08-004797 Edna Lee Long vs. Chipola College Status: Closed Recommended Order on Wednesday, November 25, 2009.

Summary: Petitioner failed to establish a prima facie case of race or age discrimination. White employees were also terminated, without warning, for essentially the same offense. No person was hired to fill her position, and no pretext was shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDNA LEE LONG, )

)

Petitioner, )

)

vs. ) Case No. 08-4797

)

CHIPOLA COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to proper notice, this cause came on for

proceeding and hearing before P. Michael Ruff, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings. The final hearing was conducted in Marianna, Florida,

on May 19, 2009. The appearances were as follows:

APPEARANCES

For Petitioner: Marva A. Davis, Esquire

Marva A. Davis, P.A.

121 South Madison Street

Post Office Drawer 551

Quincy, Florida 32353-0551

For Respondent: Robert E. Larkin, III, Esquire

Jason E. Vail, Esquire

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent discriminated against the Petitioner as

to her race and age, and by retaliation, by terminating the

Petitioner from her employment.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Edna Lee Long,

(Petitioner) filed a complaint of employment discrimination on

December 17, 2007. In her complaint to the Florida Commission

on Human Relations (Commission) she contends that she was

terminated by Chipola College (Respondent) (College) because of

her race, age, or because of retaliation from having earlier

engaged in "protected conduct" by bringing a discrimination

claim against the College.

The Commission conducted an investigation of the issues

raised by the Petitioner and entered a finding of "no cause."

Thereafter, the Petitioner chose to file a Petition for Relief

and have the matter referred to the Division of Administrative

Hearings for adjudication, which was done.

The case was assigned in due course to the undersigned

Administrative Law Judge and initially set for hearing on

December 30, 2008. In view of the agreement of the parties, the

matter was continued and set for final hearing on May 19, 2009.

The cause came on for hearing on that date. The Petitioner

testified on her own behalf and presented four other witnesses'

testimony, as is reflected in the transcript of the proceeding.

The Petitioner also introduced into evidence 28 exhibits and

proffered one exhibit which was not admitted. The Respondent

presented two witnesses and introduced three exhibits into

evidence. Upon conclusion of the proceeding, a transcript was

ordered and the parties availed themselves of the right to

submit proposed recommended orders. For unknown reasons, the

transcript was delayed for some few months after the hearing.

After several inquiries, it was ultimately filed on August 14,

2009. Thereafter, by Motion for Extension of Time for

Submission of Proposed Recommended Order, an extension was

granted the Petitioner, without objection, such that proposed

recommended orders were timely-filed on September 15, 2009. The

Proposed Recommended Orders have been considered in the

rendition of this recommended order.

FINDINGS OF FACT

1. The Petitioner, Edna Lee Long, was a long-time employee

of Chipola College. She was employed for approximately 35 years

by the College until her resignation on or about November 1,

2007. Her resignation was the alternative she selected to avoid

termination.

2. Chipola College, the Respondent, is a public higher

education institution located in Marianna, Florida. It employed

the Petitioner as a "Department Associate, Library Services" at

the time of her resignation. She was hired in 1972 to be

employed in the library and was employed there since that time,

until she left employment.

3. The College maintains a policy governing its

information networks and use of the internet. The policy

governs all computer and internet usage by College employees,

using College facilities and networks. The policy prohibits the

viewing of sexually explicit material by employees. The intent

of the policy is to avoid harmful viruses that could pose a

security risk from third party access to secure information,

including confidential student records. It is inferred from the

evidence that the policy is also intended to assist and maintain

a certain moral standard in employees employed in positions of

trust, and in helping to prevent violations of law in connection

with what might be potentially viewed or downloaded as sexually

explicit material.

4. While violations of this policy by students carries

disciplinary implications, those measures are essentially

designed to remove a student's internet or College network use

privileges, on College computers, if it is violated, rather than

more severe consequences. With regard to faculty and staff

policy violations, however, a zero tolerance policy is in

effect. Employees are held responsible for confidentiality of

their computer user-name, access to their computer user account

and keeping their assigned passwords confidential.

5. The Petitioner acknowledged receipt of and

understanding of this policy and agreed to abide by it as to use

of networks and the internet. The policy provides that all

individual computer accounts are for the sole use of the single

individual for whom the account was approved. Users of the

network, internet or other online services are responsible for

protecting the network's security by keeping their passwords

confidential, not using another's account, nor letting their own

accounts be used by another. They are required to report all

security violations, or policy violations, to the management of

the College, in the person of its network administrators.

