls she made is not credible, given

the more credible written statement she made on the DOR shortly

afte r her absence occurred.

23. Petitioner admits that none of the phone calls, either

from Petitioner’s husband or herself complied with the Columbia

County Sheriff’s Office policy regarding sick leave.

24. On December 2, 2003, Lieutenant Little sent a

memorandum to Captain Smithey recommending that the Petitioner

be considered for termination. Lieutenant Little formulated his

opinion based upon: Petitioner’s past attendance problems with

the Columbia County Sheriff’s Office; her most recent fa ilure to

follow Columbia County Sheriff’s Office policy with regard to

calling - in and attendance; and her untruthfulness with regard to

her request for days off. As a result, and based upon the

Sheriff’s recent imposition of strict probationary guidelines on

Petitioner’s recent hiring Captain Smithey concurred in the

recommendation. There was no evidence that either Little’s or

Smithey’s actions were related to any complaint Petitioner had

made regarding Officer Sessions. Captain Smithey forwarded the

re commendation to the Sheriff.

25. The Sheriff consulted with members of his command

staff and reviewed Petitioner’s performance during her

probationary period. The Sheriff determined that Petitioner had

not satisfied the agency’s standards for the pr obationary period

and had failed in the second chance he had given her. On

December 3, 2003, the Sheriff withdrew the Petitioner’s

appointment as a probationary Corrections Officer. At hearing,

Petitioner admitted that the Sheriff’s decision to terminate her

had nothing to do with her complaints to Lieutenant Little about

Officer Sessions, but was rather based upon Petitioner’s failure

to follow Columbia County Sheriff’s Office call - in procedure.

She felt that it was Lieutenant Little and other Officers who

had conspired against her to get her terminated. However, there

was no credible evidence to demonstrate that such a conspiracy

existed.

26. After Petitioner’s termination she contacted the

Sheriff to schedule a meeting to discuss her termination . At

that meeting, Petitioner spoke with the Sheriff about her

complaints regarding Officer Sessions and the issues she had

with her DORs. The Sheriff was unaware of the issues she had

with Sessions. Specifically, Petitioner claimed that her DOR

had bee n altered or whited - out because she had made complaints

to her supervisor in it.

27. Petitioner brought with her to the meeting correct

DORs from Officer Sirak as well as the November 29, 2003, DORs.

Petitioner told the Sheriff that she believed her DORs were

altered in retaliation for a complaint she had made to one of

her supervisors. The Sheriff testified that Petitioner did not

talk to him about anything with regard to Officer Sessions or

sexual harassment during the post - termination meeting. T he

Sheriff explained to Petitioner that his decision to terminate

her was based upon her failure to follow Columbia County

Sheriff’s Office procedures. With regard to Petitioner’s DORs,

the Sheriff made copies and told her that he would look into her

conc erns. The Sheriff investigated Petitioner’s concerns, but

discovered that all of the DORs that had been changed were

changed in order to correct errors made on them. There was no

credible evidence to the contrary regarding these DORs. The

Sheriff did no t discover any reason to change his decision

regarding Petitioner’s termination.

28. During discovery, Petitioner originally claimed that

it was her November 19, 2003, DOR that had been whited - out, and

that she had physically witnessed Officer Howa rd white it out in

his office. Petitioner later recanted her testimony and stated

that it was in fact her November 29, 2003, DOR which had been

whited - out. With regard to her November 29, 2003, DOR being

whited - out, Petitioner changed her testimony to re flect that she

witnessed Officer Howard white - out the DOR on November 29, 2003.

Despite Petitioner’s numerous attempts to explain her version of

the facts with regard to who did what and when to her DORs, even

her modified testimony is inconsistent with t he facts on record.

The record reflects that Officer Howard was not on duty on

November 29, 2003. He was off for the holiday beginning on

November 27, 2003. His time card reflects that he was on annual

leave for the Thanksgiving holiday starting on Nove mber 27,

2003, and that he did not return to work until the following,

Monday, December 1, 2003. The 29th was a Saturday and Officer

Howard worked weekdays and did not go to the jail on the 29th.

