09-003021 Ida Lupino Cooper vs. Okaloosa County Supervisor Of Elections Status: Closed Recommended Order on Tuesday, March 30, 2010.

Summary: The evidence demonstrated that Petitioner was terminated for non-discriminatory reasons even though letter of termination did not state real or all reasons for action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IDA LUPINO COOPER, )

)

Petitioner, )

)

vs. ) Case No. 09-3021

)

OKALOOSA COUNTY SUPERVISOR OF )

ELECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a final hearing was conducted in this

case before Diane Cleavinger, Administrative Law Judge with the

Division of Administrative Hearings on December 3, 2009, in

Shalimar, Florida.

APPEARANCES

For Petitioner: Carolyn Cummings, Esquire

Cummings & Hobbs, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

For Respondent: Michael K. Grogan, Esquire

T. Kort Parde, Esquire

Allen, Norton & Blue, P.A.

800 West Monroe Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against by Respondent, based upon her race, in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On December 18, 2008, Petitioner, Ida Lupino Cooper,

(Petitioner), filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR). The

Complaint alleged that Respondent, Okaloosa County Supervisor of

Elections (Respondent), discriminated against her on the basis

of race in violation of Section 760.10, Florida Statutes.

Specifically, the Complaint alleged that Petitioner was

discriminated against when she suffered an adverse employment

action on September 19, 2008, when Respondent terminated her

employment. FCHR investigated Petitioner’s Complaint. On

April 30, 2009, FCHR issued a: No Cause Determination and

notified Petitioner of her right to file a Petition for Relief.

Thereafter, Petitioner filed a Petition for Relief with

FCHR on June 1, 2009. The Petition was based on the same

allegations as the earlier Complaint. FCHR forwarded the matter

to the Division of Administrative Hearings.

Prior to the hearing, the parties entered into a Joint

Prehearing Stipulation. Those stipulations have been utilized

in this Recommended Order.

At the hearing and contrary to clearly established law,

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. (2009); Fla. Admin. Code R. 28-106.214; North Dade

Security Ltd. Corp. v. Dept. of State , 530 So. 2d 1040 (Fla. 1st

DCA 1988) and Poirer v. Dept. of Health & Rehab. Servs. , 351 So.

2d 50 (Fla. 1st DCA 1977). The parties were informed of the

agency’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 elected to

proceed with the hearing without preservation of the record.

Therefore, there is no record of the final hearing, except for

exhibits, if any, received into evidence and this Recommended

Order.

During the hearing, Petitioner testified in her own behalf

and presented the testimony of Tiffany Lovett. Petitioner also

offered six exhibits into evidence. Five of those exhibits were

admitted into evidence. Respondent presented the testimony of

six witnesses, Patricia Hollarn, the former Okaloosa County

Supervisor of Elections, Shirley Young, Louise McGirr, Brenda

Ball, and Jimmie Giles. Respondent offered six exhibits into

evidence. Additionally, both parties entered three joint

exhibits into evidence.

FINDINGS OF FACT

1. The Respondent, the Okaloosa County Supervisor of

Elections, is an employer within the meaning of the Florida

Civil Rights Act of 1992, as amended. It is an equal

opportunity employer. During the time relevant to this matter,

the Supervisor of Elections had 16 or 17 full-time employees, 5

of whom were black. The employees worked out of three separate

locations that were approximately 25 miles apart. All employees

were and continue to be at-will employees.

2. The Supervisor of Elections is a constitutionally-

elected office. The office’s primary functions are to conduct

all county elections, to handle voter registration, process

candidate qualification, and conduct voter education.

3. At the time relevant to this proceeding, Patricia

Hollarn was elected to serve as the Supervisor of Elections in

Okaloosa County from January 1989 until January 2009. During

her tenure, she had the authority to hire and fire her staff,

pursuant to Section 129.202, Florida Statutes. Under that

statute and the constitution, the Supervisor of Elections office

is separate and independent from the County or the State and is

not subject to County or State personnel rules. However, under

Patricia Hollarn's tenure, the Respondent utilized some of the

Human Resources of the Okaloosa County Board of County

Commissioners for directions in some personnel policies for the

termination of employees.

4. Petitioner, Ida Lupino Cooper, is a black female. As

such, she is a member of a protected class.

