09-002385 Stephanie Taylor vs. Lake City Community College Status: Closed Recommended Order on Wednesday, June 30, 2010.

Summary: Petitioner failed to prove that her dismissal from employment was in retaliation for her filing a grievance alleging that a co-worker made racially discriminatory comments directed at Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE TAYLOR, )

)

Petitioner, )

)

vs. ) Case No. 09-2385

)

LAKE CITY COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 23

and 24, 2010, in Lake City, Florida, before Lawrence P.

Stevenson, a duly-designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie Taylor, pro se

513 Northeast Kingston Lane

Lake City, Florida 32055

For Respondent: Jesse S. Hogg, Esquire

Hogg, Ryce & Spencer

7701 Erwin Road

Coral Gables, Florida 33143

STATEMENT OF THE ISSUE

The issue is whether Respondent committed unlawful

employment practices contrary to Section 760.10, Florida

Statutes (2007) 1/ , by terminating Petitioner's employment in

retaliation for her filing a formal grievance asserting that a

co-worker made a racially discriminatory comment to her at a

staff meeting.

PRELIMINARY STATEMENT

On August 20, 2007, Petitioner Stephanie K. Taylor

("Petitioner"), filed with the Florida Commission on Human

Relations ("FCHR") an Employment Complaint of Discrimination

(the "Complaint") against Respondent Lake City Community College

(the "College" or "LCCC"). Petitioner alleged as follows:

I believe I have been discriminated against

pursuant to Chapter 760 of the Florida Civil

Rights Act, and/or Title VII of the Federal

Civil Rights Act 2/ as applicable for the

following reasons:

I believe I was harassed because of my race

(black) and in retaliation for filing a

formal complaint I was terminated. I began

working for the Respondent as a Teaching

Assistant II in the School of Cosmetology on

January 28, 2007. On May 17th I filed a

formal grievance for racial slurs made by

Vicki Glenn, Cosmetology Instructor. She

never called me by my name. I was referred

to [as] the black girl or the colored girl

who answers the phone. Carol McClain [ 3/ ],

Supervisor, was a witness to these harassing

comments and laughed it off. In retaliation

for filing the formal grievance I was

terminated on June 28th.

The FCHR investigated Petitioner's Complaint. On March 12,

2009, the FCHR issued a determination that reasonable cause

existed to believe that an unlawful employment practice

occurred. The FCHR's report and/or investigative memorandum

were not submitted and therefore are not part of the record in

this proceeding.

On April 2, 2009, Petitioner timely filed a Petition for

Relief with the FCHR. On May 5, 2009, the FCHR referred the

case to the Division of Administrative Hearings. The case was

initially assigned to Administrative Law Judge Ella Jane P.

Davis and scheduled for hearing on August 17 and 18, 2009. The

case was continued twice and finally was held on March 23 and

24, 2010, before the undersigned.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Tracilla Sharon Chisolm, a former

student in the College's cosmetology department. Petitioner's

Exhibit 1 was admitted into evidence. The College presented the

testimony of Tracy Hickman, Dean of Occupational Programs; Nancy

Carol McLean, instructor and coordinator of cosmetology at the

College; Tony LaJoie, the College's supervisor of security;

Vicki Glenn, instructor in cosmetology; Gary Boettcher, the

College's director of human resources during the period relevant

to this proceeding; College custodian Marcia Brinson; Janice

Cairel, a human resources specialist with the College; and the

College's dean of student services, Linda Crowley. The

College's Exhibits 1, 2, 7, 10, 18A, 20, 23, 25, 29, 30A, 30B,

34, 45 were admitted into evidence.

Petitioner filed a post-hearing brief on April 2, 2010.

The four-volume transcript was filed at the Division of

Administrative Hearings on April 19, 2010. On April 23, 2010,

the College filed a Motion to Extend Time to File Proposed

Recommended Order, which was granted by order dated April 26,

2010. In accordance with the Order Granting Extension of Time,

the College filed its Proposed Recommended Order on May 10,

2010. Both parties' post-hearing submissions have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The District Board of Trustees of LCCC is an employer

as that term is defined in Subsection 760.02(7), Florida

Statutes.

2. Petitioner, an African-American female, was hired by

the College and began work on January 29, 2007. She worked in

the cosmetology department as a Teaching Assistant II until the

College terminated her employment on June 28, 2007.

3. In addition to Petitioner, the College's cosmetology

department consisted of two instructors, Carol McLean and Vicki

Glenn. Ms. McLean was also the department coordinator, meaning

that she supervised Petitioner and Ms. Glenn.

4. The instructors performed classroom instruction and

supervised students "on the floor" in the department's

laboratory, where the students practiced their skills on clients

who made appointments with the department to have their hair

styled. Petitioner's duties included answering the telephone,

making client appointments, ordering and stocking cosmetology

supplies, and recording the hours and services performed by the

students.

5. Petitioner was a licensed cosmetologist and was

expected to assist on the floor of the lab, but only when an

instructor determined that her presence was necessary.

Petitioner was not authorized to perform classroom instruction.

6. Petitioner was at all times employed on a probationary

basis under LCCC Policy and Procedure 6Hx12:8-04, which provides

that all newly hired career service employees must serve a

probationary period of six calendar months. This Policy and

Procedure also requires that conferences be held with the

employee at the end of two and four months of employment. The

conferences are to include written performance appraisals and

should be directed at employee development, areas of weakness or

strength, and any additional training required to improve

performance.

