06-002460 Veronica Tolbert vs. Leon County Property Appraiser Status: Closed Recommended Order on Friday, November 3, 2006.

Summary: Petitioner failed to prove a prima facie case of racial or sexual discrimination or a hostile work environment, where a single comment did not result in any employment decision. A discussion of time bar is also included.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA TOLBERT, )

)

Petitioner, )

)

vs. ) Case No. 06-2460

)

LEON COUNTY PROPERTY APPRAISER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

cause on September 8, 2006, in Tallahassee, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Veronica Tolbert, pro se

Post Office Box 180842

Tallahassee, Florida 32318

For Respondent: Robert J. Sniffen, Esquire

Roger C. Salmonsen, Esquire

Sniffen Law Firm, P.A.

211 East Call Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful

employment practice by discrimination in its failure to promote

Petitioner on the basis of her race and/or gender.

PRELIMINARY STATEMENT

On December 28, 2005, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR). This Charge alleged that Respondent, the Leon County

Property Appraiser, had discriminated against her, based upon her

race, which is African-American, and her sex [grammatically, her

gender], which is female, because he did not promote her. On

June 22, 2006, FCHR entered a Determination: No Cause.

Petitioner timely filed a Petition for Relief, and on or

about July 14, 2006, the cause was referred to the Division of

Administrative Hearings.

Respondent's Motion for Summary Final Order was denied by an

August 18, 2006, Order.

At the disputed-fact hearing on September 8, 2006,

Petitioner testified on her own behalf and presented the oral

testimony of Beth Garrett and Shirley Eaton-Marks. Petitioner

had five exhibits admitted in evidence. Respondent presented the

oral testimony of Michelle Weathersby, Shirley Eaton-Marks, Bert

Hartsfield, and Kathy Doolin and had four exhibits admitted in

evidence. Joint Exhibits, A, B, and C, were also admitted in

evidence.

The parties entered into stipulations of fact, which have

been adopted.

A Transcript was provided on September 20, 2006.

Each party timely filed a Proposed Recommended Order, which

has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African-American female.

2. Respondent is a constitutional office of local

government that appraises property for tax purposes.

3. At hearing, Petitioner claimed to have sent a written

narrative of her concerns to FCHR on December 20, 2005, although

she did not file her formal Charge of Discrimination until

December 28, 2005. 1/

4. At the commencement of the disputed-fact hearing,

Petitioner indicated that the only issue to be determined was her

entitlement to a promotion, and that no other discrimination

claims were at issue in this case. Petitioner also indicated

that she was challenging only two alleged promotional decisions:

(1) a front counter position awarded to Valencia Scott; and (2)

a sales qualifier position awarded to Mike Nichols. 2/

5. Prior to being employed by Respondent, Petitioner had

received a B.S. in criminal justice, with a minor in business

administration, from Troy State University.

6. Prior to being employed by Respondent, Petitioner

worked as a substance abuse counselor with Corrections

Corporation of America; as a regulatory specialist with the

Florida Department of Business and Professional Regulation; as

an evaluation specialist with Disc Village; as a drug treatment

counselor with the Alabama Department of Corrections; and as a

mental health associate with Tallahassee Memorial Hospital.

During her employment with Respondent, Petitioner also worked

part-time in a cleaning job.

7. Petitioner was initially hired by Respondent

approximately January 2003, as an “Other Personal Services”

(OPS) employee. (Stipulated Fact). While serving as an OPS

employee between January 2003, and October 2003, Petitioner was

not entitled to, and did not receive, the usual benefits and

emoluments of a regular, full-time employee, including but not

limited to, membership in the Florida Retirement System, paid

annual and sick leave, and health insurance.

8. While employed as an OPS employee, Petitioner answered

Respondent’s telephone switchboard and performed data entry

duties.

9. In approximately October 2003, Petitioner was employed

in a full-time position at a higher rate of pay and full

benefits. (Stipulated Fact.) In October 2003, Respondent

promoted Petitioner into a newly-created full-time position of

"switchboard operator." Prior to the creation of this

switchboard operator position, various employees had worked the

switchboard in the equivalent of four-hour shifts, because

working the switchboard non-stop was monotonous in good times

and was hectic and stressful due to the number of phone calls

received during two peak periods each year. On some occasions

prior to October 2003, part-time students also had been used for

this purpose. Petitioner was offered the promotion on October

8, 2003, with an effective starting date of October 16, 2003.