29. Regardless of the fact that Petitioner could no t have

seen Officer Howard white - out her DOR because he was not at work

on the day she specified, Petitioner’s testimony with regard to

the DORs themselves also proved to be inconsistent with the

facts. Petitioner asserted that the reason her DOR was whit ed -

out was that she had included comments regarding sexual language

she had overheard Officer Sessions use on the night of

November 19th. However, upon examination of the November 29th

DOR in question, it was discovered that Petitioner did not

mention any thing at all with regard to sexual comments or

Officer Sessions, but that the comments she had inserted were

actually her attempts at justifying why she had failed to

properly call - in to her supervisor the day before. As indicated

earlier, the reason the comments were whited - out was that

Petitioner had inserted them in a Section designated for field

training officer use only. As a result, Petitioner was required

to move them to the appropriate Section designated as “Trainee’s

Comments.”

30. At heari ng, Petitioner produced, after her deposition

had already been taken, a new DOR allegedly drafted on

November 28, 2003, by Officer Harris. This DOR was not

contained in Petitioner’s personnel file and it is not known

where the newly discovered DOR came fr om. There is no record

evidence, other than Petitioner’s own assertions, that

Petitioner’s November 28th DOR is authentic. Suspiciously,

Petitioner did not produce this document in response to

Respondent’s Request for Production. Nor did Petitioner ment ion

it in her Answers to Interrogatories. She testified that she

did not find it in all her papers until after her deposition.

Petitioner’s testimony regarding this newly discovered DOR is

not credible.

31. Finally, Petitioner offered evidence rega rding

purportedly similary - situated employees. These employees were

Charles Bailey, Thomas Daughtrey and Chad Sessions.

32. Officer Charles Bailey had been employed with Columbia

County Sheriff’s Office two times in his career. During his

first e mployment, Officer Bailey was terminated for attendance

problems similar to the problems Petitioner experienced in her

employment with Columbia County Sheriff’s Office. When Officer

Bailey was hired back, he was given strict probationary terms to

abide by , including that he: be on time for all scheduled tours

of duty; follow all Columbia County Sheriff’s Office call - in

procedures; and to generally abide by all Columbia County

Sheriff’s Office policies and procedures. During his second -

chance employment O fficer Bailey abided by all of the conditions

set out for him. He did not abuse sick leave and he called - in

properly pursuant to Columbia County Sheriff’s Office policy

when he needed to take leave. Officer Bailey left the Columbia

County Sheriff’s Offic e on good terms after his second

employment. Officer Bailey is not similarly situated in any

relevant aspects to Petitioner. Unlike Petitioner, Officer

Bailey abided by all of his conditions upon rehire and properly

followed Columbia County Sheriff’s Off ice call - in policy when he

missed time.

33. Officer Thomas Daughtry was a new employee and in the

field officer training program. He was not a second - chance

employee. During his training he missed several days, however,

despite the fact that O fficer Daughtrey missed some days during

his training, Officer Daughtrey followed Columbia County

Sheriff’s Office call - in policy every time he requested time

off. Nevertheless, because he did in fact miss days during his

training, Officer Daughtrey was g iven unsatisfactory reviews and

was required to re - do part of his training. Because he properly

called in and he was not a second - chance employee, Officer

Daughtrey is not similarly situated to Petitioner in any

relevant aspects.

34. Officer Cha d Sessions was employed two times with

Columbia County Sheriff’s Office. Both times Officer Sessions

resigned under good terms. Petitioner has attempted to compare

his second employment with that of her second, probationary

employment, specifically with regard to a written reprimand

Officer Sessions received for failure to follow call - in policy

on September 10, 2004. When Officer Chad Sessions was given a

reprimand for failing to call - in properly on September 10, 2004,

he was not a probationary trainee. Rather, Officer Sessions was

a Field Training Officer, and the reason he was unable to phone

the jail was due to the phone outages caused by Hurricane

Frances. Officer Sessions could not phone the jail and he could

not be reached because of the high wind s and heavy rain produced

by Hurricane Frances. Because Officer Sessions was not a

probationary employee, and taking into consideration the

extenuating circumstances surrounding the incident, Lieutenant

Little decided to issue him a written reprimand. Fu rthermore,

there is no record evidence that Officer Sessions came to the

Sheriff’s Office with a prior termination and a poor employment

history similar to that of Petitioner. As a result, Officer

Sessions is not similarly situated to Petitioner in all re levant

aspects.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

36. Under the provisions of Section 760.10, Florida

Statutes , it is an unlawful employment practice for an employer:

(1)(a) To discharge or refuse to hire any

individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

37. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Florida Department of Community Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional

Medical Center , 16 FALR 567 (FCHR 1993).

38. The Supreme Court of the United States established in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

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

(1981), the analysis to be used in cases alleging discrimination

under Title V II such as the one at bar. This analysis was

reiterated and refined in St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993).

39. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

cas e of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate,

non - discriminatory reason for its employment action. If the

employer articulates such a reason, the burden of proof then

shifts back to Pe titioner to demonstrate that the offered reason

is merely a pretext for discrimination. As the Supreme Court

stated in Hicks , before finding discrimination, "[t]he fact

finder must believe the Plaintiff's explanation of intentional

discrimination." 509 U .S. at 519.

40. In Hicks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden at all times remains with Petitioner to

demonstrate intentional discrimination. Id.

41. To establi sh a prima facie claim of a sexually

harassing hostile work environment, petitioner must prove:

( 1) that the employee belongs to a protected

group; (2) that the employee was subjected

to unwelcome harassment; (3) that the

harassment was based on the emplo yee’s

gender; (4) that the harassment was severe

enough to affect a term, condition, or

privilege of employment and to create a

discriminatorily abusive working

environment; and (5) that the employer knew

or should have known of the harassment and

failed t o intervene.

See Walton v. Johnson & Johnson Servs., Inc. , 347 F.3d 1272,

1279 - 80 (11th Cir. 2003) (quoting Miller v. Kenworth of Dothan ,

Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002)); Russell v. KSL

Hotel Corp. , 887 So .2d 372, 377 - 78 (Fla. 3d DCA 2004) . Here,

Petitioner only established the first prong: that she belongs

to a protected group.

42. Petitioner cannot establish a prima facie case because

she has failed to demonstrate that she was subjected to

unwelcome harassment, that the harassme nt altered the terms and

conditions of her employment, and that the Respondent failed to

intervene once her concerns were made known. Petitioner

overheard nothing more than offensive utterances made by Officer

Sessions to a friend during personal telephon e calls. The

utterances were neither about Petitioner nor directed at

Petitioner. Furthermore, Petitioner left the control room while

Officer Sessions was on the phone because she “didn’t want to

hear about his personal business.”

43. The questio n of whether that harassment was

sufficiently severe or pervasive so as to alter Petitioner’s

terms and conditions of employment requires both a subjective

and objective analysis. Mendoza v. Borden, Inc. , 195 F.3d 1238,

1246 (11th Cir. 1999) ( en banc); ce rt . denied , 529 U.S. 1068

(2000). As the United States Supreme Court has stated, “sexual

harassment is actionable . . . only if it is ‘so severe or

pervasive as to alter the conditions of the victim’s employment

and create an abusive working environment.’ ” Clark Co. Sch.

Dist. v. Breeden , 532 U.S. 268, 270 (2001); ( quoting Faragher v.

Boca Raton , 524 U.S. 775, 786 (1998) ). The totality of the

circumstances must be considered, including the “frequency of

the discriminatory conduct; its severity; whether i t is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Faragher , supra , at 787 - 88.

“Simple teasing, offhand comments, and isolated incidents

(unless extremel y serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’” Id. at

788; see also Oncale v. Sundowner Offshore Services, Inc . 523

U.S. 75, 81 (1998) (Title VII “forbids only behavior so

objectively offensive as to alt er the ‘conditions’ of the

victim’s employment”).

44. An incident in which Petitioner overheard an offensive

utterance in telephone calls made by Officer Sessions is

insufficient to establish a claim for a hostile work environment

under Chapter 760, Florida Statutes, or Title VII. In Clark Co.

Sch. Dist. v. Breeden , an incident, in which two male co - workers

chuckled after one co - worker asked what “I hear making love to

you is like making love to the Grand Canyon” meant, and another

employee then said , “Well, I’ll tell you later,” could not

reasonably be believed to have violated Title VII). As stated

by Petitioner, Officer Sessions’ comments to his friend over the

phone were his personal business and Petitioner left the control

room to avoid having t o listen to them. This was “at worst an

‘isolated incident’ that cannot remotely be considered

‘extremely serious,’ as [Title VII sexual harassment] cases

require.” Faragher v. Boca Raton , supra , at 788.

45. Further, even assuming, arguendo , that the Petitioner

can state a claim for sexual harassment, Respondent intervened

and investigated the incident when the details became known.