5. Ms. Cooper was hired by Respondent on July 31, 2007, as

an Elections Specialist I and was assigned to work out of the

Fort Walton Beach office. Essential job functions included the

computerized data entry of voter registration information and

information related to applicants who registered for elected

offices in Okaloosa County, as well as assisting with elections

and primaries. Other essential job functions included

responding to concerns over voter-related matters and performing

administrative support, answering the telephone, sorting and

dispersing the mail and any other assigned duties related to the

Supervisor of Elections’ offices. Important to job performance

was the ability to tactfully and effectively interact with the

public and with co-workers. Although there are consistent day-

to-day functions in preparing for each election, critical

workload increases around the day elections are held. Workload

was particularly heavy during the 2008 primary and general

elections due to large increases in voter registration and

turnout.

6. The Fort Walton Beach office employed two Election

Specialists. Kimberly Williams, who is white, was the other

Election Specialist at the Fort Walton Beach office.

Ms. Williams was the only employee Petitioner alleged was

similarly situated to her.

7. The Petitioner's and Ms. Williams’immediate supervisor

was Louise McGirr. She held the position of Voter Registration

Coordinator. Ms. McGirr supervised all employees who had data

entry responsibilities. She worked one day a week at the Fort

Walton Beach office.

8. A goal of the Supervisor of Elections was to have and

maintain a reputation of accuracy in the data collected by the

Supervisor’s office. To achieve that goal, Ms. Hollarn created

a position to oversee the accuracy of the data entry and editing

process. Brenda Ball was the Quality Control Editor who oversaw

the data entry and editing process for the Supervisor of

Elections. Ms. Ball was sometimes assisted in her quality

control responsibilities by Martha Hall from the warehouse. She

was not a direct supervisor of Petitioner or any of the

Elections Specialists.

9. In order to oversee quality control, Ms. Ball received

hard copies of data contained in Verification Reports that had

been entered by the employees in the office with data entry

responsibilities. The data primarily consisted of names,

addresses and other information relevant to a voter’s right to

vote. Each report also reflected the person who had entered the

data. From the Verification Reports, Ms. Ball and sometimes

Ms. Hall edited and corrected errors and omissions in the data

that had been entered. She and Martha Hall generally reviewed

and corrected all of the data entries made by the Election

Specialists on a daily basis.

10. The Verification Reports reflected that all of the

Elections Specialists made repetitive mistakes in their data

entry. The most commonly-found errors were capitalizations in

the wrong place, misspelling the name of voters, incorrect and

missing mailing addresses, missing apartment numbers and missing

zip codes, as well as faulty formatting. Ms. Ball did not tally

or keep a record of the errors, but would routinely advise all

employees about consistent types of errors she was noticing and

to be accurate. However, there was no definitive measurement or

standard regarding the number of errors that were acceptable or

unacceptable.

11. In Petitioner’s Probationary Employee Performance

Appraisal of January 9, 2008, Ms. Cooper received all 2s on a

rating scale of 0 to 5. A score of 2 indicated that the

employee “meets expectations.” One of the categories reviewed

was for accuracy. In that category, Petitioner received a 2,

reflecting the criteria that her work was “normally correct and

timely.” Additionally, from the comments of Petitioner’s

supervisors, including Ms. Hollarn, Petitioner clearly needed to

learn more, but her employer was satisfied with her performance.

Petitioner’s overall performance was scaled as 30 points out of

a potential 60 points. The score made her eligible to receive a

3 percent performance pay increase which she received. The

available options were no increase or a 3 percent performance

pay increase. She signed the evaluation and testified that she

was happy with it.

12. Kimberly Williams received her Probationary Employee

Performance Appraisal on March 17, 2008. Like Petitioner, she

received all 2’s and a scaled score of 30 out of 60 points. It

was noted in her evaluation that she normally arrived early to

work. Like Petitioner, Ms. Williams’ supervisors, including

Ms. Hollarn, were satisfied with her performance and she

received a 3 percent performance pay increase. There was no

evidence presented that Petitioner was treated less favorably or

subjected to more scrutiny than Ms. Williams

13. Over the next several months and in an attempt to

address Petitioner’s job performance, Ms. Hollarn, met with

Petitioner on several occasions providing verbal counseling to

her regarding her job performance. These “meetings” were not

formal and were more like friendly conversations geared towards

helping an employee. This type of employee counseling was in

line with Ms. Hollarn’s style of supervising. Additionally,

Louise McGirr, Petitioner’s supervisor, sent written counseling

to her staff reminding the Petitioner and other Election

Specialists about consistent types of data entry errors and the

need for accuracy. Contrary to the allegations contained in her

FCHR complaint and Petition, Petitioner admitted that she had

received such counseling from her supervisors.

