07-003120 Lynette Brown vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Tuesday, October 21, 2008.

Summary: Petitioner did not prove that Respondent discriminated against her based on her race by failing to promote her, harassing her, unlawfully discharging her or retaliating against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNETTE BROWN, )

)

Petitioner, )

)

vs. ) Case No. 07-3120

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 18 and

19, 2008, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: H. Richard Bisbee, Esquire

Patrick R. Frank, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast,

Suite 206

Tallahassee, Florida 32308

For Respondent: Glen A. Bassett, Esquire

Kara J. Berlin, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment action against Petitioner contrary to Sections

760.10(1)(a) and 760.10(7), Florida Statutes (2006).

PRELIMINARY STATEMENT

On or about December 4, 2006, Petitioner Lynette Brown

(Petitioner) filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR). The

complaint alleged that Respondent Department of Highway Safety

and Motor Vehicles (Respondent) had discriminated against

Petitioner based on her race and age by denying her promotions

and harassing her. The complaint also alleged that Respondent

had retaliated against Petitioner by terminating her employment

for filing a formal internal complaint about the alleged

discrimination.

On June 1, 2007, FCHR issued a Determination: No Cause. On

July 6, 2007, Petitioner filed a Petition for Relief. On

July 11, 2007, FCHR referred the petition to the Division of

Administrative Hearings.

On July 18, 2007, Petitioner filed a Response to Initial

Order. On July 20, 2007, Respondent filed an unopposed Motion

for Extension of Time to respond to the Initial Order. On

July 23, 2007, the undersigned issued an Order Granting

Extension of Time.

On August 7, 2007, the undersigned issued a Notice of

Hearing scheduling the hearing for September 20, 2007.

On September 10, 2007, Respondent filed an unopposed Motion

for Extension, requesting a 45-day continuance but providing no

mutually convenient dates to reschedule the hearing. On

September 12, 2007, the undersigned issued an Order Canceling

Hearing. The order required the parties to file a status report

no later than September 28, 2007.

On September 28, 2007, Respondent filed a Status Report.

Because Respondent had been unsuccessful in contacting

Petitioner's counsel, Respondent requested that the case be

continued until December 10, 2007.

A Notice of Hearing dated October 4, 2007, scheduled the

hearing for December 11, 2007.

On November 14, 2007, Respondent filed an Unopposed Motion

for Extension. The motion requested a 45-day continuance.

On November 16, 2007, the undersigned issued an Order

Granting Continuance and Rescheduling Hearing. The order

scheduled the hearing for January 29, 2008.

On January 23, 2008, Petitioner filed an Unopposed Motion

for Extension. On January 25, 2008, the undersigned issued an

Order Canceling Hearing and Placing Case in Abeyance.

On March 25, 2008, Petitioner filed a Notice of Compliance

with the January 25, 2008, Order of the Court. On April 7,

2008, the undersigned issued a Notice of Hearing, scheduling the

hearing for June 18 and 19, 2008.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of three additional witnesses.

Petitioner offered Exhibit Nos.: P1 through P4 and P6 through

P10 that were accepted as evidence. Petitioner's Exhibit No. P5

is hereby excluded based on a lack of authentication.

Respondent presented the testimony of one witness.

Respondent offered Exhibit Nos.: A through N and P through Q

that were accepted as evidence. Respondent's Exhibit No. O is

hereby excluded to the extent it contains hearsay that is

inadmissible under Section 120.57(1)(c), Florida Statutes

(2008).

On July 10, 2008, Respondent's witness completed his

testimony by post-hearing deposition. During the deposition,

Petitioner offered Deposition Exhibit 1, a composite of

documents that are hereby accepted as evidence. Petitioner also

offered Deposition Exhibit 2, which is identical to Petitioner's

Exhibit P5, and therefore, excluded.

The court reporter filed the four-volume Transcript on

July 10, 2008. The post-hearing deposition of Respondent's

witness was filed on July 28, 2008.

On August 18, 2008, Respondent filed an Unopposed Motion

for Extension of time to file proposed recommended orders. On

August 20, 2008, the undersigned granted the motion.

On September 2, 2008, the parties filed their Proposed

Recommended Orders.

FINDINGS OF FACT

1. Petitioner is an African-American female who worked for

Respondent's Division of Administrative Services from September

1992 through May 2006. Throughout her tenure, Petitioner

consistently received favorable personnel evaluations.

