05-003667 Delena R. Stringfield vs. Department Of Revenue Status: Closed Recommended Order on Wednesday, January 3, 2007.

Summary: Petitioner, an African-American, failed to prove that her dismissal was based on racial discrimination and not her misuse of the State SunCom system to make 711 personal long-distance calls.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELENA R. STRINGFIELD , )

)

Petitioner , )

)

vs. ) Case No. 05 - 3667

)

DEPARTMENT OF REVENUE , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal administ rative hearing in this case was held on

September 12 , 2006, in Orlando , Florida, before Bram D. E.

Canter, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Garth J. Milazzo, Esquire

37 North Orange Avenue, Suite 500

Orlando, Florida 32801

For Respondent: Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399 - 0100

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was dismissed

from her employment with Respondent on the basis of racial

discrimination.

PRELIMINARY STATEMENT

On March 25, 2005, Petitioner filed a Complaint of

Discriminati on with the Florida Commission on Human Relations

(Commission). The complaint alleged race and age discrimination

by the Department of Revenue (Department). Following its

investigation of the complaint, the Commission issued a

Determination of No Cause o n September 1, 2005. Petitioner

filed a petition to dispute the Commission's action, and the

matter was referred to DOAH to conduct an evidentiary hearing.

At the final hearing, Petitioner testified on her own

behalf and also presented the testimony of Be tty Tanner and

Henry McKinney. Petitioner's Exhibits 1 and 2 were admitted

into evidence. The Department presented the testimony of Mark

Kellerhals, Lillie Bogan, and Nancy Kelly. The Department's

E xhibits 1 through 5 were admitted into evidence. The

u ndersigned requested and, without objection, admitted into

evidence a document from the Department's public records as

"Judge's Exhibit 1."

The two - volume T ranscript of the hearing was filed with

DOAH . The Department timely filed a Proposed Recommended Or der

that w as considered in the preparation of this Recommended

Order. No post - hearing submittal was filed by Petitioner.

FINDINGS OF FACT

1. Petitioner is an African - American female. She was

employed as a Revenue Specialist I by the Department's Child

Support Enforcement Program for a little over four years, from

September 20, 2000 , until January 28, 2005.

2. On January 24, 2005, the Department notified Petitioner

by letter that her employment would be terminated, effective

January 28, 2005, for violat ing three Disciplinary Standard

Rules and the Department's policies related to "loafing,"

conduct unbecoming an public employee, and the misuse of state

property and equipment.

3. The Department charged Petitioner with using the

State's SunCom system to m ake 711 personal long - distance calls

totaling 5,483 minutes in the 18 - month period from December 1,

2002 , to May 31, 2004. 1 Petitioner claimed that some of calls,

totally about 700 minutes, were not personal calls. 2 Petitioner

admitted that the balance o f the calls, totaling about 4,783

minutes, were personal calls.

4. When Petitioner began employment with the Department,

she signed a form acknowledging that she read and understood the

"Department of Revenue Personnel Disciplinary Procedures and

Standard s Rule (#12 - 3.011, F.A.C., effective July 1999)." This

rule includes a prohibition against personal use of state

property or equipment without authorization. The rule further

provides that the disciplinary action for a violation of this

prohibition range s from oral reprimand to dismissal for the

first occurrence, suspension to dismissal for the second

occurrence, and dismissal for the third occurrence.

5. Petitioner did not receive authorization to use the

SunCom system for personal long - distance calls.

6. Petitioner admitted that she knew it was wrong to use

the SunCom system to make personal long - distance calls, but she

"really didn't think that it was something that [she] would be

terminated for."

7. Petitioner believes her co - workers also used the S unCom

system to make personal long - distance calls. Even if this claim

were relevant to the issue of whether the disciplinary action

taken against Petitioner was discriminatory, she presented no

evidence to support the claim.

8. Petitioner argues that her dismissal for misuse of the

SunCom system was a pretext for her dismissal and that racial

discrimination was the true reason. Petitioner did not pursue

at the final hearing her initial claim that age discrimination

was another basis for her dismissal.

9. Petitioner presented no evidence of written or oral

statements made by Department supervisors or administrators

indicating a racial motive for her dismissal. The sole basis

for Petitioner's claim of racial discrimination is that other

Department employe es who were not African - Americans were not

dismissed for their misuse of the SunCom system.

10. In determining what disciplinary action to take

against an employee, the Department considers mitigating

factors, including the quality of the employee's work

performance and his or her length of employment.

11. On December 3, 2003, Petitioner received an oral

reprimand from her immediate supervisor, Betty Tanner, for

tardiness. On February 25, 2004, Petitioner received another

oral reprimand from Ms. Tanner f or tardiness. On January 5,

2005, Petitioner received an oral reprimand from Ms. Tanner for

an absence without leave and a "Memo of Concerns" because of

unsatisfactory work performance issues.

12. Respondent's Exhibit 4 is a compilation of information

ab out 25 cases of SunCom misuse by Department employees from

1996 through 2006. The list of employees is organized according

to the number of minutes of SunCom misuse in an 18 - month period.

