07-003763 Ila Sharpe vs. Florida Commission On Human Relations Status: Closed Recommended Order on Wednesday, June 11, 2008.

Summary: Petitioner did not establish a prima facie case of age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ILA SHARPE, )

)

Petitioner, )

)

vs. ) Case No. 07-3763

)

FLORIDA COMMISSION )

ON HUMAN RELATIONS )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on March 7, 2008, in

Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Ila Sharpe, pro se

1555 Delaney Drive, Number 1014

Tallahassee, Florida 32309

For Respondent: Kurt E. Ahrendt, Esquire

Kara Berlin, Esquire

Glen Bassett, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner.

PRELIMINARY STATEMENT

Petitioner, Ila Sharpe, completed and submitted a

“Technical Assistance Questionnaire on Human Relations” to the

Miami Dade Equal Employment Opportunity Office (EEO Office).

The fax cover page from Petitioner to the EEO Office shows a

date of January 19, 2007. The completed questionnaire contained

allegations that Respondent, the Florida Commission on Human

Relations (FCHR), violated Section 760.10, Florida Statutes, by

discriminating against her on the basis of age.

On January 31, 2007, the EEO Office forwarded the complaint

to FCHR. FCHR later sent Petitioner’s complaint back to the EEO

Office for investigation.

Based upon an investigation by the Office of Employment

Investigations, FCHR issued a Determination of "no cause" and

Notice of Determination: No Cause on July 30, 2007.

A Petition of Relief was filed by Petitioner with FCHR on

or about August 14, 2007. FCHR transmitted the case to the

Division of Administrative Hearings (Division) on or about

August 21, 2007. The case was assigned to Administrative Law

Judge Suzanne Hood. A Notice of Hearing was issued setting the

case for formal hearing on October 22, 2007. Two motions for

continuance were granted. The hearing was ultimately

rescheduled for March 7, 2008.

The case was transferred to the undersigned. The day

before the scheduled hearing, Petitioner filed a Motion for

Continuance, which was denied. The hearing was heard as

scheduled on March 7, 2008.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Lisa Sutherland and Julina Dolce

Gurganious. Petitioner's Exhibit numbered 1 was admitted into

evidence. Respondent presented the testimony of Sherry Taylor,

Regina Owens, Rockal Brown Archie, and Petitioner. Respondent

offered Exhibits numbered 1 through 18 and 24, which were

admitted into evidence.

A transcript consisting of one volume was filed on

March 24, 2008. Petitioner timely filed a post-hearing

submission and Respondent filed a Proposed Recommended Order,

which have been considered in the preparation of this

Recommended Order. Petitioner attached a document to her post-

hearing submission which is in the nature of a late-filed

exhibit. As such, it was not considered in the entry of this

Recommended Order. See § 120.57(1)(f), Fla. Stat.

FINDINGS OF FACT

Age Discrimination

1. Petitioner, Ila Sharpe, was employed by FCHR from

June 28, 2002, until February 6, 2006.

2. Regina Owens is the housing investigations manager for

FCHR. In approximately May 2004, Ms. Owens hired Petitioner

into the housing unit upon the suggestion of the deputy

director, Nina Singleton. Ms. Owens placed Petitioner in a

vacant Senior Clerk position under her supervision in the

housing unit. At the time, Ms. Owens became Petitioner’s

supervisor, Ms. Owens was 51 years old. Petitioner was

approximately 50 years old at that time.

3. After Petitioner was in the Senior Clerk position for

six or seven months, Ms. Owens promoted Petitioner to the

position of Investigation Specialist I. Ms. Owens waived the

requirements of a college degree and investigative writing

experience for this new position, because Petitioner already

worked for FCHR and had expressed an interest in moving up.

4. The Investigator Specialist I position is a Selected

Exempt Service position which included investigating cases, as

well as “intake” duties. Ms. Owens explained to Petitioner that

she would be doing investigations after about four months on the

job. Petitioner was promoted to this position in January 2005.

5. Ms. Owens sent Petitioner to Washington D.C. for

training on three occasions in 2005: February, June, and

December. Each training session lasted about a week and was

conducted by the National Fair Housing Training Academy.

6. After attending the February week-long training

Following the February training, Ms. Owens asked Petitioner if

she was ready to take on an investigative caseload. Petitioner

indicated that she was not ready to do so at that time.

7. After Petitioner attended the June 2005, training

session, Ms. Owens again spoke to Petitioner and determined that

Petitioner was still not ready to take on investigative duties,

although she had been in the position more than four months.