Upon this starting date, Petitioner was employed by Respondent

in a full-time position at a higher rate of pay than she had

received as an OPS employee, and began to receive retirement

benefits, annual and sick leave, and health insurance.

10. In 2003, Respondent promoted five employees. Four of

the five promoted were African-American and/or female.

Petitioner was one of the four African-American females promoted

that year.

11. From December 28, 2004, through December 28, 2005,

none of Respondent’s employees were promoted. During this same

period, Respondent had no promotional opportunities of any kind

available to any employee.

12. There also were no promotions between December 20,

2004, and December 28, 2005. (See Exhibit P-4 and Finding of

Fact 11.)

13. Petitioner received raises throughout her employment

with Respondent. During busy times, she was provided additional

assistance with her phone duties upon her request, because

management agreed with her that the switchboard position

was stressful. Petitioner consistently received excellent

performance reviews.

14. In September 2005, Petitioner asked her immediate

supervisor, Shirley Eaton-Marks, where Respondent would

advertise a front-counter position that was expected to become

vacant. Petitioner testified that Ms. Eaton-Marks “vaguely”

responded, "I am not sure. Sometimes on the Internet or in the

[Tallahassee] Democrat ." 3/

15. In or about September 2005, Petitioner was provided an

extended period of leave for back surgery and recovery.

(Stipulated Fact.) Petitioner was on sick leave from

September 28, 2005, through November 14, 2005.

16. Respondent provided Petitioner as much leave as she

needed for her surgery and recovery. When she ran out of her

own accrued paid leave, sick leave was donated to Petitioner by

a co-employee.

17. During her leave of absence, food drop-offs to

Petitioner’s home were coordinated by her co-employees. Hot

meals were provided by co-employees to Petitioner and her

family, as well as groceries. During one of these deliveries,

Petitioner remarked to Michele Weathersby, Respondent's Chief

Financial Officer, that Petitioner was appreciative of her co-

workers’ efforts and gifts. Petitioner seemed genuinely

overwhelmed by their generosity.

18. While on sick leave, Petitioner spoke with Kathy

Doolin, Assistant Property Appraiser, about working at the front

counter. A sales qualifier position was not available at that

time, and by all accounts, even Petitioner’s account, Petitioner

never applied for, or made anyone in Respondent's office aware

that she was interested in the sales qualifier position.

19. Petitioner claims she was wrongfully denied a front-

counter position. She also claims that the front counter

position and sales qualifier positions constituted promotional

positions for her. Petitioner’s definition of a “promotion” is

moving into a position with greater job responsibility and more

authority. However, she did not demonstrate what the job

responsibilities and authority of the front-counter or sales

qualifier positions were. Therefore, the respective

responsibility and authority of the three positions cannot be

compared. Petitioner has never specifically applied for any

promotion while employed by Respondent.

20. The front-counter position was filled by Valencia

Scott. Ms. Scott, like Petitioner, is an African-American

female.

21. According to Michelle Weathersby, Respondent’s Chief

Financial Officer, Respondent defines a “promotion” as moving an

employee to a position with an increase in salary and perhaps an

increase in benefits, such as a different benefits

classification like “senior management” class, instead of

“regular employee” class. By these standards, neither the front

desk position nor the sales qualifier position would have

constituted a promotion for Petitioner, and moving from a front

desk position to the sales qualifier position would not have

constituted a promotion for anyone.

22. Petitioner returned from sick leave on November 14,

2005.

23. On December 19, 2005, Petitioner requested to speak to

the incumbent property appraiser.

24. Petitioner testified that on December 20, 2005, she

approached the incumbent property appraiser in his office and

asked if he were aware that she was interested in promotion.

She further testified that the Incumbent then stated that he was

aware Petitioner was interested in promotion, but that "Speaking

from the hardhat point of view, you were hired as a favor to my

friend. I did not hire you to be promoted or trained in any

other position." At hearing, the Property Appraiser

emphatically denied making this statement or any similar

statement. However, he acknowledged that he had hired

Petitioner upon the recommendation of a mutual friend and that

on December 20, 2005, Petitioner had come to speak to him about

the stress she was feeling in her position as a switchboard

operator and about her health problems.

