06-002131 Janet Cartwright vs. Florida Department Of Revenue Status: Closed Recommended Order on Tuesday, January 2, 2007.

Summary: Petitioner failed to establish a prima facie case of discrimination based on gender or race. Further, her complaint was not timely filed with the Florida Commission on Human Relations, and is therefore barred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET CARTWRIGHT, )

)

Petitioner, )

)

vs. ) Case No. 06-2131

)

FLORIDA DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 4, 2006, a hearing was held in Tallahassee,

Florida, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Janet Cartwright, pro se

7328 Cottonwood Road

Dothan, Alabama 36301-6502

For Respondent: Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399-0100

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against Petitioner in

her employment based on her gender or race in violation of

Section 760.10, Florida Statutes?

PRELIMINARY STATEMENT

On August 30, 2005, Petitioner filed a complaint with the

Florida Commission on Human Relations for race and gender

discrimination. 1/ The Commission investigated her complaint and

issued a "Determination of No Cause" on April 24, 2006.

Petitioner filed a petition contesting the determination on

May 30, 2006, and the Petition was forwarded to the Division of

Administrative Hearings on June 14, 2006.

The case was originally scheduled for hearing August 17,

2006. At the request of Petitioner, the case was continued three

times, to September 26, 2006; October 24, 2006; and finally

December 4, 2006. On November 17, 2006, Respondent filed a

Motion to Enter Depositions as Trial Testimony. No objection was

filed and at the hearing, the Motion was granted and depositions

of Evonne Schultz and Glynn Walters were accepted as Respondent's

Exhibits numbered 1 and 2, respectively. Petitioner testified on

her own behalf and Petitioner's Exhibits numbered 1-4, 7-10, 12,

14-15, and 17-18 were admitted. Respondent presented no live

witnesses, but Respondent's Exhibits numbered 1-7 were admitted

into evidence.

The proceedings were recorded but no transcript was ordered.

The parties were given until December 14, 2006, to file proposed

recommended orders. Both submissions were timely filed and have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Janet Cartwright is a white female who formerly worked

at the Department of Revenue (DOR or the Department) as a tax

auditor.

2. Ms. Cartwright began employment with the Department of

Revenue May 1, 2000, as a tax auditor at the Atlanta Service

Center. During her employment with DOR, she had four

supervisors: Emmanuel Minta, Ron Lee-Owen, Glynn Walters and

Evonne Jones Schultz.

3. The function of a tax auditor is to audit all pertinent

books and records of taxpayers assigned to them. Auditors are

required to maintain a working knowledge of the taxes within

their area of responsibility; to travel to the site of the

taxpayer's books to perform their audit duties; to review all

records during an audit for potential non-compliance with Florida

tax statutes; to gather pertinent tax records to support their

findings; and to prepare supporting work papers.

4. Ms. Cartwright went on medical leave in September 2003

and did not return to work. On January 2, 2004, she notified her

supervisor that she would be applying for early retirement based

on a disability, and requested that her medical leave without pay

status be extended until her retirement date was established.

5. On or about March 29, 2004, her request for disability

retirement benefits was denied. On April 19, 2004, a

recommendation was made to terminate her employment based on

Petitioner's inability to perform her duties. On July 13, 2004,

Petitioner was advised by certified letter that the Department

was proposing to terminate her from the position as Tax Auditor

II, effective August 31, 2004. Ms. Cartwright acknowledged

receiving the July 13, 2004, letter. The July 13, 2004, letter

stated:

You began employment with the Department of

Revenue effective May 1, 2000, as a Tax

Auditor I, and on July 12, 2000, you were

promoted to a TA II position. You are

currently a TA II, which is a field audit

position that requires the auditor to

independently travel to the taxpayer's

location to audit the company's information

for Florida taxes.

You have been on Leave Without Pay (LWOP)

status since September 18, 2003. Further, in

a letter dated September 29, 2003, from your

physician, Dr. Daniel Goodman, M.D., he

indicates that due to your medical condition

of narcolepsy, cataplexy and sleep apnea, you

are chronically exhausted and always at a

risk of falling asleep at any time and have

difficulty operating a car at all times.

Additionally, Dr. Goodman recommended that

you look into getting long-term disability.

On January 2, 2004, you provided a letter to

your supervisor, Eve Jones, Process Group

Manager, requesting that your LWOP status be

extended until your retirement benefits are

established. However, on March 29, 2004, you

were denied disability benefits.

