08-005579 Mary Lynn Jones vs. Department Of Revenue Status: Closed Recommended Order on Wednesday, February 25, 2009.

Summary: Petitioner alleged discriminatory discharge due to disparate treatment on account of race and retaliation for reporting discrimination. Petitioner failed to provide any proof whatsoever of racial discrimination or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY LYNN JONES, )

)

Petitioner, )

)

vs. ) Case No. 08-5579

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on January 27, 2009, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Mary Lynn Jones, pro se

6501 Robar Tesora Street

Navarre, Florida 32566

For Respondent: Cindy Horne, Esquire

Department of Revenue

Carlton Building, Room 304

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice.

PRELIMINARY STATEMENT

Petitioner Mary L. Jones (Ms. Jones) signed an Employment

Complaint of Discrimination on May 21, 2001, that alleged

discrimination by the Florida Department of Revenue

(Department). She filed it with the Florida Commission on Human

Relations (Commission). She alleged disparate treatment based

on race and also alleged retaliation. On September 30, 2008,

the Commission filed its "Notice of Determination: No Cause,"

subsequent to making the determination that there is no

reasonable cause to believe that an unlawful employment practice

occurred.

Thereafter, Ms. Jones filed a Petition for Relief with the

Commission on November 3, 2008. The matter was forwarded to the

Division of Administrative Hearings and filed on November 5,

2008. It was set for hearing on January 27, 2009, and heard as

scheduled.

Ms. Jones presented the testimony of six witnesses and

offered four exhibits. Two of Petitioner's exhibits were

admitted. The Department presented the testimony of three

witnesses and had four exhibits admitted.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Ms. Jones is a person of the African-American race.

She worked in Pensacola, Florida, for Attorney Walter

Steigleman, who was a contract provider for the Department's

Child Support Enforcement (CSE) program. In the Spring of 2007,

the Department terminated its contract with Mr. Steigleman and

set up its own Child Support Enforcement Program. This program

was referred to as the Legal Services Unit (LSU). Thereafter,

the Department employed Ms. Jones pursuant to a contract

executed June 25, 2007.

2. The Department viewed this new LSU as a "pilot" project

and, accordingly, did not wish to establish full-time

equivalents pursuant to the state employment system. Therefore,

the contract entered into with Ms. Jones was an "at will"

employment contract and provided that she could be terminated

upon two weeks' notice. Because Petitioner was not a statutory

state employee, she had no right to appeal any termination or

layoff.

3. Staff hired for the project included Katherine Wright,

an African-American attorney; Shayna Marstellar, a Caucasian

attorney; Andrew Wood, a Caucasian attorney; Ms. Jones, a legal

assistant; Megan McClinnis, a Caucasian legal assistant; Ruth

Taylor, a Caucasian legal assistant; Marquieta Howard, a

Caucasian legal assistant; Janet Thornhill, a Caucasian legal

assistant; and Jacqueline McBride, an African-American senior

clerk.

4. Ms. Rhonda O'Kelley was the Regional Manager in overall

charge of the Department's operations in the area. Priscilla

Phipps, a Revenue Administrator III and veteran of 22 years with

the Department, was in charge of the LSU.

5. Ms. Phipps understands that it is in the Department's

interest to make accommodations for employees in order to retain

them. She has adjusted the hours of employees many times in her

career and at some point put Ms. Jones on a flex schedule at

Ms. Jones' request.

6. Ms. Jones compared herself with Megan McClinnis.

Ms. McClinnis had a young child and was allowed absences so long

as she subsequently made up the missed time. Ms. McClinnis

often called in late, but was allowed to make up for missed

work. Ms. McClinnis was provided cross-training and Ms. Jones

was not. However, the extant plan in the LSU was to eventually

provide the same cross-training to Ms. Jones. Ms. McClinnis on

occasion had quality of work issues.

7. Ms. Jones was paid $17.00 per hour, and Ms. McClinnis

was paid $15.00 per hour.

