08-004875 Susie M. Walton Banks vs. Civigenics/Community Education Centers Status: Closed Recommended Order on Tuesday, January 26, 2010.

Summary: Respondent did not unlawfully discriminate against Petitioner when she was demoted. Petitioner did not prove a prima facie case of race or gender discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSIE M. WALTON BANKS, )

)

Petitioner, )

)

vs. ) Case No. 08-4875

)

CIVIGENICS/COMMUNITY )

EDUCATION CENTERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 1, 2,

and 24, 2009, in Gainesville, Florida, and on October 21, 2009,

via video-conferencing with sites in Gainesville and

Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Ted Nichols, Esquire

Nichols Law Firm, P.A.

Post Office Box 357055

Gainesville, Florida 32635-7055

For Respondent: Richard N. Margulies, Esquire

Jackson Lewis, LLP

245 Riverside Avenue, Suite 450

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Complaint of Discrimination

filed by Petitioner on February 20, 2008.

PRELIMINARY STATEMENT

On February 20, 2008, Petitioner, Susie M. Walton Banks,

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that

Respondent, Civigenics/Community Education Centers, violated

Section 760.10, Florida Statutes, by discriminating against her

on the basis of race and gender. The Employment Complaint of

Discrimination alleged that Petitioner was subject to disparate

treatment and was involuntarily demoted.

The allegations were investigated and on August 25, 2008,

FCHR issued its Determination: No Cause and a Notice of

Determination: No Cause. A Petition for Relief was filed by

Petitioner on September 26, 2008. 1/

FCHR transmitted the case to the Division of Administrative

Hearings on or about September 30, 2008. A Notice of Hearing

was issued setting the case for formal hearing on December 11,

2008. Motions for continuance were granted and the case was

ultimately set for hearing on September 1 and 2, 2009. The

hearing commenced but was not completed on those dates, resumed

on September 24, 2009, and continued until its conclusion on

October 21, 2009.

At hearing, Petitioner testified on her own behalf.

Petitioner’s Exhibits numbered 1A-B, 2A-G, 3A-G, 4A-J, 6A-B,

7A-E, 8A-D, 9A-G, 10, 11A-F, 12A-G, 13A-D, 14A, 15A-C, 16A and

17A-B were admitted into evidence. Petitioner’s Exhibits

numbered 11G and 18 through 20 were rejected. Respondent

presented the testimony of Michael Walker and Dan Eberline.

Respondent’s Exhibits numbered 1 through 21 were admitted into

evidence.

A seven-volume Transcript was filed on November 6, 2009.

The parties filed a Joint Motion for Extension of Time to submit

proposed recommended orders, which was granted. The parties

timely filed Proposed Recommended Orders.

FINDINGS OF FACT

1. Petitioner is an African-American female who was hired

by Respondent on August 2, 2004, as the Program Director of

Respondent’s Substance Abuse Treatment Program located at

Lancaster Correctional Institution (LCI) in Trenton, Florida.

2. Respondent, Civigenics Community Education Centers

(Civigenics), is an employer within the meaning of the Florida

Civil Rights Act. Civigenics is a provider of offender in-

prison treatment services. Under contracts with the Florida

Department of Corrections (DOC), Respondent provides substance

abuse programs designed to reduce recidivism of inmates.

3. DOC has contracts with various providers throughout

Florida to provide such substance abuse services in its

correctional facilities. At the time Petitioner was hired by

Respondent as the Program Director at LCI, that program was one

of 11 of Respondent’s programs under contract with DOC. These

11 programs were under the direction of Michael Walker, State

Director for Respondent.

4. Respondent provides treatment services under two types

of programs: Modality 1 and Modality 2. Modality 1 is an

intensive outpatient program for inmates. Inmates in a Modality

1 program are involved with the program for half a day, then

have a work assignment the other half of the day. A modality 2

program is a residential program in which the inmates are

involved in the program all day long, six-to-seven days a week.

Of Respondent’s 11 programs, only two are Modality 2 programs.

One of the Modality 2 programs is at Gainesville Correctional

Institution (GCI). At the time Petitioner was employed by

Respondent as Program Director of the program at LCI, the

program was a Modality I program.