Lieutenant Little conducted a meeting with Petitioner and

Officer Howard in order to ascertain the details necessar y to

investigate the matter, had Petitioner put her complaint in

writing, and allowed Petitioner to amend her November 19, 2003,

DOR to reflect her concerns over Officer Sessions’ behavior. As

a result of this investigation and in light of the circumstanc es

surrounding the incident, Lieutenant Little took remedial action

in order to prevent any further unprofessional use of Columbia

County Sheriff’s Office telephones by issuing Officer Sessions a

Letter of Reprimand and requiring a letter of apology to

Pet itioner. There was no evidence that there were ongoing

sexually oriented comments. As a result, Petitioner cannot

prove that Respondent did not intervene and take prompt remedial

action when the details of the situation became clear. For the

above reaso ns, Petitioner’s claim of sexual harassment should be

dismissed.

46. Petitioner also claims that she was retaliated against

for her opposition or complaints regarding Officer Sessions.

For such complaints to be protected, a Petitioner need not sho w

opposition to or complaint of an employment activity that

actually constituted a violation of Title VII. It is sufficient

if the employee reasonably believes that the activity opposed or

reported would constitute a violation of Title VII. Bigge v.

Albe rtsons, Inc., 894 F. 2d 1497, 1501 (11th Cir. 1990).

However, in order to establish a prima facie case of

retaliation, Petitioner must prove the following elements:

( 1) she participated in an activity

protected by Title VII; (2) she suffered an

adverse e mployment action; and (3) there is

a causal connection between the

participation in the protected activity and

the adverse employment decision .

Gupta v. Florida Bd. of Regents , 212 F.3d 571, 587 (11th Cir.

2000) (emphasis added). “Once Petitioner establi shes a prima

facie case, the burden shifts to [Respondent] to articulate a

legitimate, non - discriminatory reason for the challenged

action.” Johnson v. Booker T. Washington Broad. Serv., Inc. , 234

F.3d 501, 507 n. 6 (11th Cir. 2000). “The burden then shif ts

back to the petitioner to prove by a preponderance of the

evidence that the legitimate reason was merely a pretext for the

prohibited, retaliatory conduct. See Sierminski vansouth

Financial Corporation , 216 F.3d 945, 950 (11th Cir. 2000).

47 . In the instant case, Petitioner cannot establish a

causal connection between her complaint and her termination.

“To demonstrate a causal connection, petitioner must show that

the decision - makers were aware of the protected conduct and that

‘there was c lose temporal proximity between this awareness and

the adverse employment action.’” Singh v. Green Thumb

Landscaping, Inc. , 2005 WL 1027585 (M.D. Fla. 2005) ( quoting

Farley v. Nationwide Mut. Ins. Co. , 197 F.3d 1322, 1337 (11th

Cir. 1999). Although there is a close temporal proximity

between Petitioner’s complaint regarding Officer Sessions’

language while on the phone, Petitioner cannot establish that

the Sheriff, the ultimate decision - maker, was aware of her

complaint when he made the decision to termin ate her employment.

In fact, Petitioner testified that when she met with the Sheriff

after her termination, he was surprised when she informed him of

her complaints. The first time the Sheriff learned that the

Petitioner had complaints about her DORs and Officer Sessions

was at a post - termination meeting. As a result of this lack of

a causal connection, Petitioner cannot meet her burden of

demonstrating a prima facie case.

48. Even if Petitioner could establish a prima facie case

of retaliation, Respondent has articulated legitimate, non -

discriminatory reasons for its actions. See Johnson v. Booker

T. Washington Broad. Serv., Inc ., 234 F.3d 501, 507 n. 6 (11th

Cir. 2000). Petitioner was terminated due to her failure to

follow Columbia County She riff’s Office call - in procedure,

despite being given a second chance and having given the Sheriff

assurances that she could be depended upon. Taking into account

Petitioner’s history of poor attendance and improperly calling -

in at Columbia County Sheriff’ s Office, and her prior

termination at DOC for similar reasons, the Sheriff had a valid

reason to withdraw her probationary appointment.

49. The evidence did not establish that the reasons

offered by Respondent were actually a pretext for

discrimina tion. There was no evidence that lower - level

employees conspired against her to cause her termination. See

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 04 (1973).

“The burden of persuasion never shifts but remains with

plaintiff at all times.” We lch v. Delta Air Lines, Inc. , 978 F.

