05-001243 Viritti Jackson vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, September 16, 2005.

Summary: Petitioner requested a transfer with no entitlement to a higher salary, but she accepted employment at a lower salary. Therefore, the evidence did not demonstrate discrimination based on race or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRITTI JACKSON, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1243

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on July 1, 2005 , in Jacksonville, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Viritti Jack son, pro se

2173 West 15th Street

Jacksonville, Florida 32209

For Respondent: Scott D. Leemis, Esquire

Northeast Florida State Hospital

7487 South State Road 121

Macclenny, Florida 32063

STATEMENT OF THE ISSUE

The issu e to be resolved in this proceeding is whether

Petitioner was the subject of unlawful employment practices by

her employer because of her race and age.

PRELIMINARY STATEMENT

On December 21, 2004, Petitioner, Viritti Jackson, filed a

Charge of Discriminat ion with the Florida Commission on Human

Relations (FCHR). The Charge of Discrimination alleged that

Respondent had subjected Petitioner to unlawful employment

actions based on her race and age, and in retaliation for a

complaint to FCHR/EEO. The Charge does not allege

discrimination based on Petitioner’s sex. Specifically, the

Charge of Discrimination alleges that Respondent discriminated

against Petitioner during the hiring process when educational

materials were intentionally omitted from Petitioner’s hiring

packet and an allegedly less - qualified, older, white female was

hired for a similar position at a higher salary than Petitioner.

The charge also alleges that Respondent retaliated against

Petitioner for her FCHR/EEO Complaint of November 28, 2004, when

the hospital transferred her to another unit on December 9,

2004 , and when it issued Petitioner a paycheck that had an

alleged discrepancy in it on December 10, 2004. No other facts

were alleged by Petitioner in support of her Charge of

Discriminati on.

On February 25, 2005, FCHR entered a Notice of

Determination: Cause on Petitioner's Charge of Discrimination.

The determination was based on imposition of an “adverse

inference” from the fact that Respondent did not provide any

information within its control to FCHR relative to Petitioner’s

Charge of Discrimination. Petitioner was advised of her right

to request an administrative hearing by filing a Petition for

Relief.

Petitioner filed a Petition For Relief on April 1, 2005.

The Petition For Relief added significantly more alleged

instances of discrimination that were not contained in the

Charge of Discrimination and were not considered by FCHR in

making its determination. The Petition For Relief also

requested relief such as circumstanti al damages that cannot be

awarded in an administrative forum. To the extent that the

Petition For Relief alleges instances of discrimination not

covered in the Charge of Discrimination and requests damages

which cannot be awarded in an administrative foru m , such

allegations are not part of the underlying agency determination

and cannot be determined in this case.

The Petition was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and

introdu ced 42 exhibits into evidence. Respondent did not offer

any testimony or exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on July 22, 2005. Respondent filed a Proposed Recommended

Order on July 27, 2005.

FINDING S OF FACT

1. Petitioner is a 28 - year - old African - American female.

2. Respondent operates one of the State’s largest

psychiatric hospitals. In April 2004, Respondent had at least 3

openings for a full - time Secretary Specialist at different units

of the hospital.

3. In April 2004, Petitioner along with two other female

applicants were contacted and asked if they were interested in

being considered for three Secretary Specialist positions with

Respondent. The positions ’ duties involved, among other things,

typing medical records and compiling reports on the units ’

patients and recording, transcribing and disseminating all staff

meetings held on the se unit s . Petitioner and the two other

women indicated that they would like to be considered for the

p ositions. One of the women who applied for the positions was

an older, white female who had worked at the hospital for at

least 10 years. No evidence demonstrated the actual age of this

older woman or how much older she was than Petitioner. The

evidence also did not demonstrate if her work history extended

beyond 10 years outside the hospital. The other applicant, like

Petitioner , was a beginning employee at the hospital. Other

than the fact she met the minimum qualifications for the

positions, the evi dence did not establish her race, age , or work

experience.

4. Petitioner’s application was not introduced into

evidence. At the time, Petitioner had about 6 years of work

experience as an office manager and /or an executive secretary.

The experienc e does not appear to be in the medical or

psychiatric field. As can be seen from a review of the evidence

and pleadings in this case, Petitioner’s writing skills are very

poor and are replete with poor grammar and incorrect word usage

to the point of bein g almost incomprehensible. Therefore, the

quality of her executive secretary skills are questionable.

