06-004818 Carolyn Lawhorn vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, May 30, 2007.

Summary: Petitioner did not established a prima facie case of discrimination. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN LAWHORN , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 4818

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance with duly promulgated notice this cause came

on for formal proceeding and hearing before P. Michael Ruff, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings in Brooksville, Florida , on March 29,

2007 . The appearances were as follows:

APPEARANCES

Petitioner: Carolyn Lawhorn, pro se

13141 Lola Drive

Spring Hill, Florida 34609

Respondent: Joshua E. Laws, Esquire

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Department of Corrections, the employer and

Respondent herein (Department, Resp ondent) engaged in a

discriminatory employment act ion against the Petitioner by

terminating her allegedly on account of her age. 1/

PRELIMINARY STATEMENT

This cause arose from the filing of a charge of

discrimination on May 10, 2006, date by the Petitioner, Carolyn

Lawhorn. Upon investigation and consideration of the

Petitioner's claim, the Florida Commission on Human Relations

ultimately entered a determination of "No Cause." Thereafter,

the Petitioner filed a Petition for Relief and availed herself

of th e right to a hearing concerning that determination before

the Division of Administrative Hearings. Th e cause was

ultimately transferred to the undersigned for conduct of a

formal proceeding and hearing pursuant to Section s 120.569 and

120.57(1), Florida S tatutes (2006).

The cause came on for hearing as noticed. At the hearing

the Petitioner presented her own testimony and the testimony of

two other witnesses. Additionally, the Petitioner had E xhibits

one through four admitted in to evidence. The Respond ent

presented the testimony of one witness and had Composite E xhibit

one admitted into evidence.

Upon concluding the proceeding , the parties elected to take

the opportunity to submit proposed recommended orders or briefs

but declined to order a transcrip t. The Proposed Recommended

Order s submitted ha ve been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner was hired as a Correctional Officer at

the Hernando Correctional Institution (HCI) on or about

December 20, 1996. HCI houses youthful and adult female

inmates.

Inmate Gas p ar Incident

2. L ieutenant Laura Reed was the dayshift officer in

charge at HCI on March 22, 2005. At that time, at approximately

12:09 p.m., she ordered Officer Donald Langdon to pe rform a

security inspection of a holding cell area. Lt. Langdon entered

through the building ' s exterior door which opens to a vestibule

in a holding cell area. The vestibule has two other solid

doors ; the steel door leading to the holding cell area is

lo cated a few feet from the exterior door , and there is a door

at the far end of the vestibule that leads to administrative

offices. There is an officer's desk and storage lockers in the

vestibule. The three holding cells are typically used at HCI to

house disruptive inmates. Each is a 12 - by - 12 square with a 10 -

foot ceiling. The side walls are of cement and the front and

back walls are constructed of bars that are covered by a clear

wall of lexan, a material similar to Plexiglas .

3 . Officer Langdon c hecked to make sure that nothing in

the cells was broken and he searched the cells for contraband.

He filled out a form indicating nothing was broken in the first

and third cells and that he had not found any contraband and

notified Lt. Reed of his findin gs. He then left the holding

cell area.

4 . At about 12:10 p.m. Lt. Reed asked Officer Donna Jaje

to help escort inmate Anita Gas p ar to the holding cell because

she was being disorderly and "acting out." Thereafter, Lt. Reed

and Office J aje arrived at the holding cell area where they

strip searched the inmate but found no contraband. During the

strip search the inmate commented that she "was not going to

stay on this earth." The inmate 's comment concern ed the two

officers because it indicated that sh e might be considering

injuring herself.

5 . The inmate was placed in the first holding cell and

Reed ordered Officer J aje to remain with the inmate until

relieved. Officer J aje maintained a constant vigil observation

of the inmate , and Lt. Reed left to advise a psychological

specialist concerning inmate Gas p ar and her comment.

6 . The psychological specialist determined a few minutes

later that the inmate might have the potential to injur e herself

and put her on a "one - to - one observation , " which requi res

constant visual observation based upon a fear of suicide.