14. During these meetings with Petitioner, Ms. Hollarn

noted that Petitioner often tried to compare her work to other

employees instead of focusing on her work and how to improve her

performance. Ms. Hollarn did like this trait of Petitioner and

felt she should pay attention to improving her own work. Such

an opinion is not uncommon among supervisors, and there was no

evidence that demonstrated Ms. Hollarn’s opinion was based on

race.

15. On July 10, 2008, Petitioner received her Annual

Employee Performance Appraisal. She again received all 2’s on a

rating scale of 0 to 5, including the category of “accuracy.”

Her overall performance again was 30 points out of a potential

60 points. Thirty points was the lowest-scaled score in the

“meets expectations” category. The next category down was

“needs improvement.” The scaled score made her eligible to

receive a 1 percent performance pay increase, which she

received. The Appraisal noted that she frequently detailed

other employee’s flaws, rather than focus on her

responsibilities. The Appraisal also noted that she had a lot

to learn, but dealt with the public well. In short, the

Appraisal reflects that Petitioner was perceived as an average

employee after one year, especially since Petitioner did not

volunteer for non-mandatory overtime and did not arrive or begin

work early. Petitioner refused to sign her Employee Performance

Appraisal because she thought it should be higher so that she

could qualify for a higher pay increase.

16. Contemporaneous to Petitioner’s Annual Employee

Performance Appraisal, she was verbally counseled by her

supervisor, Louise McGirr on July 10, 2008. Ms. McGirr warned

Petitioner that her attention to detail and work performance

were unsatisfactory and she needed to improve.

17. Kimberly Williams received her Annual Employee

Performance Appraisal on November 18, 2008. She received mostly

2’s and several 3’s on a rating scale from 0 to 5. She received

reliability, attendance, productivity, follow through and

initiative. Ms. Williams received a scaled score of 35 out of

60 points. The scaled score made her eligible to receive a 1

percent performance pay increase. For unknown reasons,

Ms. Williams was not recommended for the pay increase by the

Supervisor of Elections and, unlike Petitioner, did not receive

the pay increase. However, the Appraisal indicated that her

supervisors and Ms. Hollarn were impressed with Ms. Williams’

drive, self-starting ability and initiative which she

demonstrated during the 2008 election which was record-setting

in the number of voter registrations and turnout. The testimony

revealed that Ms. Williams was perceived as more than an average

employee, especially since she arrived and began work early and

volunteered for overtime even though it was not required. Again

there was no evidence that Petitioner received more scrutiny in

her job performance than Ms. Williams

18. Sometime in late summer of 2008, Ms. Hollarn was

involved in an automobile accident that resulted in very serious

injuries to her, and caused her to be hospitalized and homebound

for several weeks. During the period of the first election

primary in August, Ms. Hollarn conducted meetings from her

hospital room and placed Shirley Young and Louise McGirr in

charge during the election primary.

19. The August 26, 2008, primary was an unusually busy

time at all the Supervisors’ offices and was a period when

tensions ran high and time was of the essence because election

results were being counted. As indicated, Shirley Young was

acting on behalf of the Supervisor of Elections at the time due

to Patricia Hollarn’s continued incapacitation from her car

accident. Ms. Young was trying to determine whether or not a

specific precinct’s voting machine uploaded critical election

results from the Fort Walton Beach office to the Crestview

office. The difficulty with the machine was causing a delay in

the election results which the media and public were waiting on

and which the Chairman of the Canvassing Board, a county judge,

was becoming impatient over the delay. Ms. Young called the

Fort Walton Beach office to inquire about the delay and asked to

speak to Pam McCelvey, who had knowledge about the information

she was seeking. Petitioner answered the telephone and placed

Ms. Young on hold after asking her "if she could wait a minute."