6. The July 13, 2004 letter identified the disciplinary

standard upon which the Department relied and the documents

considered by the Department in making its decision. It

concluded:

Your continuing inability to perform your

duties has caused not only a concern for your

well being, but has also imposed a hardship

on the other staff that have had to handle

your job duties and responsibilities in

addition to their regular duties.

Your Program Director and I agree that

because of your continuing inability to

perform the duties of your position, with no

indication of when you might be able to begin

performing your normal work duties, dismissal

for inability to perform assigned job duties

[is] the only appropriate action in your

case.

7. No evidence was presented that Ms. Cartwright's

termination was based upon her race or gender.

8. The letter contained a notification of Petitioner's

right to appeal the action to the Public Employees Relations

Commission or to file a grievance pursuant to Section 447.401,

Florida Statutes. Ms. Cartwright did not pursue either remedy.

Instead she continued to pursue approval of her request for

disability retirement, which was successful. On August 30, 2004,

the day before her termination would be effective, she faxed to

the Department a letter which stated:

Last week I received the "Order of Remand,"

the final document necessary to process my

disability retirement effective September 1,

2004.

Therefore, after what was an extraordinary

amount of time to apply for, and be approved

for, disability retirement, I will be

terminating employment as a Tax Auditor II

effective August 31, 2004.

I thank the Department for allowing me to

remain on a leave of absence without pay

during this process.

9. On August 30, 2005, she filed a complaint against the

Department with the Florida Commission on Human Relations

alleging racial and gender discrimination.

10. Ms. Cartwright claimed that she was denied training

essential to her position; that she was denied a flex schedule;

that she was asked to perform clerical and janitorial duties not

required of her male counterparts; and that she was not allowed

to drive her own car to field audit locations.

11. The more credible evidence indicates that

Ms. Cartwright received formal training in Tallahassee a few

months after she was hired, received computer based training and

on-the-job training. No credible evidence was received that

other similarly situated employees received training denied to

Ms. Cartwright. Her claim that she was denied training involved

events occurring before she began medical leave without pay, well

over a year before she filed her complaint with the Commission.

12. Ms. Cartwright claimed that she was denied a flex time

schedule. To the contrary, while there was a delay in approval

of flex time during part of her tenure, Ms. Cartwright was

approved for flex time schedules on May 2, 2000 (the day after

beginning work with the Department) and on August 13, 2002.

Ms. Cartwright admitted that the issue regarding flex time was

resolved over three years before she filed her complaint with the

Florida Commission on Human Relations.

13. Ms. Cartwright, along with other members of the staff,

was asked to perform clerical duties when the office was short-

handed. Ms. Cartwright did not identify any person on the staff

who was not asked to perform such functions. Likewise, members

of the staff were asked to take shifts on a volunteer basis with

respect to "coffee duty." Ms. Cartwright claimed that she was

asked to clean out the refrigerator, but did not testify when

this request was made. As she did not return to work after

September 18, 2003, it would have been well over a year before

she filed her complaint with the Florida Commission on Human

Relations August 30, 2005.

14. Finally, Ms. Cartwright claimed that she was not

allowed to drive her own car to field audits. The more credible

evidence indicates that Ms. Cartwright was never prohibited from

driving her own car, but that office policy provided that when

more than one auditor went to an audit location, only the senior

auditor would be paid for mileage when using a personally owned

vehicle. Ms. Cartwright did not identify any other employee who

was not a senior auditor who was paid mileage when accompanying a

senior auditor in the field. Moreover, the trips for which

mileage was not approved occurred during the period covering

September through December 2002. These trips occurred well over

two years before Ms. Cartwright filed her complaint with the

Commission on Human Relations.

15. The issues raised in her complaint, i.e. , lack of

training, denial of flex schedule, performance of clerical or

janitorial duties and not being compensated for driving her own

car, are separate incidents and do not constitute a continuing

violation tied to her proposed termination. All of the incidents

identified in her complaint, including the proposed termination,

occurred more than 365 days before Petitioner filed her complaint

with the Commission on Human Relations.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

17. Petitioner has the burden of proving by a preponderance

of the evidence that the Respondent committed an unlawful

employment practice. Florida Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

18. Petitioner's complaint is based on perceived violations

of Section 760.10(1)(a), Florida Statutes, which makes it an

unlawful employment practice for an employer to "discharge or

fail or refuse to hire any individual, or otherwise to

discriminate against any individual with respect to compensation,

terms, conditions, or privileges of employment, because of the

individual's race, color, religion, sex, national origin, age,

handicap, or marital status.

19. Section 760.11(1), Florida Statutes, provides the

procedural requirements for filing a complaint alleging

violations of Chapter 760. It states in pertinent part:

(1) 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, naming the employer . . . and

describing the violation. . . . The complaint

shall contain a short and plain statement of

the facts describing the violation and the

relief sought.