2. During her employment, Petitioner received only the

legislatively mandated annual state worker pay increases.

However, at the time she was terminated in May 2006, Petitioner

was the highest paid non-supervisory employee in Respondent's

Division of Administrative Services. At that time, Petitioner

was making $70,000.

3. From September 1992 until November 1993, Petitioner

worked as Respondent's human resources/relations administrator.

Sandy DeLopez, a white female who served as Respondent's

Director of Administrative Services, was on the selection team

that hired Petitioner for the position of human relations

administrator. In that position, Petitioner was charged with

the intake and administration of race-based discrimination

complaints within the agency. Petitioner supervised two

employees in her position as human relations administrator.

4. In November 1993, Respondent moved Petitioner to the

Office of Employee Relations. This move occurred because the

former human relations administrator wanted to return to her

previous position. There is no evidence that Petitioner

objected to being moved to the Office of Employee Relations.

5. In the Office of Employee Relations, Petitioner

reported to Ken Wilson, the manager. While under his

supervision, Petitioner handled employee grievances and drug

testing, as well as maintaining Respondent's Supervisor

Assistance System (SAS), a statewide computer program for

supervisors.

6. In 1997, Respondent moved Petitioner into the Bureau of

Personnel Services. This move was in conjunction with

Mr. Wilson's move to the Bureau of Personnel Services as Bureau

Chief. Petitioner's assignment was to continue handling special

projects, including the drug testing program and the SAS

computer program.

7. The Office of Employee Relations became the employee

relations section in the Bureau of Personnel Services when

Mr. Wilson became Bureau Chief. The Bureau of Personnel

Services had other sections, including benefits, pay and

classification, and employment. In 1997, the pay and

classification section was combined with the employment section,

and referred to thereafter as the organization development

section.

8. When Mr. Wilson became Bureau Chief of the Bureau of

Personnel Services, his previous job position as manager of

employee relations remained vacant after being advertised two

times. Petitioner told Mr. Wilson that she was interested in

filling his former position but she did not apply for the

position either time it was advertised.

9. Mr. Wilson had a very open relationship with

Petitioner. Petitioner frequently told Mr. Wilson that she

wanted or needed more money. Mr. Wilson never told Petitioner

that Ms. DeLopez would not let Petitioner fill his former

position as manager of the employee relations section because

Ms. DeLopez had a "hard-on" for Petitioner. Mr. Wilson never

heard Ms. DeLopez make the following statements: (a) referring

to Petitioner as another one of Mr. Wilson's experiments that

had failed; and (b) Petitioner could have been one of

"Ms. Ever's boys." There is no evidence that Petitioner ever

complained to Mr. Wilson about any statement by Ms. DeLopez.

10. From June 1995 to March 1997, Rene Knight, a white

female, was manager of the benefits section in the Bureau of

Personnel Services. As manager, Ms. Knight was a senior

personnel manager with supervision responsibilities.

11. In March 1997, Ms. Knight applied for, and was

appointed to, the position of manager of the organization

development section. Her title continued to be senior personnel

manager.

12. In June 1997, Ms. Knight began dating Jim Hage, a

white male, who worked in the one of the areas under

Ms. Knight's supervision. For that reason, Ms. Knight requested

a job reassignment as manager of the employee relations section.

Mr. Wilson granted Ms. Knight's request for the lateral

reassignment that did not require advertisement or an increase

in pay.

13. In the Bureau of Personnel Services, the pay grade for

the manager of employee relations had been downgraded from a pay

grade of 26 to a pay grade of 24. Ms. Knight kept her pay grade

of 24 after the lateral transfer.

14. Petitioner's pay grade was 25. It would have been a

demotion for Petitioner to accept the position of manager of

employee relations.

15. After Ms. Knight moved into the position as manager of

the employee relations section, her old position was advertised

as vacant. Petitioner did not apply for that position.

16. Subsequently, Ms. Knight married Mr. Hage. Later in

2002, Mr. Hage applied for and was appointed as a manager in one

of the sections in the Bureau of Personnel Services. There is

no evidence that Petitioner applied for that job when it was

advertised. In any event, Mr. Hage's managerial position would

have been a demotion for Petitioner.

17. In April 2002, Respondent transferred Petitioner into

the Office of Program Support. The move was the result of a

need to accommodate a disabled employee, who was put in charge

of the drug testing program, formerly part of Petitioner's

duties. There is no evidence that Petitioner objected to the

transfer.