6. Matthew White is the College's Network Coordinator and

has responsibility to monitor internet usage on College

computers. This is accomplished through the policy by the use

of computer monitoring software and protocols. The software is

designed to search for certain keywords, terms or phraseology

which might characterize a violation of the above-referenced

policy. If any of the keywords or terms surface from any

website addresses, a report is generated which is reviewed by

Mr. White at least once per week. If the report indicates that

a computer at the College accessed unauthorized websites with

certain of the keywords contained in the software and protocol,

Mr. White convenes an investigation to learn which computer and

which person accessed the objectionable site or material. Once

the investigation is concluded, an incident report is prepared

by Mr. White and he submits his findings to his supervisor.

Eventually it is submitted to the Human Resources departmental

office for further attention.

7. On October 23, 2007, the Petitioner was scheduled to

work the night shift at the library. She left work and picked

up her son at his high school and returned with him to the

library. He was going to stay with her at the library while she

finished her work that evening, during which time he was to

study and take a practice ACT college entrance exam.

8. He was to take the practice test online and so he had

to access the internet to do so. By her own admission, the

Petitioner used her user name and password to "log him in" to

the required website, using her office computer which had been

assigned to her. The Petitioner admitted that she knew that

this was violative of College policy. The evidence does not

reveal that her password had been disclosed to any other person.

9. After the Petitioner logged her son onto her computer,

she returned to the circulation desk to continue her work. Her

son thus had access to and operated her computer for

approximately one and one half hours. During a significant

portion of this time the Petitioner was not able to view her

computer where her son was sitting.

10. During this time period, many sexually explicit

materials and pornographic materials were viewed on the College

network from the Petitioner's computer, by a person logged in

under the Petitioner's username and password.

11. There is no dispute that significant numbers of

sexually explicit and pornographic images were viewed by this

means. Evidence presented by the Respondent demonstrates a

complete list of the internet sites and usage from the

Petitioner's computer, during the relevant time period when the

Petitioner's son had access to the computer and the pornographic

sites were viewed. The computer website use history also

indicates that the college preparatory practice examination was

accessed during the same general time period as the pornographic

websites.

12. The Petitioner was unable to explain the presence of

the graphic websites on the website history of her computer.

Her son denied any such use or viewing of such websites,

according to the Petitioner. Clearly however, the ACT test site

and the pornographic websites were viewed on the same computer,

at the exact times when the Petitioner's son was admittedly

logged on to the Petitioner's computer, with use of her

password, on the College network. The explanation that the

Petitioner's son may have viewed the pornographic materials in

question played no part in the employment decision involved in

this case, however. There was no evidence presented that the

Petitioner, or any other person, ever told her supervisors, or

College administrators of the explanation for the presence of

the pornographic images and materials viewed prior to this

hearing. The Petitioner simply denied her own involvement.

13. The automatic monitoring software referenced above,

resulted in the generation of a report concerning the referenced

internet usage for October 23, 2007, which was triggered by

certain keywords which showed potential violations of the

referenced policy. Mr. White became aware of this monitoring

report and conducted an investigation, with the resulting

incident report, at the conclusion of the investigation. Under

the subject policy, this is a standard procedure for handling

suspected violations of the policy. Respondent's Exhibit 2, in

evidence, shows the keyword that initiated the investigation

which led to procedures being followed which enabled Mr. White

to determine which computer had been used to access illicit

images or materials. Thereafter, Mr. White researched the

Petitioner's computer and searched for internet files. He

created a log of the internet files from the Petitioner's

computer, printed evidence of that usage, and confirmed the user

name and password used for the Petitioner's computer and entered

that information into his report.

14. The website and pornographic images shown in that

report are not simply spam e-mail received randomly or

accidently from a third party. This is because Respondent's

Exhibit 1, in evidence, shows actual internet usage and website

traffic, originated from the Petitioner's computer and not

merely received from a third party. The incident, in effect,

involved active searching by the user of the computer during

that relevant time period. The log, for example, shows illicit

material was searched with the keywords "anime" and "porn" and

the resulting websites that were viewed from that computer,

derived from that search. There is no question that the items

shown in Respondent's Exhibit 1 are very graphic and are not

random "popup" images which appeared without being searched for.

15. Mr. White also established that the Petitioner's

password was used in accessing the sites. He concluded that an

individual was actively looking at pornographic sites for about

45 minutes on the Petitioner's computer, using her user name

which also required her password to access. In the absence of

further explanation, the College administrators believed that

the Petitioner had accessed the sites herself.

16. Mr. White informed his supervisor, Dennis Everett, of

the situation and submitted his report. It was soon thereafter

brought to the attention of Karan Davis, the Associate Vice-

President for Human Resources. Both White and Everett came to

Ms. Davis with the incident report and the usage log for the

Petitioner's computer and informed her of the inappropriate use

of that computer with the Petitioner's username and password.