5. As part of her application packet, Petitioner submitted

several educational/professional credentials to Respondent. The

credentials consisted o f certificates in the areas of Office

Supervision II and III and Post Secondary Office Supervision and

Administration. Petitioner claims that these credentials

entitled her to a higher salary than she would have received as

a beginning employee or at the least allowed her to negotiate

for a higher salary. However, no evidence was offered that

supported Petitioner’s contention that such credentials entitled

her to a higher salary or that she lost her opportunity to

negotiate for a higher salary. The fact that the position may

have been advertised as “open - competitive” does not mean that an

applicant is entitled to or will receive a higher salary offer.

The classification only enables an employer or employee to

negotiate a salary based on qualifications. The employer and

employee are not required to negotiate and either may elect not

to negotiate. Indeed, negotiation may be non - existent based on

budget considerations and the availability of other applicants

willing to work for less pay.

6. At some p oint, an interview was scheduled for

Petitioner by Deborah Joyce. In setting up the interview,

Ms. Joyce advised Petitioner that the starting salary for the

position was $766.52 every two weeks. Petitioner indicated that

she wished to be interviewed for the positions.

7. All three womens’ application packets were reviewed by

a hiring committee. All three women were offered employment as

Secretary Specialists at different units. Petitioner and the

other beginning applicant were offered employment a t $766.52

every 2 weeks. The older, white woman was allegedly offered

employment at a higher salary than the two beginning employees.

However, there was no evidence that demonstrated how much the

older woman’s salary was, whether it differed from Petitio ner’s

and its relationship to the salary she had been receiving in her

then current position at the hospital. Petitioner did not

introduce into evidence the pay scale for the position to which

she applied. Some evidence suggests that the offered salary was

the beginning and lowest salary for that position. Petitioner

testified that the offered salary was at the low - end of the

scale for the position that she applied for. Her testimony in

that regard is accepted.

8. Petitioner was informed by tel ephone of the

Respondent’s offer of employment to work on the unit known as

Cypress Village. The telephone call was made by Lela Parker -

Clark, a black female and the medical unit’s specialist (MUS).

The unit’s treatment and rehabilitation director (UTRD) was

Sateria Gunter, a black female. Ms. Gunter and Ms. Parker - Clark

would be Petitioner’s supervisors. The evidence indicated that

both women had been working on the unit for several years and

apparently had done various routines and reports in the same

manner for some time. No evidence was offered as to the actual

age of Ms. Gunter or Ms. Parker - Clark, other than they were both

older than Petitioner and had possibly worked their way up to

their administrative positions from direct care staff.

9. Because the offered salary was not what Petitioner

desired, she inquired further of Ms. Parker - Clark about the

salary. Petitioner learned that her educational credentials had

been lost and possibly had not been reviewed by the committee.

Ms. Gunter indic ated that she would have the committee review

its offer if Petitioner would fax her the documents. Petitioner

faxed the documents to a fax machine at the hospital. It is

unclear whether the documents were received and reviewed by the

committee or whether the committee was made aware of

Petitioner’s additional educational documents. The evidence

conflicts on this point. At the time of the hearing, neither

the original nor faxed documents were in Petitioner’s personnel

file. Indeed, only copies of later - supplied documents that were

specially marked by Petitioner are in Petitioner’s personnel

file. In any event, the salary offer was not changed. No one

from the committee testified at the hearing regarding the

documents reviewed by the committee or otherw ise made known to

the committee. No evidence was offered that demonstrated that

such added credentials would have made a difference in the

salary offered to Petitioner. Petitioner offered no evidence

that Respondent elected to negotiate any salaries with any of

the people it hired as Secretary Specialists. The fact that a

white , 10 - year employee of Respondent may have been offered a

higher salary than Petitioner does not demonstrate that the

salary was negotiated or that Respondent otherwise discriminate d

against Petitioner based on her race or age since the employee

in question was already an employee with more years of

experience at the hospital. Without such evidence, it is

impossible to determine whether the absence of the documents was

deliberate or unintentional, motivated by Petitioner’s race or

age or even caused an adverse impact in the conditions or terms

of Petitioner’s employment.