18. In the Office of Program Support, Petitioner served as

a management review specialist and worked under the supervision

of Mallory Horne, Jr., then Chief of Staff. Mr. Horne reported

directly to Ms. DeLopez. In the Office of Program Support,

Petitioner participated in special projects, such as executing

the STARS report and working on workers' compensation claims.

19. In 2003, Ms. Knight became the Assistant Chief of

Personnel Services just before Mr. Wilson retired. Ms. Knight

received this lateral transfer/reassignment because she had

served as a manager/supervisor in just about every office in the

Bureau of Personnel Services.

20. Ms. Knight was appointed Bureau Chief of the Bureau of

Personnel Services when Mr. Wilson retired in May 2003. The

Bureau Chief position was a promotion to a higher pay grade for

Ms. Knight.

21. The most persuasive evidence indicates that Petitioner

was not qualified for the Bureau Chief job. Unlike Ms. Knight,

Petitioner did not have five years of experience as a supervisor

in the human resources area.

22. In 2002 or 2003, Ms. DeLopez authorized Petitioner's

participation in Respondent's Educational Leave with Pay

Program. The program allows employees to be full-time students

for the final year of their educational programs, with

Respondent paying the costs of the programs, as well as their

full salary and benefits. Ms. DeLopez also personally

authorized at least one semester longer than the usual term for

Petitioner because she needed extra time to complete the

coursework for a doctorate in instructional systems. Petitioner

completed the coursework but did not earn the doctoral degree.

23. When Ms. Knight became Bureau Chief of the Bureau of

Personnel Services, Ms. Knight recommended that Cindy Mazzar, a

white female, apply for the position of manager of employee

relations. Ms. Mazzar applied for and was appointed to the

position. Petitioner did not apply for the job and never told

Ms. Knight that she was interested in filling the position.

24. In 2004, Kristen Watkins, a white female, applied for

and was appointed to the advertised position of human resources

manager. Petitioner did not apply for the job. The position of

human resources manager would have been a lateral transfer for

Petitioner if she had been interested. It would not have

increased her pay grade.

25. In 2006, Petitioner continued to work for Mr. Horne in

the Office of Program Support as a management review specialist.

In that capacity, Petitioner continued to serve as a special

projects person. Among other things, Petitioner helped develop

an agency-wide safety program.

26. Toward the end of April 2006, Respondent decided to

implement a realignment of some of its administrative offices.

The reorganization called for the elimination of the Office of

Program Support and for Petitioner to be transferred to the

Bureau of Personnel Services, working under Ms. Knight as Bureau

Chief, and under Ms. DeLopez as Division Director of

Administrative Services.

27. As with any reorganization, Respondent wanted to find

a position for Petitioner rather than terminate her employment.

However, there is no evidence that there ever was a vacant

position to which Petitioner preferred to be assigned rather

than moving to personnel services.

28. On April 24, 2006, Petitioner received a telephone

call from Ms. DeLopez, asking Petitioner to attend a meeting in

Ms. Knight's office. During the meeting, Ms. DeLopez informed

Petitioner that due to the realignment, effective May 1, 2006,

Petitioner would work in Bureau of Personnel Services with

Ms. Knight performing Petitioner's Annual Performance

Evaluation. Petitioner's office furniture would be moved to her

new office on May 3, 2006.

29. Petitioner inquired whether the new job assignment was

a promotion. Ms. DeLopez responded by commenting that

Petitioner already was the highest paid employee in

administrative services that was not a Bureau Chief.

Ms. DeLopez also stated that when a Bureau Chief position became

available, Petitioner could compete for it.

30. On April 25, 2006, Ms. Knight scheduled a meeting with

Petitioner to discuss her currently assigned work projects. The

meeting was set for 3:00 p.m. on April 26, 2006, in the

personnel services conference room.

31. On April 26, 2006, Ms. Knight sent Mr. Horne an

e-mail, requesting a copy of Mr. Horne's position description

for Petitioner. Ms. Knight also wanted to know Petitioner's job

responsibilities and assigned projects with timelines.

32. On April 26, 2006, Petitioner sent Ms. DeLopez an e-

mail, requesting an opportunity to discuss the personnel action

being taken. Petitioner wanted Ms. DeLopez to know that

Petitioner was seeking an opportunity to advance within the

agency and that she wanted to discuss further options.

33. Around 1:00 p.m. on April 26, 2006, Petitioner went to

Ms. DeLopez' office uninvited and with no appointment.