Ms. Davis then determined that the Petitioner was working during

the times in question, in the library, when the sites were

viewed and her account thus accessed. She therefore determined

that a violation of the subject policy had occurred.

17. Ms. Davis then conferred with the College president

who made the decision to either terminate the Petitioner or give

her an opportunity to resign or retire. Ms. Davis approached

Ms. Long on November 1, 2007, with the incident report, a sample

of the internet usage from her computer, and a termination

letter from the president. The Petitioner decided to accept

retirement from her position rather than termination and is thus

receiving retirement benefits at this time.

18. Contrary to the Petitioner's belief, expressed in her

testimony, there is no persuasive evidence that the Petitioner

was targeted or that there was any conspiracy related to use of

her password by others, possibly in the College administration,

to, in effect, "plant" illicit materials or images on her

computer in order to generate a reason for her termination.

There is no persuasive evidence that her computer was accessed

by a third party (other than her son) or that her password-

protected security with regard to her computer was breached.

19. The monitoring process used by Mr. White and the

administration to monitor the College network, or the evidence

regarding it, does not show evidence of a virus or a mistake

made in that process. There is no credible evidence to show

that the Petitioner's password was used by Mr. White or any

other person in or out of the College administration. Only the

Petitioner knew, or should have known, her password. If the

password had been re-set by a third person using her computer,

she would have known about it the next day.

20. Moreover, even if Mr. White or others in the

administration had access to her password, the un-refuted

evidence shows, by her own admission, that the Petitioner used

her password to give her son access to her computer and the

internet on October 23, the day in question. It is very

unlikely that, had Mr. White or others in the College

administration intended to "frame" her or "plant material" on

the Petitioner's computer for nefarious reasons, they

fortuitously and coincidently selected that same day, and one

and one-half hour time period to do so. If they knew her

password, and intended to use it for such purposes, they could

have done so anytime over a period of days, weeks, months or

years. Ms. Davis's testimony is uncontradicted in showing that

the College was not conducting any investigation of the

Petitioner until Mr. White and Mr. Everett approached Ms. Davis

concerning the violations shown on the Petitioner's computer

history for October 23, 2007. In fact, the Petitioner was given

consistently good employee evaluations by the College for the

entire time period between the 1997 discrimination complaint,

related to salary, and 2007.

THE RETALIATION CLAIM

21. The Petitioner has contended that she is being

retaliated against by the employment action taken because of a

1997 charge of discrimination that she filed against the

College, while she was an employee, with the Florida Commission

on Human Relations. That controversy stemmed from her perceived

pay inequity. It was resolved, however, by an agreed-upon

settlement, which resulted in her receiving an appropriate pay

raise at the time. Since that time, although she has met with

and discussed salary issues with her superiors or supervisors,

she has made no other formal complaints concerning salary issues

or other issues. The Petitioner has conceded that her

complaints or requests about pay, during the interim period of

time since 1997, were not based on age or race issues and admits

that she never filed any charge of discrimination concerning any

salary issues since 1997. Ms. Davis was not shown to have

retaliated against the Petitioner and had no knowledge of the

10-year-old complaint at the time the subject employment action

was taken, or at least she had no recollection of it. Mr. White

was not employed at the College in 1997 and had no knowledge of

the previous complaint to the Commission.

22. The Petitioner received favorable employment

evaluations between 1997 and 2007 and received the regular cost

of living salary increases in the same manner as other employees

during that period of time. None of the evidence presented by

the Petitioner showed any race or age-related issue concerning

salary or pay grade treatment. Some employees were hired who

were assigned some of the Petitioner's duties, but those were

employees with more qualifications than the Petitioner. The

Petitioner, at the time of the hearing, did not have a degree.

23. The Petitioner contends that the results of a pay

study, conducted by the College, were discriminatory. She

apparently raised a concern about purported pay inequity

sometime during the period 1999 through 2000 (and reiterated by

her later). She sought pay equity and upgrading of her position

in discussions with her supervisors. She was told to wait while

a third-party consultant, hired by the College, completed a pay

and salary range study. Ms. Davis told her that no position

would be re-classified until after the study was completed. As

a result of this study the "Department Associate" position was

approved in October 2000 and the Petitioner was moved into that

position with that job title in 2001. She did not receive a

salary increase, however, at that time.

24. The salary consultant's study developed revised

position descriptions and included a market study for

ascertaining appropriate pay or pay ranges for those positions.