7 . Suicidal inmates are not common at HCI, thus when an

inmate is determined to be suicidal, since the institution does

not have appropriate facilities, the procedure is to maintain a

constant visual observation of the inmate until the inmate can

be transferred to Lowell Correctional Institution (Lowell CI) .

Lowell CI does have appropriate facilities for such inmates .

8 . The Petitioner was assigned to work as a medical

officer on the day in question. Lt. Reed instructed the

Petitioner to relive Officer J aje at inmate Gas p ar's holding

cell and told her to stay with that inmate.

9 . Prior to the Petitioner's arrival , Officer J aje had

maintained constant visual contact with the inmate. When

P etitioner Lawhorn arrived at the holding cell to relieve

Officer J aje, around 12:45 p.m. , Lawhorn sat in a chair directly

in front of the inmate ' s holding cell. Jaje told Lawhorn that

the inmate was on SOS and gave Lawhorn the keys to the holding

cell. P etitioner Lawhorn asked for the "observation form" and

Officer J aje went to the medical unit and returned with the

observation form. When an inmate is on SOS status , an

observation form must be completed at 15 minute intervals. The

officer observing the inmate must document on the form all the

inmates activities such as sitting, lying down, talking, eating,

etc.

10 . Constant visual observation is a different procedure

than that used for typical inmates being incarcerated in a

holding cell for discipli nary reasons. In that instan ce the

correctional officer is only required to check on the inmate and

observe every 15 minutes. Because constant visual observations

are not required between those 15 - minute , checks the officer may

then perform other duties. The P etitioner had been trained to

know the difference between these two procedures.

11 . About 1:30 p.m. Officer Langdon escorted a different

inmate to the holding cell area. He knocked on the exterior

door and received no answer and tried the door wh ich was

unlocked , although it should have been locked. When he entered

the vestibule, Petitioner Lawhorn open ed the door to the holding

cell area as if answering Langdon's knock , but then returned to

the holding cell area.

12 . Langdon is a male officer and therefore cannot strip

search a female prisoner. He requested assistance in carrying

out the required strip search of the inmate he had escorted to

the holding cell area , but received no response to his radio

request. After waiting some ten minutes h e apparently discussed

the matter with Petitioner, not knowing that the Petitioner was

assigned to maintain constant visual observation of Inmate

Gas p ar. The Petitioner volunteered to strip search the other

inmate for him. Langdon suggested that she stri p search that

inmate in cell three while he kept an eye on the inmate in cell

one. The Petitioner refused that request , apparently because

the other inmate was not dressed . She closed the door between

the vestibule where Langdon was and the holding cell area where

she carried out the strip search. Several minutes later Lawhorn

open ed the door to the holding cell area and placed the inmate's

property in a locker and then return ed to the holding cell area.

Officer Langdon then reported to the control room that the

inmate he was charged with had been placed in the third holding

cell and he left the area.

13 . At about 2:30 p.m. Lt. Moffitt was in his office

located in the same building as the holding cell area. He heard

yelling , screaming , and a commotion emanating from the holding

cell area . He and Officer Holley went to the holding cell area

to determine the cause of the disturbance.

14 . When Lt. Moffitt entered the vestibule area he

observed the Petitioner sitting at the officer's desk. The

solid st eel door to the holding cell area was closed. As he

passed the Petitioner he told her he thought that she was

supposed to be watching inmate Gas p ar. The Petitioner replied

that she was watching the inmate.

15 . Lt. Moffitt open ed the door to the holdi ng cell area

and talked to Inmate Gas p ar. She told him that she did not want

to be transported to Lowell CI and that she would resist being

transported. As Moffitt left the holding cell area he directed

the Petitioner to watch the inmate and the Petition er placed a

chair in front of the holding cell of Inmate Gas p ar in order to

watch her constantly.

16 . About 2:35 p.m. the Petitioner needed a restroom

break . T here was no telephone at the officer's desk in the

vestibule. She therefore went to the laundr y area and informed

a Sergeant there that she needed a restroom break. A few

minutes later Officer Black came and relieved the Petitioner.

Officer Black maintained a constant visual observation of Inmate

Gas p ar until the Petitioner returned, about 20 min utes later.