Ms. DeLopez was working in her office suite alone.

34. Petitioner began talking to Ms. DeLopez about

Petitioner wanting to make more money. As the conversation

continued, Petitioner became agitated and hostile. When

Petitioner would not stop talking, Ms. DeLopez stood up to leave

the office. Petitioner, who was standing in the doorway, then

stated that she would call 911 if Ms. DeLopez left the office.

At that point, Ms. DeLopez felt threatened and decided to leave

the room.

35. Petitioner followed Ms. DeLopez down the hall to the

office of Lieutenant Colonel Rick Gregory of the Florida Highway

Patrol. Ms. DeLopez informed Lt. Col. Gregory that she could

not make Petitioner disengage. Lt. Col. Gregory told Petitioner

to go back to her office and asked Ms. DeLopez to stay in his

office to talk to him.

36. Lt. Col. Gregory went to Petitioner's office a few

minutes before 2:00 p.m. He advised Petitioner about a meeting

with Ms. Knight that afternoon at 2:00 p.m.

37. In the 2:00 p.m. meeting, Ms. Knight explained that

she would be the in-take officer for Petitioner's complaint

against Ms. DeLopez. Petitioner stated that she did not want to

discuss her complaint with Ms. Knight because both of them were

subordinate to Ms. DeLopez. Petitioner also would not discuss

her complaint without having someone else in the room.

Petitioner then told Ms. Knight that Petitioner was leaving the

meeting and that Ms. Knight should "just go ahead and call the

police." Ms. Knight and Petitioner never had the 3:00 p.m.

meeting to discuss Petitioner's new job responsibilities.

38. Later on the afternoon of August 26, 2006, Petitioner

had a meeting with Fred Dickinson, Respondent's Executive

Director, David Westberry, Respondent's Deputy Executive

Director, and Lieutenant Colonel Austin of the Florida Highway

Patrol. Petitioner misunderstood the results of this meeting.

She erroneously thought the following: (a) the planned move of

her office location would be placed on hold; (b) she would not

work for Ms. DeLopez or Ms. Knight; and (c) she would contact

the Executive Director's office the week of May 8, 2006, to

schedule an appointment to explore other options with the

agency.

39. On April 28, 2006, Ms. DeLopez sent Petitioner an

e-mail. The message requested her work schedule, an outline of

her work assignments, and a list of projects or activities that

Petitioner was working on for the week of May 1-5, 2006. On

May 1, 2006, Petitioner responded with the requested information

by e-mail.

40. In a letter to Mr. Westberry dated May 8, 2006,

Petitioner described her employment history at the agency and

samples of her work, including but not limited to a concept

paper relating to technological innovations and workplace

performance. The letter stated that Petitioner wanted to

discuss employment options within the agency.

41. The May 8, 2006, letter and attached documents were

not responsive to the request that Mr. Dickenson and

Mr. Westberry made in the August 26, 2008, meeting. The

documents did not identify a position or place within the agency

where Petitioner could be of value to the organization and

benefit Petitioner at the same time.

42. During a meeting on May 8, 2006, Petitioner gave the

above referenced letter and documents to Mr. Westberry. Because

Petitioner could not identify another vacant position in the

agency that she preferred, Mr. Westberry directed Petitioner to

coordinate with Ms. Knight about future job duties.

43. On May 11, 2006, Petitioner participated in a meeting

in Mr. Westberry's office where Ms. Knight and Petitioner sat

together on a love seat. Later, Petitioner falsely accused

Ms. Knight of having intentionally kicked Petitioner when

Ms. Knight crossed or uncrossed her legs.

44. In a letter dated May 11, 2006, from Petitioner to

Mr. Westberry, Petitioner complained that Ms. DeLopez had

subjected Petitioner to a hostile work environment, disparate

hiring and promotional practices, and a form of retaliation.

The letter states that Petitioner's complaint stems from an

extended period of time during her employment and most recently

on April 26, 2006. The letter requested that someone other than

Ms. Knight be assigned as the complaint in-take officer. The

letter did not specify race, gender, age, or any specific form

of discrimination as a basis for the alleged mistreatment.

45. In a letter dated May 12, 2006, from Mr. Westberry to

Petitioner, he states that he received Petitioner's complaint

naming Ms. DeLopez and Ms. Knight as parties. In the letter,

Mr. Westberry directed Petitioner to go to Maggie Lamar, Senior

Consultant in the employee relations section, who would serve as

the in-take officer and investigator of Petitioner's complaint.