7. Petitioner acknowledged that she attended orientation

sessions for new employees during which this Policy and

Procedure was discussed. 4/

8. The evidence at hearing established that the

orientation sessions covered, among other subjects, an

explanation of the probationary period, the College's discipline

and grievance procedures, and how to find the College's Policies

and Procedures on the internet. The employee orientation

process also required Petitioner's immediate supervisor, Carol

McLean, to explain 14 additional items, including Petitioner's

job description and the College's parking policies. The

evidence established that Ms. McLean covered these items with

Petitioner.

9. Petitioner's first written evaluation covered the

period from January 29, 2007 through March 29, 2007. The

evaluation was completed by Ms. McLean on April 13, 2007, and

approved by the Dean of Occupational Programs, Tracy Hickman, on

April 30, 2007.

10. The College's "Support Staff Job Performance

Evaluation" form provides numerical grades in the categories of

work knowledge, work quality, work quantity and meeting

deadlines, dependability, co-operation, judgment in carrying out

assignments, public relations, and overall performance. A score

of 1 or 2 in any category is deemed "unsatisfactory." A score

of 3 or 4 is "below norm." A score of 5 or 6 is "expected

norm." A score of 7 or 8 is "above norm." A score of 9 or 10

is rated "exceptional."

11. Petitioner's scores in each area were either 5 or 6,

within the "expected norm." Ms. McLean graded Petitioner's

overall performance as a 6.

12. The evaluation form also provides questions that allow

the supervisor to evaluate the employee's performance in a

narrative format. In response to a question regarding

Petitioner's strengths, Ms. McLean wrote that Petitioner "has

demonstrated she is very capable handling conflicts/situations

concerning clients. She is also good working with the students

when needed. Her computer skills/knowledge has been an asset."

13. In response to a question regarding Petitioner's

weaknesses, Ms. McLean wrote, "Kay 5/ needs to be a little more

organized. I feel confident with the move to the new building,

she will be able to set her office up to be more efficient for

herself."

14. Petitioner testified that she has excellent

organizational skills and that she is, in fact, a "neat freak."

Her problem was the utter disorganization of the cosmetology

department at the time she started her job. She could not see

her desk for the pile of papers and other materials on it.

Boxes were piled in the middle of the floor. There were more

than 100 unanswered messages in the recorded message queue.

Petitioner testified that neither Ms. McLean nor Ms. Glenn could

tell her how to proceed on any of these matters, and that she

was therefore required to obtain advice via telephone calls to

either Wendy Saunders, the previous teaching assistant, or

Jeanette West, secretary to the Dean of Occupational Programs.

15. Neither Ms. McLean nor Ms. Glenn recalled the complete

departmental disorganization attested to by Petitioner at the

outset of her employment. In fact, Ms. McLean recalled having

to work 80-hour weeks to restore order to the department's

workspace after Petitioner was discharged. No other witness

testified as to disorganization prior to Petitioner's hiring.

The evidence presented at the hearing established that

Petitioner dramatically overstated the poor condition of the

cosmetology department's offices at the time she started work,

and also greatly overstated any contribution she made to improve

its organization.

16. Petitioner's second and final evaluation covered the

period from March 29, 2007, through May 29, 2007. The

evaluation was completed by Ms. McLean on May 22, 2007, and

approved by Dean Hickman on May 23, 2007.

17. Petitioner's numerical scores in each of the

categories, including overall performance, was 4, meaning that

her performance was "below norm." In a typewritten attachment,

Ms. McLean wrote:

Employee Improvement:

1. Strengths:

Kay is very good with the students and

has strong desires to help them.

2. Weaknesses:

a. A concern is Kay's words and actions

have shown that she would rather teach than

be in the office.

b. There is still a lack of

organization in the office. We have had a

couple incidents where we have to search for

invoices, etc.

c. I am still receiving complaints

about the phone not being answered.

3. Other comments:

Too often Kay's actions have made it

difficult for the department to operate

effectively.

Since Kay's arrival, it have discussed

[sic] that each person must respect the

protocol of communicating within the chain

of command. On numerous occasions Kay

ignored those instructions, In spite of my

direct instructions to notify/discuss an

incident report to Dean Hickman before doing

anything else with it, Kay distributed it to

others. 6/

18. The College terminated Petitioner's employment on

June 28, 2007, roughly five months after she began work and well

within the six-month probationary period.

19. Petitioner's dismissal was due to inadequate job

performance and to several episodes displaying poor judgment and

disregard of the College's rules and regulations.

20. As to day-to-day job performance, the evidence

established that Petitioner often had to be asked several times

to do things that she conceded were within the scope of her

duties.

21. One of Petitioner's duties was to track the

department's inventory, order supplies as needed, check the

supplies against the invoices as they arrived, and unpack the

supplies and restock the department's shelves. If the supplies

were not removed from their shipping containers and stocked on

the shelves, it was difficult for the instructors and students

to find items or know when the department was running low on a

given supply. Student cosmetologists at the College were

frequently required to use caustic chemicals, and it was

critical that the supplies be correctly inventoried and shelved

to avoid mistakes in application of these chemicals.

22. Ms. McLean had to tell Petitioner repeatedly to unpack

the supplies. Petitioner would tell Ms. McLean that she would

take care of it, but later Ms. McLean would notice that the

supplies were still in their boxes. 7/

23. Ms. McLean testified that there were multiple

occasions when paperwork could not be located due to

Petitioner's lack of a filing system. Ms. McLean and Petitioner

would have to rummage through stacks of paper to find the item

they needed because Petitioner failed to file the department's

paperwork in a coherent manner.

