05-000685 Carol Manzaro vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, September 13, 2005.

Summary: Petitioner`s claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. Petitioner failed to prove a prima facie case of age discrimination because she voluntarily resigned.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL MANZARO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0685

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 22, 2005, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Frank J. McKeown, Jr., Esquire

McKeow n & Associates, P.A.

Centurion Tower, Suite 1010

1601 Forum Place

West Palm Beach, Florida 33401

For Respondent: Carol A. Field, Esquire

Office of the Attorney General

110 Southeast 6th Street, 10th Floor

Fort Lauderdale, Florida 3 3301

STATEMENT OF THE ISSUES

The threshold issue in this case is whether Petitioner's

claim is time - barred for failure to timely file an initial

charge of discrimination with the Florida Commission on Human

Relations. If Petitioner's claim were timely, t hen the question

would be whether Respondent unlawfully discriminated against

Petitioner on the basis of her age in violation of the Florida

Civil Rights Act.

PRELIMINARY STATEMENT

On June 10, 2004, Petitioner Carol Manzaro filed a Charge

with the Flori da Commission on Human Relations ("FCHR") in which

she claimed that Respondent Department of Children and Family

Services had unlawfully "demoted" her in order to hire a younger

worker to take her place as an investigator in the Office of the

Inspector Gen eral. On January 26, 2005, the FCHR issued a

"cause" determination, relying upon Florida Administrative Code

Rule 60Y - 5.003(4) to draw an adverse inference of culpability

against Respondent, based on Respondent's failure to provide

requested information t o the FCHR in a timely manner.

Ms. Manzaro elected to pursue administrative remedies. She

timely filed a Petition for Relief with the FCHR on or about

February 18, 2005. The FCHR transmitted the Petition for Relief

to the Division of Administrative Heari ngs on February 22, 2005,

and an administrative law judge ("ALJ") was assigned to the

case. The ALJ scheduled the final hearing for April 21, 2005,

and later, at the parties' joint request, continued the final

hearing until July 22, 2005.

At the hearing, Ms. Manzaro testified on her own behalf and

called Gerald Justice and Gladys Hennen as additional witnesses.

Ms. Manzaro did not offer any exhibits into evidence.

During its case, Respondent presented the testimony of

Sheryl Steckler and also that of Ju lie Coleman. Respondent's

Exhibits 1 through 7 were received in evidence.

The two - volume final hearing transcript was filed on August

11, 2005. Thereafter, the parties timely filed proposed

recommended orders, which have been considered.

Unless otherw ise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. From April 4, 1998 until May 22, 2003, Petitioner Carol

Manzaro ("Manzaro") worked for Respondent Department of Children

and Family Services ("DCF") as an Inspector Specialist I

(essentially, an investigator) in the Office of the Inspector

General ("OIG"). Manzaro's duty station was at a satellite

office located in Riviera Beach, Florida. Her supervisor was

Richard Scholtz, who was based in the OIG's Fort Lauderdale

field office.

2. In October 2002, Sheryl Steckler became DCF's Inspector

General. Shortly after assuming this position, Ms. Steckler

hired Tom Busch as Chief of Investigations. Mr. Busch was

responsible for, among other things, oversee ing the OIG's field

office in Fort Lauderdale and the satellite office in Riviera

Beach. Ms. Steckler and Mr. Busch worked at offices in

Tallahassee.

3. In late December 2002, Mr. Busch called Manzaro and

reprimanded her for sending an e - mail that Ms. S teckler felt was

inappropriate. Manzaro believes that the reprimand was

unwarranted and demonstrates that she was being singled out (or

set up), but the evidence regarding this particular incident is

much too sketchy for the undersigned to make such a fin ding.

4. In January 2003, Manzaro and Louis Consagra, another

inspector who worked in the Riviera Beach satellite office, were

directed to attend a meeting in Fort Lauderdale, which they did.

After they arrived, their immediate supervisor Mr. Scholz,

recently back from a trip to Tallahassee, told the two that Mr.

