09-007036 Shirley Fleming-Brickous vs. Brevard County Sheriff's Office Status: Closed Recommended Order on Tuesday, June 15, 2010.

Summary: Former sheriff employee failed to make prima facie case of race discrimination for denial of pay increase during temporary performance of dual job duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY FLEMING-BRICKOUS, )

)

Petitioner, )

)

vs. ) Case No. 09-7036

)

BREVARD COUNTY SHERIFF’S )

OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on May 13, 2010. The ALJ conducted the hearing

by video teleconference in Tallahassee and Melbourne, Florida.

APPEARANCES

For Petitioner: Shirley Fleming-Brickous, pro se

1803 Plata Court

Rockledge, Florida 32955

For Respondent: Robert W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The stipulated issue 1 is whether Respondent discriminated

against Petitioner on the basis of her race by denying

Petitioner equal pay in violation of the Florida Civil Rights

Act, Chapter 760, Florida Statutes (2007). 2

PRELIMINARY STATEMENT

On May 22, 2009, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the Commission). On November 18, 2009, the Commission issued a

Determination: No Cause. On December 21, 2009, Petitioner filed

a Petition for Relief, and the Commission referred the matter to

DOAH to conduct the final hearing.

At the hearing, Petitioner testified in her own behalf and

submitted six exhibits for admission into evidence. Respondent

presented the testimony of four witnesses and submitted 17

exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the Transcript of the hearing

filed with DOAH on May 25, 2010. Respondent timely filed its

Proposed Recommended Order (PRO) on June 4, 2010. Petitioner

did not file a PRO.

FINDINGS OF FACT

1. Petitioner is an "aggrieved person" within the meaning

of Subsections 760.02(6) and (10). Petitioner is an African-

American female and filed a complaint of race discrimination,

with the Commission.

2. Respondent is an "employer" within the meaning of

Subsection 760.02(7). Respondent is the Office of the Sheriff

for Brevard County, Florida.

3. The evidence, in its entirety, does not establish a

prima facie showing of discrimination. Nor does the evidence

prove that Petitioner received unequal pay.

4. Respondent first employed Petitioner sometime in

October 2002. Petitioner voluntarily resigned her position of

employment with Respondent on May 30, 2008, for a higher-paying

position with another employer. 3

5. On July 29, 2006, Respondent transferred Petitioner

from the position of payroll specialist, in the accounting

department, to a position of personnel officer in the personnel

department. The transfer was a promotion, and Petitioner

received a 10 percent increase in pay. Ms. Bridget Bauer

replaced Petitioner in the accounting department.

6. The supervisor in the personnel office was Ms. Imogene

Mullins. Ms. Mullins supported the transfer of Petitioner and

considered Petitioner to be a valuable asset due to Petitioner's

varied experience, including experience in human resources.

7. On April 3, 2008, Ms. Bauer transferred from the

accounting department to another position within Respondent's

organization. Ms. Denise Postlethweight, the supervisor of the

accounting department, asked Petitioner to temporarily assist

the accounting department until the department could replace

Ms. Bauer, to train the replacement for Ms. Bauer, and to assist

in interviewing applicants to replace Ms. Bauer. Petitioner

agreed to perform these temporary duties.

8. Respondent, Ms. Postlethweight, and Ms. Mullins did not

promise Petitioner she would receive additional compensation for

performing these temporary duties in the accounting department

until the accounting department replaced Ms. Bauer.

Respondent's administrative policy does not authorize

compensation for temporary duties.

9. Ms. Mullins attempted to obtain authorization for

increased compensation for the temporary duties performed by

Petitioner without success. No pay increase was approved

because Petitioner was performing equivalent supervisory duties

in the accounting and personnel departments on a temporary

basis.

10. One alleged comparator relied on by Petitioner is not

a comparator. Ms. Lisa Gillis performed equivalent supervisory

duties as the special projects coordinator and sheriff's

assistant. However, Ms. Gillis performed equivalent supervisory

duties on a permanent basis rather than a temporary basis.

Respondent's administrative policy authorizes additional

compensation for dual duties performed on a permanent basis.

11. Petitioner spent much of her time during the hearing

attempting to show that Ms. Mullins promised additional

compensation to Petitioner as an inducement for Petitioner's

agreement to perform dual duties on a temporary basis. As

previously found, the fact-finder does not find that evidence to

be persuasive, and, if it were, the evidence does not rise to

the level of a preponderance of the evidence.

12. Moreover, evidence of an offer and acceptance of

additional compensation between Ms. Mullins and Petitioner as an

inducement for the performance of dual duties is relevant to an

action for breach of contract rather than discrimination.

