09-001969 Sherri M. Akers vs. Department Of Corrections Status: Closed Recommended Order on Tuesday, December 1, 2009.

Summary: Petitioner failed to prove a prima facie case of sexual discrimination; although she proved that she was qualified for the job and was subject to sexual harassment, no proof was offered of an adverse employment decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRI M. AKERS, )

)

Petitioner, )

)

vs. ) Case No. 09-1969

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in

this case before Daniel M. Kilbride, a duly-designated

Administrative Law Judge (ALJ) of the Division of Administrative

Hearings (DOAH) on October 29, 2009, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Thomas Adam, Esquire

6099 Stirling Road, Suite 218

Davie, Florida 33314

For Respondent: Scott Shevenell, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the

basis of her sex, by sexual harassment, in violation of

Subsection 760.10(1) and/or (2), Florida Statutes (2008). 1

PRELIMINARY STATEMENT

On or about October 5, 2008, Sherri M. Akers (Petitioner),

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR), alleging that the Florida

Department of Corrections (Respondent or DOC), discriminated

against her on the basis of sex and for retaliation.

Specifically, Petitioner alleged she was discriminated against

by being subjected to a hostile working environment in

retaliation for complaining about a series of alleged sexual

harassment incidents.

The allegations of discrimination were investigated by

FCHR. On March 25, 2009, FCHR issued its Determination, finding

"No Cause." On April 13, 2009, Petitioner filed a Petition for

Relief. The Petition was forwarded to DOAH for a formal,

de novo hearing. This matter was set for hearing and discovery

ensued. The date of the hearing was continued once at the

request of the parties. An Order was entered allowing two

witnesses to appear by telephone.

At the hearing and contrary to clearly established laws,

FCHR did not make arrangements to preserve the testimony at the

final hearing, either by sending a court reporter or a recording

device with someone to operate it. See § 120.57(1)(g), Fla.

Stat.; Fla. Admin. Code R. 28-106.214. The parties were

informed of the FCHR’s policy to not provide an official means

of preserving the testimony at the final hearing. Neither party

hired a court reporter to preserve the hearing. All parties

consented to proceed with the hearing with the record being

preserved by the court room recording system. At the conclusion

of the hearing, the recording was downloaded to a compact disc

and is attached as a part of the record in this matter.

During the hearing, Petitioner testified in her own behalf

and entered one composite exhibit (consisting of Petitioner’s

job application; personal e-mails, and Respondent’s Office of

Inspector General’s Sustained Investigative Report) into

evidence. Respondent presented the testimony of two witnesses,

Adro Johnson and Leanne Hodges. Respondent entered three

exhibits into evidence.

Following the hearing, both parties timely filed a Proposed

Finding of Fact.

FINDINGS OF FACT

1. Petitioner is an adult female, and as such, is a member

of a protected class.

2. Respondent is an agency of the State of Florida charged

with the duty to protect the public through the incarceration

and supervision of offenders and to rehabilitate offenders,

pursuant to Section 20.315, Florida Statutes.

3. In August 2007, Petitioner applied for a job as a

correctional officer with the Florida Department of Corrections

through the Charlotte Correctional Institution (the Facility)

located in Punta Gorda, Florida. Petitioner's contact person

during the application process was Recruitment Sergeant Dennis

Britton.

4. Petitioner was initially interviewed by Sergeant

Britton. At the conclusion of the interview, Petitioner was

about to leave when Britton grabbed her by the shoulder, pulled

her to him and bent down to her face in a kissing position.

Petitioner put her hands on his chest, pushed him away and left.

5. On other occasions during the interview process,

specifically on August 21, 2007, and October 1, 2007, Briton

coerced Petitioner to come into his office at the Facility and

proceeded to physically and sexually assault Petitioner.

Britton would grope, grab, and forcibly kiss Petitioner against

her will.

6. Throughout the recruitment process, both Britton and

Petitioner exchanged e-mails of a professional and personal

nature.