17 . About 3:45 p. m., Lt. Moffitt returned to the holding

cell area . T he Petitioner was then complying with his

instructions by sitting in the chair and watching Inmate Gas p ar.

18 . The shift changed at 4:00 p.m. and Lt. Moffitt

conferred with Lt. Oudshoff, the oncoming shift supervisor.

Moffitt told Lt. Oudshoff that an inmate in the holding cell

area had stated that she was going to resist being transferred

that evening. He and Lt. Oudshoff w ent to talk with Inmate

Gas p ar and were able to conv ince her not to resist the transfer

to Lowell CI. During the course of that conversation both Lt.s

were surprised when inmate Gas p ar offered to give them "her

weapon , " as she termed it, whereupon she produced a 5 - by - 7 - inch

piece of lexan.

19 . T he inmate was apparently asked how she was able to

obtain the piece of lexan while under direct supervision. The

inmate purportedly replied that Petitioner Lawhorn ha d left the

cell several times throughout the da y, leaving her unsupervised.

The inmate d id not testify, (although her account is in

documentary evidence) but whether or not her version of events

concerning the Petitioner leaving the cell several times a day,

giv ing her the opportunity to break off a piece of lexan, is

true , it was demonstrate d to have been the motivation for the

disciplinary action taken against the Petitioner.

20 . The appropriate supervisors were informed of the

details of this incident as Lt. Moffitt knew them and an

investigation ensued. Ultimately, disciplinary action w as

determined to be appropriate and the Petitioner was terminated

from employment with the Department based on this incident , as

the culmination of other disciplinary incidents on the

Petitioner's employment record.

21 . Officer Langdon was also discipl ined concerning the

incident. His discipline was lesser as he was accorded a

reprimand and was not terminated. Officer Langdon is younger

than the Petitioner but Officer Langdon also had no disciplinary

incidents or entries on his employment record whate ver until the

subject incident. That was the reason he was accorded lesser

discipline than that meted out to the Petitioner. Thus,

although the discipline imposed upon the Petitioner and Langdon

w as disparate, Officer Langdon was not proven to be a simil arly -

situated employee because his discipline related to a previously

unblemished disciplinary record and the Petitioner had had at

least four other disciplinary incidents and disciplines imposed

on her employment record , from 2003 forward .

22 . On Decem ber 23, 2004, the Petitioner was working in

the medical department at HCI. She was the medical officer and

responsible for ensuring that inmates arrived for their

appointments on time and for monitoring inmates awaiting

medication in the "pill line." She was issued keys when she

arrived at work that day and on December 23 was issued key ring

number 219.

23 . The Petitioner left her observation post at the pill

line on that occasion in order to allow other inmates into a

gate to the adult canteen. While the Petitioner was unlocking

that gate, key ring 219 broke off her keychain which was

attached to her belt and remained in the adult canteen gate

lock. The Petitioner let those inmates through the gate and

went back to her post. She was in a hurry becaus e Nurse Barras ,

who was working in the medical department , was screaming at her .

S he became distracted and did not notice that the key ring

remained hanging in the canteen gate lock. A few minutes later

another correctional officer saw an inmate pulling t he key ring

out of the canteen gate lock. The Petitioner was not aware the

key ring was missing until that officer confronted her with the

keys that he confiscated from the inmate.

24 . In any event, the Petitioner was not paying sufficient

attention to her duties in opening the lock to the adult canteen

and allowed herself to become distracted by the nurse's behavior

and thus negligently left her key ring in the lock. If she had

been paying due care to her surroundings and to her duties , she

would have been aware that the key ring had broken off the key

chain on her belt and would have observed the inmate pulling the

key ring out of the lock. The Petitioner was accorded a five -

day suspension for this commission of negligence , an infraction

of the Depa rtment's rules. That suspension was upheld by the

Public Employees Relations Commission.

25 . An incident also occurred on March 28, 2005, which was

taken into account in the decision to terminate the Petitioner.