The consultant set ranges for those positions at the College and

the recommendations were apparently adopted by the College. It

was determined that if a particular employee was earning a

salary which fell within the approved range then the employee

was deemed to be appropriately paid. The Petitioner did not

demonstrate that she was outside of an approved pay range for

her duties and did not establish that the study, nor any of

Petitioner's objections to her pay grade amount, had anything to

do with the employment action taken on November 1, 2007, at

issue in this case. It is noteworthy that only College

employees who were receiving salaries below the minimum pay

range for their job descriptions received any salary increases.

There were also white males at this time who did not receive pay

increases for that same reason, because they were already

earning salaries at or above the minimum of their pay range for

their job descriptions, as was the Petitioner.

25. The Petitioner maintains that the facts surrounding a

Southern Association of Colleges (SACS) accreditation study

showed discriminatory motives on the part of the College

directed at her. In essence, she contends that the SACS study

showed that the College had misrepresented to SACS that the

library was fully staffed when it was not. There were only five

employees when the accreditation standards called for seven

employees, under the circumstances prevailing at the time. The

College then added the necessary number of employees and, upon

receiving its accreditation, apparently in late October 2007,

immediately thereafter terminated the Petitioner.

26. That subjective belief on the part of the Petitioner

has not been supported or corroborated by any persuasive

evidence, however. There was no demonstrated relationship

between the employment action taken against the Petitioner and

the accreditation or results of the study. Although the

Respondent has not hired for the Petitioner's position as yet,

it still has a larger library staff than it did when the fault

was found by SACS as to library staffing, during the

accreditation study.

27. There is no proven relationship between the

Petitioner's announced and contemplated entry into the DROP

program and the subject employment decision. There was no

convincing proof that the employment decision had anything to do

with her announcement about entering the DROP program versus the

investigation made by the College concerning the Petitioner's

computer usage or use of a password to allow another to use her

computer wrongfully.

28. The Petitioner has not established persuasive evidence

which would show that the policy concerning computer and

internet usage was discriminatorily applied. The Petitioner has

shown that no similarly-situated comparator employees, outside

her protected class were treated more favorably, either because

of race or age. There were three similar instances shown by the

evidence to have occurred at the College. No employee in those

instances was treated differently than the Petitioner.

Ms. Davis investigated and enforced a policy as to the similar

violations in the same manner. All three comparator employees

involved were given the opportunity to resign, retire, or be

terminated. None of them was given a warning on a first

offense. Those three comparators were not within the

Petitioner's protected class because they were Caucasian. Two

were Caucasian males and one was a Caucasian female. The males

were, respectively, 46 and 61 years of age and the female was

28. None of those comparators was given a second chance before

termination or constructive termination. The Petitioner's

belief otherwise was based upon hearsay and unsubstantiated

rumor. Ms. Davis was directly involved in the employment

actions taken against those comparator employees and established

that no warning was given to any of them before they were

terminated.

29. No employee outside the Petitioner's protected class

has been hired to replace her in her former position. In fact,

her former position is still vacant.

30. In summary, there is no preponderant, persuasive

evidence to show that the Petitioner's resignation or

retirement, which was a constructive termination, was based on

age, race, or retaliation for engaging in earlier protected

activity as envisioned in Chapter 760, Florida Statutes. There

is no persuasive evidence that discrimination of the type

complained of was committed by the Respondent against the

Petitioner.

31. It does appear, from the facts established by the

evidence in this case, that the termination decision was a harsh

one. The Petitioner had a consistently favorable employment

record with the College and, certainly, if any employee was

entitled to a warning before the ultimate penalty was exacted by

the College, given the facts of this case, she should have been

so entitled. It is true that, at the time of the termination,

the College administrators apparently did not know that the

Petitioner's son had been using the computer at the time in

question. However, in the de novo context of this proceeding,

since the discrimination claim was filed, the College has become

aware of the fact that, although the Petitioner used her

password wrongfully to log her son onto the College computer

system and Internet, that the Petitioner herself had nothing to

do with accessing the illicit websites at issue. This fact,

coupled with the Petitioner's long-time good employment record

with the Respondent shows, based upon the facts of record at

least, that the employment decision was unduly harsh. No

actionable discrimination of the type raised in this case was

proven, however.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.57(1) and 120.569, Fla. Stat. (2009).

33. The Petitioner is an "aggrieved person" and the

College is an "employer" as defined in Section 760.02(1),

Florida Statutes (2007). 1/

34. Pursuant to Subsection 760.10(1), Florida Statutes, it

is an unlawful employment practice to discharge or otherwise

discriminate against an individual upon the basis of race or

age. Pursuant to Subsection 760.10(7), Florida Statutes, it is

an unlawful employment practice for an employer to discriminate

against a person because that person has "opposed any practice

which is an unlawful employment practice" or because that person

"has made a charge . . . under this subsection."