7. On or about September 10, 2007, Warden Adro Johnson

approved Petitioner for employment with the DOC. Warden

Johnson, not Sergeant Britton, made the hiring decisions at

Charlotte Correctional Institution.

8. November 30, 2007, was Petitioner's first day of

employment at the Facility. On November 30, 2007, Petitioner

was again compelled to appear at Britton's office where he

proceeded to physically and sexually assault Petitioner.

Britton groped, grabbed, and forcibly kissed Petitioner against

her will.

9. On several other occasions between November 2007 and

March 2008, Britton would summon Petitioner to his office and

proceed to make sexual advances on her against her will.

10. In December 2007, Petitioner completed New Employee

Orientation. A component of the New Employee Orientation is

training with regard to Respondent's Equal Employment

Opportunity Policy and, specifically, the Sexual Harassment

policy. Petitioner completed the computer-assisted training on

sexual harassment in December 2007. In addition, new employees

are routinely provided with hard-copy pamphlets on sexual

harassment. Respondent's sexual harassment policy is also

posted at various locations at Charlotte Correctional

Institution.

11. At no time during this period did Petitioner complain,

verbally or in writing, to her supervisor or anyone else at the

Facility.

12. On March 14, 2008, Petitioner started the correctional

officer training academy at the Facility.

13. On March 17, 2008, Petitioner filled out an incident

report stating she had been sexually harassed by Sergeant Dennis

Britton. The report was sent up the chain of command, and

Warden Johnson immediately removed Sergeant Britton from his

position as the recruitment sergeant and reassigned him to a

position on the compound.

14. An investigation into the allegations was started on

March 19, 2008, by Respondent's Office of the Inspector General.

The investigation was led by Inspector Daryl J. McCasland of the

Office of the Inspector General. The findings of the

investigation were that Britton violated Section 784.03, Florida

Statutes, and Florida Administrative Code Rule 33-208.033(22)

(Conduct Unbecoming a Public Employee).

15. On April 9, 2008, while the investigation was still

pending, Sergeant Britton submitted his resignation, effective

May 1, 2008. Britton admitted to the accusations of sexual

battery against Petitioner to the warden of the Facility.

16. Britton was removed from the Facility on or about

April 9, 2008.

17. Petitioner testified that on at least five separate

occasions between April 23, 2008, and May 23, 2008, Respondent

allowed Britton to return into the Facility and granted Britton

access into the restricted-access inner-compound where

Petitioner worked so that he was able to continue to harass

Petitioner. However, this testimony was uncorroborated and

deemed unreliable.

18. At no time during Petitioner's employment did Sergeant

Britton supervise Petitioner or work directly with her. He did

not discipline her, set her schedule, or assign her duties.

From November 30, 2007, until March 14, 2008, Petitioner worked

inside the secure perimeter, while Britton worked as the

recruitment sergeant outside the secure perimeter in the

administration building at the Facility. Petitioner was in the

academy beginning March 14, 2008, and Sergeant Britton had no

supervisory or training responsibilities over officers in the

training academy.

19. Petitioner was continually in the correctional officer

academy from the time she filed her initial complaint on

March 17, 2008, until Britton's resignation became effective on

May 1, 2008. While in the academy, Petitioner was continually

with other trainees and other instructors.

20. Sergeant Britton never made any additional sexual

advances or had any conversation with Petitioner following her

complaint on March 17, 2008.

21. Inspector Daryl McCasland substantiated the complaint

against Sergeant Britton for battery, conduct unbecoming a

public employee, and failure to follow written procedures. The

inspector forwarded his results to the Office of the State

Attorney in Punta Gorda which declined to prosecute.

22. Respondent acted in a prompt and reasonable manner to

stop the harassment and address it once it was known.

Petitioner failed to exercise reasonable care in the reporting

of the harassment.

23. Petitioner presented no evidence on the issue of

retaliation.

