06-000592 Gennie C. Bagley vs. City Of Tampa, Florida Status: Closed Recommended Order on Tuesday, August 15, 2006.

Summary: Respondent did not discriminate against Petitioner based on her race. She was terminated for insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENNIE C. BAGLEY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0592

)

CITY OF TAMPA, FLORIDA , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on June 14 , 2006, in Tampa , Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Jason L. Odom, Esquire

Thompson, Sizemore & Gonzalez, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33601

For Respondent: Robert F. McKee, Esquire

Kelly & McKee

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner based on Petitioner ' s race.

PRELIMINARY ST ATEMENT

On July 26, 2005, Petitioner, Gennie C. Bagley

( Ms. Bagley), filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (Commission),

alleging that Respondent, City of Tampa, Florida (City),

terminated her employ ment with the City based on her race. The

Commission investigated the allegations and, on January 20,

2006, entered a Determination: No Cause to believe that the

City discriminated against Ms. Bagley.

On February 13, 2006, Ms. Bagley filed a Petition f or

Relief, alleging that she " was terminated, at least in part,

based on her race. " On February 15, 2006, the petition was

forwarded to the Division of Administrative Hearings for

assignment of an administrative law judge. The case was

originally assigne d to Administrative Law Judge Carolyn S.

Holifie l d and was reassigned to Administrative Law Judge

Susan B. Harrell to conduct the final hearing.

The parties entered into a Joint Pre - Hearing Stipulation

and agreed to certain facts contained in Section E of the Joint

Pre - Hearing Stipulation. Those facts are incorporated into this

Recommended Order to the extent relevant.

At the final hearing, Ms. Bagley testified in her own

behalf and called the following witnesses: Dawn Marie Colvin,

Linda D. Coomey, and John Skop, Jr. Petitioner ' s Exhibits 2

through 13 and 18 were admitted in evidence. At the final

hearing, the City called Larry Michael Can e lejo and Curtis Lane

as its witnesses. Respondent ' s Exhibits 1, 2, 4 through 11, 13

through 18, 21, and 22 were a dmitted in evidence.

The one - volume Transcript of the final hearing was filed on

July 6, 2006. At the final hearing, the parties agreed to file

their proposed recommended orders within ten days of the filing

of the Transcript. On July 7, 2006, Ms. Bagley filed

Petitioner ' s Unopposed Motion for Extension of Time to file

proposed recommended orders. The motion was granted, and the

time for filing proposed recommended orders was extended to

July 31, 2006. The parties timely filed their proposed

recommended orders, which have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Ms. Bagley , an African - American, was employed by the

City from 1987 until her termination on July 9, 2004. At the

time of her termination, she was employed as a C ode E nforcement

O fficer II.

2. On Monday, March 15, 2004, 1 Ms. Bagley called her

supervisor, Larry Canelejo (Mr. Canelejo), and advised him that

she would be late to work because she had to assist her mother.

Mr. Canelejo approved her absence.

3. M s. Bagley ' s normal work hours on March 15, 2004, were

8 a.m. to 5 p.m. , Monday through Friday. On March 15, 2004,

s he arrived to work at 11 a .m. She did not work through her

lunch on that day or stay later to make up the time that she was

late.

4. On T hursday, March 18, 2004, Ms. Bagley turned in a

time and attendance sheet showing that she had worked from

8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked

Ms. Bagley to turn in a leave slip for the time that she was

absent on March 15, 200 4. Ms. Bagley did not turn in a leave

slip, and Mr. Canelejo sent an e - mail to Ms. Bagley on March 18,

2004, requesting that she do so and indicating that disciplinary

action would result for her failure to do so.

5. Instead of turning in a leave slip fo r her three - hour

absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief

of Staff, complaining that she had been requested to submit a

leave request for time she was absent from work when other

workers who were absent were not required to submit a l eave

request for their absence.

6. On the morning of Friday, March 19, 2004, Mr. Canelejo

sent another e - mail to Ms. Bagley requesting that she submit her

time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the

time card that she had previously s ubmitted and covered her

signature with white - out. She did not submit a leave slip as

requested by her supervisor. Mr. Canelejo marked on

Ms. Bagley ' s time sheet that she was absent without leave for

three hours on March 15, 2004, and submitted a leave s lip for

Ms. Bagley showing that she was absent without leave for that

time. The time card and leave slip was later changed by the

City ' s personnel office to sick leave for others.

