05-004361 Demetria Sampson vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, September 29, 2006.

Summary: Petitioner did not state a prima facie case of race discrimination. No cause of action exists for discrimination on the basis of sexual orientation under Title VII, and she did not prove retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEMETRIA SAMPSON, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4361

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on April 10 and 11,

and June 15 and 16, 2006, in Gainesville, Florida, before the

Division of Administrative Hearings by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: D emetria Sampson, pro se 1/

133 South East 38th Street

Gainesville, Florida 32641

For Respondent: Lucy Goddard - Teel, Esquire

Department of Children

a nd Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602 - 0517

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on April 22, 2005.

PRELIMINARY STATEMENT

On April 22, 2005, Petitioner, Demetria Sampson, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) which alleged that the Department of Children

and Family Services violated Section 760.10, Florida Statutes,

by discriminating against her on the basis of race, sex, and

retaliation.

The allegations were investigated and on October 19, 2005,

FCHR issued its determination of "no cause" and Notice of

Determ ination: No Cause. A Petition f or r elief was filed by

Petitioner on November 21, 2005.

FCHR transmitted the case to the Division of Administrative

Hearings (Division) on or about November 30, 2005. A Notice of

Hearing was issued setting the case for formal hearing on

February 23, 2006. Respondent filed an unopposed Motion to

Continue which was granted. The hearing was rescheduled for

April 10 and 11, 2006. The hearing proceeded as scheduled, but

required additional d ays. The hearing continued on June 15

and 16, 2006, until its conclusion.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Patricia Alvarado, Wilfredo Gonzalez,

Donna Jordan, Robin Wing, Amanda Mash, Haydee Shanata, Mel issa

Delcher, Gerry West, Crystal Long - Lewis, Myrtle Hodges, Torry

Kingcade, Mireille Mackey, and Monica Felder. Petitioner

offered into evidence Exhibits numbered 1 through 37 which were

admitted into evidence with the exception of Exhibit 13.

Responden t presented the testimony of Haydee Shanata, Patricia

Alvarado, Wilfredo Gonzalez, Ester Tibbs, Mark Williams, Tom

Porter, Elaine Kennan, and Vickie Mixson. Respondent offered

Exhibits Numbered 1 through 30 which were admitted into

evidence.

Official Re cognition was taken of Florida Administrative

Code Rule 60L - 33.003 and Chapter 60L - 36.

A Transcript, consisting of four volumes, was filed on

May 23, 2006 , and on July 15, 2006. On July 27, 2006,

Respondent filed a Proposed Recommended Order. On August 8 ,

2006, Petitioner filed a request for extension of time in which

to file proposed orders. The request was granted. On

August 25, 2006, Petitioner filed a Proposed Recommended Order.

The parties' proposed orders have been considered in the

preparation o f this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American female who began her

employment with Respondent on May 7, 2004.

2. Respondent, the Department of Children and Family

Services (Department), is an employer within the meanin g of the

Florida Civil Rights Act.

3. At all times while she was employed by Respondent,

Petitioner worked as a child protective investigator ( CPI) and

was on probationary status. That is, she had not yet achieved

permanent status in the Career Service System and was an "at

will" employee.

4. After being hired as a CPI, Petitioner received

classroom pre - service training and computer training which is

provided to every new CPI. Following this initial training, new

CPI's are assigned a limited case lo ad, as was Petitioner.

Allegations of Race Discrimination

5. Wilfredo Gonzalez is a child protective investigator

supervisor (CPIS) and has been a supervisor for approximately 10

years. At all times material to this proceeding he was

Petitioner's imme diate supervisor. Mr. Gonzalez is an Hispanic

male.

6. After Petitioner was assigned cases, she received

additional on - the - job training and coaching by Mr. Gonzalez.

Other child protective investigator supervisors and experienced

CPI staff were also ava ilable to the Petitioner to answer

questions. The work of new CPIs is carefully scrutinized by

supervisors. T hey are expected to learn from mistakes and

become increasingly proficient at the job.

7. Mr. Gonzalez did not give Petitioner a semi - annual

per formance evaluation at the mid - point of her probation ary

period due to workload issues, although he was supposed to have

done so.