20. The Florida Civil Rights Act (FCRA) is patterned after

Title VII, and federal case law dealing with Title VII is

applicable. Florida Department of Community Affairs v. Bryant ,

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

21. The Supreme Court has held that the limitations period

for a Title VII complaint begins to run when the actual decision

of the allegedly unlawful employment practice was made, and not

when the effects of the decision began. Delaware State College

v. Ricks , 449 U.S. 250, 259 (1980). See also Chardon v.

Fernandez , 454 U.S. 6, 8 (1981)(the applicable limitations period

begins to run when notice of termination was given, not on the

date the employment actually terminated); Collins v. Miami-Dade

County , 361 F. Supp. 2d 1362, 1378-79 (S.D. Fla. 2005).

22. In this case, the alleged denial of training, failure

to approve flex time, performance of clerical duties and

disallowance of mileage for use of Petitioner's car on audits all

occurred well before the deadline for filing a complaint of

discrimination pursuant to Section 760.11. Petitioner's claim

could only be considered timely with respect to these actions if

she were able to claim that they were part of a continuing series

of discriminatory acts continuing into the statutory filing

period.

To revive the otherwise time-barred claim

under the doctrine, however, it must be part

of a pattern of continuing practice out of

which the timely-filed incident arose.

Johnson v. Woodruff , 28 F. Supp. 2d 1248, 1251 (M.D. Fla. 1998),

quoting Roberts v. Gadsden Memorial Hospital , 835 F.2d 793, 799

(11th Cir. 1988). For acts to be included under the continuing

violation doctrine, there must be a substantial nexus between the

acts, considering whether they are related in subject matter,

frequency, and permanence. Id.

23. Here, Petitioner seeks to tie the actions taken while

she was still physically present and working at the Atlanta

Service Center with her termination, which occurred several

months after she chose to go on and remain on leave without pay.

However, even the termination did not occur within 365 days of

her filing her complaint. While it is not clear precisely when

she received the July 13, 2004 letter, Petitioner acknowledged at

hearing that she did in fact receive it. It was clear from the

evidence presented that she was aware of the Department's

decision before its effective date of August 31, 2004. Thus,

none of the alleged actions by the Department continued into the

time frame permitted for filing a timely complaint.

24. Moreover, none of the prior actions have any nexus to

the Department's proposed termination of her employment. The

Department decided to terminate her employment because she was

not present in the workplace, and based on her medical

documentation, she was unable to perform the job for which she

was employed. The proposed termination was not related to her

claims regarding training, flex time, mileage or performance of

clerical/janitorial duties. Under these circumstances,

Petitioner's complaint is not timely and is therefore barred.

25. Even assuming Petitioner's claim was not barred as

untimely, she has not established a basis for her claim. To

establish a prima facie case of racial or gender discrimination

based on disparate treatment, Petitioner must show that 1) she

belongs to a racial minority or is female; 2) she was subjected

to adverse employment actions; c) she was qualified for her

position; and 4) the Respondent treated similarly situated

employees outside the protected class more favorably. McDonnell

Douglass Corp. v. Green , 411 U.S. 792, 802-804 (1973); Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997). Petitioner has

not presented a prima facie case with respect to any of her

claims. Petitioner is female and the Department stipulates that

she is qualified for her position. With the exception of the

proposed termination for inability to perform her duties,

Petitioner has not demonstrated that she suffered any adverse

employment actions. Further, she has not demonstrated that

other, similarly situated employees outside the protected class

were treated more favorably. The more credible evidence

indicates that Petitioner was treated in a manner consistent with

other employees in the Atlanta Service Center.

26. Even with respect to her proposed termination,

ultimately Petitioner did not suffer an adverse employment

action. Inasmuch as she was allowed to retire with disability,

the proposed termination of her employment never became

effective. In any event, no credible evidence was presented to

demonstrate that with respect to the proposed termination,

Respondent treated similarly situated employees differently.

Petitioner simply has failed to present any credible evidence

that the Department discriminated against her in any way.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 2nd day of January, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 2nd day of January, 2007.

ENDNOTE

1/ There was some discussion in the Proposed Recommended Orders

of a claim for discrimination based on marital status. The

complaint filed with the Commission on Human Relations did not

include a claim based on marital status and no credible evidence

was presented to support such a claim.

COPIES FURNISHED:

Janet Cartwright

7328 Cottonwood Road

Dothan, Alabama 36301-6501

Cindy Horne, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32399-0100

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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.