5. Dan Eberline is a correctional program administrator

for DOC. Mr. Eberline’s responsibilities include contract

management, oversight, auditing and follow-up as the liaison

between DOC and Respondent. Mr. Eberline has been employed with

DOC for 20 years and worked with Petitioner since 2001, when she

was clinical director for a Modality 2 program at another

private company. Under Respondent’s contract with DOC,

Mr. Eberline must approve of the hiring of all Program

Directors. He interviewed Petitioner and a white male for the

LCI position, and approved of Petitioner’s hiring in 2004. When

hired, she replaced a white male as the Program Director at LCI.

Petitioner was already in the Program Director position when

Mr. Walker became State Director of Respondent in 2005. Of the

11 Program Directors, six were women of which three were

African-American women. Two of the African-American women were

hired by Mr. Walker.

6. Petitioner holds a bachelor’s degree from the

University of Florida in sociology, and a Master of Arts in

Addictive Disorders from the Breining Institute, which is a

distance-learning program under the Florida Certification Board.

She is a Certified Addictions Professional from the

Certification Board for Addiction Professionals of Florida

and is a member of the Addiction Advisory Board.

7. At any given time, approximately 70 inmates were

enrolled in the program at LCI. The inmates at LCI were

youthful offenders, ranging from 18-to-24 years old.

8. As Program Director at LCI, Petitioner supervised a

staff of three counselors and an administrative assistant. As

Program Director, Petitioner was responsible for ensuring that

her staff was properly trained in group therapy, individual

therapy, and for making psychosocial assessments of the inmates

under their care. She was also responsible for ensuring the

accuracy of the database and of certain reports that the program

provided to DOC.

9. During the time period in question, there were two

contracts between Respondent and DOC. The first contract was in

effect from October 2001 through October 2006. The second

contract became effective October 2006, with an ending date of

September 30, 2011.

10. Beginning in the year 2000, DOC standardized all of

Respondent’s programs as to the performance measures used, the

maintenance of files, reports, and training. According to

Mr. Eberline, his fundamental role was to monitor the contract

and then to compare the contract with the delivery of services.

11. To measure the effectiveness of Respondent’s Modality

1 and Modality 2 programs, Mr. Eberline conducted audits of each

program’s files and reports. He monitored each program in

routine and special site visits, and in a comprehensive annual

audit, to ensure that each program was meeting contract

standards. Mr. Eberline would, in turn, provide reports of

those audits to his supervisor, Kim Riley. The reports are

provided to the Florida Legislature for purposes of receiving

funding.

12. The most critical standard each program must meet is a

successful completion rate for inmates who participate in

Respondent’s programs. This standard of measure is used by DOC

to determine the effectiveness of treatment. In the second

contract (beginning October 2006), the successful completion

rate was specified at 80 percent for Modality 1 programs and 60

percent for Modality 2 programs.

13. The first contract (ending October 2006) did not

specify a completion rate of 80 percent. However, the

preponderance of the evidence established that while not

codified in the earlier contract, there was nonetheless an

expectation that each Modality 1 program, such as at LCI, would

meet an 80 percent successful completion rate standard. An 80

percent successful completion rate was considered standard in

the industry, discussed at staff meetings, was part of a program

director’s training, and referenced in Mr. Eberline’s program

reports.

14. The completion rate standard measures the number of

inmates enrolled in a Modality 1 program who completed the

program after a recommendation from the clinical staff. These

inmates were discharged or coded as having completed the

treatment program. Not all inmates, however, complete the

program for a number of reasons. For example, an inmate may be

unable to participate in and have to withdraw from the program

because he must go to court, for a medical or mental health

reason, or because the inmate must go into protective

confinement.

15. Additionally, an inmate may receive a Disciplinary

Report (DR) from prison staff and be discharged from the program

for behavior that is not considered “related to the program.”

That is, the DR is for behavior that the treatment program is

not designed to impact. The inmate is considered to be

administratively discharged (coded ADM) if the program director

determines the behavior can be further addressed through the

program.

16. Conversely, an inmate may receive a DR for behavior

that is considered program related (e.g., behavior that the

treatment program is designed to impact) such as a positive drug

screen, a threat of violence, or one of the other “cardinal”

rule violations. Also, an inmate may be unsuccessfully

discharged for other behaviors considered “major” rule

violations such as sexually acting out, assault, fighting,

threats of violence, or breaking confidentiality of inmates.