10. Ms. Gunter informed Petitioner that the position was

still available at the original salary offer of $76 6.52.

Instead of attempting to negotiate further by declining the

offer, Petitioner accepted employment and began working at the

unit on May 21, 2004. Petitioner accepted the offer because she

needed the income. There was no evidence that demonstrated

P etitioner, who is a competent adult, was somehow coerced into

her decision to accept the offer by Respondent.

11. In the beginning, the relationship between Ms. Gunter,

Ms. Parker - Clark and Petitioner was reasonably good. However,

once Petitioner be gan to question the manner in which

Ms. Parker - Clark did things the relationship deteriorated.

Ms. Parker - Clark became abrasive and, Petitioner claims, more

strict regarding Petitioner’s leave than with co - workers. She

would belittle Petitioner in front of co - workers. Ms. Parker -

Clark had the security desk record when Petitioner arrived at

work. Based on the recorded time, both women claimed Petitioner

was falsifying her timesheet and forced her to change her

claimed time on several occasions. Many of the accusations

arose from the fact that Petitioner was often late because of

difficulties with her daughter , who had learning disabilities.

Additionally, Petitioner sometimes arrived early and sometimes

stayed late ; that, in Petitioner’s view, made up h er time.

However, per hospital policy, such early arrival or late stay

was not credited unless pre - approved by Petitioner’s supervisor.

12. Outside of Petitioner’s claims of forced time - sheet

changes based on time she had to take to deal with her

d aughter’s disability or disallowed overtime, etc., there was no

evidence that other similarly - situated employees were treated

differently than Petitioner. In fact, the only testimony

regarding Ms. Parker - Clark’s and Ms. Gunter’s treatment of other

employe es was that there were some employees they treated well

and some employees they did not treat well and that there may

have been ongoing “management problems” on the unit. There was

no evidence that such treatment was based on the race or age of

the indivi dual employee.

13. Petitioner assumes and asserts that she was entitled

to family medical leave, credit for overtime for staying late or

more flexible hours. However, she offers no proof that she was

entitled to such. Without such evidence Petiti oner cannot show

that she has suffered an adverse impact in the terms or

conditions of her employment. Petitioner also claims she

received unwarranted disciplinary actions. Again there was no

evidence offered that such discipline was unwarranted. Indeed

Petitioner admits that actions she received written reprimands

for occurred.

14. Around September 28, 2004, relationships between

Ms. Parker - Clark and Petitioner came to a head when Petitioner

came to the conclusion that Ms. Parker - Clark had never placed

her educational credentials in her personnel file. Petitioner

based this conclusion on the fact that, while training herself

to use the new computerized personnel system, Peoples First,

adopted and, at the time, being implemented, by the State, sh e

discovered that her educational credentials were not listed on

the system. Petitioner was training herself because Ms. Parker –

Clark refused to train her. Petitioner contacted the personnel

office for the hospital and was told that her file was not in

t heir office because it had been sent to Peoples First to be

scanned into the system. Unfortunately, the Peoples First

system is known for glitches and errors in its records.

15. Petitioner met with Ms. Gunter and Ms. Parker - Clark in

a very heated me eting to discuss the lack of information on the

Peoples First system and her feelings that Ms. Parker - Clark had

intentionally lost the educational documents. Petitioner also

voiced her opinion that she was entitled to an increased salary

based on her cred entials. Petitioner was not satisfied with the

response from Ms. Gunter in the meeting.

16 . Around October 5, 2004, Petitioner met with Ennis

Harris, the assistant administrator of the hospital, over her

“issues” with Ms. Parker - Clark and what she s hould do.

17 . Mr. Harris suggested she apply for a transfer to

another unit. On October 7, 2004, Petitioner, applied for a

transfer to the position of Internal Senior Clerk on another

unit. He also indicated that he would approve flex - time for her

if Petitioner requested it and that she might be entitled to

leave under the Family M edical Leave Act.

18 . Around October 13, 2004, Petitioner requested flexible

working hours. As promised, Mr. Ennis approved her schedule.

At about the same time, P etitioner requested transfer to a

Senior Clerk position on another unit.

19 . On October 18, 2004, Petitioner requested that her

salary be increased by 16 1/2 percent and that she receive such

increased pay from the beginning of her employment. There was

no evidence that demonstrated the basis for a 16 1/2 percent

increase or that such an increase was warranted. On October 21,

2004, the increase was denied by Ms. Gunter.