Petitioner placed Shirley Young on hold, for a period of time,

estimated to be from 10 seconds to 5 minutes. Petitioner or

someone else hung up the phone on Ms. Young, requiring Ms. Young

to call back a second time. Ms. Young believed it was

Petitioner who hung up on her, but irrespective of who hung up,

Ms. Young felt that she should not have been placed on hold and

made to wait for critical election information. Ms. Young was

strongly that Petitioner did not show tact or effective

interaction with her at a very critical time during the

election.

20. Ms. Young conveyed the above events of the election

night to Patricia Hollarn. At the time, neither Ms. Hollarn nor

Ms. Young discussed the telephone incident on election night

with the Petitioner, and Petitioner was not disciplined for

placing Ms. Young on hold or hanging up on her. From her

demeanor at the hearing, Ms. Hollarn was very displeased and

somewhat embarrassed about the telephone incident and felt

Petitioner had acted very inappropriately, did not fit in the

office and, more than anything else, precipitated Ms. Hollarn’s

decision to terminate Petitioner. Even though the facts may be

in dispute as to exactly what happened during the August

primary, there was no evidence that Ms. Hollarn’s perception of

the incident was illegitimate or related to Petitioner’s race.

21. Shortly after the telephone incident and when she was

physically able to address the matter, Ms. Hollarn began looking

for a reason to terminate Petitioner. Ms. Hollarn asked Brenda

Ball about Petitioner’s data entry accuracy. She did not ask

Ms. Ball about any other employee’s data entry accuracy.

However, at hearing, Ms. Ball’s impression was that Kimberly

Williams made as many errors and similar errors as Petitioner.

22. Although the evidence was not clear on what

information was reviewed, Ms. Ball reviewed some information on

Petitioner’s errors since her last evaluation on July 10, 2008.

The information included the Verification Reports she received.

In an email dated September 17, 2008, Ms. Ball responded to the

Supervisor of Elections’ inquiry. Ms. Ball stated that there

had been some improvement in Petitioner’s data entry performance

since her last performance evaluation of July 10, 2008, but that

Petitioner’s performance had slowly declined since then. She

also described the type of consistent errors Petitioner made

while entering data. Ms. Hollarn did not discuss the fact that

she intended to terminate Petitioner with Ms. Ball. At the time

of Ms. Hollarn’s inquiry, Ms. Ball did not know Petitioner would

be terminated and she did not recommend her termination.

23. During her testimony, Ms. Ball reviewed Verification

Reports from the data that had been entered by Petitioner and by

Kimberly Williams, her white comparator. The review during the

trial covered data entered during August 2008 and part of

September 2008 until the day of Petitioner's termination. The

evidence did not demonstrate that these were the same reports

that Ms. Ball had reviewed for her response to Ms. Hollarn’s

earlier inquiry regarding Petitioner. A very rough tally of the

errors that were counted during the hearing indicated that for

30 days in August 2008, Petitioner made 79 demonstrated errors

while her white counterpart, Kimberly Williams, made 37 errors

during a 10-day period in August. For ten days in September

2008, Williams had 92 demonstrated errors, while Petitioner made

88 errors for 11 days in September. Indeed, Ms. Ball's review

of both Petitioner and Williams’ data entry during the hearing,

while not scientific or precise, clearly indicated that they

both made the same type of repetitive errors. However, the

Verification Reports presented at the hearing did not

demonstrate whether the number of errors made by Petitioner and

Ms. Williams were significantly comparable or different because

the reports did not cover the same periods of time, account for

variability in office duties and were not analyzed statistically

in any scientific manner. No expert witness or independent

objective analysis of the numbers was offered at the hearing.

24. Petitioner offered the testimony of Tiffany Lovett,

the Candidate Coordinator for the Supervisor of Elections

Office, who was responsible for maintaining information on voter

petitions and absentee ballots. She testified that she had

previously had problems with data entry performed on her work by

Kimberly Williams substantial enough that she complained to

Louise McGirr and to Pat Hollarn about Williams’ inaccuracy.

The evidence was not clear whether Petitioner entered data for

Ms. Lovett or, if she did, the time period that Petitioner

entered such data. However, Ms. Lovett also testified that all

employees made errors in data entry and made such errors

especially during the 2008 primary period.

25. Patricia Hollarn formalized her decision to terminate

Petitioner's employment on September 19, 2008. On that date,

Ms. Hollarn came to the Fort Walton office in a wheel chair.

She was still recovering from her automobile accident. She

requested that Petitioner meet with her and Shirley Young.

