08-004983 Dafney L. Cook vs. Corrections Corporation Of America Status: Closed Recommended Order on Monday, February 9, 2009.

Summary: Petitioner did not prove that Respondent discriminated against her based on her race or gender or retaliated against her by failing to promote her and terminating her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAFNEY L. COOK, )

)

Petitioner, )

)

vs. ) Case No. 08-4983

)

CORRECTIONS CORPORATION OF )

AMERICA, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on December 17, 2008,

by video teleconference between Jacksonville, Florida, and

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dafney L. Cook, pro se

2445 Dunn Avenue, Apt. 610

Jacksonville, Florida 32218

For Respondent: Chelsie J. Roberts, Esquire

Ford & Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: (a) by discriminating against Petitioner based on her race

and/or gender; (b) by subjecting Petitioner to a hostile work

environment; and (c) by retaliating against Petitioner.

PRELIMINARY STATEMENT

Petitioner Dafney L. Cook (Petitioner) filed her Employment

Complaint of Discrimination with the Florida Commission of Human

Relations (FCHR) on June 30, 2008. The complaint alleged that

Respondent Corrections Corporation of America (Respondent) had

discriminated against her pursuant Sections 760.10(1)(a) and

760.10(7), Florida Statutes (2008).

On or about August 14, 2008, FCHR issued a Notice of

Determination: Cause and Determination: Averse Inference Cause.

Petitioner filed a Petition for Relief on September 18, 2008.

FCHR referred the case to the Division of Administrative

Hearings on October 8, 2008. A Notice of Hearing by Video

Teleconference dated October 22, 2008, scheduled the hearing for

December 17, 2008.

On December 11, 2008, Petitioner filed a written request to

continue the hearing. On December 15, 2008, the undersigned

issued an Order Denying Continuance of Final Hearing.

During the hearing, Petitioner testified on her own behalf.

She offered Petitioner's Exhibit Nos. P1-P8 that were accepted

as evidence.

Respondent presented the testimony of three witnesses.

Respondent offered Respondent's Exhibit Nos. R3-R7, R10, R19,

R21, R23-R24, R26-28, and R30-R31 that were accepted as

evidence.

The Transcript was filed on January 6, 2009. Respondent

filed a Proposed Recommended Order on January 23, 2009. As of

the date that this Recommended Order was issued, Petitioner had

not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent hired Petitioner, a black female, as a

correctional officer on or about February 25, 2002. Petitioner

was initially assigned to the Hernando County Jail.

2. After a series of transfers at Petitioner's request,

Respondent assigned Petitioner to the Lake City Correctional

Facility in July 2005. Petitioner continued to serve at that

facility until she was terminated.

3. On multiple occasions during her employment, Petitioner

received copies of Respondent's Harassment/Sexual Harassment

policy and Respondent's Code of Ethics policy. Petitioner

received formal training relative to the substance of these

policies when she was hired and annually thereafter.

4. In October 2007, Petitioner filed two grievances

against Captain Michael Register and Chief Daniel Devers. The

grievance against Chief Devers alleged a "hostile" work

environment. Specifically, Petitioner asserted that Chief

Devers created a divide-and-conquer environment by telling new

staff that "several dirty officers work for Respondent and that

the new staff are to tell on them and replace all the old staff

members."

5. The grievance against Captain Register alleged race and

gender harassment. Specifically, Petitioner claimed that

Captain Register did not relieve Petitioner on time "for three

weeks straight." Petitioner believed that Captain Register's

alleged conduct was due to his dislike for her and favoritism

toward other staff members. Petitioner did not allege that

Captain Register or Chief Devers ever said anything to

Petitioner or anyone else regarding her race or gender.

6. In response to Petitioner's grievances, Respondent

performed an in-house investigation. Subsequently, Petitioner's

grievances against Captain Register and Chief Devers were denied

as unfounded.

7. Petitioner alleges that she was sexually harassed by

Officer/Correctional Counselor Roderick Polite. As a

Correctional Counselor, Officer Polite did not have authority to

change the terms and conditions of Petitioner's employment

except that it was possible for Petitioner to receive work

orders from a Correctional Counselor.

8. Petitioner went on two consensual dates with Officer

Polite prior to his alleged harassment. The first date was in

late November 2007. The second date was in early December 2007.

At the time that Petitioner went on these dates, she was

temporarily broken up with Correctional Officer Darian Blue.

