05-004360 Brittie Powers vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, May 16, 2006.

Summary: Evidence did not demonstrate that Petitioner was terminated or later laid off due to retaliation for testimony in discrimination case. Petitioner`s belief was insufficient to support retaliation claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTIE POWERS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4360

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

P ursuant to Notice, the Division of Administrative Hearings

held a formal hearing before Diane Cleavinger, Administrative

Law Judge, on February 23, 2006, in Pensacola, Florida.

APPEARANCES

For Petitioner: Britte Powers, pro se

106 Lakewo od Road

Pensacola, Florida 32507

For Respondent: Eric D. Schurger , Esquire

Assistant District Legal Counsel

Department of Children and

Family Services

District Legal Office

160 Governmental Center, Suite 601

Pensacola, Florida 32502 - 5734

STATEMENT OF THE ISSUE

Whether Petitioner was retaliated against due to testifying

by deposition in another employee’s employment discriminati on

lawsuit.

PRELIMINARY STATEMENT

On November 21, 2005, Petitioner, Brittie Powers, filed a

Petition for Relief with the Florida Commission on Human

Relations (FCHR), alleging that Respondent, Department of

Children and Family Services (Department), l aid her off work

because she gave testimony by deposition in a discrimination

lawsuit brought by a former employee, Linwood Scott. On

October 19, 2005, FCHR entered a determination that reasonable

cause existed to believe that an unlawful employment pract ice

had occurred. On November 29, 2005, Petitioner filed her

Petition for Relief. FCHR forwarded the Petition to the

Division of Administrative Hearings.

The parties filed a Prehearing Stipulation dated

February 14, 2006. The parties stipulated to the facts listed

below and as outlined in the FCHR determination at paragraphs

one through twelve in which Petitioner is designated as the

Complainant:

1. Complainant began her employment with

Respondent in February 1985. Complainant

worked as an Economi c Self Sufficiency

Specialist (ESSSII).

2. On January 11, 2005, Complainant was

deposed in connection with a lawsuit of

Linwood Scott, a former co - worker, against

Respondent.

3. During the deposition, Complainant

stated under oath that she felt that

Mr. Scott had been discriminatorily

terminated by Respondent. Furthermore,

Complainant explained how she had logged

into her computer using her password and P

number and then allowed another employee to

use her computer to help her with a problem

case. C omplainant explained that other

employees engaged in this practice and that

she did not report this to management

because she did not consider it to be a

violation of policy.

4. Employees of Respondent are given a

password and P number that they must e nter

into the computer when they log in. It is a

violation of Respondent’s security policy

for an employee to log in to his or her

computer using their password and P number

and then allow another employee to use the

computer, if the first employee does n ot

know what the second employee is doing on

the computer.

5. Complainant was asked to provide

documentation regarding password and P

number violations and any other computer

violation that she had knowledge of.

Complainant needed to review her case

m onitoring sheets and list of names in order

to do this. Complainant was told to request

time off from her regular duties in order to

compile the documents from Mamun Rashied,

District Operations Manager. Complainant

emailed Vickie Davis, Operations Progr am

Administrator, on January 11, 2005 for

advice as to what steps she needed to take.

7. On January 12, 2005, Complainant

received notification from Ms. Davis that

she was being placed on administrative

leave, effective immediately. Complainant

was di rected to leave the facility with only

her personal items, not any agency

documents.

8. Meanwhile the implementation of the

Economic Self Sufficiency (ESS) Services

Program Reform made it necessary to reduce

the number of the department’s authorized

po sitions. A statewide team established the

criteria used to assess ESS staff for

retention. A list was developed according

to the ranking of the staff that would be

retained, as well as staff that would be the

first to be laid off, if a lay off occurred.

On January 20, 2005, the final list

identifying staff to be laid off named

Complainant as the first ESSSII that would

be laid off.