8. However, Mr. Gonzalez regularly met with Petitioner, in

his office and in hers, to discuss the progress of her cases and

t o advise her of areas in which she needed improvement. He also

provided e - mail comments and other instruction with regard to

her performance on specific cases as well as on Department

policy. He also provided her with reports from Respondent's

computer c ase system, HomeSafeNet, which showed whether or not

she was meeting certain performance standards. During these

communications with Petitioner, Mr. Gonzalez informed Petitioner

of problems with her performance.

9. In addition to Mr. Gonzalez, there are two other CPI Ss

in the Alachua County office of Respondent: Haydee Shanata and

Patricia Alvarado , who are white females . In instances in which

a person's immediate supervisor is unavailable, other CPI S s

review a CPI's work and deal with other office issu es.

10. Because of the n ature of the work involved, CPI s and

CP I S s have to work weekends, nights, and holidays. If a CPI

works at a time that his or her immediate supervisor is not on

duty, the CPI reports to the CPI S on duty at that time.

11. During the fall of 2004, Ms. Shanata prepared a

holiday "on - call" schedule for December 2004. This was done

with input from the other CPSI s. Leave was approved for certain

employees, including Petitioner, during the holidays. However ,

due to some CPI s being ou t due to illness, the holiday on - call

schedule had to be revised so that there would be sufficient

staff to cover the holidays.

12. The revisions in the holiday on - call schedule placed

Petitioner on - call on days that she originally did not have to

work. She was upset to see the revised on - call list. Upon

learning that she would have to work on days when she originally

was not scheduled, she called Ms. Shanata on her cell phone to

ask her about these changes. Ms. Shanata explained that the

changes were d ue to not having enough staff scheduled to cover

the work.

13. On December 10, 2004, Petitioner complained to

Mr. Gonzalez about the revised holiday on - call schedule. During

tha t meeting, Petitioner called CP I S Shanata a liar to

Mr. Gonzalez.

14. In add ition, Petitioner wrote an e - mail entitled "Poor

Holiday Planning." Petitioner s ent the e - mail to the three

CPIS s, Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado . T he e - mail

also copied their supervisor, Barbara Ross, and the District

Administrator, Ester T ibbs. The e - mail reads in pertinent part:

I am writing to express my total

dissatisfaction with the planning for the

holidays by the supervisors here at the

Alachua County office. It is apparent to

myself as a new employee and should have

been apparent t o the experienced supervisors

here at the Alachua County office that about

half of the current staff here is new. I

understand that there are some time

difficulties and that in the normal day of

conducting business that things can be

hectic as you are una ware of what may happen

however, there is no excuse for poor

planning and then FORCING a new investigator

to cover three on call shifts during both

Christmas and New Years holiday weekends

within a seven day work week when originally

being scheduled for on ly one day. As I know

that sometimes duty calls however, no

organization should infringe on the personal

lives of their employees. From this day on,

I will be sure not to make plans with my

son, as the s upervisors here in Alachua

County can easily cover their failure to

plan properly by dictating to me what time I

can spend with my family and when .

Also, I was told in a conversation with

Haydee Shanata when the schedules were

originally created that I did not want to

work any more back to back on - call days

(clarified by two days within a three day

period) and Haydee assured me that she would

not schedule me any more back to back days

and then I was randomly selected for two

additional on - call days which included both

Christmas and New Year weekends with out my

agreement.

This e - mail did not complain of race or sex discrimination. The

racial composition of those persons whose on - call schedule s were

changed i s not in evidence.

15. Mr. Gonzalez responded the same day with an e - mail

that read as follows :

Demetria at the writing of your email you

had 21 open cases. I was actually locking a

case. A case in which I was helping you by

going ahead and editing the evidence entries

and also entering the findings that you had

failed to enter. I was doing this because I

know you have been overwhelmed and also to

help you get some cases closed that you are

soon to roll - over so that you can attend the

conference next week. I locked that case

and now you have 20 open cases.