The inmate would receive an unsuccessful discharge from the

program (coded UNS) because the program has not been successful

in impacting the inmate’s behavior.

17. DOC electronically maintains information regarding DRs

issued to inmates on the Offender Based Information System

(OBIS). The Program Director for each program reviews the

information on OBIS, in a read-only format, about an inmate’s

DRs which states the nature of the DR, and what type of behavior

or conduct was involved. The Program Director can read the DR

as well as the narrative of the DOC employee who issued the DR,

to find out what actually occurred.

18. The determination as to whether a disciplinary

infraction which results in an inmate’s dismissal from the

program is or is not related to the program and properly coded

as an ADM or UNS discharge, is the responsibility of the Program

Director. It is also the Program Director’s responsibility to

ensure that the reports used to calculate the completion and

discharge rate for inmates enrolled in the program are correct.

19. While the data reflecting the coding determination

might be entered by support personnel, only the Program Director

can make the coding determination because of his or her training

and certification. According to Mr. Eberline, it would be

unethical to leave such a determination to a person who is

neither qualified nor licensed to make that decision.

20. Every month, a report which lists those inmates who

have successfully completed the program, and those inmates who

received an ADM discharge or a UNS discharge, is submitted to

DOC. This report, called a “PPC41” is used to calculate the

completion rate. The Program Director must sign off on the

PPC41 before it is sent to Mr. Walker, and in turn to

Mr. Eberline. It is the Program Director’s responsibility to

ensure that the document is sent and that the information

contained in the PPC41 is accurate.

21. At hearing, Petitioner testified that her

administrative assistant was the person who made the coding

determinations, and entered them into the computer system.

Petitioner signed off on these reports, but did not make an

independent review of their content. She simply verified that

they were being sent to Mr. Walker and Mr. Eberline.

22. Prior to the hearing, Mr. Walker and Mr. Eberline were

not aware that Petitioner was allowing clerical staff to

determine the codes on the PPC41s. Both Mr. Walker and

Mr. Eberline expressed concern and disapproval that Petitioner

did not review the PPC41s for content and that the coding was

done by her assistant. Since this information was revealed to

them during the hearing, it could not have been the basis for

the employment actions taken by Respondent. It may, however,

explain some of the errors which will be discussed.

23. Under the formula utilized by Respondent and DOC to

measure the completion rate, the number of inmates who

successfully complete the program are first identified. From

that number, the number of inmates who are coded as ADM

(administrative discharge) are factored out or subtracted. That

number is then compared to the number of inmates who are coded

as UNS (unsuccessful discharge). These two numbers are then

compared to the number of inmates who have successfully

completed the program. The administrative discharges do not

impair or lower a program’s completion rate. The more

discharges that are coded as ADMs, the higher the program’s

completion rate. For that reason, if an inmate’s discharge is

improperly or incorrectly coded as an ADM rather than UNS, an

incorrect completion rate will result.

24. The Program Director submits the monthly PPC41s to DOC

throughout the course of the fiscal year. These monthly reports

provide a monthly snapshot as to whether or not a program is

meeting the contractual standard. The monthly report may

identify the need to intensify services or change the format by

which the program is providing treatment to inmates to better

impact their behavior. Consequently, the completion rate may

vary from month to month, with a final completion rate

calculated at the end of each fiscal year.

25. At the end of each fiscal year, DOC tabulates all of

the discharge information reflected in each program’s PPC41s,

audits the discharge codes, and calculates a final completion

rate for all programs. These calculations are made in

Tallahassee without involvement of Mr. Walker or Mr. Eberline,

and without any knowledge of the identity of the particular

program director at any particular facility.

26. In April 2005, an annual comprehensive audit of the

program at LCI was conducted by Mr. Eberline. LCI’s completion

rate was determined to be 54.4 percent. Mr. Eberline’s

monitoring report noted, “This is a low completion rate when

compared to similar Modality I programs. The youthful offender

inmates are a difficult population to work with, however, a

formal plan to increase the completion rate is encouraged.”

27. LCI was issued its first Corrective Action Plan (CAP)

to address several items. On June 14, 2005, Mr. Eberline

determined that all elements of the CAP were met.