7. On March 17, 2004, Mr. Canelejo received a complaint

from the general m anager of Wendy ' s Restaurant located on North

15th Street in Tampa, Florida. The general manager advised

Mr. Canelejo that Ms. Bagley had come into the restaurant on

three separate occasions demanding that she be given free food

for food that she had purc hased which she felt was bad.

Ms. Bagley did not have receipts for the previously - purchased

food, and indicated that other managers in the store had told

her that she could get free replacements for the bad food. The

general manager advised Mr. Canelejo that other managers at

Wendy had not given authorization for Ms. Bagley to receive free

food. A co - manager at Wendy ' s also wrote to the City confirming

Ms. Bagley ' s actions in getting free food.

8. The City ' s Department of Code Enforcement received a

let ter dated March 31, 2004, from Hazel Hill, who was the sales

floor supervisor at Martin ' s Uniforms Retail Store (Martin ' s

Uniforms). The City had a contract with Martin ' s Uniforms to

supply uniforms and related items to City employees, including

code enfo rcement employees. Ms. Hill related an incident

involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the

store, requesting to return some shirts and pants, which she

claimed to have received from Martin ' s Uniforms as part of the

2004 uniform allotm ent. Ms. Hill inspected the garments and

determined that the uniforms could not have been received as

part of the 2004 order because the shirts were not the same

style as those that had been sent. The 2004 shirts were made of

gabardine with two new - style patches, one on each arm. The

shirts that Ms. Bagley was attempting to return were made of

poplin with only one patch, which had been discontinued. The

shirts also appeared to have a yellow tint, which could be

attributed to age. The pants which Ms. Ba gley was attempting to

return had been altered in the waist. The pants which had been

sent with Ms. Bagley ' s 2004 uniform order were not altered in

the waist.

9. Ms. Hill also advised that the incident concerning the

2004 uniform order was not the first time that Ms. Bagley had

attempted to exchange old merchandise. About four months

earlier, Ms. Bagley had tried to return an old jacket for a new

one, but Ms. Hill refused to make the exchange. The previous

year, Ms. Bagley came to exchange a pair of sh oes for which she

had no receipt and for which no record of the purchase could be

found at the store .

10. On July 9, 2004, the City dismissed Ms. Bagley from

her employment . The final decision to terminate Ms. Bagley ' s

employment was made by the Director of Code Enforcement, Curtis

Lane, who is an African - American. Mr. Lane based his decision

on Ms. Bagley's failure to submit a leave request for the three

hours that she was absent on March 15, 2004 ; submission of a

time sheet showing that she worked eigh t hours on March 15,

2004 ; the complaints from the employees at a Wendy ' s r estaurant

that Ms. Bagley had requested free food while she was in a City

c ode enforcement uniform ; and the complaint from Martin ' s

Uniforms that Ms. Bagley tried to get new uniform s by falsely

claiming that she was not sent the correct uniforms in her 2004

uniform order. The allegations against Ms. Bagley were

investigated by City staff, and, based on the results of the

investigation s , Mr. Lane believed the allegations against Ms.

Bagley and felt that Ms. Bagley ' s action s demonstrated a lack of

honesty and integrity, two traits which are essential for a code

enforcement officer .

11. At the time of her termination, Ms. Bagley ' s

employment with the City was subject to a collective ba rgaining

agreement between the City and Amalgamated Transit Union. The

collective bargaining agreement provided a grievance and

arbitration procedure.

12. Ms. Bagley filed a grievance contesting her

termination, which she submitted to final arbitration. On

February 15, 2005, an evidentiary hearing was held on

Ms. Bagley ' s grievance before arbitrator Genellen Kelly Pike.

On June 15, 2005, Ms. Pike denied Ms. Bagley ' s grievance.

13. On July 26, 2005, Ms. Bagley filed a charge of

discrimination with the Commission, claiming that she was

terminated from her employment with the City on account of her

race.