Mr. Westberry advised Petitioner that Ms. Lamar would report

directly to Judd Chapman, as Respondent's counsel, and

Mr. Dickenson.

46. In the mean time, Mr. Westberry directed Petitioner to

continue under the direct supervision of Ms. Knight.

Mr. Westberry specifically directed Petitioner to contact

Ms. Knight prior to close of the business day to clarify work

assignments and related responsibilities.

47. On May 12, 2006, Petitioner sent Mr. Westberry a

letter. In the letter, Petitioner states that she had contacted

Ms. Knight to clarify job responsibilities. According to the

letter, Ms. Knight had not provided Petitioner with information

about Petitioner's work assignments and related

responsibilities. The letter states Petitioner's concerns that

Ms. Knight will abuse her authority as Petitioner's supervisor.

The letter includes Petitioner's requests as follows: (a) that

Respondent have Ms. Knight clarify Petitioner's work assignments

and related responsibilities in writing pending completion of

the investigation of Petitioner's complaint; and (b) that

Respondent provide a witness during any meeting or conversations

between Petitioner and Ms. Knight.

48. In a letter dated May 16, 2006, Mr. Westberry

acknowledged Petitioner's May 12, 2006, letter. Mr. Westberry

then proceeded to clarify his previous instructions as follows:

(a) Petitioner should attend a meeting with Ms. Knight and

Mr. Chapman at 11:00 a.m. on May 17, 2006; and (b) In the

absence of any documented threat to Petitioner's personal

safety, Respondent would not provide a witness to document day-

to-day discussions between Petitioner and Ms. Knight. Finally,

Mr. Westberry reminded Petitioner of the appointment of

Ms. Larmar as the in-take officer for Petitioner's complaint.

49. On May 16, 2006, Ms. Knight sent Petitioner an email.

The e-mail alleged that Petitioner had not been at work and had

not requested sick leave or any other kind of leave on May 15,

2006. Ms. Knight had left Petitioner several written and

telephone messages at Petitioner's office. Ms. Knight called

Petitioner's home. Petitioner did not respond to any of the

messages on the day in question. Ms. Knight's e-mail urged

Petitioner to contact Ms. Knight as soon as possible to discuss

work assignments.

50. Petitioner responded to Ms. Knight's May 16, 2006,

e-mail by requesting a 4:00 p.m. meeting on May 17, 2006. On

May 17, 2006, Ms. Knight sent Petitioner an e-mail, confirming a

meeting at 4:00 p.m. in Petitioner's office with Ms. Knight and

Mr. Chapman.

51. During the 4:00 p.m. meeting on May 17, 2006,

Petitioner gave Ms. Knight a written statement. The statement

asserts, in part, that Petitioner considered the meeting to be a

continued abuse of authority by Ms. DeLopez and Ms. Knight with

the intent to adversely affect Petitioner's employment. During

the meeting, Petitioner for the first time accused Ms. Knight of

kicking Petitioner on May 11, 2006, in Mr. Westberry's office.

It was during this meeting that Ms. Knight first knew about

Petitioner's unhappiness with being transferred to the Bureau of

Personnel Services.

52. On May 17, 2006, Petitioner sent Ms. Knight an e-mail

referencing the 4:00 p.m. meeting. The message provided

Ms. Knight with Petitioner's schedule for May 18 and 19, 2006.

Petitioner stated she was available to meet with Ms. Knight at

her convenience within the confines of that schedule.

53. On May 19, 2006, Ms. Knight visited Petitioner's

office at 2:45 p.m. because Ms. Knight wanted to make sure

Petitioner knew about the meeting scheduled with Ms. Knight on

May 23, 2006, at 9:30 a.m. During the visit, Ms. Knight and

Petitioner discussed their professional relationship.

Ms. Knight advised Petitioner that everything would work out as

long as Petitioner refrained from making further false

allegations. Petitioner then said she knew Ms. Knight had not

meant to bump Petitioner with her foot in the May 11, 2006,

meeting in Mr. Westberry's office. Ms. Knight answered that if

Petitioner knew it was an accident, why did Petitioner accuse

Ms. Knight of kicking her in front of Judd Chapman in the

May 17, 2006, meeting.