9. Katie George, District Legal Counsel and

the District Contract Attorney, informed

Mr. Rashied, and Don Bell, Human Re sources

Specialist, that Complainant had admitted to

violating Respondent’s security rules during

her sworn deposition. On January 27, 2005,

Mr. Rashied notified Complainant that she

was being dismissed for cause for admitting

to violating Respondent’s co mputer security

policy. Complainant’s termination became

effective February 7, 2005.

10. Complainant filed an appeal with the

Public Employee Relations Commission (PERC),

and on March 23, 2005, PERC issued a

recommended order concluding that Responden t

did not have cause to terminate Complainant.

11. In a letter dated April 1, 2005,

Mr. Rashied notified Complainant that if the

PERC ordered her reinstatement, the

effective date of her layoff would be the

date of the proposed reinstatement.

12. On April 5, 2005, the PERC adopted the

hearing officer’s recommended order and

directed Respondent to reinstate Complainant

with back pay and benefits.

At the hearing, Petitioner testified in her own behalf and

introduced two exhibits into evidence. The Department offered

the testimony of four witnesses.

After the hearing , Respondent filed a Proposed Recommended

Order on April 10, 2006. Petitioner filed a Proposed

Recommended Order on April 3, 2006.

FINDINGS OF FACT

1. Amie Remington, Esqu ire, an attorney in private

practice, was hired as a contract attorney by the State of

Florida to represent the Department in an employment

discrimination lawsuit brought by Linwood Scott involving

computer security violations and lax enforcement of the

De partment’s computer security policy that resulted in loss of

State funds due to employee fraud . As part of the discovery in

the Scott case, Ms. Remington deposed Petitioner on January 11,

2005.

2. Prior to the deposition, Ms. Remington spoke with Katie

George, Chief Legal Counsel for the Department, and obtained

information as to all proposed witnesses, including Petitioner.

At this time, Ms. Remington received information that Petitioner

was identified for layoff.

3. Mamum Rashied, the Depa rtment’s former District

Operations Administrator, who retired on February 2, 2006,

managed the Department’s operations for the four counties in

District One; Escambia, Santa Rosa, Okaloosa, and Walton. As

District Operations Administrator, Mr. Rashied wa s the second

person in charge of the district with purview over the Economic

Self Sufficiency (ESS) Program. The ESS program was the program

in which Petitioner was employed at a salary of $1215.00 bi -

weekly.

4. During calendar year 2005, the ESS pr ogram underwent a

statewide reorganization resulting in the elimination of

approximately 42 percent to 43 percent of ESS positions through

layoffs in District One.

5. Petitioner, then an Economic Self - Sufficiency

Specialist II (ESSSII), was on the li st for layoff. Placement

on the layoff list was made based on a top - to - bottom ranking of

employees. Each employee was to be rated by the unit

supervisors and placed on the list in terms of their

retainability. The rating list was forwarded to the Operat ions

Manager for the Service Center. Each Service Center compiled a

ratings list which was then forwarded to the District Program

Office to be combined into one district list. Mr. Rashied

received a copy of the district list which contained the

Petitione r’s name sometime in December 2004.

6. The layoff listing process took approximately two

months and was in existence prior to the Petitioner giving her

deposition in the Linwood Scott case on January 11, 2005.

7. Prior to the layoffs, Departm ent personnel conducted

general sessions at the Service Center for all interested

employees to gain information as to the potential layoff

situation. However, Petitioner was unaware of these meetings

and apparently did not participate in them.

8. Du ring her deposition in the Scott case, Petitioner

testified that she had logged into her computer using her

password and P number and then allowed another employee to use

her computer to help her with a problem case. Petitioner had

permitted the use of he r computer in an effort to help the

employee process the information her center was required to

handle. Such aid and supervision was part of her duties as an

ESSSII. Petitioner did not believe that her actions violated

the security policy of the Departme nt. However, such action was

a violation of the Department’s computer security policy.

Petitioner’s testimony related to the fact that such activity

occurred often in her Department.

9. After her testimony, Petitioner was terminated on

January 27, 2005, effective February 7, 2005, prior to her being

laid off. The termination was the result of the Petitioner’s

violation of the Department’s computer security policy.