24. Another of Petitioner's duties was to set up "product

knowledge" classes conducted by vendors of hair care products

used in the cosmetology program. In February 2007, Ms. Glenn

asked Petitioner to set up a class with Shirley Detrieville, the

Redken representative for the College. Over the next month,

Ms. Glenn repeatedly asked Petitioner about her progress in

setting up the class, and Petitioner consistently responded that

Ms. Detrieville had not returned her calls. Finally, in March,

Ms. Glenn happened to see Ms. Detrieville on the campus.

Ms. Detrieville informed Ms. Glenn that all the paperwork for

the class had been completed long ago, and she was just waiting

for Petitioner to call and let her know when to come.

Ms. Glenn's class never received the Redken training.

25. The evidence established that Petitioner consistently

failed to return phone calls made to the department. There was

a core group of women, mostly retirees that constituted an

important segment of the regular patrons at the department's

lab. Keeping track of their appointments was important because

the students needed practical experience in order to meet the

requirements for licensure. It was also important to keep track

of the training needs of each student, because a student working

on hair coloring, for instance, needed to be matched with a

customer requesting that service. Among Petitioner's duties was

to make the appointments for the patrons, and to coordinate the

appointments with the students.

26. Ms. McLean and Ms. Glenn testified that they

consistently received complaints that Petitioner did not return

phone calls from patrons attempting to make appointments.

Ms. McLean recalled an elderly woman named Ms. Grammith, who was

a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at

home because she was unable to get Petitioner to return her

calls for an appointment. 8/

27. Ms. Glenn recounted an occasion when she received a

phone call from Ms. Grammith, complaining that Petitioner was

not returning her calls. Ms. Glenn walked into Petitioner's

office and asked her to return Ms. Grammith's call and make her

appointment. Petitioner assured Ms. Glenn that she would.

Ms. Glenn then went to teach a class. When she returned to her

office, Ms. Glenn had another message from Ms. Grammith.

Ms. Glenn asked Petitioner about the situation, and Petitioner

admitted that she had not yet returned the call. Still later on

the same afternoon, Ms. Glenn received a third call from

Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who

again admitted that she had not phoned Ms. Grammith.

28. The next morning was a Friday, and Ms. Glenn received

another call from Ms. Grammith. Ms. Glenn walked into

Petitioner's office and told her to call Ms. Grammith.

Ms. Glenn knew Petitioner never made the call because

Ms. Grammith called Ms. Glenn yet again on the following Monday.

29. Another elderly regular customer, Ms. Caldwell,

stopped Ms. Glenn in the hallway one day to ask "what in the

world was going on here." Ms. Caldwell complained that

Petitioner never got her appointment right, and always told her

that she had come in on the wrong day or at the wrong time. On

this day, Ms. Caldwell was left sitting in the hallway outside

the lab for three and one-half hours because Petitioner failed

to schedule her appointment correctly.

30. On another occasion, Shirley Rehberg, an LCCC

employee, emailed Ms. Glenn to inquire about making an

appointment for a pedicure. Ms. Glenn responded that Petitioner

handled appointments, and provided Ms. Rehberg with information

as to Petitioner's office hours. On three different occasions,

Ms. Rehberg informed Ms. Glenn that she had attempted to make

appointments with Petitioner but had received no response.

31. Ms. Glenn also recalled going to the College

registrar's office on unrelated business and being asked by

Debbie Osborne, an employee in that office, whether the

cosmetology department had stopped taking appointments.

Ms. Glenn told her that all she had to do was call Petitioner.

Ms. Osborne replied that she had emailed Petitioner several

times and never received a response.

32. Ms. McLean concluded that Petitioner was much more

interested in the occasional teaching aspect of her position

than she was in the quotidian matters of filing, ordering and

answering the phone that constituted the bulk of her job.

Ms. McLean believed that Petitioner's eagerness to teach, even

when her presence on the floor was not requested or needed,

sometimes caused Petitioner to neglect her other duties.

33. Petitioner admitted that she preferred teaching, but

also testified that she was forced to teach students at least

two days per week because Ms. McLean simply skipped work every

Wednesday and Thursday. Petitioner stated that when she was on

the floor of the lab, she could not hear the phone ringing back

in the office. She believed that this might have accounted for

some of the missed phone calls.

34. Ms. McLean credibly denied Petitioner's unsupported

allegation that she skipped work twice per week. Ms. McLean was

in the classroom and lab with her students four days per week,

as required by her schedule. Ms. McLean reasonably observed

that she would not remain long in the College's employ if she

were to skip work every Wednesday and Thursday.

35. When classes were not in session, faculty members such

as Ms. McLean and Ms. Glenn were not required to come into the

office, whereas the teaching assistant was required to come in

and work a full day from 8:00 a.m. to 5:00 p.m. On these

faculty off-days, it was especially important for Petitioner to

be on the job because she constituted the sole point of contact

between students and the cosmetology department. New classes in

cosmetology start twice a year, and prospective students may

drop by the campus at any time. If no one is present during

normal working hours to answer questions or assist the student

in applying, the College could lose a prospective student as

well as suffer a diminished public image.

36. The evidence established that Petitioner would take

advantage of the lack of supervision on faculty off-days to go

missing from her position, without submitting leave forms for

approval by an administrator as required by College policy.