I try to provide as much support as

po ssible. Earlier this afternoon I pointed

out that Myrtle Hodges will be assisting you

with your cases so you can get over that

hump created by the number of cases you

received in Oct. In addition to that -- while

on - call supervisor for the month of Novembe r

I specifically limited the number of cases

the trainees would receive. In November you

were one of the CPI's with the fewest cases

at 9 total. This month CPIS Shanata worked

hard to try and prevent those staff who will

be here at the end of the month f rom

receiving a lot of cases. You are one of

those again who benefited. You have been

off rotation since Wednesday and as of today

you have received only one case for the

month of December. On - call is a function of

the CPI and CPIS position. This month s on -

call was an experience unlike any I've

experienced since being a supervisor. I

have been a supervisor for quite some time.

We limited the leave requests we approved.

In addition we tried to help persons plan by

preparing and presenting the schedule s in

advance. Since then we've had a CPI out on

extended leave as well as other action that

limited the number of staff available to

accept reports. Because of this we have had

to revise the schedule. No doubt that i n

the work we do, someone has to work holidays

and around the holidays. This IS a job that

in a sense infringes on our personal lives.

Every time I get a call in the middle of the

night to assist a CPI investigating a case

can be perceived that way but it is not.

It's my job. As superviso rs we do the best

we can and hopefully in the process we learn

along the way. Barbara has come to morning

meetings and indicated that when there are

concerns you should follow the chain of

command. Though you addressed the email to

me and the other super visors you copied

Barbara as well as Ester Tibbs. Give us the

chance to resolve the issues before you send

it up the chain of command. (emphasis in

original)

16. Incredibly, Petitioner responded with another e - mail

to Mr. Gonzales with copies to Ms. Sh anata, Ms. Alvarado, and

Ms. Ross, accusing the supervisors of being inconsiderate, not

courteous or professional, and that the supervisors "shoved it"

in her face.

17. On December 15, 2004, Petitioner wrote an apology for

th e choice of words she used in the series of e - mails regarding

the holiday on - call schedule and for violating the chain - of

command.

18. Mr. Gonzalez wrote a letter of co unseling dated

December 27, 2004 , to Petitioner regarding her unprofessional

behavior toward Ms. Shanata and the i nsubordinate and

disrespectful nature of her e - mails. Mr. Gonzalez admonished

her for not following the chain of command and reminded her that

she must treat her supervisors and co - workers with respect and

courtesy. He also reminded her that she was not a permanent

employee and that failure of her to use appropriate behavior

would result in her immediate dismissal.

19. The December 27, 2004, memo was the first time that

Mr. Gonzalez had issued a counseling memo to Petitioner .

Petitioner believes that he r e - mail complaining about the

holiday on - call schedule was the trigger for what she

inaccurately believes was retaliation.

20. Petitioner was scheduled to attend a conference in

January 2005. The conference, referred to as the Dependency

Summit, involv ed participants from throughout Florida and

involved discussions and training that was separate from th e

general training given to CPI s when they begin employment with

the Department. At some point, Petitioner's name was removed

from the list of persons a pproved to attend th e conference. Of

the seven CPI s approved to attend the conference, four were

African - American.

21. During the early months of 2005, both Mr. Gonzalez and

Ms. Shanata expressed concerns over Petitioner's work

performance. Ms. Shanata sent several e - mails to Mr. Gonzalez

documenting incidents in which Petitioner failed to respond to

her e - mails requesting information or directing action on a

case. Of particular concern was Petitioner's failure to contact

law enforcement on cases in whi ch law enforcement should have

been called, such as cases involving sex abuse allegations.

According to Ms. Shanata, if a criminal act has occurred, law

enforcement must be notified immediately and they then take the

lead in the case investigation. Mr. G onzalez had instructed

Petitioner on several occasions to involve law enforcement

immediately in certain types of investigations.

22. On March 7, 2005, Ms. Shanata received a telephone

call from Detective Sherry French of the Alachua County

Sheriff's Offi ce regarding cases assigned to Petitioner that

should have been referred to law enforcement, but had not.

Ms. Shanata's supervisor, Ms. Ross, instructed Ms. Shanata to

review Petitioner's cases which Detective French called her

about.

23. During her revi ew, Ms. Shanata became concerned about

Petitioner's handling of a case that involved a child who had

been taken to the hospital on December 31, 2004. In that case,

the child had tears to her vaginal area, which is an indication

of possible sexual abu se. Ms. Shanata noted that Ms. Alvarado

had "backed down" the case from being classified as an immediate

case to a 24 - hour case. In this type of case, it is important

that the Child Protection Team become involved immediately to

conduct their examination of t he child, as vaginal tears he al

quickly.