35. The Florida Civil Rights Act, Chapter 760, Florida

Statutes, is patterned after Title VII of the Federal Civil

Rights Act of 1964, 42 U.S.C. Section 2000e, et seq . Florida

Courts have determined that federal decisions apply to claims

arising under Chapter 760, Florida Statutes, in the same manner

as they are employed in resolving claims under Title VII.

Florida Department of Community Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991); Florida State University v. Sondel ,

685 So. 2d 923 (Fla. 1st DCA 1997); and George v. City of

Leesburg , case No. 03-3144 (DOAH May 3, 2004) (applying Federal

decisional law regarding age discrimination in employment,

specifically the Age Discrimination in Employment Act (ADEA) 29

U.S.C. § 623 to age claims arising under the Florida Civil

Rights Act).

36. The Petitioner has the ultimate burden of persuasion

in a discrimination case such as this. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L.Ed. 2d 207 (1981); Earley v. Champion Int'l Corp. , 907 F.2d

1077, 1081 (11th Cir. 1990). The Petitioner's burden is to

establish that the employment action contested was due to

discriminatory reasons and the discriminatory reasons alleged in

the complaint and petition. There is no basis to second-guess a

business decision of an employer, however harsh, in terminating

such a Petitioner, unless there is evidence of discriminatory

intent of the type alleged and which resulted in that

termination. As stated by the court in Chapman v. Aansport ,

221 F.3d 1012, 1031 (11th Cir. 2000):

[C]ourts do not sit as a super personnel

department that re-examines an entity's

business decisions. No matter how mistaken

firm's managers, the (Civil Rights Act) does

not interfere. Rather, our inquiry is

limited as to whether the employer gave an

honest explanation of its behavior

(citations omitted). An employer may fire

an employee for a good reason, a bad reason,

a reason based on erroneous facts, or for no

reason at all, as long as its action is not

for a discriminatory reason.

AGE AND RACE CLAIM

37. The Petitioner must meet her burden of proving

intentional discrimination by either direct evidence of such

intent or through circumstantial evidence. Hamer v. Shoreline

Transportation, Inc. , Case Nos. 08-4550, 08-4574 (DOAH June 16,

2009).

38. The Petitioner presented no direct evidence of

discriminatory intent in this case. Direct evidence is that

evidence which would prove the existence of a fact in issue

without any resort to inference or presumption. Burrell v.

Board of Trustees of Georgia Military College , 125 F.3d 1393-94

(11th Cir. 1997). See also Carter v. City of Miami , 870 F.2d

578, 582 (11th Cir. 1989).

39. The Petitioner presented no direct evidence of

discrimination in this proceeding and therefore circumstantial

evidence must be applied to analyze the Petitioner's claim under

the McDonnell-Douglas standard of proof framework, for both her

age and racial discrimination claims.

40. In order to establish a prima facie case of

discriminatory discharge the Petitioner must show that (1) she

was a member of a protected class; (2) she was qualified for the

job from which she was discharged; (3) she was discharged; and

(4) she was replaced by a person outside her protected class,

meaning a person of another race or a younger employee, or that

she was treated less favorably than similarly situated

individuals outside her protected class. See Morris v. Emory

Clinic , 402 F.3d 1076, 1082 (11th Cir. 2005).

41. If the Petitioner meets her burden of proving a prima

facie case of discriminatory discharge then the burden would

shift to the employer to articulate a legitimate,

nondiscriminatory reason for the employment action taken in

order to rebut the presumption of discrimination raised by the

prima facie case. If the employer meets the burden of producing

evidence that a legitimate, nondiscriminatory reason for the

employment action existed, then the Petitioner must show that

that proffered reason is really a pretext for unlawful

discrimination and was not the true reason for the employment

action. The Petitioner must also, in the context of this case,

demonstrate that race or age actually did play a role in the

decision-making process. See Equal Employment Opportunity

Commission v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1272 (11th

Cir. 2002); Chapman v. Aansport , supra . A petitioner must

show pretext by the employer/respondent by showing that the

explanation given for the employment action is not an honest

explanation. Id . (citing Damon v. Fleming Supermarkets of Fla.,

Inc. , 196 F.3d 1354, 1363 n.3 (11th Cir. 1999).