8. In September 2005, Ms. Owens had e-mail communications

with Petitioner, which gave her cause for concern that

Petitioner might not know the answers to matters on which she

had received training. In particular, Ms. Owens was concerned

that Petitioner’s e-mail responses to her indicated that

Petitioner was confused as to whom an investigator should be

dealing with in a particular situation.

9. Petitioner attended the third week-long training

session in December 2005. After a discussion with Petitioner,

Ms. Owens was still concerned about Petitioner’s reluctance to

take on investigative duties despite her training and length of

time on the job. Petitioner had been in the investigator

specialist position for nearly a year but never investigated a

case.

10. In late December 2005, Ms. Owens developed a test for

employees of the housing unit. The purpose of the test was to

test employees’ working knowledge of the HUD manual and research

skills in using the manual, specifically regarding the intake

process. The “Housing Unit Intake Test” was based on the HUD

manual, which is the book that all investigators have and use.

The test was similar to the test the investigators had to take

in Washington during training. The test developed by Ms. Owens

is now given to all new investigators during their training.

11. On January 5, 2006, Petitioner was first given the

test using a “closed book” administration. The test pertained

to the HUD manual materials, and Petitioner was given an hour to

complete the closed book test. The purpose of the closed book

administration was to assess the employee’s working knowledge of

the subject matter. Petitioner scored ten correct answers out

of 34 test questions.

12. On January 6, 2006, Ms. Owens again gave Petitioner

the same test questions. However, this second administration of

the test was “open book” with two hours allowed to take the

test. The open book administration was designed to assess the

employee’s ability to do research, find the answers in the HUD

manual, and to answer the questions correctly. Petitioner

scored 11 correct answers out of 34 test questions.

13. Also on January 6, 2006, Ms. Owens administered the

same test to investigation specialist Julina Dolce. Ms. Dolce’s

score on the closed book test is unclear from the record.

However, on the open book test, Ms. Dolce received a score of 27

correct answers out of 34 test questions.

14. After taking the test, Petitioner spoke to Ms. Dolce

about what was on the test. However, there is no evidence in

the record that Ms. Owens was aware that Ms. Dolce had a “heads

up” on the test content prior to taking the test.

15. The test was also given to Marshetta Smith on

January 6, 2006. At the time she took the test, Ms. Smith was a

senior clerk who did not do much intake work, and was

approximately 30 years old at the time. While not an

investigator, Ms. Smith was given the test to assess her working

knowledge and research skills for potential upward mobility.

Ms. Smith had 11 correct answers out of 34 test questions.

Ms. Smith has since been terminated from employment with

Respondent.

16. About two weeks after administering the first test,

Ms. Owens administered a different test, the “55 exam”, which

pertained to housing regulations for older persons. Petitioner

scored 14 correct answers out of 20 test questions on the closed

book administration and 16 correct answers out of 20 test

questions on the open book administration of the test.

17. Based upon her reluctance to take on an investigative

caseload and upon her poor performance on the intake test, it

was determined that Petitioner would be demoted to a senior

clerk position. A meeting was held on January 26, 2006, with

Ms. Owens, Petitioner, and the human resources manager,

informing Petitioner of the intended demotion to be effective

February 10, 2006.

18. On January 30, 2006, Petitioner submitted her letter

of resignation to Ms. Owens effective February 6, 2006. Her

resignation was accepted, effective the close of business

February 6, 2006. Consequently, the demotion did not take place

as Petitioner resigned from employment with Respondent prior to

the effective date of the intended demotion.

19. After Petitioner’s resignation, Respondent moved

Ms. Dolce into Petitioner’s position of investigation

specialist. At that time, Ms. Dolce was 31 years old.

20. While making a vague assertion that Ms. Owens made

innuendos regarding younger people “some time ago”, Petitioner

acknowledged that Ms. Owens never said anything derogatory to

Petitioner about her age.

21. Sherry Taylor began working at FCHR in 1999 as a

senior clerk. She moved into an investigator position in April

2000. When Ms. Owens came into the housing unit in 2004,

Ms. Taylor was an investigator II.

22. Ms. Taylor was demoted in the fall of 2006 to an

investigator I because the quality of her work “went downhill."

At the time of her demotion, Ms. Taylor was 30 years old.

23. There is no competent evidence that FCHR used age as a

criterion in its decision to demote Petitioner.

Timeliness

24. Petitioner sent a document entitled “Technical

Assistance Questionnaire for Employment Complaints” to the EEO

Office, which alleged that she had been discriminated against by

FCHR on the basis of her age. The fax cover sheet shows a date

of January 19, 2007, but no “received” stamp appears on the

document. The document included a request from Petitioner that

the “complaint” not be forwarded to FCHR for investigation.

