08-004555 Richard D. Moore vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Tuesday, December 30, 2008.

Summary: Petitioner failed to prove that Respondent committed an unlawful employment practice. Sex discrimination claims were time-barred; the retaliation claim was without merit. Recommend dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD D. MOORE, )

)

Petitioner, )

)

vs. ) Case No. 08-4555

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on November 7,

2008, in Milton, Florida.

APPEARANCES

For Petitioner: Richard D. Moore, pro se

Post Office Box 216

Century, Florida 32535

For Respondent: Stephen M. Donelan, Esquire

Department of Agriculture and

Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice against Petitioner.

PRELIMINARY STATEMENT

On February 7, 2008, Petitioner filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (FCHR). Petitioner alleged in the complaint that

Respondent discriminated against him based upon his sex and in

retaliation for his complaints about the discrimination.

On July 25, 2008, FCHR issued a "no cause" determination

based upon its investigation of the complaint. On August 27,

2008, Petitioner timely filed a Petition for Relief with FCHR.

On September 15, 2008, FCHR referred the petition to the

Division of Administrative Hearings (DOAH) to conduct the

hearing requested by Petitioner. The referral was received by

DOAH on September 17, 2008.

The final hearing was scheduled for and held on November 7,

2008. At the hearing, Petitioner testified in his own behalf,

and Respondent presented the testimony of Elaine Cooper, David

Core, and Ben Wolcott. Respondent's Exhibits numbered A-1, A-2,

and A-3 were received into evidence. Petitioner did not offer

any exhibits.

The Transcript of the final hearing was filed with DOAH on

December 4, 2008. The parties were given 14 days from that date

to file proposed recommended orders (PROs). Respondent filed a

PRO on December 11, 2008, and Petitioner filed a PRO on

December 17, 2008. The PROs have been given due consideration.

FINDINGS OF FACT

1. Petitioner is a white male.

2. Petitioner was employed by Respondent from 1988 to

April 2008. He initially worked as a dump truck driver. He was

promoted to park ranger in 1993.

3. Petitioner worked as a park ranger at the Coldwater

Horse Stable (Coldwater) from 1999 to January 2006. His job

duties included maintaining the facilities at the park,

collecting park fees, and interacting with the people using the

park.

4. Petitioner utilized prison inmates as laborers to build

fences and perform other maintenance work at the park. He was

the only park ranger at Coldwater certified to supervise inmates

at the time.

5. On November 28, 2005, Petitioner was given a Memorandum

of Supervision (MOS) by his supervisor for "sleeping on the job,

including times when prison inmates were assigned to [his]

supervision."

6. Petitioner disputed that he was sleeping on the job,

even though he testified that he was only getting three hours of

sleep at night because he was working two jobs at the time.

7. Petitioner decided to stop supervising inmates around

the time that he received the MOS. Inmate supervision was

voluntary for park rangers at the time.

8. Ben Wolcott, the administrator responsible for

operations at Coldwater and several other parks, was not happy

with Petitioner's decision not to supervise inmates because he

felt that it would reduce the amount of work that would get done

at the park.

9. Petitioner testified that there were female park

rangers at Coldwater who could have supervised inmates, but that

Mr. Wolcott would not allow it. However, as Petitioner

acknowledged in his testimony, park rangers were not required to

supervise inmates, and Petitioner was the only park ranger at

Coldwater certified to supervise inmates at the time.

10. In January 2006, Petitioner was reassigned to Krul

Recreation Area (Krul), and the park ranger at Krul was

reassigned to Coldwater because he was willing to supervise

inmates. Petitioner's job duties and salary were not affected

by this reassignment.

11. Krul and Coldwater are both located within the

Blackwater River State Forest, but according to Petitioner, Krul

was approximately 14 miles farther away from his home than was

Coldwater.

12. Petitioner did not file a grievance or any other type

of formal complaint regarding his reassignment to Krul or the

preferential treatment allegedly given to female park rangers

with respect to inmate supervision until February 2008, 1 when he

filed his complaint with FCHR.