Busch had said to him, "Sometimes when you get older, you miss a

step." Mr. Scholz further related that Mr. Busch had announced

that "changes w[ould] be made." Mr. Scholz warned them that

"t hey are looking to fire people," and that he (Scholz) would

fire people to protect himself if need be.

5. The three (Manzaro, Consagra, and Scholz) then met with

Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr.

Busch informed them that he had just fired an inspector who

worked in Fort Lauderdale, and that Ms. Steckler planned to

close the Riviera Beach satellite office by June or July of

2003, at which time Manzaro and Mr. Consagra would be reassigned

to the Fort Lauderdale field office.

6. Manzaro, who was then 55 years old, decided at that

moment it was time to start looking for a new job. Immediately

upon returning to Riviera Beach, she began making phone calls to

that end.

7. Manzaro claims that for some weeks thereafter she

receiv ed "haranguing" phone calls from Mr. Busch, who deprecated

her abilities and was rude and patronizing. The undersigned

credits Manzaro's testimony in this regard (which was not

rebutted), but deems it insufficient to support an inference

that Mr. Busch wa s critical of Manzaro because she was over the

age of 40. 1 Mr. Busch's telephone calls caused Manzaro to see

(in her words) the "handwriting on the wall"; by this time, she

"knew" her employment would be terminated.

8. In March 2003, Manzaro's co - worker , Mr. Consagra, was

fired. Around this time —— it is not clear when —— Manzaro was

given a below - average performance evaluation. 2

9. Not long after that, by letter dated April 18, 2003,

Manzaro was notified of her appointment to the job of Economic

Self S ufficiency Specialist I with DCF's District Nine, a

position which Manzaro had sought. 3 By accepting this

appointment, she could continue working for DCF in Palm Beach

County, albeit at a lower salary than she was earning as an

inspector for the OIG. She decided to take the job.

10. Manzaro resigned her position with the OIG via a

Memorandum to Ms. Steckler dated April 18, 2003. In pertinent

part, Manzaro wrote:

I would first like to thank you for the

opportunity to serve the Department and

Office of Inspector General and for the

opportunity to find other employment within

the Department. At this time, familial and

financial responsibilities preclude my

traveling to the proposed new duty location

in Ft. Lauderdale.

As you will see from the attached l etter, I

have accepted a position with Economic Self

Sufficiency effective May 23, 2003. With

your permission, I would like to complete

writing the three cases I presently have

open and commence annual leave on May 5

through May 22, 2003.

11. On or abo ut May 27, 2003, Manzaro started working at

her new job for DCF. On July 12, 2003, Manzaro received some

paperwork that had been sent to her accidentally, which revealed

that her replacement in the OIG was younger than she, and also

was being paid more th an she had earned as an investigator.

Manzaro claims that it was then she discovered that she had been

the victim of age discrimination, absent which she would not

have been "involuntarily demoted" to the position of Economic

Self Sufficiency Specialist I .

Ultimate Factual Determinations

12. Manzaro's theory is that she was forced to resign her

position in the OIG by the threat of termination, which caused

her to seek and ultimately accept other, less remunerative

employment with DCF. Manzaro describ es the net effect of her

job - switch as an "involuntary demotion" and charges that DCF

"demoted" her because she was over the age of 40.

13. Manzaro testified unequivocally, and the undersigned

has found, that during a meeting in Fort Lauderdale in Januar y

2003 (the one where Mr. Busch had informed Manzaro and her

colleagues that the Riviera Beach satellite office would be

closed), Manzaro had made up her mind to look for another job.

This means that the untoward pressure allegedly used by DCF to

force Ma nzaro's resignation had achieved its purpose by January

31, 2003, at the latest. 4 Therefore, if the alleged

discrimination against Manzaro were a discrete act —— which is, at

least implicitly, how Manzaro views the matter —— then the

discrete act apparently o ccurred on or before January 31, 2003. 5

14. Assuming, for argument's sake, that DCF did in fact

force Manzaro to decide, in January 2003, to resign her position

as an inspector, then the pressure that DCF exerted on Manzaro

consisted of: (a) a verbal reprimand regarding an e - mail; (b)

Mr. Busch's comment (reported via Mr. Scholz) that age sometimes

causes one to "miss a step"; (c) Mr. Scholz's warning that

people would be fired; (d) the firing of a Fort Lauderdale - based

inspector; and (e) the announce ment that the Riviera Beach

satellite office would be closed.