That incident involved an inmate who y elled at the Petitioner

and who was therefore being counseled by the Petitioner. During

the course of their conversation, the inmate "declared a

psychological emergency , " whereupon the Petitioner called on her

radio for assistance. She then wrongfully al lowed the inmate to

leave her custody and control in the immediately area instead of

handcuffing the inmate. She then failed to assist the other

officer or officers who responded to her call for help in

c alming the inmate. This was a violation of Departm ent rules

and was a factor in her termination.

26 . In addition to the above disciplinary actions the

Petitioner received a written reprimand for negligence on

June 30, 2004. On May 7, and August 20, 2003, she received

written reprimand s for failure to f ollow oral or written

instructions. On June 10, 2003, she received a written

reprimand for failure to truthfully answer questions.

27 . I n her charge of discrimination , and at hearing , the

Petitioner contended that she was subject ed to discrimination

bas ed upon her age. She did not adduce preponderant evidence,

however, which would show that any person outside her protected

group, as for instance, persons under 40, or persons younger

than she, were treated any differently , discipline - wise or

otherwise , w hile being similarly - situated , comparative

employees. The only evidence in this regard that she adduced

was to the effect that Officer Langdon, who is younger than the

Petitioner , was subjected to lighter discipline. Officer

Langdon, however, was not a s imilar ly - situated employee because ,

although younger, his employment and disciplinary record was

unblemished until the incident involving the processing of

Inmate Gas p ar in the holding cell area. He had been employed

substantially longer than the Petition er's nine years. Thus,

although he was disciplined less severely, he was not shown to

be a similarly - situated employee because of the disparate nature

of his , versus the Petitioner's , employment disciplinary

records. Aside from this incident involving Of ficer Langdon, no

other preponderant evidenced was adduced that any other

employees were treated differently or better based upon their

age or that the Petitioner was treated in a worse manner because

of her age.

28 . The Petitioner contends that she wa s subjected to

disparate treatment and harassment based upon her age (and , at

hearing , based upon her gender , although that was not plead in

the Petition or in the Charge of Discrimination) . This amounted

to vague testimony to the effect that she was cons tantly

harassed by her superiors, and subjected to unwarranted

discipline, particularly by Lt. Moffitt after he became her

supervisor. She attempted to advance this claim by testimony

that her medical problems involving anxiety and chest pain began

after Lt. Moffitt arrived at the facility in 2003 . This is

belied by the fact, however, that other evidence in the record

shows that these medical complaints actually beg an in 1999 , some

years before Lt. Moffitt became employed at the facility and

became the Pe titioner's supervisor.

29 . There is no preponderant proof that the Petitioner was

subjected to alter ed terms or conditions of employment based

upon her gender , or due to any comments or conduct of a sexual

nature . For instance , there is absolutely no e vidence that any

demands for sexual favor s were made upon her and that her terms

and conditions of employment were conditioned upon compliance

therewith. Moreover, there was no preponderant evidence that

she was treated in a different way, such as being e xposed to

more disciplinary actions or more severe disciplinary measures

than were her male counter - parts. Her testimony that male

employees were subjected to less severe discipline or no

discipline was not persuasive . This is because , for the most

part , they were not identified , and no evidence w as adduced to

show that they were truly similarly - situated male employees in

terms of the positions they held, the circumstances of th eir

employment and more particularly the circumstances surrounding

their disci plinary actions , in terms of being disciplined based

upon similar facts and circumstances. Moreover, the discipline

meted out to them was not shown to be disparate in relation to

that given the Petitioner because there was not showing by the

Petitioner th at the ir employment records and disciplinary

records were otherwise similar to her . Rather, the only

evidence concerning this is that Officer Langdale ' s employment

disciplinary record was unblemished and therefore substantially

different from the P etition er's, when he was accorded less

severe discipline than the Petitioner arising out of the same

incident. His better record was the reason for the less severe

discipline.

30 . Additionally, there is the Petitioner's uncorroborated

testimony concerning an in cident involving preparing an inmate

for transport to another facility in the prison van. She firmly

demanded that the inmate be re - buckled in a seat belt. A verbal

altercation inferentially ensued with Sergeant Mo ynihan. The

Petitioner claims he cussed at her and was not disciplined,

while she was "written up" for allegedly calling him a liar.