25. Kathy Doolin, who was present for most, but not all,

of the December 20, 2005, meeting, also denied under oath that

the comment described by the Petitioner had been made by the

Incumbent while she was in the room. Further, she confirmed

that the thrust of Petitioner's remarks in her presence were not

about any promotion but were about the stress Petitioner was

experiencing in her switchboard operator job.

26. The testimony of Ms. Doolin, together with the

respective narratives written by herself and Petitioner

(Exhibits P-2 and P-5) immediately after the December 20, 2005,

meeting strongly suggest that the incumbent property appraiser

said he had done all he could to relieve Petitioner's job stress

and could not transfer Petitioner to another position just

because her current position was stressful, and that Petitioner

heard these statements as a refusal to promote her at any future

date and a lack of appreciation for Petitioner’s college degree

and excellent work history.

27. The Incumbent’s and Petitioner’s respective versions

of the December 20, 2005, conversation amount to an equipoise of

testimony. In other words, one says "yes," and one says "no."

This type of evidence is insufficient to tip the balance of

weight and credibility to Petitioner's version of events.

Moreover, even if Petitioner's version of the Incumbent's

December 20, 2005, statement to her, allegedly made outside Ms.

Doolin’s presence, were the more credible version, which it is

not, Petitioner’s version of what the Incumbent allegedly said

expressed no racial or gender bias.

28. Petitioner testified that she believed that what the

incumbent property appraiser had said on December 20, 2005, and

how he had said it, created a hostile work environment.

However, Petitioner never filed any internal complaints with

Respondent alleging that she had been subjected to a hostile

work environment. In fact, she filed no internal discrimination

complaints of any kind concerning the December 20, 2005,

meeting, and the term "hostile work environment" did not appear

until her July 6, 2006, Petition for Relief, which was filed

after FCHR's "Determination: No Cause."

29. On her lunch hour, either December 20 or 21, 2005,

Petitioner telephoned her physician, because she was still upset

by her perception of the December 20, 2005, meeting. Petitioner

never returned to work after December 21, 2005.

30. On December 23, 2005, Petitioner's doctor wrote a note

for her to be off work from December 22, 2005, until January 2,

2006, due to undefined "significant health problems."

31. On or about December 23, 2005, three days after the

December 20, 2005 meeting, when Petitioner was no longer on the

job, Mike Nichols, a Caucasian male, was transferred from the

front counter into a sales qualifier position. Mr. Nichols had

previously worked in Respondent's Deed Section and in its

Mapping Section and had recently received his law degree from

the University of Florida. Respondent considered Mr. Nichols to

be a suitable candidate for the sales qualifier position. Upon

transfer, Mr. Nichols did not receive a raise in his rate of

pay.

32. Petitioner never applied for the sales qualifier

position (see Finding of Fact 18) and was not on the job when

that position was filled. (See Finding of Fact 29.) While the

duties of a sales qualifier were not developed at hearing, the

job title “sales qualifier” suggests that Petitioner was

arguably not as good a fit for the sales qualifier position, as

was Mr. Nichols. Petitioner’s education was primarily in

criminal justice, and her job experience was primarily in drug

rehabilitation and answering a switchboard. Mr. Nichols’ legal

education and training and his office experience with Respondent

may have made him a superior candidate for the sales qualifier

position.

33. When contacted by her superiors, Petitioner gave no

reason for leaving work, except that it would be "best under the

circumstances." On January 4, 2006, Petitioner voluntarily

resigned her employment with Respondent. (Stipulated Fact.)

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1), and Chapter 760,

Florida Statutes.

35. The Florida Civil Rights Act of 1992 (FCRA), Chapter

760, Florida Statutes, prohibits employers from discriminating

against employees on the basis of race and sex.

36. Federal case law interpreting Title VII is applicable

to cases arising under Chapter 760, Florida Statutes. See

Florida State University v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996); and Harper v. Blockbuster Entertainment Corp. , 139 F.3rd

1385, 1388 (11th Cir. 1998), and cases cited therein.

37. Petitioner is a member of two specific protected

classes (African-American and female). Respondent is an

"employer," pursuant to Section 760.02 (7), Florida Statutes.

However, to establish a prima facie case, Petitioner also must

establish, by a preponderance of the evidence, that some

arguably discriminatory employment action has occurred. 4/

38. The shifting burdens of proof in disparate treatment

cases are set out both cogently and briefly in Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991):

The United States Supreme Court set forth the

procedure essential for establishing such

claims in McDonnell-Douglas Corp. v. Green ,

411 U.S. 792 93 S. Ct. 1817, 36 L.Ed. 2nd 668

(1973), which was then revisited in detail in

Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.