25. Despite this request, the EEO office forwarded the

completed questionnaire to FCHR on January 31, 2007. This date

is confirmed by the date stamp indicating receipt, as well as

the fax transmittal notation at the top of each page. However,

the investigation was conducted by the EEO Office.

26. The Determination: No Cause dated July 30, 2007,

issued by FCHR to Petitioner states in part that “the timeliness

and all jurisdictional requirements have been met.”

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57 and 760.11(7), Fla. Stat.

28. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

age.

29. Section 760.11(1), Florida Statutes, reads in

pertinent part as follows:

(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,

employment agency, labor organization, or

joint labor-management committee, or, in the

case of an alleged violation of s.

760.10 (5), the person responsible for the

violation and describing the violation. Any

person aggrieved by a violation of s.

509.092 may file a complaint with the

commission within 365 days of the alleged

violation naming the person responsible for

the violation and describing the violation.

The commission, a commissioner, or the

Attorney General may in like manner file

such a complaint. On the same day the

complaint is filed with the commission, the

commission shall clearly stamp on the face

of the complaint the date the complaint was

filed with the commission. In lieu of

filing the complaint with the commission, a

complaint under this section may be filed

with the federal Equal Employment

Opportunity Commission or with any unit of

government of the state which is a fair-

employment-practice agency under 29 C.F.R.

ss. 1601.70-1601.80. If the date the

complaint is filed is clearly stamped on the

face of the complaint, that date is the date

of filing. The date the complaint is filed

with the commission for purposes of this

section is the earliest date of filing with

the Equal Employment Opportunity Commission,

the fair-employment-practice agency, or the

commission. The complaint shall contain a

short and plain statement of the facts

describing the violation and the relief

sought. The commission may require

additional information to be in the

complaint. The commission, within 5 days of

the complaint being filed, shall by

registered mail send a copy of the complaint

to the person who allegedly committed the

violation. The person who allegedly

committed the violation may file an answer

to the complaint within 25 days of the date

the complaint was filed with the commission.

Any answer filed shall be mailed to the

aggrieved person by the person filing the

answer. Both the complaint and the answer

shall be verified. (emphasis supplied)

Timeliness

30. Respondent raises the issue of timeliness in its

Proposed Recommended Order. However, Respondent does not

dispute that Petitioner sent the “Technical Assistance

Questionnaire for Employment Complaints” to the EEO Office on

January 19, 2007. See Respondent’s Proposed Recommended Order

Preliminary Statement and paragraph 23. Respondent argues that

the complaint is untimely because it was not received by FCHR

within 365 days of the alleged violation.

31. While there is no clear date stamp showing that the

EEO Office received the complaint on January 19, 2007, that date

was not disputed by FCHR. Moreover, FCHR affirmatively stated

in its Determination: No Cause that all timeliness requirements

had been met. The undersigned concludes that, based upon the

above statutory language and FCHR’s acknowledgement of the date

Petitioner sent the complaint to the EEO Office, the complaint

was timely filed when Petitioner sent it to the EEO Office on

January 17, 2007. This is less than 365 days after the date

Respondent notified Petitioner that she would be demoted.

Age Discrimination

32. In order to make out a prima facie case of age

discrimination under the federal Age Discrimination in

Employment Act (ADEA), the complainant must show that she was a

member of a protected age group, was subject to adverse

employment action, that she was qualified for the job, and that

she was replaced by a younger person. Benson v. Tocco, Inc. ,

113 F.3d 1203, 1207 (11th Cir. 1997), citing McDonnell Douglass

Corp. v. Green , 411 U.S. 792 (1973) (the 11th Circuit has

adopted a variation of the McDonnell Douglass Corp. v. Green

test in ADEA violation claims.) 1/

33. However, in cases alleging age discrimination under

Section 760.10(1)(a), Florida Statutes, FCHR has concluded that

unlike cases brought under ADEA, the age of 40 has no

significance. FCHR has determined that to demonstrate the last

element of a prima facie case of age discrimination under

Florida law, it is sufficient for Petitioner to show that she

was treated less favorably than similarly-situated individuals

of a "different" age as opposed to a "younger" age. See Linda

Marchinko v. The Wittemann Co., Inc. , FCHR Final Order No. 06-

005 (January 6, 2006), and numerous cases cited therein.

34. Petitioner has not met her burden of proving a prima

facie case of age discrimination under either federal or Florida

law. As to the first element of establishing a prima facie

case, she is, and was at the time of her employment with

Respondent, a member of a protected age group for purposes of

ADEA.

35. As to the second element of establishing a prima facie

case, Petitioner resigned before the demotion took place. Had

she stayed, she would have been subject to an adverse employment

decision in that she was informed that she would be demoted.