15. Assuming for argument's sake that the foregoing

circumstances amounted to discriminatory coercion, the

undersigned determines that Manzaro should have known, when she

succumbed to the thr eat of termination and involuntarily decided

to resign, that she might possibly be a victim of age

discrimination. 6 The undersigned comes to this conclusion

primarily because Mr. Busch's comment about older people

sometimes missing a step is the strongest (if not the only) hint

of age discrimination in this record. 7

16. The significance of the previous finding is that, if

the discrimination consisted of the discrete act of demotion (as

Manzaro urges), then the 365 - day period within which a charge of

d iscrimination must be filed with the FCHR began to run on

Manzaro's claim no later than January 31, 2003, by which time

she was on notice of the allegedly discriminatory act. 8 Because

Manzaro's charge of discrimination was not filed with the FCHR

until Ju ne 10, 2004, it is clear that, as a claim involving a

discrete act of discrimination, Manzaro's charge was untimely.

17. Putting aside the question whether Manzaro's case is

time - barred, it is further determined that, in any event,

Manzaro did not suffer an "adverse employment action." The

undersigned is not persuaded that Manzaro was forced to take

another job, as she now contends. Rather, the greater weight of

the evidence establishes that Manzaro elected voluntarily to

seek other employment after lea rning that her duty station was

being moved to Fort Lauderdale and developing concerns about her

job security in light of new management's efforts to weed out

employees it viewed as under - performers.

18. Ultimately, it is determined that DCF did not

disc riminate unlawfully against Manzaro on the basis of her age.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

20. Under Section 760.11(1), Florida Statutes, any person

aggrieved by an unlawful employment practice may file a

complaint with the FCHR within 365 days after the alleged

violation. Failure to do so bars the claim under state law.

See Greene v. Seminole El ec. Co - op, Inc. , 701 So. 2d 646, 648

(Fla. 5th DCA 1997)(As a statute of limitations, Section

760.11(1) bars claims arising from acts that occurred more than

one year before the charge was filed.); see also St. Petersburg

Motor Club v. Cook , 567 So. 2d 488 , 489 (Fla. 2d DCA 1990). 9

21. The charge - filing period for a claim arising from a

discrete act of alleged discrimination —— e.g. termination,

failure to promote, demotion, or refusal to hire —— begins to run

at the moment the act occurs, which is on the da y it happens.

See Maggio v. Department of Labor and Employment Security , 30

Fla. L. Weekly D1899a (Fla. 2d DCA Aug. 10, 2005); see also

National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 122

S.Ct. 2061, 2070 - 71 (2002)("A discrete retaliatory or

d iscriminatory act 'occurred' on the day it 'happened.' A

party, therefore, must file a charge within [the specified

number of] days from the date of the act or lose the ability to

recover for it."). 10

22. Here, the conclusion is inescapable that any actio n of

DCF that could have constituted the discrete act of

"involuntarily demoting" Manzaro happened more than 365 days

prior to June 10, 2004. Her last day of work in the OIG was,

after all, some time in May 2003. Moreover, as was found above,

Manzaro was in fact on notice of the possibility of age

discrimination no later than January 31, 2003.

23. Thus, it is concluded that Manzaro's claim is time -

barred and must be dismissed with prejudice for that reason.

24. Even if Manzaro's initial charge of disc rimination

were timely filed with the FCHR, she still would not be entitled

to relief because her claim is without merit, for the

alternative, and independently dispositive, reasons set forth

below.

25. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

8 02 - 803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the init ial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. If, however, the complainant

succeeds in making a prima facie case, t hen the burden shifts to

the accused employer to articulate a legitimate, non -

discriminatory reason for its complained - of conduct. If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason b ut

merely a pretext for discrimination. Id. ; St. Mary's Honor

Center v. Hicks , 509 U.S. 502, 506 - 07 (1993).

26. To make a prima facie case of age discrimination, the

claimant must prove that she was "(1) a member of the protected

class [ i.e. between the ages of 40 and 70]; (2) qualified for

the position; (3) subjected to adverse employment action; and

(4) replaced by a person outside the protected class or [made to

suffer] from disparate treatment because of membership in the

protected class." Kelliher v . Veneman , 313 F.3d 1270, 1275

(11th Cir. 2002); see also Anderson v. Lykes Pasco Packing Co. ,

503 So. 2d 1269, 1270 (Fla. 2d DCA 1986).

27. Manzaro offered proof sufficient to establish the

first, second, and fourth elements of the prima facie case.

Wi th regard to the third element, however, the facts show that

Manzaro suffered no "adverse employment action."

28. To be actionable, an adverse employment action must

amount to "a serious and material change in the terms,

conditions or privileges of empl oyment." Davis v. Town of Lake

Park, Florida , 245 F.3d 1232, 1239 (11th Cir. 2001)(emphasis in

original). Further, "the employment action must be materially

adverse as viewed by a reasonable person in the circumstances."

Id. ; see also McCaw Cellular Com munications of Florida, Inc. v.

Kwiatek , 763 So. 2d 1063, 1066 (Fla. 4th DCA 1999).

29. The evidence fails to establish that DCF took such

adverse action against Manzaro. While it seems that working

conditions in the OIG were not as favorable for Manza ro under

Ms. Steckler and Mr. Busch as they had been under the previous

management, the undersigned is not persuaded, on this record,

that DCF made the workplace so difficult for Manzaro that a

reasonable person in her position would have felt compelled to

resign. Cf. Webb v. Florida Health Care Management Corp. , 804

So. 2d 422, 424 (Fla. 4th DCA 2001)(to prevail on constructive

discharge claim, employee must show that employer made working

conditions so difficult that a reasonable person would feel

compel led to resign).

30. Manzaro's failure to make out a prima facie case of

age discrimination ended the inquiry. Because the burden never

shifted to DCF to articulate a legitimate, non - discriminatory

reason for its conduct, it was not necessary to make any

findings of fact in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Manzaro's Petition for Relief as time - barred, or

alternatively finding DCF no t liable for age discrimination.

DONE AND ENTERED this 13th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 13th day of September, 2005.

ENDNOTES

1 / There is no persuasive evidence suggesting that Mr. Busch's

behavior was motivated by discrimination against older workers

generally or Manzaro in particular. It should also be mentioned

here that Manzaro's theory is not that Mr. Busch created a

hostile work environment which led to her constructive

discharge.

2 / The evaluation is not in evidence. There is, further, no

evidence rega rding the reasons that Manzaro's performance was

rated below - average.

3 / Manzaro claims that Mr. Scholz grew impatient waiting for her

to leave, asking at one point why it was taking her so long to

find a new job, and letting Manzaro know that the only r eason

she had not been fired was that she was actively seeking other

employment. While the undersigned has no reason to disbelieve

Manzaro's account of these comments, he does not infer

discriminatory animus from Mr. Scholz's statements. For one

reason, the comments are not inherently discriminatory, and the

evidence affords insufficient context to interpret them as such.

For another reason, Manzaro had made it known that she was

looking for another job. Experience and common sense teach that

employers generally prefer not to keep such employees around for

long —— for obvious reasons.

4 / The actual date of the Fort Lauderdale meeting is not

available in the record.

5 / Manzaro has alleged and argued that her "involuntary

demotion" occurred on May 27, 20 03, when she started working as

an Economic Self Sufficiency Specialist I. The problem with

this position is that, assuming Manzaro was forced to resign, as

she alleges, the pressure to resign would necessarily have

preceded her "involuntary" decision to resign, which latter

occurred in January 2003, some four months before May 27, 2003.