24. Ms. Shanata discussed this case with Ms. Alvarado who

recalled the circumstances of the case. According to

Ms. Alvarado, Petitioner informed Ms. Alvarado that the Child

Protection Team had seen the child, whic h led Ms. Alvarado to

authoriz e that the case be "backed down." Ms. Alvarado

considered receiving inaccurate information regarding a case of

this nature to be an extremely serious problem.

25. During her review, Ms. Shanata found other cases in

which Pet itioner had not followed Department policy and

operating procedures. Ms. Shanata reported her findings to her

supervisor, Ms. Ross, and to Mr. Gonzalez in an e - mail dated

March 10, 2005.

26. On March 24, 2005, Petitioner was directed to take a

child to t he Child Advocacy Center for a forensic interview.

However, she failed to do so.

27. In addition to these job performance issues,

Mr. Gonzalez and Ms. Shanata expressed concern that Petitioner

was habitually late to morning meetings at which cases are

presented and discussed.

28. On March 24, 2005, Mr. Gonzalez completed a

Performance Evaluation of Petitioner. Performance ratings range

from one to five points, with "5" being the highest rating in

any category. A rating of "2" means that the employee's

performance sometimes meets expectations and needs improvement.

Petitioner received a "2" rating in three performance

expectations. Her overall rating was a 2.70. A rating of "3"

means that an employee's performance consistently achieves

exp ectations.

29. On March 29, 2006, Mr. Gonzalez wrote a memorandum to

Marc Williams, District Operations Manager, detailing concerns

about Petitioner's work and recommending that Petitioner be

removed from her position. Mr. Williams is a white male.

3 0. Petitioner was reassigned to a non - CPI position on

March 26, 2005 . She received the same pay and benefits during

her period of reassignment.

31. Consistent with Department policy, the reassignment

was done abruptly and Petitioner was no longer a llowed access to

the Department's case management system.

32. Petitioner requested a meeting with Mr. Gonzalez and

Mr. Williams. Petitioner met with Mr. Gonzalez, Mr. Williams

and Bonnie Robison on March 29, 2005, to discuss the

Department 's concerns an d to give her a chance to present her

side of the story. Petitioner was presented with a copy of her

performance appraisal at this meeting. At the meeting,

Petitioner requested a list of the issues regarding her job

performance and an opportunity to resp ond to their concerns.

The meeting lasted two to three hours.

33. Petitioner was provided a bulleted list of concerns on

April 1, 2005 , which contained issues of concern that

Mr. Williams felt she had not adequately refuted at the

March 29, 2005, meeti ng. Petitioner provided a response on

April 6, 2005.

34. Probationary employees may be fired at will. The

employing agency only needs to notify the employee that he or

she has failed to complete the probationary period.

35. Although probationary emp loyees may be fired at will,

Mr. Williams does not lightly recommend dismissal of a CPI

investigator. However, Mr. Williams expects mistakes to

diminish over time and, in Petitioner's case, the mistakes had

not diminished and supervisors found that she wa s not receptive

to coaching. Further, Mr. Williams felt that they had reason to

doubt Petitioner's word. He recommend ed Petitioner's dismissal

to Ester Tibbs.

36. Ester Tibbs is the District 3 Administrator of the

Department. She has the final aut hority in making the decision

with regard to whether or not to terminate an employee.

Ms. Tibbs is an African - American woman.

37. According to Ms. Tibbs, she expects supervisors and

managers to present compelling reasons as to why a probationary

CPI should not be retained in a permanent status. This is

because recruitment and training of CPI s are costly and

terminating a probationary CPI interrupts investigations and

add s to the workloads of other CPI s. In order to make the

decision to terminate th e employee, she must be convinced that

the Department has provided appropriate training, necessary

coaching, and support and that, despite their best efforts, she

is convinced that the employee cannot carry out the demands of

the job. Ms. Tibbs approved P etitioner 's termination .