42. The Petitioner herein did not establish a prima facie

case for discriminatory termination. The Petitioner did not

establish that she was replaced by a person outside of her

protected class or was treated less favorably than a similarly-

situated individual outside her protected class. In fact, the

Petitioner has not been replaced in her former employment

position by any person as of the time of the hearing. The

Petitioner was unable to identify any "comparative" employee who

was accused of the same or similar conduct and was treated more

favorably than she was, whether a person of a different race or

of a different age. See Silvera v. Orange County School Board ,

244 F.3d 1253, 1259 (11th Cir. 2001). In order to demonstrate

that she was treated less favorably than a similarly-situated

individual outside her protected class, the Petitioner must show

that a "comparative" employee was "similarly-situated in all

aspects," meaning that the employee was involved in or accused

of the same or similar conduct but was not disciplined as

harshly. See Holifield v. Reno , 115 F.3d 1555, 1562-63 (11th

Cir. 1997). The Petitioner has not identified a single employee

who was accused of the policy violation involved here and not

treated in the same manner. In other words, all other such

employees were not given any warning and were either terminated

or given the option of resigning or retiring in the face of

termination, just as the Petitioner was. During her testimony

at final hearing, the only such individual the Petitioner was

able to name was treated in the same manner as was the

Petitioner. Therefore, a prima facie case of discriminatory

discharge under Title VII or the ADEA, as well as under Chapter

760, Florida Statutes, has not been established. Moreover, the

prima facie case fails also because the Petitioner's position is

still vacant and she has not been replaced by a person outside

her protected class or an employee of a different race or a

younger employee.

43. Even if a prima facie case had been established the

Respondent met its burden of showing a legitimate non-

discriminatory reason for the Petitioner's termination.

Undisputed evidence was presented by the Respondent that the

Petitioner's computer was accessed with her password and that

pornographic materials were viewed on that computer and the

College's network. Only after the fact, during the hearing, did

the Petitioner's son's role become an issue. That circumstance

still did not obviate the fact that the Petitioner, by her own

admission, had allowed her password to be used, and in fact used

it herself, to allow an unauthorized person, even if it was her

son, to access the College's computer, network and the internet.

44. The un-refuted evidence shows that the software and

monitoring protocol was used in an unbiased way on all computers

on the College's network. There was no showing that the

Petitioner, or the Petitioner's computer, was singled out for

non-routine monitoring. On October 23, certain keywords were

used or accessed that triggered the investigation by Mr. White.

His investigation was a matter of routine protocol and procedure

and resulted in the creation of the incident report and log of

pornographic and illicit materials accessed on the Petitioner's

computer and on the network. The College then took the same

employment action that it had in every comparative case

referenced in the evidence. At the time of the employment

action, the College took the position, in apparent good faith,

that no valid excuse, mistake or evidence of third party

tampering had been presented which would justify absolving the

Petitioner. The College took the same action it had in all such

cases, as referenced above.

45. The employer's burden in articulating and advancing a

legitimate, nondiscriminatory reason for taking a disputed

employment action has been described as "exceedingly light."

See Meeks v. Computer Assoc. Int'l , 15 F.3d 1013, 1021 (11th

Cir. 1994). There has been no persuasive proof which would show

that the proffered reason for the College discharging the

Petitioner was a pretext for what amounted to unlawful

discrimination based on race or age, leaving aside the overly

harsh result of the College's adherence to that reason.

46. In proving that an employer's asserted reasoning is

merely a pretext:

[A] plaintiff is not allowed to recast an

employer's proffered nondiscriminatory

reasons or substitute his business judgment

for that of the employer. . . [p]rovided

that the proffered reason is one that might

motivate a reasonable employer, an employee

must meet that reason head on and rebut it,

and the employee cannot succeed by simply

quarreling with the wisdom of that reason.

Chapman v. Aansportation , s upra .

47. The Petitioner presented no persuasive evidence to

show that the Respondent's stated reason for the employment

action was a pretext for discrimination. The Petitioner was

treated in the same manner as other white and younger and older

employees who engaged in similar conduct. They were also

terminated. The evidence of discriminatory animus on the basis

of race or age is simply not persuasive. There is no

substantial evidence that the Petitioner's interest in the DROP

program had any relationship to the employment action in

question and, if it did, it would not be a race or age-related

discrimination issue in any event. The evidence that somehow

the College accreditation report motivated the employment

decision in a discriminatory fashion is also unsupported by

substantial credible evidence. There has simply been shown no

relationship between either event and the employment action at

issue.

48. The evidence does not establish any sort of conspiracy

on the part of the College to "frame" the Petitioner or

retaliate against her for past purported protected conduct. The

College's monitoring and actions taken by the College concerning

the illicit material being accessed with the Petitioner's

computer was in accord with its published policy. The College

knew that the Petitioner's user name, the computer and password

had been used to access the websites in question and, without

further information, acted in accordance with its past practice

and its regular policy. There was no evidence which established

that any discriminatory animus led to the Petitioner's

discharge. There was evidence to the contrary, which showed

that the Petitioner violated the policy, or at the very least,

the College believed in good faith that she had violated the

policy. The College enforced the zero tolerance policy without

regard to race or age in three prior instances and did so again

in the Petitioner's case. The Petitioner did not tell her

superiors of her son's involvement.