Ed. 2nd 207 (1981). Pursuant to the Burdine

formula the employee has the initial burden

of establishing a prima facie case of

intentional discrimination, which once

established raises a presumption that the

employer discriminated against the employee.

If the presumption arises, the burden shifts

to the employer to present sufficient

evidence to raise a genuine issue of fact as

to whether the employer discriminated against

the employee. The employer may do this by

stating a legitimate non-discriminatory

reason for the employment decision; a reason

which is clear, reasonably specific, and

worthy of credence. Because the employer has

the burden of production, not one of

persuasion, which remains with the employee,

it is not required to persuade the trier of

fact that its decision was actually motivated

by the reason given. If the employer

satisfies its burden, the employee must then

persuade the fact finder that the proffered

reason for the employment decision was

pretext for intentional discrimination. The

employee may satisfy 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. If such proof is

adequately presented, the employee satisfies

his other ultimate burden of demonstrating by

a preponderant of evidence that he or she has

been the victim of intentional

discrimination. (Citation omitted).

Id. at 1185-1186.

39. See also on point, Barron v. Federal Reserve Bank of

Atlanta , 129 Fed. Appx. 512 (11th Cir. April 19, 2005), citing

Denney v. City of Albany , 247 F.3d 1172 (11th Cir. 2001);

Cooper v. Southern Co. , 390 F.3d 695 (11th Cir. 2004); and Ash

v. Tyson Foods, Inc. , 126 S. Ct. 1195 (2006).

40. Where Petitioner cannot establish each element of a

prima facie case of discrimination, the burden of production

never shifts to the Respondent Employer to articulate its

legitimate non-discriminatory reasons for taking the challenged

action. See Pace v. Southern Railway System , 701 F.2d 1383,

1391 (11th Cir. 1983), "By definition, failure to establish a

prima facie case means that the plaintiff has failed to proffer

proof sufficient to impose even a burden of rebuttal on the

defendant.” See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 253-54 101 S. Ct. 1089, 1093-94 (1981)).

41. At hearing, Petitioner identified two positions upon

which her discriminatory “failure to promote” claim is based: a

front-counter position and a sales qualifier position.

42. Disparate treatment claims require proof of

discriminatory intent, either through direct or circumstantial

evidence. See Harris v. Shelby County Board of Education , 99

F.3d 1078 (11th Cir. 1996).

43. There is no direct evidence of racial or gender

discrimination herein. The conversation and/or meeting relied

upon by Petitioner as demonstrating racial or gender bias simply

does not demonstrate such bias. At worst, there is only a "he

said/she said" situation, which constitutes an equipoise of

evidence. However, even if one accepts Petitioner’s version of

what was said, the Property Appraiser’s statement does not

demonstrate discrimination on the basis of race or sex. The

comment, ". . . you were hired as a favor to my friend. I did

not hire you to be promoted or trained in any other position,"

at worst may obliquely suggest some prejudice against

Petitioner, personally, but it does not constitute direct

evidence of discrimination on the basis of sex or race.

Petitioner’s discriminatory inference is unreasonable.

44. "[E]vidence of facially neutral remarks from which

Petitioner infers discriminatory intent does not constitute

direct evidence.” See Chambers v. Walt Disney World Co ., 132 F.

Supp. 2d 1356 (N.D. Fla. 2001), and cases cited therein.

"Evidence that only suggests discrimination or that is subject

to more than one interpretation does not constitute direct

evidence of discrimination." Chambers v. Walt Disney World Co. ,

supra. See also Standard v. A.B.E.L. Services, Inc. , 161 F.3d

1318 (11th Cir. 1998), and Merritt v. Dillard Paper Co. , 120

F.3d 1181 (11th Cir. 1997). Additionally, if such a statement

was made by the incumbent Property Appraiser and even if

Petitioner could reasonably have perceived the comment as

evidence of an intent to discriminate against her, personally,

she had made no application for a specific position; no

employment decision was being made at the time the Property

Appraiser made the comment; and, given the fact that no

promotions had been available for the better part of two years

preceding the comment, no prohibited discriminatory intent in

this language can relate backwards in time to afford Petitioner

relief. (See the discussion on time-bar and lack of available

promotions, infra. )

45. In the absence of direct evidence of discrimination or

evidence of a mixed motive, which Petitioner also has not

established in this case, the circumstantial evidence must be

evaluated pursuant to the analytical framework established by

the United States Supreme Court in McDonnell-Douglas Corporation

v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973).