38. On March 31, 2005, Petitioner filed a Career Service

Employee Grievance seeking reinstatement of employment, and

modification of her performance appraisal. The grievance

alleges that she had been harassed by Mr. Gonzal ez, Ms. Shanata ,

and Ms. Alvarado ; that she disagreed with her performance

appraisal; and that she was discriminated against based on

sexual orientation on July 1, 2005. The grievance does not

allege race discrimination.

39. As a probationary employ ee, Petitioner was not

entitled to a grievance process regarding her dismissal. The

record is not clear as to whether Petitioner should have been

provided an opportunity to grieve the portion of her grievance

relating to her performance appraisal, since s he had already

been informed she was being terminated at the time she filed the

grievance. In any event, there is no evidence that not granting

her request for a grievance process was based upon race.

Other Employees in the Alachua County Office of Resp ondent

40. Amanda Mash is a senior CPI with five years experience

and permanent career service status. Ms. Mash is a white

female. She was frequently late to morning meetings. However,

if she was going to be late for a morning meeting, she called to

let her supervisor know that she would be late. She has turn ed

in cases late. She has not received disciplinary action.

41. Ms. Mash never called a supervisor late at night and

failed to inform of critical information; never failed to take a

child to a child advocacy center ap pointment when asked to do

so; never failed to respond to e - mails from supervisors aski ng

information about cases; never neglected to submit her files to

her su pervisor when required to do so; and never called her

supervisor a li ar.

42. Melissa Delcher is a CPI and is a white female. In

February 2005, she interviewed a child in a case that was not

assigned to her. The case was assigned to Petitioner. The

child had disclosed to Ms. Delcher that he had been hit, but she

did not see any visible signs of injury. According to

Ms. Delcher, she did not contact the child protection team or

law enforcement because the case was not assigned to her.

43. Crystal Long - Lewis, a n African - American female, was

secretary for Mr. Gonzalez fro m July 2003 through April 2005.

She was terminated from her position for conduct unbecoming a

state employee and falsifying documents. She was a permanent

career service employee at the time of her termination. It is

Ms. Long - Lewis's perception that she was not treated fairly

because of her race and her young age. She believed that th ere

was favoritism of white CPI s over non - minority CPIs.

44. Myrtle Hodges, a n African - American female, became a

probationary CPI when her other job with the Department wa s

privatized. She received a below standards evaluation and was

encouraged to resign rather than face termination. When asked

was it possible that she was terminated based upon her race, she

responded, "N o, I don't think I was terminated on race."

45. T orrey Kincade , an African - American male, was a CPI in

the Alachua County office until he was transferred to another

city where he currently works for Respondent. His supervisor

while in Alachua County was Ms. Alvarado. He believes that when

he worked for Ms. Alvarado, that she targeted him by giving him

more tasks and "riding him" harder than a non - minority CPI. He

believes he was held to a different standard regarding the dress

code. He also believes that he did not receive as high a pay

increase as hi s coworkers, who did not testify. There was no

evidence presented as to employees' salaries or amount of pay

increases for Mr. Kincade or any of his coworkers.

46. Regarding his perception of the office while he worked

under Ms. Alvarado's supervision, he stated , "I definitely -- I

can't say its discriminatory behavior, but I could say that each

minority in the office was at one point targeted."

47. Monica Felder is a n African - American female who was

employed by the Department for approximately a year a n d a - half.

She was terminated from employment in January 2006 for personal

misuse of the cell phone issued to her by the Department and

failure to reimburse the Department for the personal calls. As

a permanent career service employee, she appealed her di smissal

to the Public Employees Relations Commission which affirmed her

dismissal. In March 2005, Ms. Felder had received a

satisfactory performance appraisal from Ms. Alvarado.

Ms. Alvarado made positive comments on Ms. Felder's March 2005,

performance evaluation.

48. In January 2004, an employee of Respondent sent an e -

mail to Ms. Tibbs regarding concerns about Ms. Alvarado,

including an allegation of racism. Ms. Tibbs determined that an

internal investigation was needed, and one was conducted. The

investigative report concluded that while certain employees held

this perception, there was no evidence that Ms. Alvarado

targeted anyone based on race. The remaining allegations

concerned Ms. Alvarado's management style.