54. After the meeting with Ms. Knight on May 19, 2006,

Petitioner sent an e-mail to Kay Pietrewicz, Ms. Knight's

personal assistant. The e-mail states that Petitioner wanted to

change the time of the 9:30 a.m. meeting on May 23, 2006, with

Ms. Knight because it conflicted with an unspecified commitment

that Petitioner wanted to honor. The message went on to express

Petitioner's view of her employment issues, including details of

the alleged kicking incident and subsequent conversations with

Ms. Knight regarding that incident.

55. After work on May 19, 2006, Ms. Knight got a call at

home from Ms. Pietrewicz. During that conversation, Ms. Knight

learned about Petitioner's e-mail to Ms. Pietrewicz. Ms. Knight

subsequently sent Petitioner an e-mail, giving her a direct

order to cease communications relative to her employment issues

with any employee except Ms. Knight and Ms. Lamar. Ms. Knight

advised Petitioner that the meeting at 9:30 a.m. on May 23,

2006, would take place as scheduled.

56. On May 23, 2006, Petitioner sent Ms. Knight an e-mail

to recap the meeting they had earlier in the day. The e-mail

indicates that the following topics were discussed during the

meeting: (a) the physical move of Petitioner's office furniture

on May 24, 2008; (b) the signing of certain administrative

forms; (c) the reduction of Petitioner's annual leave balance by

eight hours because Petitioner had not been at work on May 15,

(e) Petitioner's volunteer/mentor activities; (f) Ms. Knight's

direction for Petitioner to refrain from sending e-mails like

the one she sent to Ms. Pietrewicz on May 19, 2008;

(g) Petitioner's dissatisfaction with her work assignment;

(h) Petitioner's computer skills; and (i) Petitioner's project

assignment to begin updating the SAS.

57. In a letter dated May 24, 2006, Mr. Westberry advised

Petitioner that her employment was terminated effective at the

close of business that day. Mr. Westberry made the decision to

fire Petitioner 12 days after referring Petitioner to Ms. Lamar.

58. At the time of Petitioner's termination, there was no

pending complaint because Petitioner had not contacted

Ms. Lamar. Instead of discussing her complaint with the

designated in-take officer, Petitioner continued to demonstrate

unwillingness to accept the responsibilities assigned to her as

a result of the agency reorganization.

59. Three law enforcement officers went to Petitioner's

office around 5:00 p.m. on May 24, 2006. They delivered the

termination letter and offered to escort Petitioner out of

building. Respondent uses officers to escort terminated

employees when the agency has concerns that termination might be

less than a mutual parting of the ways.

60. In this case, Petitioner refused to sign the

termination letter or to leave the building. Petitioner

inquired about what would happen if she did not leave. After

hearing the response to her question, Petitioner stated that the

officer would have to arrest her and take her to jail.

61. Next, Petitioner called her husband and the

Tallahassee Democrat. When Lt. Col. Austin arrived, he talked

to Petitioner alone. He was unsuccessful in persuading

Petitioner to leave the premises.

62. When the officers re-entered Petitioner's office,

Petitioner confirmed that she wanted to be arrested rather than

leave the office voluntarily. The officers then put the

handcuffs on Petitioner and began to inventory her purse.

63. Lt. Col. Austin reentered the office, accompanied by

Petitioner's husband. After removing the handcuffs, all of the

officers left the office so that Petitioner could talk to her

husband alone.

64. The officers continued to wait for Petitioner to leave

the building. Other officers and Petitioner's pastor arrived to

offer assistance in persuading her to exit the building.

Petitioner eventually left the premises without being arrested.

65. On May 24, 2006, Ms. DeLopez was afraid for her

personal safety after the termination letter was delivered to

Petitioner. Ms. DeLopez requested that Mr. Westberry escort her

to her car at the end of the workday. Mr. Westberry complied

with the request.

66. On May 25, 2008, Petitioner attempted to call

Ms. Lamar by telephone. In a letter dated May 26, 2008,

Petitioner requested Ms. Lamar to move forward with the

processing of her complaint against Ms. DeLopez and Ms. Knight

for retaliatory and harassing behaviors toward Petitioner.

Petitioner's letter did not allege that the behavior of

Ms. DeLopez and Ms. Knight was due to a specific type of

unlawful discrimination.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes (2008).

68. Pursuant to Section 760.10(1), Florida Statutes

(2006), it is unlawful for an employer to discharge, refuse to

hire, or otherwise discriminate against an employee with respect

to compensation, terms, conditions, or privileges of employment,

based on the employee's race, gender, or national origin.