14. Ms. Bagley claims that she was discriminated against

based on her race because other employees of the Code

Enforcement Department were allowed to come in late and either

to make up the time on their lunch hours or after work or to not

have to make up the time at all. Mr. Canelejo did have a

practice of allowing employees to make up their time if they

were 15 to 30 minutes late for work. The time c ould be made up

during the employee ' s lunch hour or at the end of the employee ' s

regularly scheduled work day. There was no practice or policy

allowing employees to make up absences as long as three hours

rather than requiring them to submit leave slips f or the missed

time. Ms. Bagley claims that both African - American and

Caucasian employees were allowed to make up missed work.

15. Not all employees in the Code Enforcement Department

had the same work schedule. Some employees worked ten - hour

shifts, Sun day through Wednesday; some employees worked

7:30 a.m. to 4:30 p.m., Monday through Friday; and some

employees worked 8 a.m. to 5 p.m., Monday through Friday. Some

employees were required to attend neighborhood meetings at night

after their regularly sche duled hours, and were allowed to

adjust their work schedule to avoid overtime as a result of the

meetings at night. The code inspectors used City - owned vehicles

in making their inspections. The vehicles were parked in a

central location, and the employee s pick ed up the City vehicles

each day. Sometimes an inspector would schedule an inspection

at the beginning of the inspector ' s shift. The inspector was

not required to report into the office prior to making the

inspection, but could pick up the City veh icle and leave from

the parking lot.

16. Ms. Bagley took it upon herself to begin keeping notes

on when the inspectors would arrive at the office. She noted

that some of the inspectors, both African - American and

Caucasian, did not arrive at the office at the beginning of

their regularly scheduled shift. However, Ms. Bagley had no

knowledge if these inspectors had attended a night meeting

during that week, if the inspectors had gone to an inspection

prior to coming to the office, or if the inspectors had made up

their tardiness by either working during their lunch hours or

after the end of their regularly scheduled shift. Ms. Bagley

just assumed that these employees were not putting in 40 hours

per week. She produced no evidence at the final hearing that

there were other employees who claimed they worked 40 hours per

week, when they did not and were allowed to do so without taking

leave. She presented no evidence at the final hearing that

African - American employees were treated differently than

Caucasian employees. In fact, she claims that both African -

American and Caucasian employees were allowed to come in late

without having to submit a leave slip for the missed time.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction o ver the parties to and the subject matter of these

proceedings. §§ 120.569 and 120.57(1), Fl a . Stat. (2005). 2

18. Subsection 760.10(1)(a), Florida Statutes, provides

that it is unlawful for an employer to discharge or otherwise

discriminate against an em ployee with respect to compensation,

terms, conditions, or privileges of employment, based on the

employee ' s race, gender, or national origin. In the instant

case, Ms. Bagley alleges that the City terminated her employment

based on her race.

19. Subsecti on 760.11(1), Florida Statutes, provides that

" any person aggrieved by a violation of ss.760.01 - 760.10 may

file a complaint with the commission within 365 days of the

alleged violation. " The time for filing a charge of

discrimination with the Commission b egins to run at the time of

termination, which is a discrete act. The pendency of a

grievance does not toll the time for filing the charge of

discrimination. See Delaware State College v. Ricks , 449 U.S.

250 (1980).

20. Ms. Bagley ' s employment was termi nated on July 9,

2004. She filed her charge of discrimination with the

Commission on July 26, 2005. She f a iled to file her charge of

discrimination within 365 days of her termination, which she

alleges is the unlawful employment practice. Thus, her peti tion

should be dismissed for failure to comply with Subsection

760.11(1), Florida Statutes.

21. Even if Ms. Bagley had timely filed her charge of

discrimination, she failed to establish that the City

discriminated against her based on her race.

22 . I n ev aluating claims arising under Section 760.10,

Florida Statutes , federal laws against discrimination may be

used for guidance . See Brand v. Florida Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); and Florida Dept. of Community

Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

2 3 . In McDonnell Douglas Corp. v. Green , 4ll U.S. 792,

802 - 03 (1973), the United States Supreme Court articulated a

burden of proof scheme for cases involving allegations of

discrimination under Title VII, where, as here, P etitioner

relies upon circumstantial evidence of discriminatory intent.

The McDonnell Douglas decision is persuasive in this case, as is

St. Mary ' s Honor Center v. Hicks , 509 U.S. 502, 506 - 07 (1993),

in which the Court reiterated and refined the Mc Donnell Douglas

analysis.