Allegation of Sex Discrimi nation

4 9 . In July 2004, Mr. Gonzalez was approached by another

CPI in his unit. Mr. Gonzalez was informed by the CPI that

Petitioner had been seen hugging another female CPI in her

office in a "romantic way." He instructed that person not to

repeat th at information and then conferred with his supervisor

at that time, Lori Walker.

50. As a result of hearing this allegation, Mr. Gonzalez

called Petitioner into his office and told her that there was a

rumor in the office that she was having a relationsh ip with

another female employee, that her conduct needed to be

professional, and that she should keep her door open when that

CPI was in her office.

CONCLUSIONS OF LAW

51 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

5 2 . Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

ra ce or sex.

Race Discrimination

5 3 . In discrimination cases alleging disparate treatment,

the P etitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Depart ment of Community

Affairs v. Burdine , 450 U.S. 248 (1981). 2/ Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , Petitioner, is able to m ake out a

prima facie case, the burden to go forward 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)

(court discuss es shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The employee

must then come forward with specific evidence demonstrating that

the reasons given by the employer are a pretext for

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason mo re 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 , supra at 1186;

Alexander v. Fulton County, Georgia , supra . Petitio ner has not

met this burden.

54 . Petitioner claims she was terminated and not offered a

permanent position because of race discrimination. To establish

a prima facie case of race discrimination, she must prove that

(1) she is a member of a protected clas s ( e.g. , African -

American); (2) she was subject to an adverse employment action;

(3) her employer treated similarly situated employees, who are

not members of the protected class, more favorably; and (4) she

was qualified for the job or benefit at issue. See McDonnell ,

supra ; Gillis v. Georgia Department of Corrections , 400 F.3d 883

(11th Cir. 2005) .

5 5 . Petitioner established the first two elements in that

she is African - American and that she was subject to adverse

employment discrimination in that she w as terminated from her

job.

56 . However, she has not provided sufficient evidence that

the non - minority employees with whom she compares her treatment

were similarly situated in all aspects or that their conduct was

of comparable seriousness. Holifield v . Reno , 115 F.3d 1555,

1563. 115 F.3d 1555 (11th Cir. 1997)

57 . Ms. Mash, a white CPI, was a permanent employee who

had not been accused of the type of conduct for which Petitioner

was terminated. While M s . Mash was late to morning meetings,

she called her supervisor on such occasions. Moreover, the fact

that Petitioner was often late to morning meetings was not the

primary reason that she was terminated.

5 8 . Ms. Delcher described circumstances of a single case

in which she interviewed a child who re ported abuse and in which

she did not contact law enforcement . However, she was not the

assigned investigator . Neither she nor Ms. Mash was accused of

conduct of comparable seriousness as Petitioner and are not

similarly situated for purposes of establis hing a prima facie

case. Id.

59 . While there was testimony by Mr. Kincade and Ms. Long -

Lewis that they believe racial discrimination exists,

generalizations are insufficient to establish a prima facie case

with regard to Petitioner. See Holifield a t 1563.

60 . Moreover, other than her testimony that she disagreed

with her performance appraisal, Petitioner did not present

competent evidence to prove the fourth component of establishing

a prima facie case regarding her being qualified for the job.

"W hen the employer produces performance reviews and other

documentary evidence . . . that demonstrate poor performance, an

employee's assertions of his own good performance are

insufficient in the absence of other evidence." Holifield at

1565.

6 1 . Applyi ng the McDonnell analysis, Petitioner did not

meet her burden of establishing a prima facie case of

discriminatory discharge. Even assuming that Petitioner had

demonstrated a prima facie case of discriminatory discharge, the

Department demonstrated a legi timate, non - discriminatory reason

for recommending her termination. That is, she was terminated

because of problems in her case work, failure to follow

directives, misrepresenting facts to a supervisor, and questions

about her credibility.

6 2 . Even if it were necessary to go to the next level of

the McDonnell analysis, Petitioner did not produce any evidence

that the Department's legitimate reasons were pretext for

discrimination. Therefore, Petitioner has not met her burden of

showing that a discrimin atory reason more likely than not

motivated the decisions to terminate Petitioner or by showing

that the proffered reason for the employment decision is not

worthy of belief. Consequently, Petitioner has not met her

burden of showing pretext.