May 4, 2007, was the College's graduation day. Ms. McLean and

Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to

prepare for the cap and gown ceremony and noted that Petitioner

was not there, though it was a regular work day for her.

Petitioner was still absent at 4:30 p.m. when the two

instructors left the building to go to the graduation ceremony.

37. On May 15, 2007, a faculty off-day, Ms. Glenn came in

at 11:00 a.m. to prepare for her class the next day. Petitioner

asked Ms. Glenn to handle a student registration matter while

Petitioner went out. Ms. Glenn agreed to do so. The students

had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to

leave. Petitioner had still not returned to the office, forcing

Ms. Glenn to ask Ms. West to register the students if they

arrived. Ms. Glenn had no idea when or if Petitioner ever

returned to work that day.

38. Marcia Brinson was the custodian who cleaned the

cosmetology building. During summer session at the College,

Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often

come into the cosmetology building and find that Petitioner was

not there. This was the case on May 15, 2007, when Ms. Brinson

entered the building at 2:00 p.m. At around 2:30, an

administrator named Glenn Rice came to the cosmetology building

with two students whom he was attempting to enroll. 9/

Ms. Brinson phoned Ms. McLean at home to inform her of the

situation.

39. Ms. McLean phoned the cosmetology office. Petitioner

did not answer. At about 2:50 p.m., Ms. McLean called

Petitioner at her cell phone number. Petitioner answered and

told Ms. McLean that she was at her mother's house, but was

about to return to the College. Ms. McLean could not say

whether Petitioner ever actually returned to the College that

day.

40. At the hearing, Petitioner claimed that the only time

she left the cosmetology department on May 15, 2007, was to go

to the library at 2:15 p.m. and obtain materials for a class she

was going to teach on May 17. This testimony cannot be

credited, given that it conflicts with the credible testimony of

Ms. McLean, Ms. Glenn and Ms. Brinson.

41. Further belying Petitioner's claim is the fact that

she later submitted a leave form claiming "personal leave" for

two hours on May 15, 2007. She claimed the hours from 3:30 p.m.

to 5:30 p.m. Aside from its inconsistency with Petitioner's

testimony, this claim was inaccurate on two other counts.

First, the evidence established that Petitioner was away from

the office from at least 11:00 a.m. until some time after 3:00

p.m. Second, Petitioner's regular work day ended at 5:00 p.m.,

thus giving her no cause to claim leave for the half-hour

between 5:00 and 5:30 p.m.

42. The College has a "wellness" program in which

employees are allowed to take 30 minutes of leave, three days

per week, in order to engage in some form of exercise.

Petitioner considered wellness time to be the equivalent of

personal leave, and would leave her job at the College early in

order to keep an appointment at a hair-styling salon at which

she worked part-time.

43. Finally, Petitioner was unwilling or unable to comply

with the College's parking decal system. At the time she was

hired, Petitioner was issued a staff parking pass that entitled

her to park her car in any unreserved space on he campus.

44. As noted above, many of the cosmetology customers were

elderly women. For their convenience, the College had five

spaces reserved for customers directly in front of the

cosmetology building. Customers were issued a 5 x 8

"Cosmetology Customer" card that they would leave on their

dashboards. If all five of the reserved spaces were taken, the

card allowed the customer to park in any space on the campus.

45. On May 30, 2007, the College's supervisor of safety

and security, Tony LaJoie, was patrolling the campus on his golf

cart. Petitioner flagged him down, asking for help with a dead

battery in her car. Mr. LaJoie stopped to help her, but also

noticed that Petitioner's car was parked in a space reserved for

customers and that Petitioner had a "Cosmetology Customer" card

on her dashboard. When he asked her about it, Petitioner told

Mr. LaJoie that she had lost her staff parking pass and

therefore needed to use the customer pass.

46. Mr. LaJoie told Petitioner that she could go to the

maintenance building and get a new staff pass, or get a

visitor's pass to use until she found the first pass.

Petitioner told Mr. LaJoie that she could not afford the $10

replacement fee for the pass. Mr. LaJoie told her that the $10

replacement fee was cheaper than the $25 to $50 fines she would

have to pay for illegally parking on campus. Petitioner

promised Mr. LaJoie that she would go to maintenance and take

care of the situation.

47. On June 5, 2007, Mr. LaJoie found Petitioner's car

again parked in a customer reserved space and with a customer

card on the dashboard. Mr. LaJoie wrote Petitioner a parking

ticket.

48. Petitioner was well aware that the customer spaces

were reserved at least in part because many of the department's

customers were elderly and unable to walk more than a short

distance. Petitioner nonetheless ignored College policy and

parked her car in the reserved spaces. Petitioner never

obtained a replacement parking pass. 10/

49. Dean Hickman was the administrator who made the

decision to recommend Petitioner's termination to the College's

Vice-President, Charles Carroll, who in turn presented the

recommended decision to LCCC President Charles W. Hall, who made

the final decision on termination. She based her recommendation

on the facts as set forth in Findings of Fact 19 through 48,

supra .

50. Petitioner's termination was due to her performance

deficiencies. Dean Hickman considered Petitioner's pattern of

conduct, including her repeated violation of parking policies

and her practice of leaving her post without permission, to

constitute insubordination.

51. Ms. McLean, who provided input to Dean Hickman as to

Petitioner's performance issues, testified that Petitioner's

slack performance worked to the great detriment of a department

with only two instructors attempting to deal with 20 or more

students at different stages of their training. Petitioner's

position was not filled for a year after her dismissal.