46. There had been no promotional opportunities available

during the relevant limitations period, the 365-day period

immediately preceding the filing of Petitioner's Charge of

Discrimination on December 28, 2005. Therefore, any alleged

discriminatory act of Respondent prior to December 28, 2004, is

time-barred. See Section 760.11 (1), Florida Statutes; and

Caraballo v. South Stevedoring, Inc. , 932 F. Supp. 1462, 1464

(S.D. Fla. 1996); Sims v. Dept. of Children and Families , DOAH

Case No. 05-3516 (RO: May 18, 2006; FO: August 1, 2006); Young

v. Dept. of Business and Professional Regulation, DOAH Case No.

03-1140 (RO: July 1, 2003; FO: February 26, 2004). Because the

evidence as a whole, including Petitioner’s Exhibit 4, a list of

promotions and transfers, shows that no promotions occurred

between December 20 , 2004, and December 28, 2005, it is not

necessary to resolve whether or not Petitioner’s narrative (P-

5), constitutes her original charge of discrimination or whether

that item was “filed” with FCHR on December 20, 2005 or on

another date between December 20, 2005, and December 28, 2005.

Even if December 20, 2005, constituted the filing date of

Petitioner’s charge of discrimination with FCHR, there still

were no promotions at all during the period of time from

December 20, 2004, to December 28, 2005.

47. Petitioner presented no credible evidence to show that

moving from the switchboard operator position to the front-

counter position or the sales qualifier position would

constitute promotions. Respondent presented credible evidence

that these moves would not constitute promotions. Petitioner’s

subjective belief that transfers to these positions constituted

promotions is not sufficient. Petitioner has not established a

prima facie case of racial or sexual discrimination, because she

has not shown the existence of an actual promotional

opportunity. See Texas Department of Community Affairs v.

Burdine , supra .

48. Additionally, Petitioner presented no evidence

establishing that she had applied for either the front-counter

position or the sales qualifier position. To establish a prima

facie case of discrimination by rejection of, or failure to,

hire/promote, an employee must show that she actually applied

for the position in question. See Sprague v. Thorn Americas,

Inc. , 129 F.3d 1355, 1362 (10th Cir. 1997) (plaintiff cannot

establish a prima facie case of discrimination in a promotion

context where the position to which she claims to be entitled

does not exist); Clark v. Carolina Freight Carriers , 1989 U.S.

Dist. Lexis 16838 (M.D. Fla. 1989) (failure to apply for

position fatal to "failure to promote" claim).

49. Petitioner made a general inquiry of her supervisor,

Ms. Eaton-Marks, regarding where Respondent would advertise the

front counter position. However, generalized inquiries by

employees regarding future employment opportunities are

insufficient to establish that the employee applied for the

challenged position. See Brown v. Coach Stores, Inc. , 163 F.3d

706, 709-710 (2nd Cir. 1998) (employee who made general request

for promotion during annual review failed to establish that she

applied for a specific position as required for a prima facie

case under Title VII; if generally requesting a promotion was

sufficient, employers would be unfairly burdened in their

promotional efforts). At hearing, Petitioner conceded that she

never applied for the sales qualifier position and never even

made anyone aware that she was interested in that position,

specifically. Therefore, she cannot now prevail on the theory

that she was not promoted due to racial or sexual

discrimination. Due to the resolution of this aspect of the

case on its merits, it is not necessary to address Respondent’s

argument that Petitioner never put the position of sales

qualifier in issue by her Charge of Discrimination.

50. Petitioner also cannot prevail because the evidence

shows that Ms. Scott was transferred to the front-counter

position, and Ms. Scott, like Petitioner, is an African-American

female. Petitioner has not shown that a person from outside her

protected class(es) was placed into this challenged position.

Assuming, arguendo , but not ruling, that the failure to consider

Petitioner for the front counter position constituted a prima

facie case of discrimination, Respondent has rebutted that prima

facie case.