28. In April 2006, Mr. Eberline conducted the annual

comprehensive audit of the program at LCI. The audit revealed

that the completion rate for the program had gone down from 54.4

percent to 52 percent. While no CAP was required,

Mr. Eberline’s report included the following: “The past twelve

month program completion rate is 52 percent adjusted for

administrative discharges as compared to 54.4 percent last year.

It is recommended that an internal institutional review be

initiated to provide suggestions on how to improve this program

completion rate.”

29. In response to these comments, Mr. Walker convened an

institutional review of this situation. He brought together

security, classification, administrative staff, Petitioner and

himself in an effort to determine how Respondent could more

positively impact the completion rate in the program at LCI.

30. In December 2006, Mr. Eberline conducted a routine

follow-up visit to LCI. His report of the visit notes that the

Warden was concerned with the program completion rate of 48

percent for fiscal year 2005-2006. 2/ His report also noted that

because there were deficiencies in basic file format, additional

training was required to ensure that “staff is following

acceptable file format.”

31. As a result of those comments, Mr. Walker discussed

with Petitioner file format and the proper order of documents in

the files.

32. Mr. Eberline conducted a routine site visit at LCI in

February 2007. He was concerned that LCI’s completion rate had

dramatically increased from 48 percent to over 80 percent in

just five months. Mr. Eberline, Mr. Walker, and the Assistant

Warden were all concerned with this sudden dramatic increase in

completion rates. Mr. Eberline suspected that the ADM coding

might have been overused resulting in a manipulation of the code

so as to artificially increase the completion rate of the

program.

33. Using the OBIS system, Mr. Eberline, Mr. Walker, and

Petitioner reviewed and analyzed the coding determinations for

those files, in excess of 40, in which a clinical decision had

to have been made. Once the discharge codes were re-evaluated,

the completion rate dropped to 60 percent.

34. It was at this time that Mr. Eberline brought up

concerns to Mr. Walker about Petitioner’s performance in regard

to program completion rates, and the need for a change in

leadership. Mr. Eberline was being questioned by his supervisor

at DOC about steps he was taking to address the low completion

rate at LCI. In turn, Mr. Walker was hearing these same

questions and concerns from Mr. Eberline.

35. At Mr. Eberline’s request, Mr. Walker wrote a second

CAP which was put in place on February 20, 2007. This CAP was

directed at Petitioner and concerned “client discharges being

inappropriately coded as ADM 83.”

36. Mr. Eberline conducted a follow-up review on May 21,

2007. His report concluded that training had been completed

with staff and, as a result, the assignment of proper discharge

codes was being used and reported. His report notes that the

completion rates would continue to be monitored.

37. On the same date, Mr. Eberline conducted a

comprehensive, annual audit of Lancaster. The annual audit

covered nine months from July 1, 2006, through April 14, 2007.

Annual audits did not necessarily coincide with the fiscal year

(July 1 through June 30). During this audit, it was determined

that the completion rate at LCI was 67.4 percent at that point

in the fiscal year. The completion rate for fiscal year 2006-

2007 for LCI was calculated by DOC to be 65.2 percent.

38. At that point, the 80 percent standard had been

codified in the contract between Respondent and DOC.

Mr. Eberline recommended in his audit report that “continued

effort be focused on improving the completion rate up to and

exceeding the performance measure specified in the contract.”

39. In April 2007, Civigenics was bought by Community

Education Centers. On May 4, 2007, a meeting was held by

Mr. Eberline and Mr. Walker of all Program Directors, including

Petitioner. At this meeting, Mr. Eberline discussed data entry

concerns and completion rates. Mr. Eberline expressed his

increasing concern about the overuse of administrative discharge

codes. He also informed Mr. Walker that the contract was in

jeopardy because of the low completion rate.

40. In July 2007, Mr. Walker believed that the program at

LCI would not reach the contractual standard of 80 percent. He

felt that 70 percent was “reachable.” He approached

Mr. Eberline, who informed him that the matter would have to be

addressed to Kim Riley, Chief of the Bureau of Substance Abuse

Programs at DOC.