During the meeting, Ms. Hollarn gave Petitioner a letter of

termination, effective that day. The letter specifically

stated:

On July 10, 2008, you were counseled by your

supervisor, Louise McGirr, regarding your

work performance and attention to detail in

your office duties. Although a slight

improvement did occur for a short amount of

time, a consistent, significant improvement

has not been seen.

. . . therefore, as of today your current

employment is terminated (per 129.202(2) FS

and Okaloosa County Human Resources Policy

Manual Chapter XX, Section B 4k

“Incompetence and inefficiency in the

performance of assigned duties”). . . .

During the meeting, Ms. Hollarn also told Petitioner that she

was not a good fit in the office which the evidence showed was

more indicative of the real reason for Petitioner’s termination.

26. Ms. Hollarn admitted that she had not personally

reviewed Petitioner's work performance, work product or alleged

work errors, but relied on information and input she received

from Jimmie Giles, Brenda Ball, Louise McGirr and Shirley Young

about Petitioner's job deficiencies. However, Jimmie Giles

testified that she did not give any information to Ms. Hollarn

about Petitioner's job performance. Ms. Giles made it clear

that her job duties were data entry, she did not supervise any

employees, and she certainly did not recommend that Petitioner

be fired from her job. On the other hand, Ms. McGirr and

Ms. Young both provided negative input about Petitioner’s job

performance. In particular, Ms. McGirr reported that Petitioner

did not volunteer to work overtime, despite the need created by

the upcoming elections.

27. Petitioner’s lack of focus on solving her performance

issues and focus on other employee’s performance and her

unwillingness to “volunteer” for overtime all contributed to

Ms. Hollarn’s negative view of Petitioner. Added to this

negative view was the telephone incident that was reported to

her by Ms. Young and was embarrassing to her office. None of

these reasons were based on Petitioner’s race. Given these

facts, the fact that the termination letter did not state the

real or all the reasons for Petitioner’s termination does not

demonstrate that Respondent’s motives for terminating Petitioner

were based on Petitioner’s race. Petitioner was terminated for

her poor work performance, less than self-motivated conduct and

the telephone incident. There was no evidence that Respondent’s

reason for termination was a pretext to cover discrimination.

28. Moreover, Petitioner’s termination was not solely

based on data entry errors. Differences between the work of

Petitioner and Ms. Williams, brought out at the hearing,

pertained to their overall performance. Although Ms. Williams

and Petitioner received identical scores of 30 on their

Probationary Employee Performance appraisals, Ms. Williams

received a higher score on her first Annual Employee Performance

Appraisal. Despite the five-point higher score than Petitioner,

Ms. Williams received no pay increase, while Petitioner received

a 1 percent pay increase. Finally, Petitioner was replaced by

Latoya Knox, who is black, had previously worked in the office

and who Ms. Hollarn wanted to hire back. Given these facts,

Petitioner did not establish by a preponderance of the evidence

that she was treated differently than comparable non-minority

co-workers, her termination was based on her race or that the

reasons given for her termination were a pretext for

discrimination. Therefore, the Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120.57(1), Fla. Stat (2009).

30. Section 760.10, Florida Statutes, provides that it is

an unlawful employment practice for an employer

[t]o discharge or to fail to refuse to hire

any individual, or otherwise, discriminate

against any individual with respect to

compensations, terms, conditions, or

privileges of employment because of such

individual’s race, color, religion, sex,

national origin, age, handicap or marital

status.

§ 760.10(1)(a), Fla. Stat. (2009).

31. 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

(2008). See Albra v. Advan, Inc. , 490 F.3d 826 (11th Cir.

2007); Winn Dixie Stores v. Reddick , 954 So. 2d 723 (Fla. 1st

DCA 2007); Brand vs. Florida Power Corp. , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Florida Dept. of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla.

Dept. of Children & Family Services , 19 Fla. L. Weekly Fed.

D.268, 2005 U.S. Dist. LEXIS 19261 (N.D. Fla. 2005).

32. 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

Zappa v. Wal-Mart Stores, Inc. , 1 F. Supp. 2d 1354, 1356 (M.D.

Fla. 1998); Standard v. A.B.E.L. Svcs., Inc. , 161 F.3d 1318

(11th Cir. 1998); and Walker v. Prudential Property & Casualty

Insurance, Co. , 286 F.3d 1270 (11th Cir 2002).