9. In late November and early December 2007, Petitioner

worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned

to the 2 p.m. to 10 p.m. shift.

10. Petitioner refused to go to Respondent's December 14,

2007, Christmas party with Officer Polite. Thereafter, Officer

Polite called Petitioner's house continuously for three days.

In a telephone conversation on December 17, 2007, Officer Polite

allegedly told Petitioner that he "just had sex with a girl."

Officer Polite also allegedly stated that his fascination with

her would be over if she would just give him oral sex.

Petitioner told Officer Polite "no" and ended the conversation.

11. Petitioner claims that Officer Polite began to harass

her at work after the December 17, 2007, telephone conversation.

According to Petitioner, the harassment continued until

January 10, 2008. Specifically, Petitioner claims that Officer

Polite was critical of her work performance and changed the

procedures she was to follow regarding mail distribution and the

cleaning of pods by inmates. Officer Polite allegedly also

accused Petitioner of improperly counseling an inmate.

12. Petitioner alleges that Officer Polite "wrote her up"

on one occasion. However, Petitioner admits that she never saw

the alleged write-up. Petitioner also admits that she never

suffered any adverse action as a result of the alleged write-up.

The greater weight of the evidence indicates that Officer Polite

never filed a disciplinary action against Petitioner.

13. Petitioner did not complain about Officer Polite's

conduct until January 9, 2008. On that date, Petitioner spoke

with Captain Joseph Ruby about Officer Polite's alleged conduct.

14. Respondent’s sexual harassment policy prohibits

physical and verbal harassment, including inappropriate threats

and requests. The policy also set forth the procedure by which

employees should utilize to complain about harassment and states

that complaints will be promptly and thoroughly investigated.

15. Accordingly, on January 10, 2008, Petitioner was

interviewed by Respondent's in-house investigator. Petitioner

told the investigator about Officer Polite's alleged harassment

but stated that she did not want to file a formal grievance

against him. Petitioner simply requested that she be allowed to

return to work and that she not have to work with Officer

Polite.

16. Officer Polite subsequently resigned his position as a

Correctional Counselor and stepped down to a Correctional

Officer position. Additionally, Respondent changed Officer

Polite to the 6 a.m. to 6 p.m. shift. If there were occasions

when Petitioner's and Officer Polite's shifts overlapped,

Respondent granted Officer Polite's requests not to work around

Petitioner.

17. In March 2008, Petitioner applied for one of three

open positions as a Correctional Counselor. Based on the

interview panel's recommendation, Warden Jason Medlin selected a

white female and two black females for the positions.

18. Petitioner was not selected for one of the positions

because of her personnel and disciplinary record, including a

prior allegation of excessive force against inmates. Moreover,

there is no evidence regarding the personnel and disciplinary

records of the three females selected for the positions.

19. On March 30, 2008, Petitioner was assigned to the

control room in the South 2 Unit. Her primary duty was to

maintain the log and to open doors for other officers.

20. At some point during her shift, Petitioner removed an

inmate from his cell, took him to master control, and left him

there. A Lieutenant requested another Correctional Officer,

Amanda Sanders, to escort the inmate back to his cell and assist

Petitioner with a search of the inmate's cell.

21. When Officer Sanders and Petitioner arrived at the

cell, the inmate's cellmate, Jose Sandoval, was sitting on his

bunk bed. Officer Sanders told Inmate Sandoval to leave the

cell. When Inmate Sandoval did not comply, Petitioner ordered

him to stand up to be handcuffed.

22. Inmate Sandoval continued to sit on his bunk bed.

Petitioner then told Officer Sanders to call a "code red," a

request for assistance from other officers. Officer Sanders did

not comply immediately with Petitioner's request because Officer

Sanders did not believe there was a need for assistance or a

reason to handcuff Inmate Sandoval.

23. Next, Petitioner grabbed Inmate Sandoval by his arm,

physically removed him from his bed, and placed him face first

into the wall. Officer Sanders did not have any contact with

Inmate Sandoval when Petitioner removed him from his bed.

24. Inmate Sandoval somehow turned to face Petitioner who

had her back to Officer Sanders. Officer Sanders heard a

"smack" and concluded that Petitioner had struck Inmate

Sandoval. Officer Sanders then saw Inmate Sandoval spit at

Petitioner. Officer Sanders immediately called a "code red" and

assisted Petitioner in placing Inmate Sandoval on the floor and

handcuffing him.