69. Florida law also prohibits retaliation against any

person who opposes an unlawful employment practice or because a

person complains about such a practice. See § 760.10(7), Fla.

Stat. (2006).

70. Federal discrimination law may be used for guidance in

evaluating the merits of claims arising under Section 760.10,

Florida Statutes (2006). See Brand v. Florida Power

Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

71. Section 760.11(1), Florida Statutes (2006), requires

that a complainant file a complaint with FCHR within 365 days of

the alleged violation. In this case, Petitioner filed her

charge with FCHR on December 4, 2006. Therefore, any claim of

discrimination arising before December 5, 2005 is barred as

untimely.

72. Petitioner claims that she was not aware of the

continuing nature of Respondent's unlawful practice of failing

to promote her based on racial discrimination until she made her

complaint against Ms. DeLopez and Ms. Knight in May 2006.

According to Petitioner, Respondent discriminated against her

based on race every time a white male or female employee

received a reassignment or a promotion beginning in 1997.

73. Petitioner's argument is unpersuasive. Given

Petitioner's background in human resources, she was, or should

have been, aware of her civil rights each time she did not

receive a job after expressing an interest in the job.

Additionally, Petitioner cannot claim discrimination because:

(a) she did not fill out applications for jobs that Respondent

advertised; (b) she did not express an interest in some jobs

that Respondent filled by reassignment; (c) some of the jobs

would have been a demotion with a lower pay grade; and (d) some

of the jobs required more supervision experience than Petitioner

had.

74. Petitioner's charge is timely in regards to the

following allegations of racial discrimination in April and May

2006: (a) Respondent failed to promote her; (b) Respondent

subjected her to a hostile work environment; (c) Respondent

wrongfully terminated her employment; and (d) Respondent

unlawfully retaliated against her for filing a complaint. Each

claim is discussed below.

75. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-803 (1973), the Supreme Court articulated a burden of proof

scheme for cases involving allegations of discrimination, where

the complainant relies on circumstantial evidence. In

St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506-507 (1993),

the Supreme Court reiterated and refined the McDonnell Douglas

legal analysis.

76. Pursuant to this analysis, Petitioner has the initial

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination and retaliation.

See Texas Dep't of Cmty Affairs v. Burdine , 450 U.S. 248 (1981).

77. If Petitioner succeeds in making a prima facie case,

then the burden shifts to Respondent to articulate some

legitimate, non-discriminatory reason for its complained-of

conduct. See Hicks , 519 U.S. at 506. If Respondent meets its

burden, Petitioner must then prove that the reason articulated

by Respondent was a pretext for discriminatory action. See

Hicks , 519 U.S. at 515-516.

Failure to Promote

78. In order to prove a prima facie case of failure to

promote, Petitioner must show the following: (a) she is a

member of a protected group, (b) she was qualified for and

applied for the promotion; (c) she was rejected despite her

qualifications; and (d) other employees with equal of lesser

qualification who were not members of the protected group were

promoted. See Walker v. Mortham , 158 F.3rd 1177 (11th Cir.

1998).

79. Petitioner has not met her prima facie burden relative

to her 2006 failure to promote claim because she never

identified, expressed an interest in, or applied for a vacant

position that she preferred over being assigned to work under

the supervision of Ms. DeLopez and Ms. Knight. Respondent was

not required to create a position, at the same or higher pay

grade, in another area for Petitioner. Under the facts of this

case, Petitioner did not apply for a promotion or get rejected

for that promotion and Respondent did not give the job to a

person outside her protected class employee who was equally or

lesser qualified.

Hostile Work Environment

80. To prove that Respondent discriminated against

Petitioner by subjecting her to a hostile work environment,

Petitioner must prove the following prima facie case: (a) she

is a member of a protected group; (b) she was subjected to

unwelcome harassment or a hostile work environment; (c) the

harassment or hostile work environment was based on her race;

(d) the harassment or hostile work environment was sufficiently

severe or pervasive to alter her working conditions and create

an abusive environment; and (e) Respondent knew or should have

known of the harassment or hostile work environment, failed to

correct the harassment, and therefore is liable under a theory

of direct or vicarious liability. See Razner v. Wellington

Regional Medical Center, Inc. , 837 So. 2d 437 (Fla. 4th DCA

2002); Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1275

(11th Cir. 2002).

81. In this case, Petitioner was not subjected to a

hostile work environment by Ms. Knight or Ms. DeLopez. To the

contrary, from the beginning, Petitioner resented Ms. Knight's

attempts to assume the role as Petitioner's supervisor.