8. Each LSU team member had specialized duties. Ms. Jones

and Ms. McClinnis prepared dockets for court and prepared

pleadings, and Ms. Jones often attended court proceedings.

Ms. Howard prepared petitions. Ms. McBride put the files in

order, prepared notices, and acted as a courier. Ms. Taylor

worked on judges' cases.

9. Ms. McClinnis was provided cross-training in these

activities, and Ms. Jones was not. However, as previously

stated, the extant plan in the LSU was to eventually provide the

same cross-training to Ms. Jones and other members of the team.

In any event, there was no testimony that cross-training was a

benefit.

10. PAILS is an acronym for a CSE, computer-based,

tracking system. Both Ms. Jones and Ms. McClinnis were trained

to use this system, and both could use it, but Ms. McClinnis,

according to Ms. Phipps, was faster. Consequently, Ms. Phipps

directed Ms. McClinnis, rather than Ms. Jones, to use the

machine. There is no benefit to using the PAILS program.

11. By August 2007, Ms. O'Kelley concluded that there were

performance problems with the LSU. In order to improve the

operation, she made personnel reassignments. Among other moves,

she discontinued the practice of having Ms. Jones attend court.

She assigned additional people to work on dockets.

12. In September 2007, Ms. Phipps held a meeting with

personnel involved with CSE. At the meeting were four

African-Americans (Ms. Jones was one of them), one Hispanic, and

the remainder were Caucasian. During the meeting there was a

discussion regarding the timeliness of the cases set on the

docket and the number of cases required to be re-set. During

this discussion, Ms. Jones stood up and loudly protested some of

the remarks made by certain attendees.

13. This outburst startled some of the attendees and some

thought it unlike Ms. Jones to engage in such behavior. Nothing

occurring during the meeting was connected in any way to race.

Subsequent to the meeting, Ms. Phipps remarked that she was

surprised Ms. Jones had acted in an unprofessional manner.

14. The mother of Ms. McClinnis worked for the Department

for many years, and was working there when her daughter was

employed. Although witnesses denied Ms. McClinnis received

special treatment, it was clear that everyone in the office was

aware of the relationship, and the relationship had some effect

on Ms. McClinnis' privileges. For instance, Ms. McClinnis

ignored call-in procedures with impunity.

15. Ms. Jones told Ms. Walker and Ms. O'Kelley that she

believed Ms. McClinnis was benefiting from nepotism.

Ms. O'Kelley discussed the complaint with regard to nepotism

with Ms. Phipps. Ms. Jones never, during the entire term of her

employment, made any claim of disparate treatment based on race.

16. The procedure for handling complaints of racial

discrimination is to report the complaint to the inspector

general. Ms. O'Kelley and Ms. Phipps made no report to the

inspector general with regard to complaints by Ms. Jones because

her complaints with regard to favoritism did not involve race.

17. Ms. Jones reported to work on time and was present

when she was supposed to be present. Her co-workers believed

her to be a good worker. However, Ms. Jones and almost all of

the workers in the LSU had quality of work issues. All of them

had work returned from the attorneys for corrections. When

Ms. McClinnis was counseled with regard to errors, she accepted

the correction in good faith. When Ms. Jones was counseled with

regard to errors, she became defensive.

18. The Department was generally displeased with the staff

of the LSU. Ms. Bradford (African-American) was terminated in

accordance with the provisions of her contract in March 2008.

During May and June 2008, contract employees Wright (African-

American), Ms. Wood (Caucasian), Ms. Marsteller (Caucasian),

Ms. Taylor (Caucasian), Ms. McClinnis (Caucasian), and Ms. Jones

(African-American), were terminated. Ms. Howard (Caucasian) and

Ms. McBride (African-American) were retained.

19. Disparate treatment by anyone involved with Ms. Jones

because of race did not occur. The evidence of record reveals

no evidence of any racial bias by anyone.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

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

is unlawful for an employer to discharge, refuse to hire, or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee's race.