Supp. 1133 (N.D. Ga. 1997) citing Texas Dept. of Community

Affairs v. Burdine , 450 U.S. 248, 253 (1981). Despite

Petitioner’s claims that she was retaliated against when her

DORs were altered, the record reflects that Petitioner’s

training was in no way affected when her DORs were corrected and

properly filled out. Furthermore, considering the fact that

Petitioner was a second - chance, probationary employee, with a

history of poor attendance and a poor employment backgr ound, and

given that the Sheriff had personally warned Petitioner during

her swearing - in that any more attendance problems would not be

tolerated, when Petitioner failed to follow Columbia County

Sheriff’s Office call - in procedure on November 28, 2003, the

Sheriff had a legitimate, non - discriminatory reason to terminate

her employment. See , e.g ., St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993); Smith v. Florida Dept. of Transp. , 1999 WL

33216741, *4 (M.D. Fla. 1999); cf. Williams v. Vitro Serv.

Corp. , 144 F.3d 1438, 1442 (11th Cir. 1998). In Bradley v.

Harcourt, Brace and Co. , 104 F.3d 267, 270 - 71 (9th Cir. 1996),

the court drew a strong inference of non - discrimination when the

same actor hired and then fired the plaintiff and both actions

occurred i n a short period of time. Courts held likewise in

Brown v. CSC Logic, Inc. , 82 F.3d 651, 658 (5th Cir. 1996)

(approving a “same actor” inference after noting that several

circuit courts have approved the same); Evans v. Technologies

Applications & Service Co. , 80 F.3d 954, 959 (4th Cir. 1996)

(recognizing a powerful inference that the failure to promote

the plaintiff was not motivated by discriminatory animus where

the actor who failed to promote the plaintiff was the same actor

that hired the plaintiff); and see E.E.O.C. v. Our Lady of

Resurrection Med. Ctr. , 77 F.3d 145, 152 (7th Cir. 1996)

(finding a strong presumptive value where the same actor hired

and then fired the plaintiff). Therefore, Petitioner’s claim of

retaliation should be dismissed.

50. Finally, when determining whether employees are

similarly situated for purposes of establishing a prima facie

case, courts should necessarily consider “whether the employees

are involved in or accused of the same or similar conduct and

are disciplined in different ways.” Jones v. Bessemer Carraway

Med. Ctr ., 137 F.3d 1306, 1311 (11th Cir.1998); opinion modified

by 151 F.3d 1321 (11th Cir. 1998). In order to be similarly

situated, “the quantity and quality of the comparator’s

misconduct must be nearly identical to prevent courts from

second - guessing employer’s reasonable decisions and confusing

apples and oranges.” Henry v. City of Tallahassee , 216 F. Supp.

2d 1299, 1316 (N.D. Fla. 2002) citing Maniccia v. Brown , 171

F.3d 1364 (11th Cir. 1999). “The most important factors in the

disciplinary context are the nature of the offenses committed

and the nature of the punishments imposed.” Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997) (internal quotations and

citations omitted). Further, “Title VII does not take away an

employer’s right to interpret its rules as it chooses, and to

make determinations as it sees fit under those rules.” Maniccia

v. Brown , 171 F.3d 1364, 1369 (11th Cir. 1999) (quoting Jones,

137 F.3d at 1311); Nix v. WLCY Radio/Rah all Comms. , 738 F.2d

1181, 1187 (11th Cir. 1984); Henry v. City of Tallahassee , 216

F. Supp. 2d 1299, 1315 - 16 (N.D. Fla. 2002).

51. Petitioner cannot show that a probationary employee

outside the protected class engaged in conduct nearly identical

to hers and received treatment that is more favorable.

Petitioner admits that she has no knowledge of such a

comparator. Instead, Petitioner identifies employees that are

not similarly situated in any relevant aspects. None of the

three employees offere d as comparators were similarly situated

to Petitioner.

52. In this case, Petitioner failed to establish all the

elements of a prima facie case of either sexual harassment or

retaliation in that she failed to demonstrate that she was

subjected to sig nificant and unwelcome harassment, that the

harassment altered the terms and conditions of her employment,

and that the Respondent failed to intervene once her concerns

were made known. Moreover, even assuming she had established a

prima facie case, Res pondent articulated a reasonable basis for

Petitioner’s termination. Respondent’s reasons were not a pre -

text.

RECOMMENDATION

Based on upon the above findings of fact and conclusions of

law, it is

RECOMMENDED that the Petition For Relief should be

dismissed.

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

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 November, 2005.

COPIES FURNIS HED :

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, Flor ida 32301

Katrina R. Morgan

4777 Shavesbluff Road

Macclenny, Florida 32063

T.A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

Leonard J. Dietzen, III, Esquire

Allen, Norton & Blue, P.A.

906 North M onroe Street

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.