There was insufficient credible evidence to show enough facts

concerning this event so that a judgment could be made if it

occurred; whether the two employees we re similarly - situated in

terms of their conduct and their disciplinary records; and

whether there was disparate treatment of one versus the other.

31 . T here was no showing that the Petitioner was subjected

to abusive language or other abuses related to h er gender or to

any sexually discriminatory motive in her working environment .

There was no evidence of any unwelcome sexual harassment or

other conduct of a sexual nature which was sufficiently severe

or pervasive as to alter the terms and conditions of her

employment and create a discriminatorily abusive working

environment. 2/

32 . In summary, the above Findings of Fact do not reveal

that any of the disciplinary action , including the termination

at issue , was meted out by the Respondent Department for a ny

discriminatory motives regarding the Petitioner's age or that of

other employees. Moreover, complaints regarding gender

discrimination were not made until the Petitioner's testimony at

hearing . T herefore , under generally accepted principles of

notice pleading and due process of law they can not be addressed

and decided in this proceeding because the Respondent has not

had an opportunity to prepare a defense against them .

Parenthetically , however, the evidence adduced by the Petitioner

does not demonst rate any discriminatory motive or action taken

by the Respondent Employer based upon reason s of gender or of

any sexual nature.

33 . There has been no showing that any comparative

employees , male or female, were treated in a disparate way and

more favora bly than the Petitioner based upon their age.

Moreover, even if such had been demonstrated , the Respondent has

come forward with preponderant , persuasive evidence that the

employment action at issue, the Petitioner's termination,

occurred as a result of p rogressive discipline imposed in

accordance with the Respondent's written policies and rules . It

was imposed as a result of the Petitioner's deficient

performance and her deficient and more extensive record of

disciplinary actions imposed against her for her lapses in

per formance, as compared to other similarly - situated employees.

CONCLUSIONS OF LAW

34 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.569 and 120.57(1), Fl a. Stat. (200 6 ).

35 . The Petitioner asse r ts that she has been the victim of

disparate discriminatory treatment in the employment decision at

issue because of her gender and her age. As found above she

only asserted her gender/sex - based claim at hearing , in her

testimony. She did not properly raise the issue of gender or

sex - related discrimination in her charge of discrimination nor

in any petition for relief , or by amended pleading prior to

hearing , such that the Respondent might have been accorded the

o pportunity to prepare to meet that additional claim. Thus, the

Respondent, in a due process context , cannot be determined to

have any liability in a legal sense for gender - based

discrimination in this proceeding, although the subject will be

dealt with he rein in an abundance of caution.

36 . A p etitioner may prove intentional discrimination by

using direct, circumstantial, or statistical evidence. Standard

v. ABEL Service, Inc. , 161 F.3d 1318, 1330 (11th Cir. 1998). In

the instant situation , the Petition er has offered no direct or

statistical evidence concerning discrimination and must rely on

circumstantial evidence to attempt to prove her case. When

using circumstantial evidence a burden shifting frame - work is

employed under the holding in McDonnell - Do uglas Corporation v.

Green , 411 U.S. 792 (1973) .

37 . Under this proof scheme the Petitioner in a disparate

treatment case must prove a prima facie case by showing (1) that

the Petitioner is a member of a protected class under Title VII

or Chapter 760, F lorida Statutes; (2) that an adverse employment

action has occurred; (3) that the Petitioner was treated

differently than similarly - situated employees who were not

members of the protected class; and (4) that sufficient evidence

exists to infer a nexus or causal connection between the

Petitioner's gender or age and the disparate treatment alleged

to have occurred. See McKeon v. Vaicaitis , 825 F. Supp. 290,

293 (M.D. Fla. 1993).

38 . After the Petitioner proves her prima facie case, the

burden shifts to the Respondent to offer a legitimate , non -

discriminatory reason for any adverse employment action. Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 , 254

(1981) . The Respondent is only required to advance a legitimate

non - discriminatory reason. Its burden is production of evidence

of such , not of preponderant proof. The d efendant / r espondent

need not con vince the court that it was actually motivated by

the proffered reason because the burden is one of production and

not of proof. Id. Burdine , 450 U.S. at 254 - 55; Patterson v.