Ms. McLean and Ms. Glenn worked extra hours and were able to

perform Petitioner's duties, with the help of a student to

answer the phones. The fact that the instructors were able to

perform their own jobs and cover Petitioner's duties negates

Petitioner's excuse that she was required to do more than one

full-time employee could handle. Furthermore, Ms. McLean

testified that, despite the added work load, Petitioner's

departure improved the working atmosphere by eliminating the

tension caused by Petitioner.

52. Because Petitioner was still a probationary employee,

the College was not required to show cause or provide specific

reasons for her dismissal. Nevertheless, the evidence

established that there were entirely adequate, performance-based

reasons that fully justified the College's decision to terminate

Petitioner's employment. The evidence further established that

Petitioner's dismissal was not related to the formal grievance

Petitioner filed on June 5, 2007. However, because Petitioner

has alleged that her termination was retaliatory, the facts

surrounding her grievance are explored below.

53. The grievance stemmed from an incident that occurred

between Petitioner and Ms. Glenn on May 16, 2007, the first day

of the summer term. A student named Russia Sebree approached

Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's

summer class roster because she had not completed the Tests of

Adult Basic Education ("TABE"), a test of basic reading, math

and language skills. Students were required to pass the TABE in

their first semester before they would be allowed to register

for their second semester. Ms. Glenn told Ms. Sebree that,

because the initial registration period had passed, they would

have to walk over to the Dean's office and have Dean Hickman

register Ms. Sebree for the class. Ms. Glenn phoned Dean

Hickman's secretary, Ms. West, to make an appointment. Ms. West

told Ms. Glenn that Dean Hickman was out of the office, and that

she would make a return call to Ms. Glenn as soon as the dean

returned.

54. While waiting for Ms. West's call, Ms. Sebree

apparently drifted into Petitioner's office. She mentioned to

Petitioner that she hadn't passed the TABE test, and Petitioner

told her she could take care of the matter by making an

appointment for Ms. Sebree to take the test.

55. Ms. Glenn overheard the conversation and walked in to

stop Petitioner from making the call. She told Petitioner that

she had a call in to Dean Hickman, and that she and Ms. Sebree

would have to meet with the dean to determine whether Ms. Sebree

could register for Ms. Glenn's summer class or whether she would

be required to complete the TABE and wait until the next

semester.

56. Ms. Glenn was angered by Petitioner's interference in

this matter. Petitioner's actions were beyond the scope of a

teaching assistant's duties, unless requested by an

instructor. 11/ She jumped into the situation without inquiring

whether Ms. Sebree had talked to her instructor about her

problem and without understanding the steps that Ms. Glenn had

already taken on Ms. Sebree's behalf.

57. Eventually, Ms. West returned the call and Ms. Glenn

and Ms. Sebree met with Dean Hickman. After the meeting,

Ms. Glenn requested a private meeting with Dean Hickman. She

told the dean that she was very upset that Petitioner had taken

it upon herself to take over the situation with Ms. Sebree, when

Ms. Glenn was taking care of the matter and Petitioner had no

reason to step in.

58. Dean Hickman told Ms. Glenn that she would not

tolerate a staff person going over an instructor's head in a

matter involving a student. Dean Hickman asked Ms. Glenn to

send Petitioner over to her office.

59. Dean Hickman testified that she met with Petitioner

for about 30 minutes, and that Petitioner left her office

requesting a meeting with Ms. Glenn. Dean Hickman did not

testify as to the details of her meeting with Petitioner. The

dean knew that Petitioner was angry and cautioned her to conduct

herself in a professional manner when speaking with Ms. Glenn.

60. Petitioner testified that Dean Hickman "yelled" at

her, "I will not have you undermine my instructor's authority."

Petitioner professed not to know what Dean Hickman was talking

about. The dean repeated what Ms. Glenn had said to her about

the incident with Ms. Sebree. According to Petitioner,

Ms. Glenn had told the dean "some lie," an "outlandish" tale in

which "I went in telling Russia that she didn't have to do what

Vicki said, or something like that."

61. Petitioner told Dean Hickman her version of the

incident, which was essentially that nothing happened. She was

showing Ms. Sebree "some basic algebraic equations and stuff and

there was no conflict or anything in the office." Petitioner

asked for a meeting "so I can see what's going on."

62. Petitioner returned to the cosmetology department.

She was visibly upset. She asked for a departmental meeting

with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed

to move up the weekly departmental meeting in order to take care

of this matter.

63. The meeting convened with Ms. McLean going over the

usual day-to-day matters involving the program. Once the

regular business was completed, Ms. McLean stated that she

wanted Petitioner and Ms. Glenn to air out their problems.

64. Petitioner asked Ms. Glenn why she wanted to tell lies

about her. Ms. Glenn said, "What?" and Petitioner stated,

"You're a liar." Ms. Glenn denied the accusation. Petitioner

repeated, "You're nothing but a liar." In anger and

frustration, Ms. Glenn stated, "Look here, sister, I am not a

liar." Petitioner responded, "First, you're not my sister and,

secondly, my name is Stephanie K. Taylor, address me with that,

please." 12/ Ms. McLean testified that both women were "pretty

heated" and "pretty frustrated" with each other. She concluded

the meeting shortly after this exchange.

65. After the meeting, Petitioner and Ms. McLean spoke

about Ms. Glenn's use of the word "sister," which Petitioner

believed had racial connotations. Ms. McLean told Petitioner

that she did not believe anything racial was intended. 13/

Ms. Glenn had never been called a liar, and in her frustration

she blurted out "sister" in the same way another angry person

might say, "Look here, lady." Petitioner seemed satisfied and

the matter was dropped for the remainder of the day.