49. The Petitioner, for the above-concluded reasons, has

not established a prima facie case of discrimination on the

basis of either age or race. If she had, the employer's stated

non-discriminatory business reason for the employment action

taken, however harsh and unfair it may appear, has not been

countered by evidence showing that the reason was a pretext for

what really amounted to discrimination on the basis of age,

race, or retaliation.

THE RETALIATION CLAIM

50. The Petitioner must establish a prima facie case of

retaliation under the McDonnell-Douglas and Burdine decisions

supra . In order to do this, she must show: (1) that she was

engaged in a statutorily-protected expression or conduct; (2)

that an adverse employment action has occurred, directed at her;

and (3) that there is a causal connection between the protected

expression or activity and the adverse employment action taken

against her. See Farley v. Nationwide Mutual Insurance Company ,

197 F.3d 1322, 1336 (11th Cir. 1999); Rubin v. Department of

Health , Case No. 08-0839, (DOAH Aug. 6, 2008). In addition to

showing that the protected activity engaged in and the adverse

employment action were related in some way, the Petitioner must

show that the decision-maker was aware of the protected conduct

engaged in by the Petitioner before the adverse employment

action was taken.

51. If a prima facie case of retaliation discrimination is

established, the employer then has the opportunity to articulate

a legitimate, non-retaliatory reason for the employment action

at issue. Stewart v. Happy Herman's Cheshire Bridge, Inc. , 117

F.3d 1278 (11th Cir. 1997).

52. In order to prevail on the retaliation claim it must

be shown that the employer was aware of the protected conduct or

expression at the time the adverse employment action was taken.

See Clover v. Total Systems Services, Inc. , 176 F.3d 1346, 1354-

56 (11th Cir. 1999); Sullivan v. National RR Railroad Passenger

Corp. , 175 F.3d 1056, 1060 (11th Cir. 1999); Brumgart v. Bell

South Communication, Inc. , 231 F.3d 791, 799 (11th Cir. 2000).

In order to establish a causal link between the activity engaged

in by the Petitioner and the employment action at issue, the

decision must be shown to have been motivated by knowledge of

the protected activity engaged in by the Petitioner. See

Grizzle vavelers Health Network, Inc. , 14 F.3d 261, 267 (5th

Cir. 1994). If knowledge by the employer of the Petitioner's

protected conduct did not have to be shown, then speculation

could support a finding that a decision to terminate was

causally connected to any complaints or protected activity an

employee had made or engaged in. See Foster v. Solvay

Pharmaceuticals, Inc. , 160 F. Appx. 385, 389 (5th Cir. 2005).

53. In order to demonstrate a prima facie case of

retaliation, the protected activity and the adverse employment

action being disputed must have occurred in close, temporal

proximity to each other. See Farley v. Nationwide Mutual

Insurance Company , supra at 1337. When evaluating a charge

based upon retaliation, the court or adjudicator must focus on

the actual knowledge of the employer and the actions of the

employer's decision-maker. Brown v. City of Opelika , 211 Fed.

Appx. 862, 863-64 (11th Cir. 2006), citing Walker v. Prudential

Property and Casualty Insurance Company , 286 F.3d 1270, 1274

(11th Cir. 2002).

54. The Petitioner has not established a prima facie case

of retaliation. It has not been clearly established that the

decision-maker herein had any knowledge of the protected conduct

purported engaged in by the Petitioner back in 1997. However,

regardless of whether Ms. Davis had any recollection of that

conduct, there was no showing that the 1997 charge of

discrimination, which was amicably settled, had any bearing on

the 2007 action ten years later taken by the College against the

Petitioner. There is neither any evidence that the Petitioner

complained of or engaged in any protected activity since that

time.

55. The Respondent produced credible, un-refuted evidence

that neither Mr. White, Ms. Davis nor the College president had

any knowledge of any complaint or, in the case of Ms. Davis,

even if she recalled the 1997 complaint, there is no credible

evidence that she acted on it.

56. More importantly, the prima facie claim for

retaliation has not been established because a requisite element

has not been proven by the Petitioner. The Petitioner asserted

that she filed a complaint with the Commission in 1997. She

concedes that since that time she made no complaint with

Ms. Davis or other supervisor related to age or race. The

allegations concerning pay disparity and the Petitioner's

questioning of the level of her pay from 2000 forward does not

indicate any intent to voice a concern related to a protected

characteristic. In other words, the Petitioner did not make any

remonstrance concerning purported pay disparity based upon age

or race or any other protected element of expression or conduct.