25. Other officers arrived and removed Inmate Sandoval

from his cell and the unit. As recorded on the facility's video

cameras, the officers carried Inmate Sandoval by his neck, two

or three feet off the floor. The officers choked him and

slammed him onto the floor. The cameras recorded Inmate

Sandoval in the medical department, so incoherent that he had to

be held up to prevent him from falling over.

26. When force is used against an inmate, the incident

report must be sent to the Florida Department of Corrections'

Inspector General (IG). In this case, the IG performed an

investigation, concluding that Inmate Sandoval was assaulted by

the facility's officers and that blood was cleaned off the walls

to hide the assault.

27. Respondent subsequently received a copy of the IG's

report. On April 11, 2008, Respondent terminated all officers

involved, including Petitioner, for violation of Respondent's

Code of Ethics. Specifically, Respondent terminated Petitioner

for physically abusing the inmate, for failing to report the

extent of abuse on the inmate in written reports and during the

IG's investigation, and for failing to call into the facility as

directed while on administrative leave after the incident.

28. Other officers that were terminated included the

following: (a) Correctional Officer Darian Blue (black male)

for use of excessive force; (b) Lieutenant Phillip Mobley (white

male) for failure to accurately report the extent of abuse;

(c) Captain/Shift Supervisor Joseph Ruby (white male) for

failure to accurately report the extent of abuse; (d)

Correctional Officer Grace Davie (white female) for failure to

accurately report the extent of abuse; (e) Correctional Officer

Melissa Fontaine (white female) for failure to accurately report

the extent of abuse; and (f) Correctional Officer Eunice Cline

(white female) for failure to accurately report the extent of

abuse.

29. Respondent did not terminate Officer Sanders. The

IG's report did not show that she violated any of Respondent's

policies during the incident.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Florida Statutes (2008).

31. It is unlawful for an employer to discriminate against

any individual based on such individual's race or gender. See

for an employer to retaliate against any person because that

person has opposed any practice that is an unlawful employment

practice. See § 760.10(7), Fla. Stat. (2008).

32. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes (2008), as amended, was

patterned after Title VII of the Civil Rights Act of 1964, 42

U.S.C.S. 2000e et seq. , and federal case law interpreting Title

VII is applicable to cases arising under the FCRA. See Green v.

Burger King Corp. , 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999);

Florida State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996).

33. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated or

retaliated against her. See Florida Dep't of Transportation v.

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

34. Petitioner can establish a case of discrimination or

retaliation through direct evidence or circumstantial evidence.

See Holifield v. Reno , 115 F.3d 1555, 1561-1562 (11th Cir.

1997). In this case, Petitioner has not shown any direct

evidence of discriminatory or retaliatory intent.

35. Under McDonnell Douglas Corp v. Green , 411 U.S. 792,

802-805 (1973), an employment discrimination case based on

circumstantial evidence involves the following burden-shifting

analysis: (a) the employee must first establish a prima facie

case of discrimination; (b) the employer may then rebut the

prima facie case by articulating a legitimate, nondiscriminatory

reason for the employment action in question; and (c) the

employee then bears the ultimate burden of persuasion to

establish that the employer's proffered reason for the action

taken is merely a pretext for discrimination.

Sexual Harassment

36. To prove a prima facie case of sexual harassment,

Petitioner must establish the following: (a) she belongs to a

protected group; (b) she was subjected to unwelcome harassment;

(c) the harassment was based on her gender; (d) the harassment

was sufficiently severe or pervasive to alter the terms and

conditions of her employment and create an abusive working

environment; and (e) a basis for holding Respondent liable. See

Gupta v. Florida Bd. of Regents , 212 F.3d 571. 582-583 (11th

Cir. 2000).

37. In this case, Petitioner has not shown that Officer

Polite's conduct was so severe or pervasive to create an

objectively hostile or abusive work environment. See Watkins v.

Bowden , 105 F.3d 1344, 1355 (11th Cir. 1997).

38. In determining whether harassment objectively alters

an employee's terms or conditions of employment, the following

factors must be considered: (a) the frequency of the conduct;

(b) the severity of the conduct; (c) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (d) whether the conduct unreasonably interferes

with the employee's job performance. See Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 23 (1993).

39. Here, the alleged harassment occurred over a four-week

period and was intermittent at most. Petitioner did not

identify any comments or conduct by Officer Polite that amounted

to more than an offensive utterance during a telephone call

after some consensual dating. The remainder of Officer Polite's

alleged comments related to normal and customary work

instructions.