66. Dean Hickman testified that Petitioner brought some

paperwork to her office that afternoon after the departmental

meeting. Petitioner told her that she felt better about the

situation, that they had aired their differences and everything

now seemed fine. The dean considered the matter resolved.

67. By the next morning, May 17, 2007, Petitioner had

changed her mind about the comment. She sent an email to each

member of the College's board of trustees, President Hall, Dean

Hickman, and various other College employees that stated as

follows:

Hello. I am Stephanie K. Taylor, Teaching

Assistant for Cosmetology. I am writing

because of an incident that took place on

yesterday, May 16, 2007. Nancy Carol McLean

(Coordinator/Instructor), Vicki Glenn

(Instructor) and I met for a meeting to

discuss concerns in our department

approximately 11:35 am. During our

discussion, Vicki Glenn made a racial

comment to me. I disagreed with her

concerning a statement she made. Her reply

to me was: "No, 'Sister', I did not!" I was

very offended by her remark and I replied,

"My name is Stephanie Kay Taylor."

Following the meeting, I spoke with

Ms. McLean and I decided to write this

incident statement. If I allow an

instructor to call me something other than

my name, these incidents will continue.

68. Ms. McLean had repeatedly cautioned Petitioner to

respect the College's chain of command. As Petitioner's

immediate supervisor, Ms. McLean was supposed to be Petitioner's

first resort insofar as work-related complaints. Petitioner was

in the habit of going straight to Dean Hickman with complaints

before discussing them with Ms. McLean. However, in this

instance, Petitioner did show Ms. McLean the text of her

statement before she distributed it. Ms. McLean advised

Petitioner to take the matter straight to Dean Hickman and

discuss it with her before distributing the statement.

69. Petitioner did not take Ms. McLean's advice. Though

Petitioner emailed the statement to Dean Hickman, the dean did

not actually see the statement until it had been distributed to

several other people.

70. No evidence was presented that Petitioner suffered any

adverse consequences from distributing her written statement

outside the College's chain of command. To the contrary,

Petitioner testified that Ms. McLean advised her that if she

felt strongly about the matter, she should file a formal

grievance pursuant to the LCCC Policy and Procedure 6Hx12:6-

10. 14/ Ms. McLean provided Petitioner with the forms she needed

to file a written grievance. Petitioner also sought and

received the advice of a human relations specialist at the

College as to how to file a formal grievance.

71. Both Ms. McLean and Ms. Glenn convincingly testified

that they had no ill feeling toward Petitioner for filing a

grievance. Ms. McLean stated that the grievance had no impact

on her at all. Ms. Glenn was not disturbed by the grievance

because she had done nothing wrong and believed the process

would vindicate her.

72. Petitioner filed her formal written grievance on

June 5, 2007. Vice president Marilyn Hamm began the

investigation in the absence of Human Resources Director Gary

Boettcher, who picked up the investigation upon his return to

the campus. Dean Hickman also participated in the investigation

of Petitioner's grievance. They interviewed the witnesses to

the incident. They also interviewed 11 cosmetology students and

asked them whether they had ever heard Ms. Glenn make any

"derogatory or racial slurs or comments" relative to Petitioner.

73. None of the students had heard Ms. Glenn make any

remarks fitting the description in the query. 15/ One student

told the investigators that he had heard Petitioner speak

disparagingly of Ms. Glenn, but not vice versa.

74. On June 19, 2007, Mr. Boettcher issued a memorandum to

Petitioner that stated as follows:

You filed a grievance alleging that Ms.

Vickie Glenn made a racial comment to you by

calling you "sister." You further stated

that you want the same respect that you have

given to others and that you be referred to

by your name, Stephanie K. Taylor.

I was not available when you filed the

grievance therefore it was referred to Vice

President Hamm who began the investigation

and upon my return it was referred to me.

Ms. Hamm interviewed yourself, and Carol

McLean. Ms. Hamm and I then interviewed

Ms. Glenn. Subsequently, Ms. Hickman, the

Dean of your department, and I interviewed a

random sampling of students in the

cosmetology program.

The incident you described, when you were

referred to as "sister" was discussed with

both Ms. McLean and Ms. Glenn, who were in

the meeting when the comment was made. They

both acknowledged that you were in fact

referred to as sister. Neither of them

viewed it as a racial comment but a term

that was used in the heat of the discussion

in which you and Ms. Glenn were very much at

odds on a subject.

The students were interviewed and asked if

you had discussed or made mention of an

evaluation that you received and also

whether that had ever heard Ms. Glenn talk

derogatorily or made any racial comments

relative to you.

Some of the students heard of talk of your

evaluation but none of them heard it first

hand from you. None of the students ever

heard Ms. Glenn refer to you in any racial

or disparaging way.

In view of the investigation it is concluded

that you were called "sister" but not in a

negative or racial inference and that

Ms. Glenn has not referred to you in a

derogatory or racial manner.

This has been discussed with Ms. McLean and

Ms. Glenn in that they were asked to refer

to you strictly by your name and in a

professional manner.

I trust this will be satisfactory to you and

if you have any questions please feel free

to contact me.

75. Petitioner's employment with the College was

terminated on June 28, 2007, nine days after Mr. Boettcher's

memorandum. No evidence was presented to establish a causal

connection between these two events, aside from their temporal

proximity. As noted extensively above, the College had more

than ample justification to terminate Petitioner's employment

before the conclusion of her six-month probationary period.