Of the 25 cases reported, Petitioner ranks third highest in

total minutes of SunCom system misuse.

13. Respondent's Exhibit 4 indicates that the worst SunCom

abuser was M.D., an African - American male, who had 15,000

minutes of SunCom misuse. In the case of M.D., the Department's

human resources administrator recommende d that M.D. be

dismissed, but he was ultimately demoted, instead. According to

the Department's witness, Nancy Kelly, the decision not to

dismiss M.D. was because of his length of service (7 years) and

good work record.

14. The next worse case of SunCom abuse by a Department

employee involved L.W., an African - American female who had

13,186 minutes of SunCom system misuse. L.W. had 18 years of

service and a good work record. Dismissal was recommended for

L.W., but she was suspended, instead.

15. Dismiss al was recommended for a Caucasian male

employee, F.S., who had 11 years of service and who had misused

4,574 minutes on the SunCom system. He resigned before his

dismissal.

16. An African - American female, L.C., with nine years of

service, was allowed to refund the value of 3,551 minutes of

personal use of the SunCom system.

17. The Department's disciplinary actions in the 25 cases

of SunCom system misuse do not indicate a pattern of racial

discrimination.

18. It should be noted that the director of the Child

Support Enforcement Program in which Petitioner works, Lilly

Bogan, is also an African - American.

19. In considering mitigating factors, the Department

determined that Petitioner's past incidents of unsatisfactory

work performance and her relatively short length of service did

not provide a basis for taking disciplinary action other than

dismissal for her extensive misuse of the SunCom system.

20. The Department followed the procedures set forth in

Subsection 110.227(5)(a), Florida Statutes (2005), that are

required before an agency can dismiss a Career Service employee,

including giving written notice of the proposed disciplinary

action, providing an opportunity to appear before the Department

official taking the action, and providing an appeal to t he

Commission.

21. Petitioner failed to prove that racial discrimination

was the reason for her dismissal. The more persuasive evidence

in the record shows that the reason Petitioner was dismissed was

the reason given to her by the Department's Employee Relations

Manager, "It was the minutes and they were just way too high."

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsecti on s 120.57(1)

and 760.10(1)(a) , Florida Statutes (2006).

23 . S ubs ection 760.10(1), Florida Statutes (200 4 ) , states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of race .

24 . In discrimination cases alleging disparate treatment,

the complainant generally bears a burden of proof that was

established by the United States Supreme Court in McDonnell

Douglas v. Green , 411 U.S. 792 (1973), and Texas Department of

Community Aff airs v. Burdine , 450 U.S. 248 (1981). Under this

well established standard of proof, the complainant bears the

initial burden of establishing a prima facie case of

discrimination. When the complainant m ake s out a prima facie

case, the burden to go forwar d shifts to the employer to

articulate a legitimate, non - discriminatory explanation for the

employment action. See Department of Corrections v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991). The employer has the

burden of production, not persuasion, and need only persuade the

finder of fact that the decision was non - discriminatory. Id.

The complainant must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. "The employee must s atisfy this

burden by showing directly that a discriminatory reason more

likely than not motivated the decision, or indirectly by showing

that the proffered reason for the employment decision is not

worthy of belief." Department of Corrections v. Chandler , 582

So. 2d 1186.

25. To establish her prima facie case, Petitioner had to

prove that (1) s he is a member of a protected c lass; (2) s he was

subject to an adverse employment action; (3) her employer

treated similarly situated employees, who are not member s of the

protected class, more favorably; and (4) s he was qualified for

the job or benefit at issue. See McDon nell , supra ; Gillis v.

Georgia Department of Corrections, 400 F. 3d 883 (11th Cir.

2005) .

26 . Petitioner did not prove all of the elements to

est ablish a prima facie case of discrimination. S he did not

prove that the Department treated similarly situated employees

who are not African - Americans more favorably in other cases of

SunCom system abuse .

27 . The Department demonstrated a legitimate, non -

discriminatory reason for dismissing Petitioner. Petitioner

failed to prove that the non - discriminatory reason for

dismissing her was a pretext for discrimination. She also

failed to show that the Department's explanation is not worthy

of belief.

28. In summary, Petitioner failed to carry h er burden of

proof that the Department engaged in racial discrimination

against Petitioner when it dismissed her from employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set fort h herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 3rd day of January , 2007, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 Cler k of the

Division of Administrative Hearings

this 3rd day of January , 2007 .

ENDNOTES

1 / It is the Department's policy to confine its investigation of

SunCom system abuses to telephone records for the 18 - month

period preceding the allegation of misuse.

2/ Petitioner signed an affidavit in which she stated that the

5,483 minutes were all personal calls, but at the hearing she

said her affidavit statement was incorrect.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relati ons

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399 - 0100

Garth J. Milazzo, Esquire

37 North Orange Avenue, Suite 500

Orlando, Florida 32801

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.