6 3 . It is notable that Mr. Williams gave Petitioner an

opportunity to discuss in detail during a two - to - three - hour

meeting, the reasons for her termination and to allow her an

opportunity to rebut those reasons. As a probationary employee,

she was not entitl ed to such a meeting or an opportunity to

rebut their concerns, but was given that opportunity anyway.

6 4 . In summary, Petitioner has failed to carry her burden

of proof that Respondent engaged in racial discrimination toward

Petitioner when it terminated her.

Allegation of Sex Discrimination

6 5 . Petitioner's allegation of sex discrimination was

based on an incident which had to do with her alleged sexual

orientation. That is, Petitioner asserts that in July 2004, her

supervisor, Mr. Gonzalez, called he r into his office to advise

her that it had been reported that she was seen in her office

hugging a female co - worker in a romantic way. As a result,

Mr. Gonzalez instructed Petitioner to keep her door open. The

facts of this case are completely different from one in which

sexual harassment is alleged when the harasser and the harassed

employee are of the same sex. Cf . , O n cale v. Sundowner Offshore

Services, Inc. , 523 U.S. 75, 118 S. Ct. 998 (1998).

6 6 . These allegations do not constitute anything tha t is

actionable under Title VII or Florida's Civil Rights Act.

"Clearly, sex and sexual orientation are not the same, the

former referring to one's biological makeup as a man or a woman,

the latter referring to one's mating preferences." Mowery v.

Escamb ia County Utilities Authority , 2006 U.S. Dist. LEXIS 5304,

(D. Fla. 2006). Other courts have consistently ruled that Title

VII's proscription on discrimination based on sex does not

extend to sexual orientation. See , e.g. , Vickers v. Fairfield

Medical Ce nter , 453 F. 3d 757, 762 (6th Cir. 2006) ( " sexual

orientation is not a prohibited basis for discriminatory acts

under Title VII"); Bibby v. Philadelphia Coca Cola Bottling Co. ,

260 F. 3d 257, 261 (3d Cir. 2001) ("Title VII does not prohibit

discrimination ba sed on sexual orientation." ) Simonton v.

Runyon , 232 F.3d 33, 35 (2d Cir 2000) ("Title VII does not

prohibit harassment or discrimination because of sexual

orientation. " )

6 7 . As noted by the Mow e ry Court, The Eleventh Circuit has

not directly addressed this question, but commented in Fredette

v. BVP Management Assocs. , 112 F. 3d 15 03, 1510 (11th Cir. 1997 )

"We do not hold that discrimination because of sexual

orientation is actionable." Moreover, a supervisor telling a

subordinate to keep her door open does not constitute harassment

or discrimination.

Retaliation

6 8 . Petitioner's charge of retaliation is based upon her

complaining about the Holiday work schedule being changed. That

is, Petitioner claims that after she wrote the e - mail about the

holida y schedule changes, she alleges that she was retaliated

against. There is nothing in her e - mail that reflects a

complaint about discrimination. There is no evidence that she

engaged in protected activity in the e - mail complaining about

the holiday on - cal l schedule to support a charge of retaliation.

69 . To make a prima facie case of retaliation, Petitioner

must show that she engaged in protected activity, that she

suffered adverse employment action, and that there is some

causal relation between the prot ected activity and the adverse

employment action. Casiano v. Gonzales , 2006 U.S. Dist. Lexis

3593 (N.D. Fla. 2006); Jeronimus v. Polk County Opportunity

Council, Inc. , 2005 U.S. App. Lexis 17016 (11th Cir. 2005).

Petitioner has not produced any evidence that she was retaliated

against.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 2 9 th day of September, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 2 9 th day of September, 2006.

ENDNOTES

1/ At hearing, Petitioner was assisted by Kevin Robinson,

Esquire, on April 10 and 11, but not on June 15 and 16, 2006.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions o f Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

COPIES FURNISHED :

Demetria Sampson

708 Landing Pointe

Stockbridge, Georgia 30281

Lucy Goddard - Teel, Esquire

Department of Children

and Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602 - 0390

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, Florida 32301

John D. Copelan, General Counsel

Department of Children

and Family S ervices

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

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

t o this Recommended Order should be filed with the agency that

will issue the final order in this case.