Another problem with Manzaro's position is that neither

Manzaro's resignation from the OIG (in April 2003) nor her

commencement of employment as an Economic Self Sufficie ncy

Specialist I (in May 2003) was an action of DCF. Rather, viewed

in the light most favorable to Manzaro, each was a harmful

consequence of DCF's unlawful ( i.e. discriminatory) coercion,

which caused her to leave the OIG. The undersigned again notes

th at Manzaro has not argued that DCF created a hostile work

environment which led to her constructive discharge —— a theory

that seems better suited to Manzaro's version of the historical

facts.

6 / The undersigned rejects as unpersuasive the argument that

Ma nzaro should not reasonably have been on notice of the

possibility of age discrimination until learning that her

replacement in the OIG was a younger employee. This discovery

might reasonably have confirmed her worst suspicions —— but

Manzaro should already have been alerted to the possibility of

age bias if (as she claims) she was being pressured to quit for

no apparent legitimate reason. See endnote 7.

7 / It is not found, nor does the undersigned believe, that Mr.

Busch's comment betrayed a discriminato ry intent. His comment,

appearing as it does in this record without any context

whatsoever, is simply too general in nature to support a

reasonable inference of discriminatory animus. Indeed, as an

abstract statement, it is undeniably true that, generall y

speaking, people do sometimes "miss a step" when they get older;

age takes its toll on a body, after all, as every adult knows.

That reality does not authorize or excuse unlawful

discrimination, of course, but neither does stating the obvious

amount to evidence of intent to discriminate. That said, if (as

she claims) Manzaro decided in January 2003 to resign against

her wishes in response to the threat of termination, and further

if (as Manzaro implicitly claims) DCF had no legitimate reason

to terminat e Manzaro's employment, then Manzaro should have

given some thought to the reasons for DCF's otherwise

inexplicable behavior, and in doing so she should have viewed

Mr. Busch's "older [people sometimes] miss a step" remark as a

clue worth pursuing. In sho rt, while the undersigned does not

consider Mr. Busch's remark, on this record, persuasive proof of

discriminatory intent, he does consider the remark to be

sufficiently "eye - brow raising" to have put Manzaro on notice

that her forced resignation (as she v iewed it) might possibly

have been motivated by age bias.

8 / The undersigned finds it difficult to discuss this case in

terms of discrete - act discrimination because the evidence does

not support the notion that DCF "demoted" Manzaro. That,

however, is t he term Manzaro uses to describe the action taken

against her, and the undersigned has attempted to analyze her

claim accordingly.

9 / Although Section 760.11(1) "states that a complaint 'may' be

filed with the [FCHR], it is clear that such a complaint mu st be

filed either with the [FCHR] or its federal counterpart by

anyone who wishes to pursue either a lawsuit or an

administrative proceeding under the act." Ross v. Jim Adams

Ford, Inc. , 871 So. 2d 312, 315 (Fla. 2d DCA 2004).

10 / The U.S. Supreme Court apparently has left open the question

whether, in some circumstances, the charge - filing period might

commence not at the moment when the adverse employment action is

taken, but rather when the employee should have discovered that

the adverse action was di scriminatory. See Morgan , 536 U.S. at

115 n.7, 122 S.Ct. at 2073 n.7. Justice O'Connor believed that

some form of discovery rule should apply to discrete - act claims,

so that the charge - filing period would not begin until the

employee "had, or should have had, notice of the discriminatory

act." 536 U.S. at 123 - 24, 122 S.Ct. at 2078 (emphasis added).

It is not necessary in this case to decide whether some version

of the discovery rule applies, for Manzaro's charge was untimely

filed even under Justice O'C onner's view.

COPIES FURNISHED :

Frank J. McKeown, Jr., Esquire

McKeown & Associates, P.A.

Centurion Tower, Suite 1010

1601 Forum Place

West Palm Beach, Florida 33401

Carol A. Field, Esquire

Office of the Attorney General

110 Southeast 6th Street, 10th Floor

Fort Lauderdale, Florida 33301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkwa y, 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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.