24. Petitioner presented no evidence of quantifiable

damages. Her testimony was that she felt harassed and

physically upset by the conduct of Britton and that she felt

harassed and physically upset by her fellow officers after her

complaint become known, but no proof of an adverse employment

action was presented.

25. Given the lack of evidence to support Petitioner's

allegations, the Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 760.11(6), 120.569, and

120.57, Fla. Stat. (2009).

27. Section 760.10, Florida Statutes, provides that:

(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 race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

28. FCHR and the 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 Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); and Florida Dept. of Community Affairs v. Bryant , 586 So.

2d 1205 (Fla. 1st DCA 1991).

29. The Supreme Court of the United States established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981),

the analysis to be used in cases alleging discrimination under

Title VII. This analysis was reiterated and refined in

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). See also

Walker v. Prudential Property & Casualty Insurance, Co. , 286

F.3d 1270 (11th Cir 2002); Standard v. A.B.E.L. Scvs., Inc. ,

161 F.3d 1318 (11th Cir. 1998) and Zappa v. Wal-Mart Stores,

Inc. , 1 F. Supp. 2d 1354, 1356 (M.D. Fla. 1998).

30. Under the McDonnell Douglas analysis, Petitioner has

the burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. If a prima facie

case is established, Respondent must articulate some legitimate,

non-discriminatory reason for the action taken against

Petitioner. Once this non-discriminatory reason is offered by

Respondent, the burden of production then shifts back to

Petitioner to demonstrate that the offered reason is merely a

pretext for discrimination. As the Supreme Court stated in

Hicks , before finding discrimination, "[t]he fact finder must

believe the plaintiff's explanation of intentional

discrimination." Hicks , 509 U.S. at 519. Additionally,

"[d]efendant’s burden is exceedingly light" and is merely one of

production, not proof. Perryman v. Johnson Products, Co. ,

698 F.2d 1138, 1143 (11th Cir. 1983).

31. In Hicks , the Court stressed that even if the fact-

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id.

See also Texas Dept. of Community Affairs v. Burdine , 450 U.S.

248 (1981).

32. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa-De Varadero

Restaurant , Case No. 02-2502 (DOAH February 19, 2003) (adopted,

in toto , Final Order July 3, 2003), 2003 WL 435084.

33. However, "[d]irect evidence of intent is often

unavailable." Shealy v. City of Albany, Ga. , 89 F.3d 804, 806

(11th Cir. 1996). For this reason, those who claim to be

victims of discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

Importantly, proof that, in essence, amounts to no more than

mere speculation and self-serving belief on the part of the

complainant concerning the motives of Respondent is

insufficient, standing alone, to establish a prima facie case of

intentional discrimination. See Lizardo v. Denny's Inc. , 270

F.3d 94, 104 (2d Cir. 2001) ("The record is barren of any direct

evidence of racial animus. Of course, direct evidence of

discrimination is not necessary. . . . However, a [fact-finder]

cannot infer discrimination from thin air. Plaintiffs have done

little more than cite to their mistreatment and ask the court to

conclude that it must have been related to their race. This is

not sufficient.") (citations omitted); Little v. Republic

Refining Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)("Little

points to his own subjective belief that age motivated Boyd. An

age discrimination plaintiff's own good faith belief that his

age motivated his employer's action is of little value.");

Elliott v. Group Medical & Surgical Service , 714 F.2d 556, 567

(5th Cir. 1983) ("We are not prepared to hold that a subjective

belief of discrimination, however genuine, can be the basis of

judicial relief."); Umansky v. Masterpiece International Ltd. ,

No. 96-Civ. 2367, 1998 U.S. Dist. LEXIS 11775, 1998 WL 433779

(S.D. N.Y. 1998) ("Plaintiff proffers no support for her

allegations of race and gender discrimination other than her own

speculations and assumptions. The Court finds that plaintiff

cannot demonstrate that she was discharged in circumstances

giving rise to an inference of discrimination, and, therefore,

has failed to make out a prima facie case of race or gender

discrimination.")