Petitioner was insulted when Ms. Knight asked Petitioner about

her work schedule and projects. Petitioner argued with

Ms. Knight about Petitioner's absence on April 15, 2006, without

explaining where she was and what she was doing on that day.

Petitioner found fault with every inquiry and took advantage of

every opportunity to delay her transition to the new job at the

same pay grade because she felt she deserved a position that

paid more money.

82. Petitioner also resented the fact that Ms. DeLopez

would not create a higher paying job for Petitioner. Instead of

Ms. DeLopez being hostile during the April 2006 incident, it was

Petitioner who became agitated, hostile, and threatening to

Ms. DeLopez.

83. Any feelings of animosity that Petitioner perceived

were unwarranted. Mr. Westberry properly referred Petitioner's

complaint to an uninvolved in-take officer. Mr. Westberry

correctly informed Petitioner he could not reassign her unless

she identified a vacant position she preferred. Absent some

threat of harm to Petitioner, Mr. Westberry rightly refused to

require a witness to conversations with Ms. Knight or to require

that all such communications be written.

84. It is impossible to say that the alleged harassment or

hostile work environment was based on race. The greater weight

of the evidence indicates that Petitioner was unhappy at work

because the reorganization required her to move back to the

Bureau of Personnel Services without a promotion and to work

under a supervisor that Petitioner thought was not as qualified

as herself.

85. From a strictly objective point of view, Petitioner's

work environment after April 2006 was not sufficiently severe or

pervasive to alter her working conditions and create an abusive

environment. Respondent's refusal to meet Petitioner's demands

resulted in Petitioner having a negative attitude that may have

subjectively altered her working conditions and interfered with

her ability to perform her job. In other words, Petitioner, not

Respondent, was responsible for her discontent in the work

environment.

86. Mr. Westberry knew Petitioner was unhappy about the

move to the new job. Mr. Westberry did the best that he could

to encourage Petitioner to move forward with her complaint by

taking it to Ms. Lamar, to work as assigned during the

investigation, and/or to find a position she preferred.

Petitioner did not take advantage of any of these opportunities.

Under these circumstances, Respondent cannot be vicariously

liable.

Unlawful Discharge

87. To prove a prima facie case of wrongful termination,

Petitioner must prove the following: (a) she is a member of a

protected class; (b) she was qualified for the job; (c) she was

terminated from employment; and (d) Respondent treated similarly

situated non-black employees more favorably. See Holified v.

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

88. Petitioner was qualified for the job to which

Respondent reassigned her. It is impossible to know whether she

was qualified for a position that was never identified.

Additionally, there is no evidence that Respondent treated

similarly situated non-black employees more favorably, i.e. no

white employee ever demanded and received a job that had to be

created for that employee. Most importantly, Respondent's

reason for terminating Petitioner was that she refused to make a

transition to her new job as set forth above.

Retaliation

89. To prove a prima facie claim of retaliation,

Petitioner must prove the following, (a) she engaged in a

statutorily protected expression; and (b) she suffered an

adverse employment action such as dismissal. See Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998).

90. Petitioner arguably met the requirement to establish a

claim of retaliation. Petitioner gave Mr. Westberry a letter

claiming discrimination without specifying the basis.

Mr. Westberry terminated Petitioner's employment 12 days later.

91. There is no evidence that Mr. Westberry fired

Petitioner because she filed her complaint. Instead, he

discharged Petitioner because he realized that she was not going

to follow his instructions to take her complaint to Ms. Lamar

and to continue under the supervision of Ms. Knight pending

completion of the investigation.

92. Respondent sent three law enforcement officers to

escort Petitioner out of the building on the day of her

discharge. Respondent takes such precautions when the discharge

is likely to be less than amicable. In this case, Petitioner's

subsequent behavior proved that Respondent was correct in

anticipating Petitioner's anger at being discharged.

93. Petitioner presented no evidence to show that

Respondent's reason for terminating her was a pretext for

unlawful retaliation. Therefore, Petitioner's retaliation claim

is without merit.

94. During the hearing, Petitioner presented no evidence

of discrimination based on age. Accordingly, age discrimination

has not been considered here.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Florida Commission on Human Relations dismiss the

Petition for Relief.

DONE AND ENTERED this 21st day of October, 2008, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 21st day of October, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32308

Glen A. Bassett, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Larry Kranert, 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.