33. Under McDonnell Douglas , 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, “the fact finder must believe the

plaintiff’s explanation of intentional discrimination.” Hicks ,

509 U.S. at 519. Additionally, “Defendants burden . . . is

exceedingly light” and “’is merely one of production, not

proof’.” Perryman v. Johnson Products, Co. , 698 F.2d 1138 (11th

Cir. 1983).

34. 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 Dep’t of Community Affairs v. Burdine , 450 U.S.

248 (1981).

35. "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 , No. 02-2502, 2003 WL 435084 (Fla. DOAH

2003)(Recommended Order).

36. 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 the 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 jury 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.); Reyes v. Pacific Bell , 21

F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The

only such evidence [of discrimination] in the record is Reyes’

own testimony that it is his belief that he was fired for

discriminatory reasons. This subjective belief is insufficient

to establish a prima facie case."); 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."); Jackson v. Waguespack , No. 1-2972, 2002 U.S. Dist.

Lexis 20864, 2002 WL 31427316 (E.D. La. 2002)("[T]he Plaintiff

has no evidence to show Waguespack was motivated by racial

animus. Speculation and belief are insufficient to create a

fact issue as to pretext nor can pretext be established by mere

conclusory statements of a Plaintiff that feels she has been

discriminated against. The Plaintiff's evidence on this issue

is entirely conclusory, she was the only black person seated

there. The Plaintiff did not witness Defendant Waguespack make

any racial remarks or racial epithets."); Coleman v. Exxon

Chemical Corp. , 162 F.Supp. 2d 593, 622 (S.D. Tex.

2001)("Plaintiff's conclusory, subjective belief that he has

suffered discrimination by Cardinal is not probative of unlawful

racial animus."); Cleveland-Goins v. City of New York , No. 99-

Civ.1109, 1999 U.S. Dist. LEXIS 13255, 1999 WL 673343 (S.D. N.Y.

1999)("Plaintiff has failed to proffer any relevant evidence

that her race was a factor in defendants’ decision to terminate

her. Plaintiff alleges nothing more than that she ‘was the only

African-American man [sic] to hold the position of

administrative assistant/secretary at Manhattan Construction.’

(Compl.¶ 9.) The Court finds that this single allegation,

accompanied by unsupported and speculative statements as to

defendants’ discriminatory animus, is entirely insufficient to

make out a prima facie case or to state a claim under Title

VII."); 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."); and

Lo v. F.D.I.C. , 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's

subjective belief of race and national origin discrimination is

legally insufficient to support his claims under Title VII.").

37. 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.

Manniccia v. Brown , 171 F.3d 1364 (11th Cir. 1999); Canino v.

EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia , 684 F.2d

729 (11th Cir. 1982); Lee v. Russell County School Board , 684

F.2d 769 (11th Cir. 1984); and Holifield v. Reno , 115 F.3d 1555,

1562 (11th Cir 1997).

38. In this case, Petitioner has alleged that Respondent

unlawfully discriminated against her on the basis of her race.

As a black female, Petitioner is a member of a protected class.

Additionally, Petitioner was qualified for the position to which

Respondent assigned her.

39. Petitioner identified Kimberly Williams as her only

comparator. Ms. Williams is a white female and was an Elections

Specialist I working in the same branch office as Petitioner.

Other election staff performing the same work at the other

offices, both black and white, were not offered by Petitioner as

comparators.

40. As indicated, the burden of proof is on Petitioner to

identify a similarly situated employee who was treated more

favorably despite having engaged in similar misconduct and who

is outside of Petitioner’s protected class. Davis v. City of

Panama City, Fla. , 510 F. Supp. 2d 671, 686 (N.D. Fla. 2007).

In making the comparison, the quality of the misconduct must

rise to the level of being nearly identical. See Maniccia v.

Brown , 171 F.3d 1364, 1368 (11th Cir. 1999) and Mayberry v.

Vought Aircraft Co. , 55 F.3d 1086 (5th Cir. 1995).

41. The evidence demonstrated that Ms. Williams was

similarly situated to Petitioner in that they held the same

position and worked at the same office. However, the evidence

did not establish that Ms. Williams was treated more favorably

than Petitioner. Both received 2’s in the area of accuracy.