41. Mr. Walker then wrote a letter to Ms. Riley,

requesting an adjustment in the contract performance measure for

LCI to be reduced from 80 percent to 70 percent. The letter

stated in part:

This program provides services to a male

Youthful Offender population which has a

high degree of need for confinement for the

safety and security of the institution. We

wish to request an adjustment of 10% which

would then require that we maintain a

program completion rate of at least 70%

within this program servicing this special

population.

42. Mr. Walker had never made a similar request for any of

the other programs under his supervision. Petitioner was aware

of Mr. Walker’s request to lower the standard.

43. On July 16, 2007, a special meeting was convened at

LCI to discuss continuing concerns about the program’s

completion rate. The meeting was attended by the prison warden

and other prison administrators, Mr. Walker, Mr. Eberline,

Petitioner and one of her staff. Mr. Eberline made it clear

that since the completion rate was directly tied to legislative

funding, the program at LCI was in jeopardy of being shut down.

44. Following the special meeting, Mr. Eberline wrote a

report which read in pertinent part:

The special needs of the youthful

offender inmate being served by the

substance abuse modality I program were

discussed. Disciplinary action resulting

from inmate behavior issues was determined

to be the primary reason for an inmate’s

unsuccessful discharge. The inmate’s

resistance to treatment was also a

contributing factor. The number of low

ranking mandatory inmates available for

enrollment was discussed and will be

reviewed for remedy. All were in agreement

that little could be done to impact the

institution’s disciplinary system dealing

with enrolled inmate’s behavior issues.

It is recommended that the program

director and staff review options on how to

impact program participant’s behavior

through a more intensive treatment regiment.

The program is requested to review and

restructure the readiness group service

delivery to identify motivated inmates for

program enrollment.

A (CAP) Corrective Action Plan will be

required to address these concerns and

recommendations. The CAP shall be submitted

on or before August 13, 2007.

45. Mr. Walker sent an e-mail to Petitioner instructing

her as follows: “In addition to your regular end of the month

PPC 41 report, please order an additional PPC 41 report which

covers your program components from July 1, 2006 through

June 30, 2007. Ensure that all data is accurate. . . ."

46. In response, Petitioner created a chart in which she

calculated the completion rate to be 84.10 percent for July 2006

to June 2007. This conflicts with the completion rate

calculated by DOC which shows a 65.2 percent for the same time

period. The preponderance of the evidence indicates that

Petitioner’s calculation of a completion rate of 84.10 percent

is inaccurate. The completion rates for the program at LCI as

calculated by DOC were 47.7 percent for 2005-2006 and 65.2

percent for 2006-2007.

47. Mr. Walker began receiving criticism from Mr. Eberline

and Mr. Walker’s supervisor, Ms. Worthington, about the low

completion rate at LCI. He was told that if he was not able to

increase the completion rate at LCI, that they, DOC, would find

someone who would.

48. In early September 2007, Mr. Eberline conducted a

routine visit to LCI and again found miscoding errors.

Mr. Walker verbally informed Petitioner that staff performance

ratings would be reviewed and would be associated with meeting

the 70 percent completion rate as specified in the contract and

that, should this standard not be met, staff would be placed on

probationary status and additional corrective actions taken.

This admonition was contained in writing in the CAP that

Mr. Walker prepared in early September.

49. At some point between early September and early

October, Mr. Eberline recommended to Mr. Walker that Petitioner

be removed as Program Director because of the program’s

consistent lack of meeting the performance standards, the need

for multiple CAPs, and miscoding issues.

50. Mr. Walker discussed this with his supervisor,

Ms. Worthington. He recommended that Petitioner not be

terminated. There were two open counselor positions, one of

which was located in Gainesville. Mr. Walker offered Petitioner

a demotion to a counselor position and made an effort to keep

her salary as high as possible.

51. Mr. Walker had to get approval from Mr. Eberline for

this transfer; Mr. Eberline reluctantly approved the transfer.

Ms. Worthington agreed with Mr. Walker’s recommendation.

52. On October 4, 2007, Petitioner was removed as Program

Director and replaced by Vernon Burgess, a white male, who was

at that time the Program Director at GCI. The program at LCI

was still under the CAP, which was ultimately successfully

completed in November 2007.

53. On November 19, 2007, the program at LCI was closed.

When the program at LCI closed, Mr. Burgess resumed his former

position as Program Director at GCI. All of the other employees

in the program at LCI were laid off.