36. As to the third element, the preponderance of the

evidence established that Petitioner was not qualified for the

job. Petitioner did not have a college degree or investigative

experience when promoted to the investigative specialist

position. Moreover, her poor performance on the intake test

demonstrated that, despite training, she was not qualified for

the job. Accordingly, she does not satisfy the third element of

establishing a prima facie case.

37. The person who replaced Petitioner was Ms. Dolce, who

was approximately 30 years old at the time, and, therefore, a

"different" age group. Thus, this element of establishing a

prima facie case is satisfied.

38. When the charging party, i.e. , Petitioner, is able to

make out a prima facie case, the burden to go forward shifts to

the employer to articulate a legitimate, non-discriminatory

explanation for the adverse employment action. Walker v.

Prudential Property and Casualty Insurance Company , 286 F.3d

1270 (11th Cir. 2002); Department of Corrections v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting

burdens of proof in discrimination cases). The employer has the

burden of production, not persuasion, and need only persuade the

finder of fact that the decision was non-discriminatory.

Department of Corrections v. Chandler , supra ; Alexander v.

Fulton County, GA , 207 F.3d 1303 (11th Cir. 2000).

39. Even if Petitioner had established a prima facie case

of age discrimination, Respondent has adequately articulated a

legitimate, non-discriminatory explanation for its employment

decision regarding Petitioner. Petitioner did not perform well

on the intake test and expressed reluctance to take on

investigative responsibilities after a period of time in which

persons in that position normally do. As such, Respondent has

asserted a legitimate, non-discriminatory reason for their

intention to demote her to Senior Clerk, the classification she

was in prior to her promotion to investigative specialist. The

decision of Respondent regarding Petitioner was based upon

legitimate reasons and was not based upon Petitioner's age.

40. Petitioner was replaced by Ms. Dolce who was in a

different age group. However, Ms. Dolce scored well on the

intake exam. While this may have, in part, been because

Petitioner gave Ms. Dolce a "heads up" on the test content,

there is nothing in the record to indicate that Ms. Owens had

any knowledge of this before Ms. Dolce was placed in

Petitioner's position.

41. In an employment discrimination case, the plaintiff

must produce sufficient evidence to support an inference that

the defendant-employer based its employment decision on an

illegal criterion. Benson , supra , 113 F.3d 1203, 1207.

Petitioner failed to present sufficient evidence to contradict

the evidence presented by Respondent that she was going to be

demoted because of her job performance.

42. Once the employer articulates a legitimate non-

discriminatory explanation for its actions, the burden shifts

back to the charging party to show that the explanation given by

the employer was a pretext for intentional discrimination.

"Would the proffered evidence allow a reasonable factfinder to

conclude that the articulated reason for the decision was not

the real one?" Walker v. Prudential , supra . "The employee must

satisfy this burden by showing directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief." Department of

Corrections v. Chandler , 582 So. 2d 1183 at 1186; Alexander v.

Fulton County, GA , supra . Petitioner has not met this burden.

43. Courts have found only the most blatant remarks, whose

intent could be nothing other than to discriminate on the basis

of age, to constitute direct evidence of age discrimination.

See, e.g. , Barnes v. Southwest Forest Industries , 814 F.2d 607

at 610 (11th Cir. 1987) (remark by personnel manager to

terminated security guard that in order to transfer, "you would

have to take another physical examination at your age, I don't

believe you could pass it" was not considered direct evidence of

age discrimination by the court); Williams v. General Motors

Corp. , 656 F.2d 120 at 130 (5th Cir. Unit B 1981) cert. denied ,

455 U.S. 943 (1982) (scrap of paper on which was written

"Too old--Lay Off" would constitute direct evidence of

discriminatory intent).

44. Other than Petitioner's vague assertions that

Ms. Owens made innuendos some time ago related to age,

Petitioner presented no evidence establishing that Respondent's

reasons were pretextual. Petitioner's speculation and personal

belief concerning the motives of Respondent are not sufficient

to establish intentional discrimination. See Lizardo v.

Denny's, Inc. , 270 F.3d 94, 104 (2d Cir. 2001) ("plaintiffs have

done little more than to cite to their mistreatment and ask the

court to conclude it must have been related to their race. This

is not sufficient.").

45. In summary, Petitioner has failed to carry her burden

of proof that Respondent engaged in discrimination based on age,

in its actions regarding her employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 11th day of June, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 11th day of June, 2008.

ENDNOTE

1/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED :

Ila Sharpe

1555 Delaney Drive, Number 1014

Tallahassee, Florida 32309

Kurt Ahrendt, Esquire

Kara Berlin, Esquire

Glen Bassett, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.