The evidence did not demonstrate that Ms. William’s accuracy was

less than that of Petitioner’s. Here Petitioner’s attempted

statistical analysis of data entry errors between Petitioner and

Ms. Williams are virtually meaningless. The tallies fail to

show that Ms. Williams was treated more favorably than

Petitioner. The testimony merely demonstrates that both

Petitioner and Ms. Williams made errors during different time

spans. Statistics without an analytical foundation are

virtually meaningless.

42. On the other hand, Ms. Williams exceeded Petitioner’s

performance in other rated areas. The evidence demonstrated

that Ms. Williams was ready, willing and able to assist her

superiors and arrived at and began work early. Her signed

annual evaluation had a score of 35, up from 30, and she

received 3’s in 5 areas, whereas Petitioner received all 2’s.

To the contrary, the evidence demonstrated that Petitioner did

not volunteer for overtime even though there was a need and

focused on other people’s work instead of her own. None of

these characteristics were based on race and all of these

reasons justify the discrepancy in scoring between the two

employees on their appraisals.

43. Added to the mix, the August 2008 primary election

telephone incident with Shirley Young caused Petitioner’s

employer’s opinion of her work to be further reduced to the

point where Ms. Hollarn decided to terminate Petitioner. No

such conduct on the part of Ms. Williams was established by the

evidence. To that extent, Petitioner and Ms. Williams were not

similar and Petitioner failed to establish a prima facie case.

44. However, even assuming arguendo that Petitioner did

establish a prima facie case, the evidence demonstrated that

Petitioner’s termination was based on more than data entry

errors. Both her attitude about her work and her lack of

volunteering for overtime contributed to her termination.

However, the major reason Petitioner was terminated was the

telephone incident that occurred on August 26, 2008. All of

these reasons were valid reasons for terminating an at-will

employee and are legitimate, non-discriminatory reasons for

Petitioner’s termination.

45. Therefore, the burden shifts back to Petitioner to

demonstrate that the offered reason for termination is merely a

pretext for discrimination. As the Supreme Court stated in

Hicks , it is not pretext “unless it is shown both that the

reason was false, and that [racial] discrimination was the real

reason.” Hicks , 509 U.S. at 515. Further, before finding

discrimination, “the fact finder must believe the plaintiff’s

explanation of intentional discrimination.” Hicks , 509 U.S. at

519.

46. In this case, even assuming arguendo , that Petitioner

established a prima facie case and that Petitioner violated its

performance and conduct policies, even if wrong , the evidence

demonstrated that Petitioner’s termination was based on non-

discriminatory reasons. See Chapman v. Al Transport , 299 F.3d

1012, 1030-31 (11th Cir. 2000)(holding defendant may terminate

an employee for good or bad reasons without violating federal

law); Thomas v. Nicholson , 263 Fed.Appx. 814, 816 (11th Cir.

2008)(“We have held that [t]he 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’.”).

47. Petitioner’s lack of focus on solving her performance

issues and focus on other employee’s performance and her

unwillingness to “volunteer” for overtime all contributed to

Ms. Hollarn’s negative view of Petitioner. Added to this

negative view was the telephone incident that was reported to

her by Ms. Young and was embarrassing to her office. None of

these reasons were based on Petitioner’s race. Given these

facts, the fact that the termination letter did not state the

real or all of the reasons for Petitioner’s termination does not

demonstrate that Respondent’s motives for terminating Petitioner

were based on Petitioner’s race. Petitioner was terminated for

her poor work performance, less than self-motivated conduct and

the telephone incident. There was no evidence that Respondent’s

reason for termination was a pretext to cover discrimination.

Finally, Petitioner was replaced by Latoya Knox, who is black,

had previously worked in the office and who Ms. Hollarn wanted

to hire back. Given these facts, Petitioner did not establish

by a preponderance of the evidence that she was treated

differently than comparable non-minority co-workers, her

termination was based on her race or that the reasons given for

her termination were a pretext for discrimination. Therefore,

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 issue a Final Order dismissing the Petition for Relief

with Prejudice.

DONE AND ENTERED this 30th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 March, 2010.

COPIES FURNISHED :

Michael K. Grogan, Esquire

Allen Norton & Blue

800 West Monroe Street, Suite 100

Jacksonville, Florida 32202

Carolyn Davis Cummings, Esquire

Cummings & Hobbs, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

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

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.