54. On December 18, 2007, Petitioner wrote a letter to

Mr. Walker requesting a written explanation regarding her

demotion. Petitioner wrote that she had not been given an

opportunity to address the adverse actions taken against her.

Her letter did not raise any allegation of discrimination on the

basis of race or gender.

55. Mr. Walker met with Petitioner in December 2007.

Mr. Walker informed her that if she had an issue with her

demotion, that there was a grievance procedure she could pursue

if she felt she needed to do so.

56. Petitioner did not file a grievance with Respondent.

Petitioner filed a Charge of Employment Discrimination with FCHR

which gave rise to this proceeding.

The Gainesville Program

57. Respondent operates a Modality 2 program at

Gainesville Correctional Institution (GCI). In 2006, an audit

was conducted at GCI by Mr. Eberline at about the same time he

conducted the annual comprehensive audit at LCI. The program at

GCI had declined from the prior year’s completion rate of 71

percent to 51 percent. The performance standard for a Modality

2 program was 60 percent, in contrast to the higher standard for

Modality 1 programs.

58. As a result of this drop in completion rates, a

special meeting took place including Mr. Eberline, Mr. Walker,

Mr. Burgess, the Program Director at GCI, and the prison

administration. This special meeting was similar to the special

meeting held at LCI to address improving completion rates.

Unlike Modality 1 programs, there are no administrative

discharge codes in a Modality 2 program. Thus, there was no

issue relating to overuse of the ADM code, but there was a

completion rate issue.

59. The meeting focused on taking immediate steps to

improve the completion rate, focusing on inmates at risk for

obtaining disciplinary reports. By the time the meeting was

held, the completion rate had begun to improve. Mr. Walker

instituted a CAP for the GCI program although Mr. Eberline did

not require one. The completion rate for GCI improved in

approximately a three-month period.

60. According to DOC’s calculation, GCI had a completion

rate of 79.1 percent for fiscal year 2006-2007. This exceeded

the contract standard of 60 percent.

61. All of Respondent’s Program Directors have the same

access to the OBIS system, must meet the same reporting

standards, receive the same training, and must meet contractual

standards set forth in the contract between DOC and Respondent.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

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

63. 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

race or sex (gender).

64. In discrimination cases alleging disparate treatment,

the Petitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination. 3/

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 employment action. See 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. Id. ; Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The employee

must then come forward with specific evidence demonstrating that

the reasons given by the employer are a pretext for

discrimination. "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 , supra at 1186;

Alexander v. Fulton County, Georgia , supra . Petitioner has not

met this burden.

65. To establish a prima facie case regarding Petitioner’s

allegation that Respondent failed to promote her because of her

race, Petitioner must prove that: (1) she is a member of a

protected class; (2) she was subject to an adverse employment

action; (3) Respondent treated similarly situated employees, who

are not members of the protected class, more favorably; and (4)

she was qualified for the job or benefit at issue. See

McDonnell , supra ; Gillis v. Georgia Department of Corrections ,

400 F.3d 883 (11th Cir. 2005). 4/

66. Petitioner meets the first and second elements in that

she is African-American and was demoted. As for the fourth

element, Petitioner was presumably qualified as she was hired

for the Program Director job. However, Petitioner did not prove

the third element, that similarly situated employees who are not

members of the protected class were treated more favorably.

67. Petitioner asserts that she was treated less favorably

than her white male counterpart, Mr. Burgess. First, Petitioner

alleges that Mr. Burgess was treated more favorably when the

completion rates for his program at GCI was below contractual

standards compared to how Petitioner was treated when the

program at LCI was not meeting completion rate standards.

Secondly, when Petitioner was demoted and transferred to GCI,

Mr. Burgess was moved to the LCI Program Director position,

which he held briefly until that program’s closure.

68. At both LCI and GCI, special meetings were convened in

an effort to redirect the efforts in these programs to reach the

desired result of higher completion rates. The completion rate

program problems at GCI were rectified quickly, whereas the

problems at LCI, where Petitioner was Program Director, were

long-term and spanned more than two fiscal years.