13. On November 30, 2007, Petitioner received a MOS

because he was observed by Mr. Wolcott studying for his boat

captain's exam while he was on duty, even though according to

Mr. Wolcott, there was "plenty of work to do" in the park at the

time.

14. Petitioner did not dispute that he was studying for

his boat captain's exam while he was on duty, but he claimed

that there was no work for him to do at the time because it was

raining. However, Mr. Wolcott credibly testified that it had

not been raining for at least 30 minutes prior to the time that

he observed Petitioner studying.

15. Petitioner received "very good" performance

evaluations in 2006 and 2007. His 2008 evaluation was lower,

but it still reflected that Petitioner was "consistently meeting

expectations."

16. Petitioner quit his job as a park ranger effective

April 21, 2008. He started working as a boat captain trainee

for Cal Dive International the following day.

17. Petitioner is earning approximately $56,000 per year

as a boat captain trainee, which is $30,000 more than he was

making as a park ranger.

18. There is no credible evidence that the November 2007

MOS was related in any way to the November 2005 MOS or to

Petitioner's decision to not supervise inmates.

19. Respondent's personnel director, Elaine Cooper,

credibly testified that a MOS is considered counseling, not

disciplinary action. Consistent with this testimony,

Respondent's Disciplinary Policy and Employee Standard of

Conduct explains that a MOS is to be used to document "[m]inor

violations that do not warrant disciplinary action."

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11(7), Florida Statutes (2008). 2

21. Section 760.10, Florida Statutes, provides in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's . . . sex . . . .

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

22. Section 760.11(1), Florida Statutes, provides that

"[a]ny person aggrieved by a violation of ss. 760.01-760.10 may

file a complaint with the commission within 365 days of the

alleged violation , naming the employer . . . responsible for the

violation and describing the violation." (Emphasis supplied).

See also Fla. Admin. Code R. 60Y-5.001(2).

23. A complaint is "filed" when it is received by FCHR,

which in this case was on February 7, 2008. See Fla. Admin.

Code R. 60Y-5.001(3).

24. Violations that occurred more than 365 days prior to

the filing of the complaint with FCHR are time-barred and not

actionable. See Greene v. Seminole Electric Cooperative, Inc. ,

701 So. 2d 646, 648 (Fla. 5th DCA 1997); Bias-Gibbs v. Jupiter

Medical Center , Case No. 07-4785, at ¶ 22 (DOAH Apr. 24, 2008;

FCHR July 8, 2008). See also National Railroad Passenger Corp.

v. Morgan , 536 U.S. 101, 108 (2002) (explaining that strict

adherence to the filing deadlines in the comparable federal law

is necessary to ensure prompt consideration of discrimination

complaints and even-handed administration of the law).

25. Petitioner's complaint was filed with FCHR more than

two years after the November 2005 MOS and his January 2006

transfer from Coldwater to Krul, which, as Petitioner

acknowledged in his testimony, was "[w]ell out of the . . .

three hundred [sic] day time frame." Transcript at 37. See

also Petitioner's PRO, at ¶ 15 ("It's true that the Petitioner

did not file a complaint with the commission within the so

called 365 day guideline.") Therefore, any discrimination

claims based upon those events are time-barred and not

actionable.

26. The only claim that is not time-barred is Petitioner's

allegation that he received the November 2007 MOS in retaliation

for his decision not to supervise inmates and/or his complaints

about the alleged preferential treatment given to female park

rangers. 3 However, as discussed below, there is no merit to this

claim.

27. To establish a prima facie case of retaliation,

Petitioner must prove that "(1) he engaged in statutorily

protected activity, (2) he suffered an adverse employment

action, and (3) there is a causal relation between the two

events." Donovan v. Broward County Board of County

Commissioners , 974 So. 2d 458, 460 (Fla. 4th DCA 2008). See

also Bartolone v. Best Western Hotels , Case No. 07-0496, at

¶¶ 57-61 (DOAH June 8, 2007; FCHR Aug. 24, 2007).