51. The transfer of Mr. Nichols into the vacant sales

qualifier position may have been, as Petitioner asserted, “in

the works” before she even talked to the Property Appraiser on

December 20, 2005, but with respect to the sales qualifier

position, Petitioner did not present any evidence establishing

that she applied for it; was qualified for it; or was better

qualified to fill it than was Mr. Nichols, the Caucasian male

who was transferred there on December 23, 2005, because of his

background as presented by Respondent. She also did not

establish that she was on the job at the time the position was

actually filled. Assuming arguendo , but not ruling, that the

failure to transfer Petitioner into the vacant sales qualifier

job constitutes a facially discriminatory action, then

Respondent has rebutted that prima facie case.

52. Petitioner’s Charge of Discrimination and Petition for

Relief did not allege that she was terminated. In fact, her

superiors sought her out to return to work and she resigned.

53. Petitioner’s Charge of Discrimination did not allege a

hostile work environment, and although her Petition for Relief

suggests that her single confrontation with the Property

Appraiser on December 20, 2005, constituted such a hostile work

environment, the Petition for Relief was too late a date to

raise that issue, and that issue was, in effect, waived at the

commencement of final hearing. Assuming arguendo , but not

ruling, that the issue of a hostile work environment was

properly and timely framed by the July 6, 2006, Petition for

Relief, the evidence adduced does not support any construction

that Petitioner worked in a hostile work environment. An

employee’s feelings and perceptions of being discriminated

against are not evidence of discrimination. See Bickerstaff v.

Vassar College , 196 F. 3d 435 (2nd Circuit 1999), and the

conduct at issue was not so extreme as to amount to a change in

the terms and conditions of Petitioner’s employment. See

Farringer v. City of Boca Raton , 524 U.S. 775 (1988).

54. Petitioner’s Charge of Discrimination, Petition for

Relief, and claims at hearing did not allege any failure to

accommodate a handicap. Indeed, Petitioner’s own doctor’s note

(P-1) indicated she could return to her regular work on

January 2, 2006, and she affirmatively chose not to return.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and its

subordinate Charge of Discrimination.

DONE AND ENTERED this 3rd day of November, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2006.

ENDNOTES

1/ Given the rest of the chronology to which Petitioner

testified and which has been found as fact herein, her testimony

that she actually filed this written narrative, (Exhibit P-5),

with FCHR on December 20, 2005, is not entirely credible, but if

believed, this filing date would entitle her to a comparison of

her situation with that of other similarly situated employees

from December 20, 2004, through December 20, 2005. See Section

760.11 (1), Florida Statutes.

2/ Respondent contends that Petitioner raised the issue of the

sales qualifier position for the first time at the disputed-fact

hearing. Indeed, that position was not specifically listed in

her December 28, 2005, Charge of Discrimination or the

supporting documentation placed in evidence, including the

allegedly previously-filed narrative, (Exhibit P-5). (See

Endnote 1.)

3/ This “vague” response was neither confirmed nor denied by Ms.

Eaton-Marks. The undersigned has considered that Ms. Eaton-

Marks’ response, as testified-to by Petitioner, could raise the

inference that the front-counter position was subject to being

filled from outside of Respondent’s existing staff. A possible

inference upon that possible inference might lead to the

conclusion that if the front-counter position were filled from

outside, it could not simultaneously be an internal transfer-

type position. However, there is no clear evidence that Ms.

Eaton-Marks had any advertising or hiring authority or knew what

she was talking about when she responded to Petitioner as she

reportedly did concerning advertising. Also, the greater weight

of the credible evidence established that there was no hire from

outside Respondent’s office for this position and that, in fact,

an internal transfer occurred. (See infra. the body of this

Recommended Order).

4/ The undersigned is not unmindful of the holding in FCHR's

Final Order in Sims v. Department of Family Services , DOAH Case

No. 05-3516; FCHR Case No. 2005-0131, and cases cited therein,

to the effect that the element “that there is some causal

connection between [the complainant’s] membership in the

protected group and the adverse decision” should not, itself, be

an element of the test for a prima facie case. However, here,

there was no finite employer's decision related to Petitioner at

all. Petitioner was not promoted, but neither was anyone else.

Alternatively, see Findings of Fact 50 and 51, concerning

rebuttal of any prima facie case.

COPIES FURNISHED:

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

Veronica Tolbert

Post Office Box 180842

Tallahassee, Florida 32318

Robert J. Sniffen, Esquire

Roger C. Salmonsen, Esquire

Sniffen Law Firm, P.A.

211 East Call Street

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.