34. In order to establish a prima facie case of

discrimination, Petitioner must demonstrate that:

a. Petitioner is a member of a protected

class;

b. Petitioner is qualified for the

position;

c. Petitioner was subject to an adverse

employment decision; and,

d. Petitioner was treated less favorably

than similarly situated persons outside the

protected class.

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997); Canino

v. EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia ,

684 F.2d 729 (11th Cir. 1982); and Lee v. Russell County School

Board , 684 F.2d 769 (11th Cir. 1982).

35. In this case, Petitioner has alleged that Respondent

unlawfully discriminated against her on the basis of her sex and

in retaliation for her complaint of sexual harassment

perpetrated by Sergeant Britton.

36. As an adult female, Petitioner is a member of a

protected class. Petitioner was qualified for the position of

candidate to be a corrections officer and was admitted to the

Corrections Officer Academy. However, the evidence did not

demonstrate that she suffered an adverse employment action. No

evidence was offered whether she completed the academy or not,

whether she continued or continues her employment with

Respondent in the same or a different position, or if she

resigned, that her resignation constituted a constructive

discharge of Petitioner.

37. Petitioner's hearsay evidence does not fall into any

of the hearsay exceptions found in Section 90.803, Florida

Statutes. Under Subsection 120.57(1)(c), Florida Statutes, this

hearsay evidence is not sufficient in itself to support findings

of fact. Department of Environmental Protection v. Department

of Management Services, Division of Administrative Hearings ,

667 So. 2d 369, 370 (Fla. 1st DCA 1995); Department of

Administration, Division of Retirement v. Porter , 591 So. 2d

1108 (Fla. 2d DCA 1992); Harris v. Game and Fresh Water Fish

Commission , 495 So. 2d 806, 809 (Fla. 1st DCA 1986). Without

the hearsay evidence, Petitioner's evidence did not prove that

Respondent's articulated reasons for the handling of

Petitioner's complaint were pretextual. In addition,

Respondent's witnesses were credible.

38. In addition, there was no evidence offered by

Petitioner to demonstrate that Petitioner was retaliated against

after complaining of her sexual harassment by Sergeant Britton.

Respondent acted immediately on Petitioner's complaint and

transferred Britton out of administration and reassigned him to

a position in the compound. Respondent promptly investigated

her charges and did find evidence to support her allegations;

Britton admitted to his misconduct and resigned. Respondent's

investigation determined that Britton violated existing state

laws and administrative rules. Petitioner was authorized to

continue her instruction at the academy. Respondent was not

legally required to do more.

39. Although Petitioner testified otherwise, there was no

competent evidence that Respondent allowed Britton to return to

the Facility and continue to harass Petitioner over a period of

time. There was no credible evidence that an unlawful

employment practice was directed against Petitioner by

supervisory staff of Respondent after Petitioner reported the

sexual harassment charge on March 17, 2008, nor was it a pretext

to hide an unlawful employment practice.

40. Petitioner's case was based on her speculation or

belief that she was retaliated against after she reported

Britton's misconduct. Such belief is insufficient to establish

discrimination or retaliation.

41. There has been no evidence submitted by Petitioner of

any quantifiable damages which Respondent has authority to levy

in such cases. As the court determined in Laborers'

International Local 478 v. Burroughs , 541 So. 2d 1160 (Fla.

1989), quantifiable damages can be authorized by an

administrative agency. However, humiliation, pain and

suffering, discomfort, and inconvenience are damages which are

not quantifiable and may not be awarded through administrative

procedures; see also Broward County v. LaRosa , 505 So. 2d 422

(Fla. 1987).

42. Based on the lack of evidence, Petitioner has not

established a prima facie case of discrimination and the

Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issued a final order dismissing the Petition for Relief with

prejudice.

DONE AND ENTERED this 1st day of December, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 1st day of December, 2009.

ENDNOTE

1/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

COPIES FURNISHED :

Thomas Adam, Esquire

6099 Stirling Road, Suite 218

Davie, Florida 33314

Scott Shevenell, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

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.