28. The first element requires Petitioner to establish

that he opposed an unlawful employment practice or that he

participated in a formal investigation or proceeding relating to

the unlawful employment practice. See Clover v. Total System

Services, Inc. , 176 F. 3d 1346, 1350 (11th Cir. 1999).

29. The second element requires Petitioner to establish

that "a reasonable employee would have found the challenged

action materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or

supporting a charge of discrimination." See Burlington

Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 68 (2006)

(internal quotation marks omitted).

30. The third element requires Petitioner to establish

that the protected activity and the negative employment action

"are not completely unrelated." See Rice-Lamar v. City of Ft.

Lauderdale , 853 So. 2d 1125, 1132-33 (Fla. 4th DCA 2003).

31. If Petitioner establishes a prima facie case, the

burden shifts to Respondent to proffer a legitimate, non-

retaliatory reason for the adverse employment action. See Rice-

Lamar , 853 So. 2d at 1132-33.

32. If Petitioner fails to establish a prima facie case,

the burden never shifts to Respondent. See Bartolone , supra , at

¶ 59; Kirby v. Appliance Direct, Inc. , Case No. 07-3807, at ¶ 60

(DOAH Nov. 26, 2007; FHCR Feb. 8, 2008).

33. Petitioner failed to establish a prima facie case of

retaliation.

34. First, there is no credible evidence that Petitioner

engaged in any "statutorily protected activity" prior to his

receipt of the MOS in November 2007. His decision to stop

supervising inmates in November 2005 was not an opposition to

any unlawful employment practice, and he did not formally

complain about being treated differently than female park

rangers until February 2008 when he filed a complaint with FCHR.

35. Second, Petitioner did not suffer any "adverse

employment action" by virtue of receiving the MOS in November

2007. The evidence establishes that a MOS is not considered

disciplinary action by Respondent and that Petitioner continued

to receive satisfactory performance evaluations after receiving

the MOS. Moreover, there is no credible evidence that a

reasonable employee would be dissuaded by a MOS from complaining

about discrimination.

36. Third, there is no credible evidence that the

November 2007 MOS was related in any way to Petitioner's

decision not to supervise inmates in November 2005.

37. Even if it were somehow determined that Petitioner

established a prima facie case of retaliation, the more

persuasive evidence establishes that the November 2007 MOS was

issued for a legitimate, non-retaliatory reason. Indeed,

Petitioner acknowledged in his testimony that he was engaged in

the conduct--studying for his boat captain's exam while on

duty--for which he was given the MOS.

38. In sum, there is no factual or legal basis for

Petitioner's discrimination claims against Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that FCHR issue a final order dismissing the

Petition for Relief with prejudice.

DONE AND ENTERED this 30th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 30th day of December, 2008.

ENDNOTES

1/ Petitioner testified that he filed a Complaint with the

federal Equal Employment Opportunity Commission (EEOC) on or

about December 31, 2007, but no evidence was presented to

corroborate that testimony. The referral from FCHR did not

include an EEOC Complaint, and Petitioner did not offer it into

evidence at the hearing. The FCHR Complaint contained in the

case file has a handwritten date of January 5, 2008, but

according to the date-stamp on the Complaint, it was not

received by FCHR until February 7, 2008.

2/ All statutory references are to the 2008 version of the

Florida Statutes.

3/ This claim is construed as a retaliation claim because

Petitioner alleged in the Employment Complaint of Discrimination

filed with FCHR that "I feel that I received the memorandum of

supervision because I made the complaint . . . about working

with the inmates." See also Transcript at 12 (Petitioner’s

opening statement characterizing the 2007 MOS as "just an

extension of previous discrimination factors"). To the extent

the claim was construed as a disparate treatment claim (or a

hostile work environment claim, as it is referred to for the

first time in Petitioner's PRO), it would fail for the reasons

set forth in paragraphs 21 through 32 of Respondent’s PRO.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Stephen M. Donelan, Esquire

Department of Agriculture and

Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahassee, Florida 32399-0800

Richard D. Moore

Post Office Box 216

Century, Florida 32535

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.