76. The greater weight of the evidence establishes that

Petitioner was terminated from her position with the College due

to poor job performance and conduct amounting to insubordination.

77. The greater weight of the evidence establishes that the

College did not retaliate against Petitioner for the filing of a

grievance alleging that Ms. Glenn had made a racially

discriminatory remark towards Petitioner. Rather, the greater

weight of the evidence established that College personnel

assisted Petitioner in filing her grievance and that the College

conscientiously investigated the grievance.

78. The greater weight of the evidence establishes that the

College has not discriminated against Petitioner based on her

race.

CONCLUSIONS OF LAW

79. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

80. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. Subsection

760.11(1), Florida Statutes, provides that any person aggrieved

by a violation of the Act must file a complaint within 365 days

of the alleged violation.

81. Subsection 760.10(7), Florida Statutes, states the

following:

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.

82. The College is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

"Employer" means any person[ 16/ ] employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

83. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

84. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the College, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non-discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

the College's offered reasons for its adverse employment

decision were pretextual. See Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981).

85. In order to prove a prima facie case of retaliation

under Chapter 760, Florida Statutes, Petitioner must establish

that: (1) she engaged in statutorily protected activity; (2) an

adverse employment action occurred; and (3) the adverse action

was causally related to Petitioner's protected activity. See

Gupta v. Florida Board of Regents , 212 F.3d 571, 587 (11th Cir.

2000); Raney v. Vinson Guard Service, Inc. , 120 F.3d 1192, 1196

(11th Cir. 1997); Russell v. KSL Hotel Corporation , 887 So. 2d

372, 379 (Fla. 3d DCA 2004).

86. Petitioner has failed to prove a prima facie case of

retaliation.

87. Petitioner established that she is a member of a

protected group, in that she is an African-American female.

Petitioner engaged in statutorily protected activity, in that

she filed a grievance against a fellow employee alleging

racially discriminatory comments, pursuant to the College's

Policy and Procedure 6Hx12:6-10, which was adopted under the

authority of Sections 1001.64 and 1001.65, Florida Statutes

(setting forth the powers and duties of community college boards

of trustees and community college presidents, respectively) and

Florida Administrative Code Rule 6A-14.0261 (general powers of

community college presidents). Petitioner was subject to an

adverse employment action insofar as she was terminated.

88. Petitioner did not establish a causal relationship

between the adverse employment action and her protected

activity. The Eleventh Circuit Court of Appeals construes the

"causal link" requirement broadly: "a plaintiff merely has to

prove that the protected activity and the negative employment

action are not completely unrelated." Equal Employment

Opportunity Commission v. Reichhold Chemicals, Inc. , 988 F.2d

1564, 1571-1572 (11th Cir. 1993). See also Pennington v. City

of Huntsville , 261 F.3d 1262, 1266 (11th Cir. 2001); Olmsted v.

Taco Bell Corporation , 141 F.3d 1457, 1460 (11th Cir. 1998).

89. However, even under this generous standard, Petitioner

failed to establish a causal relationship between the

termination of her employment and her action in filing a

grievance. Personnel employed by the College actively assisted

Petitioner in filing the grievance. The grievance was

conscientiously investigated by three College administrators.

Though the grievance was ultimately held to be unproven as to

the racial animus alleged by Petitioner, Mr. Boettcher took the

extra step of counseling Ms. McLean and Ms. Glenn as to the

proper mode of addressing Petitioner. No competent evidence

linked the grievance to Petitioner's dismissal.

90. There was a tenuous temporal link of nine days between

the grievance and Petitioner's dismissal. In considering this

link, it must be recalled that Petitioner's entire employment at

the College lasted from January 29, 2007 through June 28, 2007,

a period of five months. Had Petitioner worked at the College

for several years, a nine day gap between the conclusion of the

grievance process and her termination might raise suspicion. In

the context of a mere five months' employment, a gap of nine

days is a significant amount of time that, standing alone, does

not establish a causal link between the grievance and

Petitioner's dismissal.

91. Even if it were concluded that Petitioner established

a prima facie case of retaliation, the College produced

overwhelming evidence that the adverse employment action was

taken for a legitimate, non-discriminatory reason. The evidence

established that Petitioner had to be asked several times to

perform tasks that she conceded were within the scope of her

employment, and that even then she often did not perform the

tasks. Petitioner did not properly inventory and shelve

supplies. Petitioner had no coherent filing system. Petitioner

failed to schedule product knowledge classes. Petitioner

habitually failed to return phone calls for appointments.

Petitioner falsely alleged that her direct supervisor skipped

work two days a week, and that Petitioner therefore had to

neglect her own duties in order to teach the missing

supervisor's classes. Petitioner herself skipped work when her

supervisor was not present. Petitioner purposely failed to

comply with the College's parking decal system. Petitioner

recruited students to become involved in her disputes with other

College employees. These performance deficiencies were more

than enough to cause the College to terminate Petitioner's

employment while she was still in her probationary period.

92. Petitioner wholly failed to prove that the College's

reasons for dismissing her were pre-textual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Lake City Community College did

not commit any unlawful employment practices and dismissing the

Petition for Relief.

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

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June, 2010.

ENDNOTES

1/ Citations shall be to Florida Statutes (2007) unless

otherwise specified. Petitioner was discharged from her

position with Lake City Community College on June 28, 2007, and

filed her Employment Complaint of Discrimination with the

Florida Commission on Human Relations on August 20, 2007.