69. The preponderance of the evidence established that

Petitioner was demoted from her position as Program Director at

LCI because for nearly three years, the program at LCI was the

lowest performing of Respondent’s 11 programs under contract

with DOC. The low completion rate at LCI was the reason

Mr. Walker requested DOC to lower the contractual standard from

80 percent to 70 percent. Despite this lower standard, LCI

still did not achieve the contractual standard.

70. Mr. Eberline, who is an employee of DOC, not of

Respondent, insisted to Mr. Walker and Mr. Walker’s supervisor,

Ms. Worthington, that Petitioner be removed from the Program

Director position or DOC would terminate the contract with

Respondent as legislative funding would be lost.

71. Despite Mr. Eberline’s insistence, Mr. Walker

essentially “went to bat” for Petitioner and instead of firing

her as Mr. Eberline wanted, transferred Petitioner to a

counselor’s job. He also made an effort to keep her salary as

high as possible, and has encouraged her to apply for at least

one other Program Director job. While this was a demotion,

Petitioner is still employed with Respondent in her field. In

contrast, her former co-workers at LCI were laid-off when that

program closed.

72. Applying the McDonnell analysis, Petitioner did not

establish a prima facie case of race or sex discrimination in

regard to her allegations that Respondent demoted her because of

her race or sex.

73. Even assuming that Petitioner had demonstrated a prima

facie case, Respondent demonstrated a legitimate, non-

discriminatory reason for her demotion: that the program over

which she was Program Director consistently did not meet the

appropriate completion rate standards, despite training and

opportunities for improvement through corrective action plans.

74. Petitioner believes that the completion rates relied

upon by Respondent were erroneous and that they were, in

reality, higher. The “official” completion rates were

calculated by DOC. There is no competent evidence that they are

incorrect. Petitioner did not come forward with specific

evidence that the reasons given by Respondent are a pretext for

discrimination. She did not show that a discriminatory reason

more likely than not motivated the decision, or that the

proffered reason given by Respondent is not worthy of belief.

75. Moreover, the important issue is whether Respondent

intentionally discriminated against Petitioner in taking the

action of demoting and transferring her. Thus, even if there

were errors in the percentages calculated by DOC, there is no

evidence that Respondent manipulated those numbers for the

purpose of discriminating against Petitioner because of her race

or gender. See also Department of Corrections v. Chandler ,

supra at 1187, quoting Nix v. WLCY Radio/Rahall Communications ,

738 F.2d 11811, 1187 (11th Cir. 1984) (“The 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.”).

76. Finally, whether or not Respondent followed its

internal procedures regarding Petitioner's demotion is not

relevant unless its actions are based upon unlawful

discrimination. There is no competent evidence that Respondent

based its actions regarding Petitioner on discriminatory

reasons.

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

of proof that Respondent engaged in unlawful discrimination

toward her on the basis of her race or gender.

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 26th day of January, 2010, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2010.

ENDNOTES

1/ Petitioner also filed an employment charge of discrimination

against the Florida Department of Corrections. That case was

also transmitted to DOAH and assigned Case No. 08-4878. On

October 30, 2008, Administrative Law Judge T. Kent Wetherell,

II, entered a Recommended Order of Dismissal. A Final Order of

Dismissal was issued by FCHR on January 12, 2009.

2/ The official completion rate as calculated by DOC was 47.7

percent for fiscal year 2005-2006.

3/ 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 Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

4/ In its Proposed Recommended Order, Respondent asserts that

it is not necessary or appropriate to address whether or not

Petitioner established a prima facie case, as the case was heard

in full. Respondent asserts that the only relevant inquiry is

the ultimate factual issue of intentional discrimination. In

support of this position, Respondent cites federal cases in

which a motion to dismiss was made as to whether a prima facie

case had been made, and the motion denied by the federal court.

The undersigned has reviewed the cases cited by Respondent as

authority for this proposition and has determined that it would

not be appropriate in the instant case, in which the undersigned

has only recommended order authority, to bypass the analysis as

set forth in McDonnell .

COPIES FURNISHED :

Ted Nichols, Esquire

Post Office Box 357055

Gainesville, Florida 32635

Richard N. Margulies, Esquire

Jackson Lewis

245 Riverside Avenue, Suite 450

Jacksonville, Florida 32202

Larry Kranert, 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.