10. Petitioner was subsequently reinstated on April 5,

2005, following a rul ing by the Public Employee Relations

Commission (PERC) in favor of Petitioner, including payment of

back pay and benefits. The ruling did not find that Petitioner

had been retaliated against.

11. Immediately following reinstatement, Petitioner was

l aid off effective April 5, 2005, pursuant to the prior layoff

list which was still on - going. Importantly, if Petitioner had

not been terminated she would have been laid off.

12. Petitioner was subsequently rehired by the Department

as an Economic Se lf - Sufficiency Specialist I (ESS - I) on

September 2, 2005. The Petitioner’s personnel file indicated

that she had been laid off and was subject to rehire. Based on

a position opening and Petitioner’s qualifications, Petitioner

was rehired and continues in the ESS - I position to date.

13. Petitioner testified in her own behalf at the hearing.

She asserted that she thought she was retaliated against because

of her testimony in the Linwood Scott case. However, she

offered no other evidence to show such retaliation and such

supposition is insufficient to support a claim of retaliation.

Likewise, Petitioner did not offer any evidence that

Petitioner’s reasons for her initial termination and later

layoff were pretexts to cover unlawful retaliation. Since there

was insufficient evidence to support Petitioner’s claim of

retaliation, her Petition f or Relief should be dismissed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over both the parties to and subject matter of this

case. §§ 120.57(1) and 760.11(40(b), Fla. Stat. (2005).

15. Section 760.10(7), Florida Statutes (2005) provides as

follows:

It is an unlawful employment practice for an

employer, an employment agency, a joint

labor - management committee, or l abor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

a n investigation, proceeding, or hearing

under this section.

16. The burden of proof is on Petitioner to establish a

prima facie case of retaliatory discharge. Russell v. KSL Hotel

Corp. , 887 So. 2d 372, 379 (Fla. 3rd DCA 2004). If Petitioner

is able to establish a prima facie case, then the burden shifts

to the Department to proffer a legitimate, non - retaliatory

explanation for the termination and eventual layoff. Id. Guess

v. City of Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004).

The burden then returns to Petitioner “to prove by a

preponderance of the evidence that the “legitimate reason” was

merely a pretext for the prohibited, retaliatory conduct.”

Russell at 380. However, Petitioner, at all times, bears the

ultimate burden of proving b y a preponderance of the evidence

that the Department unlawfully retaliated against her. Guess at

846.

17. In this case, Petitioner failed to meet her burden of

proof to establish a prima facie case of retaliatory discharge.

The only evidence she o ffered was that she thought she had been

retaliated against and had not been told about being on the

layoff list prior to her termination. Such supposition is

insufficient to support a claim of retaliation. Moreover, the

evidence regarding both the reaso n for her initial termination

and reinstatement demonstrate she was not terminated for a

pretextual reason. The Department had legitimate concerns

regarding computer security and had a strict security policy.

The Scott case involved computer security vio lations and lax

enforcement of the Department’s computer security policy. Even

though Petitioner did not think her actions violated the

Department’s security policy, those actions did violate that

policy. The fact that the termination was not sustained b y PERC

does not refute the legitimacy of the Department’s rationale for

her termination.

18. Likewise, the evidence did not demonstrate that

Petitioner’s layoff was retaliatory. The evidence was clear

that the determination to lay Petitioner off w as made before her

testimony in the Scott case. That decision was made as part of

a program reorganization that affected 42 percent to 43 percent

of employees in that program. The timing of these events does

not establish either a prima facie case of ret aliatory discharge

or pretext to cover a retaliatory discharge. Therefore the

Petition f or Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human R elations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 16th day of May, 2006, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative He arings

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 16th day of May, 2006.

COPIES FURNISHED :

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 Parkway, Suite 100

Ta llahassee, Florida 32301

Brittie Powers

106 Lakewood Road

Pensacola, Florida 32507

Eric D. Schurger, Esquire

Department of Children and Family Services

160 Governmental Center, Suite 601

Pensacola, Florida 32501 - 5734

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.