WalMart, Inc. , 1999 WL 1427751 (M.D. Fla. 1999). If such a

legitimate , non - discriminatory reason is offered by the defense

then it is entitled to judgment in its favor , unless the

p etitioner can persuade the trier of fact that the r espondent

actually intentionally discriminated against the employee

despite the proffered legitimate reason advanced for its

employment decision. St. Hillare v. Pep Boys , 73 F. Supp. 1366,

1370 (S.D. Fla. 1999).

39 . Once a r espondent h as rebutt ed a p etitioner's prima

facie case ; the p etitioner must then prove by preponderant

evidence that a discriminatory intent motivated the defendant.

See Perryman v. Johnson Product Co. Inc. , 698 F.2d 1138, 1142

(11th Cir. 1983). The p etitioner must prove th at the employer

proffered reason was pre - textual and that a discriminatory

reason more likely than not motivated the employer. Id.

40 . Even if the employer's proffered legitimate business

reason is not believed by the trier of fact , rejection of that

pro ffered reason may permit the conclusion that discrimination

occurred , but it does not require such conclusion . Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133, 146 (2000); St.

Mary's Honor Center v. Hicks , 509 U.S. 502 , 511 (1993) . In

other wo rds, it is not enough to disbelieve the defendant or

r espondent, the p laintiff or p etitioner always bears the burden

of persuasion that illegal discrimination actually motivated the

defendant in the employment action taken. Reeves , 530 U.S. at

146 - 47.

4 1 . The Petitioner has not shown that she was treated any

differently than similarly - situated employees who are not

members of the protected class. The Petitioner was investigated

and disciplined because she violated Department rules and

polices taking in to account her previous history of discipline,

imposed through progressive discipline by the Department , as the

Department's rules and policies allow, she was ultimately

disciplined by termination. That discipline was upheld by the

Public Employees Relati ons Commission in Orders resulting from

two de novo proceedings.

42 . The Petitioner did not provide any evidence that

anyone similarly - situated, outside of the protected class, i.e.

a different age , or someone under 40 years of age , was treated

more favor ably than she. She was not treated differently than

other similar ly - situated employees outside her protected age

class ( i.e. younger or under 40 ) .

43 . Further, to the extent that it needs to be treated in

this proceeding, the Petitioner was not treated d ifferently than

any similarly - situated males. The one male involved in the

Plexiglas incident involving the inmate , was disciplined less

severely than the Petitioner . However, he was not similarly

situated. That male employee had been employed by the

De partment for substantially longer than the Petitioner and

despite his longer term of service had had no previous

disciplinary blemishes on his employment record, contrary to the

record of the Petitioner who had three written reprimands and

one suspension a lready.

44 . N either that employee n or any other male employee was

shown to be involved in the incident where the Petitioner let

her co - worker chase down counsel , and manage an errant inmate

which the Petitioner had let escape from her custody , without

h elping her co - worker. Further, the Petitioner made only

generalized , vague allegations that male employees were not

subjected to discipline for matters for which she was

disciplined . She contends that that Sgt. Mo ynihan, cursed at

her during the incident concerning her insistence on re -

buckleing an inmate with a seat belt before being transported to

another facility in the prison van , but that only she was

"written up , " for allegedly calling him a liar . Such does not

prove that she was treated disparatel y and worse than male

counter - parts. Her testimony concerning this simply did not

provide enough facts and circumstances to show , in a

preponderant way , that Sgt. Moynihan on any other male employee ,

in connection with any incident wherein the Petitioner was

disciplined , was similarly - situated by committ ing similar

conduct or by having similar disciplinary / employment records and

yet were treated more favorably than the Petitioner. The

Petitioner 's mere subjective opinion that she was subjected to

adverse disparate treatment is insufficient standing alone to

establish such . Earley v. Champion International Corporation ,

907 F.2d 1077 (11th Cir. 1990); William v. Hager Hinge, Co. , 916

F. Supp. 1163 (M.D. Ala. 1995) .

45 . Further, there is insufficient evid ence to establish

or infer any causal connection between the Petitioner's gender

or age and any disparate treatment. The Petitioner pointed to

no comments made by any of the Respondent's employees or

supervisors that disparaged her in a sexual way , relate d to her

gender or related to her age. She did not establish that any

action by any employees or supervisors of the defendant

suggested any animus toward women, to the Petitioner in

particular, or to any person over 40 years of age. The

Petitioner establ ished no preponderant evidence to suggest that

she was treated differently than any other similarly - situated

employees at the facility . T here is no evidence of any

disparate treatment because of gender or age in this case nor

any causal connection between disparate treatment and gender or

age.