40. Furthermore, Petitioner has not shown that Respondent

is liable for Officer Polite's alleged statements. Officer

Polite was not Petitioner's supervisor. Thus, he did not have

power to take any tangible, adverse employment action against

Petitioner.

41. If an alleged harasser is not the employee's

supervisor, then the employer may only be held liable for the

harasser's conduct if the employer knew or should have known of

the harassment and failed to take prompt remedial action. See

Watson v. Blue Circle, Inc. , 324 F.3d 1252, 1259 (11th Cir.

2003).

42. Once Respondent became aware of Petitioner's

allegations against Officer Polite, Respondent took prompt and

effective remedial action by changing Officer Polite's position

and work schedule to prevent further interactions with

Petitioner. Petitioner did not present any evidence that

Officer Polite continued to engage in harassing behavior after

she made her complaint. Remedial action that results in the

cessation of harassment precludes any recovery by an employee.

See Bryant v. School Bd. of Miami Dade County , 142 Fed. Appx.

382, 385 (11th Cir. 2005).

Failure to Promote

43. To establish a prima facie case of discrimination for

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

is a member of a protected group; (b) she was qualified and

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

qualification; and (d) other equally or less qualified employees

who were not members of the protected class were promoted. See

Welch v. Mercer Univ. , 2008 U.S. App. LEXIS 26291 (11th Cir.

Dec. 24, 2008).

44. Petitioner presented no evidence to show that she was

qualified for the position of Correctional Counselor.

Petitioner also failed to show that the selected applicants were

equally or less qualified than herself. Finally, Petitioner did

not show any discrimination based on race or gender because the

selected applicants were all female, one white and two black.

Discriminatory Discipline or Termination

45. To establish discrimination in discipline, Petitioner

must show the following: (a) she belongs to a protected group

such as a minority race; (b) she was qualified for the job; and

(c) a similarly situated employee engaged in the same or similar

misconduct but did not receive similar discipline or

termination. See Nicholas v. Board of Trustees , 251 Fed Appx.

637, 642 (11th Cir. 2007).

46. To determine whether employees are similarly situated,

one must consider whether "the employees are involved in or

accused of the same or similar conduct and are disciplined in

different ways." See Maniccia v. Brown , 171 F.3d 1364, 1368

(11th Cir. 1999).

47. In order to make that determination, courts "require

that the quantity and quality of the comparator's misconduct be

nearly identical to prevent . . . second-guessing employers'

reasonable decisions and confusing apples with oranges.” Id. at

1368.

48. Petitioner failed to present evidence that she was

similarly situated with Officer Sanders, a white female, in

regards to their involvement in the March 30, 2008, incident.

The evidence indicates that Petitioner used excessive force in

dealing with Inmate Sandoval, that she failed to accurately

report the extent of abuse, and that she failed to call in as

required while on administrative leave after the incident.

There is no evidence that Officer Sanders used the same or

similar physical force on Inmate Sandoval or that she engaged in

any of the other behaviors for which Petitioner was terminated.

Most importantly, the incident resulted in the termination of

five other employees, one black male, two white males, and two

white females.

Retaliation

49. To support a prima facie case of retaliation,

Petitioner must prove the following elements: (a) she

participated in a protected activity; and (b) she was subjected

to an adverse employment action. See Pipkins v. City of Temple

Terrace , 267 F.3d 1197, 1201, (11th Cir. 2001).

50. Assuming that Petitioner engaged in a protected

activity by filing her grievances against Captain Register and

Chief Devers in November 2007, Petitioner cannot prove that she

was denied a promotion or terminated in retaliation for filing

those grievances. First, Petitioner was not promoted based on

her personnel and disciplinary record. Second, Petitioner's

termination was due entirely for using excessive force on an

inmate, failing to report the extent of abuse, and failing to

call in as required while on administrative leave.

51. Respondent had legitimate non-discriminatory, non-

retaliatory, reasons for failing to promote Petitioner in

March 2008 and for terminating her in April 2008. Petitioner

presented no evidence to show that Respondent reasons were a

pretext for discriminatory or retaliatory intent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR dismiss the Petition for Relief with prejudice.

DONE AND ENTERED this 9th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of February, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Chelsie J. Roberts, Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

Dafney Cook

2445 Dunn Avenue, Apt 610

Jacksonville, Florida 32218

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway. Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.