Therefore, this element of the prima facie case has not been

established.

57. The Petitioner's contention that she was framed by the

Respondent, based upon her initial complaint in 1997, ten years

later, is not credible. No persuasive evidence was presented of

a causal relationship between that ten-year-old complaint and

the 2007 employment action. Moreover, a ten-year gap between

the protected activity or conduct and the employment action

complained of shows that the two were not causally related as a

matter of law. The United States Supreme Court has cited with

approval decisions in which a three-to-four-month disparity was

found to be sufficient to show lack of causal connection. Clark

County School District v. Breeden , 532 U.S. 268, 273; 121 S. ct.

1508; 149 L. Ed. 2d 509 (2001):

. . . {I}f there is a substantial delay

between the protected expression and the

adverse action in the absence of other

evidence tending to show causation, the

complaint of retaliation fails as a matter

of law."; Wallace v. Georgia Dept of

Transp. , 212 Fed.App. 799, 802 (11th Cir.

2006).

The ten-year period of time between the first purported

protected activity and the alleged adverse employment action is

too lengthy and renders the protected activity relied upon too

remote, to establish a causal connection between the two. Thus

a prima facie case of retaliation has not been established for

this reason.

58. Even had Petitioner established a prima facie case,

the Respondent advanced a legitimate, non-retaliatory reason for

the termination. The Petitioner was dismissed because she

violated the internet policy which was shown to be uniformly

applied to all employees regardless of race or age. Once the

Respondent employer offers a legitimate, non-discriminatory

reason to explain the adverse employment action, the Petitioner

must prove that the proffered reason was a pretext for what

actually amounted to discrimination based on retaliation. In

the instant situation, the only evidence or testimony concerning

discriminatory motives by the Respondent, in terminating the

Petitioner, is based upon the Petitioner's unsupported opinion,

which cannot constitute competent proof, standing alone, of

discriminatory motives. Swanson v. General Services

Administration , 110 F.3d 1180, 1188 (5th Cir. 1997).

59. The Respondent articulated a legitimate,

nondiscriminatory reason for the employment action and the

Petitioner did not offer persuasive evidence to show that there

was any protected activity which was causally related to that

action. The Petitioner could not demonstrate that she had

engaged in protected conduct in less than a decade before the

employment action at issue, or that the decision-maker was

clearly aware of the conduct occurring in 1997, at the point

when the 2007 employment action was taken. The Petitioner,

therefore, failed to establish a causal connection between the

termination and the purported protected conduct. Thus, a prima

facie case was not established.

60. Moreover, even if it had been established, a

legitimate, non-discriminatory reason for the termination was

shown by the Respondent with no corresponding persuasive proof

by the Petitioner that the legitimate reasons the Respondent

purported to have for the termination were actually pretext for

discrimination or retaliation. Regardless of how harsh the

result of that articulated legitimate reason for the employment

action was, there was no persuasive proof that it was based upon

retaliation, age or racial discrimination.

61. Accordingly, in consideration of the foregoing

findings and conclusions, the Petitioner's claims concerning

discriminatory discharge have not been sustained. For the

reasons illustrated above, a prima facie case of discrimination

based upon age or race has not been demonstrated nor has such

been demonstrated with regard to the claim of retaliation. A

legitimate, non-discriminatory reason for terminating the

Petitioner's employment has been demonstrated by the Respondent.

In the face of that reason, no persuasive evidence has been

offered to show that the reason was pretextual. Therefore, the

claims based upon race, age and retaliation discrimination have

not been proven.

62. The articulated reason shown for the discharge based

upon the employer's "zero tolerance" policy regarding illicit

use of the computer, the network, and the internet was carried

out in a non-discriminatory fashion. However, the result of the

implementation of that policy, under the circumstances shown by

the evidence in this case, was unduly harsh for an employee

situated as the Petitioner, with 35 years of good service, who

did not herself actually perpetrate the violative conduct, aside

from mis-using her password. Unfortunately, that circumstance,

under the holding in the Chapman decision supra , although it may

illustrate an employee who was terminated for a "bad reason," is

without a remedy in a proceeding such as this.

RECOMMENDATION

Having considered the foregoing findings of fact, the

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED:

That the Petition for Relief be dismissed in its entirety.

DONE AND ENTERED this 25th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2009.

ENDNOTE

1/ All statutory references shall be to the 2007 edition of the

Florida Statutes unless otherwise noted.

COPIES FURNISHED :

Marva A. Davis, Esquire

Marva A. Davis, P.A.

121 South Madison Street

Post Office Drawer 551

Quincy, Florida 32353-0551

Robert Larkin, Esquire

Jason Vail, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director

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.