46 . The Respondent has met its burden of production in

this case by offering as a legitimate , non - discriminatory reason

for the Petitioner's termination her repeated violation of

Department rules as evidenced by h er three written reprimands,

and her five day suspension .

47 . In each such instance the Respondent took the

allegations against the Petitioner seriously and launched a

good faith investigation, interviewed witnesses, gathered

evidence, prepared reports and sent the reports to its central

office where it was reviewed by the Respondent's work force

compliance and legal divisions or offices . The Petitioner

repeatedly violated rules and polices. The Department

discipline d the Petitioner for these violation s in a graduated

progressive manner . Thereafter, within the proper exercise of

its discretion, it took into account the prior disciplinary

record and performance record of the Petitioner in determining ,

after the last incident involving negligence and vio lation of

Department rules , that termination was proper. This does not

violate Title VII or Chapter 760, Florida Statutes. This action

by the Defendant , within its discretion , provides a legitimate ,

non - discriminatory reason under Chapter 760, Florida St atutes ,

for the dismissal of the Petitioner and overcomes the claim of

disparate discriminatory treatment based upon age or gender

advanced by the Petitioner, even assuming that a prima facie

case for age or gender related discrimination had been made,

whi ch it has not.

48 . In summary, the Petitioner maintained that she was

discriminated against based upon age and gender. She failed to

prove any of her theories in this regard because she failed to

prove her prima facie case as to either theory. She did not

prove a hostile working environment because she was not

subjected to unwelcome sexual harassment and any alleged

harassment was not shown to be because of her gender , if it

occurred . She failed to prove that any alleged harassment was

sufficiently sev ere or pervasive as to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment. See Mendoza v. Borden, Inc. , supra ; Oncale

v. Sun Downer Off - Shore Services, Inc. , 523 U.S. 75, 81 (1998).

Additionally, the Pe titioner did not prove a prima facie case of

disparate treatment because of age or gender , for the reasons

set forth above , and a legitimate , non - discriminatory reason for

disciplining of the employee was advanced and preponderant ly

proven by the Responden t.

49 . The Petitioner repeatedly violated Department rules

and policies , some of which violations could have constituted a

danger to herself, her co - workers, and the inmates under her

charge. Consequently, it has not been established that the

Petitione r has been the subject of unlawful employment

discrimination based upon age or gender - related reasons, based

upon the rationale contained in the Findings and Conclusions

above.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witness, and the pleadings and arguments of the

part y , it is, therefore ,

RECOMMENDED t hat a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in its

enti rety.

DONE AND ENTERED this 30th day of May , 200 7 , in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 30th day of May , 200 7 .

ENDNOTES

1/ The Petitioner also seem ed to contend at h earing that she

was treated differently because of her gender (female). This

position, however, was not pled in a petition for relief or in

the original Charge of Discrimination and there was no notice to

the Respondent that the Petitioner had any intent to litigate

the question of whether she had been the subject of gender based

discrimination in the employment decisions reached by the

Respondent concerning her. Consequently, her arguments

concerning discrimination , and particularly through hostile work

environment, based upon gender , are not properly before this

tribunal and will not be resolved.

2/ Burlington Industries, Inc., v. Ellerth , 524 U.S. 742, 753 -

54 (1998); Mendoza v. Borden, Inc. , 195 F.3d 1238, 1245 (11th

Cir. 1999) .

COPIES FURNISHED :

Ca rolyn Lawhorn

13141 Lola Drive

Spring Hill, Florida 34609

Joshua E. Laws, Esquire

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Par kway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten 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.