Section 760.10, Florida Statutes, has been unchanged since 1992.

2/ The Employment Complaint of Discrimination also made

reference to the Age Discrimination in Employment Act and the

Americans with Disabilities Act. At the hearing, Petitioner

offered no evidence that the College discriminated against her

because of her age or because of some asserted disability.

Indeed, Petitioner made no reference to such claims at the

hearing. Therefore, the undersigned concludes that Petitioner

has abandoned any contention that her age or a disability played

any role in the termination of her employment.

3/ The correct spelling is "McLean."

4/ The timing of the employee appraisals, and Petitioner's

awareness of the Policy and Procedure establishing the timing,

are significant only because Petitioner claimed that College

personnel hurriedly completed her second, negative evaluation

out of the proper sequence in reaction to the events of May 16

and 17, 2007, discussed at Findings of Fact 53-69, infra . The

second evaluation was completed just prior to the end of

Petitioner's fourth month of employment, which is the time

prescribed by Policy and Procedure 6Hx12:8-04. Petitioner's

bare assertion is not supported by any competent evidence and

her claim is not credited.

5/ Petitioner called herself and was commonly referred to by

others as "Kay."

6/ Petitioner claimed that this typewritten attachment was not

given to her at the time she received the written evaluation.

Ms. McLean's testimony to the contrary is credited. See Finding

of Fact 67, infra , for details of the referenced incident

report.

7/ Ms. McLean observed that "there was always a reason,"

meaning that Petitioner would always come up with excuses for

her repeated failures to perform her duties.

8/ Petitioner suggested that Ms. Grammith was mentally

incapacitated, and was simply unable to recall having spoken to

Petitioner. Ms. McLean credibly testified that Ms. Grammith had

some physical problems, but never appeared to have mental

difficulties or to be confused. Ms. Glenn testified that she

had known Ms. Gammith for 18 years and that she had no mental

problems.

9/ These were apparently the students whom Petitioner referenced

in her conversation with Ms. Glenn. According to Ms. Brinson,

Mr. Rice had conversed with Petitioner, who told him there was

no room in the program for these students. Mr. Rice then came

down to the cosmetology building with the students in search of

either Ms. McLean or Ms. Glenn to straighten out the matter.

10/ By way of explanation, Petitioner testified that she owned

two cars, one of which her daughter drove, and that on at least

one of the occasions described above it was her daughter who had

illegally parked the second car. This explanation is not

credible. Mr. LaJoie was certain that both the May 30 and

June 5, 2007, incidents involved the same car. Further,

Petitioner's "explanation" does not explain away the key facts:

Petitioner was found standing next to her illegally parked car,

admitted that she illegally parked the car, and never bothered

to take the simple step of replacing her parking pass.

11/ Ms. Glenn was especially sensitive to the separation of

authority between an instructor and a teaching assistant because

she had spent over ten years as a teaching assistant before her

promotion to instructor about ten years ago.

12/ The last quote from Petitioner is derived from the testimony

of Ms. McLean, but does not differ in substance from

Petitioner's version of what she said in the meeting.

Petitioner denied using the word "lie" or "liar" in addressing

Ms. Glenn, but agreed that she made the substantive point that

Ms. Glenn had been untruthful in her meeting with Dean Hickman.

Both Ms. McLean and Ms. Glenn testified that Petitioner called

Ms. Glenn a "liar." Their testimony has been credited.

13/ At the hearing, Ms. Glenn testified that she has used the

word "sister" on other occasions when she was angry, and that

she never intended it as a reference to Petitioner's race.

Ms. Glenn appeared surprised that Petitioner took it as a racial

comment.

14/ The Policy and Procedure provides that a "grievance" is a

"complaint by an employee... that a Federal Statute, Florida

Statutes, a State Board of Education Rule, or a Lake City

Community College policy has been violated, misapplied, or

inequitably applied." The procedure calls for the employee to

first attempt an informal resolution with her department

director, then to file a formal written grievance with the

program director. Failing at the departmental level, the

grievance then moves up to the appropriate College vice

president, who meets with and provides a written disposition to

the employee. If the employee is not satisfied with the vice

president's decision, she may submit the grievance to the

College president, who may arrange for an investigation and/or a

hearing, then must render a final decision.

15/ The students were also asked whether Petitioner had shared

her employee evaluation with them. This had to do with the fact

that a cosmetology student named Jennifer Finley had come

forward to complain that Petitioner had called her into

Petitioner's office to show her both the May 17, 2007, incident

report and the second written evaluation. At a meeting with

Ms. McLean, dean of student services Linda Crowley, and vice

president Marilyn Hamm, Ms. Finley stated that Petitioner sought

to enlist her support in the controversy. Ms. Finley believed

that Petitioner's behavior was unprofessional. The situation

upset Ms. Finley, who only wished to attend class and graduate

on time. During the investigation, none of the responding

students unambiguously stated that Petitioner had spoken

directly to them about her evaluation. Three students had heard

other students discuss the evaluation and Petitioner's anger

about it.

16/ "Person" includes "any governmental entity or agency."

§ 760.02(6), Fla. Stat.

COPIES FURNISHED :

Jesse S. Hogg, Esquire

Hogg, Ryce & Spencer

7701 Erwin Road

Coral Gables, Florida 33143

Stephanie Taylor

165 Northeast Rifle Court

Lake City, Florida 32055

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

Derik Daniel, Executive Director

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.