Jurisdiction for an action for breach of contract is in circuit

court rather than DOAH.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and the subject

(2009). DOAH provided the parties with adequate notice of the

final hearing.

14. Petitioner bears the burden of proof in this

proceeding. Petitioner must show by a preponderance of the

evidence that Respondent discriminated against her by denying

her equal pay on the basis of her race. McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973).

15. Federal discrimination law may be used for guidance in

evaluating the merits of claims arising under Chapter 760.

Tourville v. Securex, Inc. , 769 So. 2d 491 (Fla. 4th DCA 2000);

Greene v. Seminole Elec. Co-op. Inc. , 701 So. 2d 646 (Fla. 5th

DCA 1997); Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla.

1st DCA 1994). Petitioner can meet her burden of proof with

either direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1358 (11th Cir.

1999), cert. denied , 529 U.S. 1109 (2000). Direct evidence must

evince discrimination or retaliation without the need for

inference or presumption. Standard v. A.B.E.L. Services., Inc. ,

161 F.3d 1318, 1330 (11th Cir. 1998). In other words, direct

evidence consists of "only the most blatant remarks, whose

intent could be nothing other than to discriminate," Earley v.

Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990).

16. There is no direct evidence of discrimination or

retaliation in this case. In the absence of direct evidence,

Petitioner must meet her burden of proof by circumstantial

evidence.

17. Circumstantial evidence of discrimination or

retaliation is subject to the burden-shifting framework of proof

established in McDonnell Douglas , 411 U.S. 792, and Reed , 95

F.3d at 1178. Petitioner must first establish a prima facie

case of discrimination. McDonnell Douglas , 411 U.S. at 802;

Munoz v. Oceanside Resorts, Inc. , 223 F.3d 1340, 1345 (11th Cir.

2000). Her failure to do so ends the inquiry. See Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996), aff'd , 679

So. 2d 1183 (1996) ( citing Arnold v. Burger Queen Sys. , 509 So.

2d 958 (Fla. 2d DCA 1987)). If Petitioner establishes a prima

facie case, the burden shifts to Respondent to articulate a

legitimate, non-discriminatory, non-retaliatory reason for the

challenged action. Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 257, 101 S. Ct. 1089, 1096 (1981); Munoz ,

223 F.3d at 1345; Turlington v. Atlanta Gas Light Co. , 135 F.3d

1428, 1432 (11th Cir. 1998), cert. denied , 119 S. Ct. 405

(1998). Petitioner must then prove by a preponderance of

evidence that the reasons offered by Respondent for its actions

are mere pretexts. Id.

18. In order to establish a prima facie case of race

discrimination, a preponderance of the evidence must show that

Petitioner is a member of a protected class, that she suffered

an adverse employment action, that she received disparate

treatment compared to similarly-situated individuals in a non-

protected class, and that there is sufficient evidence of bias

to infer a causal connection between her race and the disparate

treatment. Rosenbaum v. Southern Manatee Fire and Rescue Dist. ,

980 F. Supp. 1469 (M.D. Fla. 1997); Andrade v. Morse Operations,

Inc. , 946 F. Supp. 979, 984 (M.D. Fla. 1996). A preponderance

of the evidence does not show that Petitioner received disparate

treatment compared to similarly situated individuals or that the

alleged disparate treatment is causally connected to

Petitioner's race. Failure to establish the last prong of the

conjunctive test is fatal to a claim of discrimination.

Mayfield v. Patterson Pump Co. , 101 F.3d 1371 (11th Cir. 1996);

Earley , supra . See also Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding Respondent not guilty of the

allegations against Respondent and dismissing the Charge of

Discrimination and Petition for Relief.

DONE AND ENTERED this 15th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 15th day of June, 2010.

ENDNOTES

1/ The Charge of Discrimination and Petition for Relief raise

numerous allegations against Respondent. At the final hearing,

however, Petitioner stipulated on the record that the issue for

determination in the hearing is limited to discrimination based

on race and that Petitioner is withdrawing any allegation of

retaliation. Transcript at 12-13. The Petition for Relief did

not include an allegation of age discrimination that was

included in the Charge of Discrimination, and the record is

devoid of any evidence of age discrimination.

2/ References to chapters, sections, and subsections are to

Florida Statutes (2007), unless stated otherwise.

3/ The fact-finder finds evidence offered by Petitioner that the

resignation was a constructive termination of employment to be

neither credible nor persuasive. In any event, the evidence did

not rise to the level of a preponderance of the evidence. A

preponderance of the evidence shows that the resignation was

voluntary and not wanted by Respondent.

COPIES FURNISHED :

Robert W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Shirley Fleming-Brickous

1803 Plata Court

Rockledge, Florida 32955

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.