22. Federal discrimination law may be used to evaluate the

merits of claims arising under the Florida Civil Rights Act.

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

23. Racial discrimination generally may be proven by

evidence of a hostile work environment or by proof of disparate

treatment. Ms. Jones asserted that the Department discriminated

against her through disparate treatment. Ms. McClinnis was

posed as her comparator. Petitioner provided no direct evidence

of discrimination based on disparate treatment.

24. To prove racial discrimination by disparate treatment

when there is an absence of direct evidence, Ms. Jones must

proceed using the McDonnell Douglas framework to establish a

prima facie case. See McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973).

25. To prove a prima facie case, Ms. Jones must prove

that: (1) she is a member of a protected class; (2) she was

subjected to an adverse employment action; (3) she was treated

differently than a similarly situated employee of a different

race; and (4) she was qualified for the position.

26. Ms. Jones established that she was a member of a

protected class, African-American; and that she was subjected to

an adverse employment action, termination of her contract in

accordance with the terms of her contract. She was qualified

for the position she held. She was not, however, treated

differently from a similarly situated employee of a different

race. Specifically, she was not treated differently from

Ms. McClinnis.

27. Ms. Jones did not demonstrate that Ms. McClinnis was

treated more favorably. Ms. McClinnis was tardy on occasion and

was allowed to make up the missed time. Ms. Jones was never

tardy and, therefore, never had occasion to ask to make up time.

Ms. McClinnis received some cross-training and was asked to work

on PAILS. Ms. Jones did not receive cross-training, although

the unit planned to provide her with it, and Ms. Jones was not

as fast as Ms. McClinnis with regard to making entries into

PAILS. In any event, there was no benefit to receiving cross-

training or to working on PAILS. Ms. McClinnis was permitted to

work on an office decoration committee. Ms. Jones could have,

but did not volunteer to do this.

28. Ms. Jones may not refuse to avail herself of the

leniency extended to Ms. McClinnis and then claim racial

discrimination for not receiving it. If Ms. McClinnis received

favorable treatment, it was likely a result of her being the

daughter of a Department manager, rather than race.

Accordingly, Ms. Jones failed to prove a prima facie case under

the McDonnell Douglas framework

29. If Ms. Jones had met the burden of proving a prima

facie case, and, as noted, she did not, then the Department

would have the burden of articulating a legitimate, non-

discriminatory reason for the employment action. Dept. of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991).

In fact, the Department proved beyond any doubt that nine other

employees of various racial groups, including Ms. Jones, were

terminated in accordance with the contract because the pilot

project of which they were a part did not meet expectations.

This was a legitimate non-discriminatory reason for the

employment action.

30. This burden was met. Therefore, Ms. Jones was

required to prove that the Department's proffered reason for its

action was a pretext for discrimination. She failed to offer

any evidence that would prove that the Department's actions were

pretextual.

31. Subsection 760.10(7), Florida Statutes, prohibits

retaliation against any person who opposes an unlawful

employment practice or because a person complains about an

employment practice.

32. To prove a prima facie case of retaliation, Ms. Jones

must prove: (1) she engaged in a statutorily protected

expression; (2) she suffered an adverse employment action; and

(3) the adverse employment action was causally related to the

protected activity. Harper v. Blockbuster Entertainment Corp. ,

139 F. 3d 1385 (11th Cir. 1998).

33. Simply put, the first complaint concerning racial

discrimination Ms. Jones expressed was when she filed her

Employment Complaint of Discrimination with the Commission.

Evidence of retaliatory action by the Department is remarkable

for its total absence.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

Dismiss the Petition for Relief filed by Mary Lynn Jones.

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

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 February, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cindy Horne, Esquire

Department of Revenue

Carlton Building, Room 304

501 South Calhoun Street

Tallahassee, Florida 32399

Robert Framingham

Department of Revenue

Post Office Box 10410

Tallahassee, Florida 32302

Mary Lynn Jones

6501 Robar Tesora Street

Navarre, Florida 32566

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.