2 4 . Pursuant to this analysis, Petitioner has the initial

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. Failure to

establish a prima facie case of discrimination ends th e inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA),

aff ' d , 679 So. 2d 1183 (1996) . If, however, Petitioner succeeds

in making a prima facie case, then the burden shifts to

Respondent to articulate some legitimate, nondiscriminatory

reason for its conduct.

2 5 . If Respondent carr ies the burden of rebutting

Petitioner ' s prima facie case, then Petitioner must demonstrate

that the proffered reason was not the true reason , but merely a

pretext for discrimination. Hicks , 509 U.S. at 50 6 - 07 ;

McDonnell Douglas , 411 U.S. at 802 - 03.

2 6 . In order to establish a prima facie case of an

unlawful employment practice in the instant case, Ms. Bagley

must establish that: (1) she is a member of a protected class;

(2) she was qualified for the empl oyment as a code enforcement

officer ; (3) she was terminated from her employment; and (4) the

City treated similarly situated employees outside her protected

class more favorably than she was treated . See Burke - Fowler v.

Orange County, Florida , 447 F.3d 1 319, 1323 (11th Cir. 2006) .

2 7 . Ms. Bagley failed to establish a prima facie case of

an unlawful employment practice. She established that she was

an African - American and therefore a member of a protected class.

She established that she was qualified to work as a code

enforcement officer and that she was terminated from her

employment. She failed to establish that others outside her

protected class were not terminated when they refused to submit

a leave slip for a three - hour absence or that others outsi de her

protected class were not required to submit a leave slip for a

three - hour absence.

2 8 . The evidence did establish that members of

Ms. Bagley ' s protected class and members outside her protected

class were treated similarly when it came to leave. Bo th

African - American s and Caucasians were allowed to make up time

when the tardiness or absence was of short duration. Both

African - Americans and Caucasians were required to submit leave

slips for absences of the duration of Ms. Bagley ' s absence.

Ms. Bagl ey claims that certain employees habitually came into

the office later than the beginning of their scheduled shifts.

However, she did not establish that the employees who came to

the office after the beginning of their shift were working less

than 40 hour s per week. She did not know if those employees had

other official duties which required them to work beyond their

regularly scheduled shifts or if the employees had made

inspections prior to coming into the office. Thus, she has

failed to establish that those employees were similarly situated

to her.

29. Even if Ms. Bagley had established a prima facie of

discrimination, the City presented legitimate, non -

discriminatory reasons for terminating her employment.

Ms. Bagley was insubordinate by failing t o submit a leave slip

when she was directed to do so by her supervisor. She falsified

her time sheet by indicating that she worked eight hours when

she came to work three hours late. Complaints were made against

Ms. Bagley by employees at Wendy ' s for req uesting free food

while in her code enforcement officer uniform. A complaint was

made against Ms. Bagley by a sales supervisor at Martin ' s

Uniforms. The allegations were investigated and were felt to be

true by Mr. Lane who made the final decision to ter minate

Ms. Bagley. Ms. Bagley has failed to establish that the reasons

proffered by the City for her termination were a pretext for

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal order be entered dismissing the

petition because the charge of discrimination was not filed

timely and because Ms. Bagley failed to establish that the City

discriminated against her based on her race.

DONE AND ENTER ED this 15th day of August , 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August , 2006 .

ENDNOTE S

1/ The City claims that Ms. Bagley reported late for work on

Monday, March 15, 2004, and Ms. Bag ley claims that she reported

late for work on March 16, 2004. Neither party disputes that

she reported to work late one day during the week on March 15,

2004. For purposes of this Recommended Order, the day that

Ms. Bagley reported three hours late for w ork is found to be

March 15, 2004.

2 / Unless otherwise stated, all references to Florida Statutes

are to the 200 5 version.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahas see, Florida 32301

Robert F. McKee, Esquire

Kelly & McKee

Post Office Box 75638

Tampa, Florida 33675 - 0638

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 3360 1

Jason L. Odom, Esquire

Thompson, Sizemore, & Gonzalez, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33601

Cecil Howard , General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahasse e, 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 is sue the final order in this case.