2 0 . On October 27, 2004, Petitioner grieved Ms. Gunter’s

decision. Person nel policy requires that a grievance be filed

within 14 days of the act that caused the grievance. The h uman

r esources m an a ger returned the grievance without action because

14 days had passed since Petitioner began employment on May 21,

2004, and Petition er had the opportunity to decline the offered

salary i f she so desired.

2 1 . On November 1, 2004, Petitioner’s request for transfer

was declined because of personnel rules based on the Union

contract with the S tate that prevented transfer of a

probati onary employee to a higher position.

2 2 . On November 10, 2004, Petitioner appealed the return

of her grievance and appealed or grieved the denial of her

requests for salary increase and transfer to the hospital

administration. The denial was upheld. During this review,

Ms. Gunter claimed that Petitioner’s educational/professional

certificates had been reviewed by the committee and claimed that

the documents in Petitioner’s file were the actual documents

reviewed and considered. However, the documen ts were the

certificates that had been specially marked by Petitioner and

later placed in her file. Ms. Gunter was unaware of the special

demarcation of the documents. Claims of dishonesty were now

mutual. Eventually, Petitioner did not wish to deal wit h

Ms. Parker - Clark , unless her job duties required such.

2 3 . Petitioner complained to various administrators of the

facility often about her treatment on the unit. Mr. Harris told

her that the salary issue was dead and all options to have her

salary increased had been explored.

2 4 . On November 22, 2004, Petitioner submitted a letter of

resignation at a future date not expected to go past

December 13, 2004. In that letter, Petitioner requested

overtime hours with pay to complete her job assig nments. The

same date, Ms. Gunter denied the requested overtime and

requested Petitioner to supply a date certain for her

resignation. On November 23, 2004, she filed complaints that

Ms. Gunter and Ms. Parker - Clark discriminated against her based

on her race and age with the hospital ’ s equal employment office

and similar complaints at PERC. On December 7, 2004, Petitioner

forwarded an e - mail to the hospital attorney that stated she was

leaving early and did not know when she would be back because

she was tired of the harassment she was receiving on the unit.

Sometime after that e - mail, Petitioner met with the hospital

attorney. The hospital did not want to lose Petitioner as an

employee and in an effort to help Petitioner, on December 9,

2004, the admin istration transferred Petitioner to another unit

where she has performed well. Even though Petitioner had been

requesting a transfer, it is this transfer that Petitioner

alleged as a discriminatory action by the hospital. On this

point Petitioner’s claim of discrimination has no merit and was

clearly not demonstrated by the evidence.

2 5 . Petitioner has also been approved for a promotion at a

higher salary, but the promotion has not yet taken effect. The

promotion has been on hold because the hosp ital administrator

retired and his replacement had recently taken over prior to the

hearing. No evidence demonstrated that the delay was due to any

unlawful employment practice. There was no evidence offered

regarding a paycheck discrepancy around Decemb er 10, 2004.

26 . Ultimately, Petitioner’s case rests on assumption and

speculation about others ’ intentions and terms of employment

that she claims she was entitled to. The problem is that there

was no or insufficient evidence offered to demonstrate such

unlawful intentions or entitlement. Indeed, assuming that

Petitioner’s treatment was unjustified, it is more likely that

Ms. Gunter and Ms. Parker - Clark engaged in such treatment

because Petitioner was a new employee who questioned the old way

of doing t hings and did not hesitate to go around them when she

felt a need to do so. Assumptions and speculations are not

enough. Therefore, the Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdic tion over the subject matter of and the parties to this

proceeding. § 120.57(1), Fl a. Stat.

28 . 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.

29 . 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 Depa rtment of Community Affairs v. Bryant , 586

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

Medical Center , 16 FALR 567 (FCHR 1993).

3 0 . 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 VII 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).

3 1 . Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate som e legitimate,

non - discriminatory reason for its employment action. If the

employer articulates such a reason, the burden of proof then

shifts back to Petitioner to demonstrate that the offered reason

is merely a pretext for discrimination. As the Sup reme 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.

3 2 . 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.

3 3 . In order to establish a prima facie case, Petitioner

must establish that:

(a) She is a member of a protected gro up;

(b) She is qualified for the position;

(c) She was subject to an adverse

employment decision;

(d) She was treated less favorably than

similarly - situated persons outside the

protected class .

Canino v. EEOC , 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith v. Georgia , 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.

1982); Lee v. Russell County Board of Education , 684 F.2d 769,

29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744

F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

3 4 . If Petitione r fails to establish a prima facie case of

race discrimination, judgment must be entered in favor of

Respondent. Bell v. Desoto Memorial Hospital, Inc. , 842 F.

Supp. 494 (M.D. Fla. 1994).

3 5 . As indicated earlier, if a prima facie case is

established, a presumption of discrimination arises and the

burden shifts to Respondent to advance a legitimate, non -

discriminatory reason for the action taken against Petitioner.

However, Respondent does not have the ultimate burden of

persuasion , but merely an interme diate burden of production.

Once this non - discriminatory reason is offered by Respondent,

the burden shifts back to Petitioner. Petitioner must then

demonstrate that the offered reason was merely a pretext for

discrimination.

36 . In the instant case, Petitioner alleges that she was

discriminated against based on race or age. Thus, Petitioner

must prove, by a preponderance of the evidence, that Respondent

acted with discriminatory intent. Case law recognizes two ways

in which Petitioner can establish intentional discrimination.

First, discriminatory intent can be established through the

presentation of direct evidence. See Early v. Champion

International Corporation , 907 F.2d 1081 (11th Cir. 1990).

Second, in the absence of direct evidence of discr iminatory

intent, intentional discrimination can be proven through the

introduction of circumstantial evidence.

37 . In this case, Petitioner's race is African - American

and as such, she belongs to a protected class. Petitioner was

not terminated from h er job with Respondent, but instead was

hired at a salary that Petitioner claims should have been

higher. However, the evidence did not show that Petitioner's

salary should have been higher or that the salary offer she

accepted was based on her race or ag e. Likewise, the evidence

did not demonstrate that the salary she accepted constituted an

adverse impact in the terms of her employment. Since these

facts were not established, Petitioner has not established a

prima facie case of discrimination

38 . Petitioner also claimed that her transfer on

December 9 , 2004, was a discriminatory act. However, the

evidence established that Petitioner had requested such a

transfer and that the transfer was beneficial to her. Clearly

no adverse impact occurred. Th erefore, Petitioner did not

establish a prima faci e case.

39 . Finally, Petitioner claimed a “paycheck discrepancy”

was a discriminatory act. There was no evidence submitted on

this issue and Petitioner’s claim must; therefore, fail.

4 0 . Additional ly, Petitioner did not establish that

similarly situated non - minority employees were treated more

favorably. The burden is on Petitioner and not on Respondent to

introduce admissible evidence that her conduct was similar in

nature to other employees outsi de her protected classification

and that the other employees were treated more favorably.

Jones v. Gerwens , 874 F.2d 1534, 1541 (11th Cir. 1989). In

order to establish that employees are similarly situated,

Petitioner must show she and comparable employ ees are similarly

situated in all respects, including dealing with the same

supervisor, having been subject to the same standards and that

Petitioner engaged in approximately the same conduct as the

other employees. See Gray v. Russell Corporation , 681 So . 2d

310, 312, 313 (Fla. 1st DCA 1996); Jones 137 F.3d at 1311 - 13.

In this case, the older white employee used as a comparable was

dissimilar to Petitioner because she had been a 10 - year employee

at the hospital and had more experience in the hospital

env ironment. Such characteristics are a reasonable basis for

offering a higher salary to an older non - minority employee.

Therefore, Petitioner has not established a prima facie case of

race or age discrimination and the Petition For Relief should be

dismiss ed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 1 6 th day of September , 2005 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of September , 2005 .

COPIES FURNISHED :

Viritti Jackson

2173 West 15th Street

Jacksonville, Florida 32209

Scott D. Leem is, Esquire

Northeast Florida State Hospital

7487 South State Road 121

Mac c lenny, Florida 32063

Carolyn Dudley , Assistant Staff Director

Department of Children and

Family Services

Building 6, Room 123

1317 Winewood Boulevard

Tallahassee, Florida 3239 - 9070

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, Flo rida 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 t he Final Order in this case.