10-002327 Kwasi Malezi vs. Florida Department Of Revenue Status: Closed Recommended Order on Tuesday, October 12, 2010.

Summary: Employee on probation didn't prove sex discrim. or retaliation. Ignoring court policies and unauthorized computer use and overtime caused discharge. Female probationary employee with less violations not similarly situated. No hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KWASI MALEZI, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2327

)

DEPARTMENT OF REVENUE, )

)

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings, held a final hearing in

this case in Fort Lauderdale, Florida , beginning on June 21,

2010 , and continuing on August 17 and 18, 2010.

APPEARANCES

For Petitioner: Kwasi Malezi, pro se

201 Northwest 16th Avenue

Pompano Beach, Florida 33069

For Respondent: Cindy Horne , Esquire

Department of Revenue

Carlton Building, 501 South Calhoun Street

Tallahassee, Florida 32314 - 6668

STATEMENT OF THE ISSUE

Did Respondent, Department of Revenue (DOR) , discharge

Petitioner, Kwasi Malezi, because of his sex or in retaliation

for him making complaints of discrimination on account of gender

and a hostile work environment?

PRELIMINARY STATEMENT

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on June 21, 2010 at Fort Lauderdale, Florida. The

hearing was continued to August 17 through August 18, 2010, in

the same location .

Mr. Malezi presented the testimony of himself and the

following witnesses: Pam Dailey, Robert Framingham, Doretha

Holmes, Nicola Jackson, Sharon Marshall, and Jackie Mounts.

Mr. Malezi offered the following exhibits that were

accepted into evidence: A, B - 1, B - 2, C - 1, C - 2, D, E - 1, E - 2,

F - 1, F - 2, G1, G2, H, H - 1, H - 2, H - 3, H - 4, I - 1, I - 2, J - 1, J - 2, J -

3, K - 1, K - 2, L, L - 1, L - 2, L - 3, L - 4, M, M - 1, N - 1, N - 2, R, S, T,

U, V, V - 1, W, W - 1, X - 1, Z, Z - 1, Z - 2, Z - 3, Z - 4, and Z - 5.

DOR presented the testimony of: Robert Framingham (by

deposition), Sharon Marshall, and Jackie Mounts (by deposition. )

DOR also entered the following exhibits into evidence: Exhibit

1; Mounts Deposition Exhibits 7, 8, 9, 10, 11, and 12; and

Framingham Deposition Exhibits 1, 2, 3, 4, 5, and 6.

The c ourt r eporter filed the t ranscript of the final

hearing on September 1 3, 2010. The parties filed their Proposed

Recommended Order s on August 30, and September 23, 2010 .

FINDINGS OF FACT

Based on the testimony and other evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1 . DOR hired Mr. Malezi to work as a Revenue Specialist II

in Child Support Enforcement at its Fort Lauderdale Service

Center. Mr. Malezi's one - year probationary period as a career

service employee began on his date of hire, October 17, 200 8 .

During an employee's probationary period, the state employer may

suspend, demote, discharge, reassign, or take any other

employment action, at its discretion. Once an eligible state

employee has satisfactorily completed a one - year probation

period, the state employer may suspend or dismiss a career

service employee only for ca use.

2 . Mr. Malezi worked as a member of the C ourt T eam. The

Court Team represents DO R in Child Support Enforcement hearings.

Court T eam members provide support to attorneys providing legal

representation and provide information to parents and the court

as required.

3 . Kim Cox, Revenue Specialist II; Andrea Smith, Revenue

Specialist II; Gina Rhodes, Revenue Specialist II; Pamela

Dailey, Revenue Specialist II; Denise Hunter, Revenue Specialist

II; Linda Safari, Revenue Specialist II; and Doretha Holmes,

Revenue Specialist III ; were the other Court Team members . The

Team Manager position was vacant. The second level Revenue

Administrator, Nicola Jackson, Revenue Administrator,

consequently also act ed as manager of the Court Team. She was

Mr. Malezi's su per v i sor. Sharon Marshall was the Service Center

Manager. Ms. Holmes served a lead worker.

4 . Mr. Malezi soon exhibited difficulties in relationships

with his colleagues. In particular he had a difficult working

relationship with Ms. Holmes, a co - worker. Ms. Holmes was not

his supervisor. She did not have authority to recommend or take

disciplinary action. She did not review or approve his time

sheets. Ms. Holmes was not a member of the DOR management team

and had no oversight authority.

5 . In February 2009 , Ms. Jackson asked Ms. Holmes if she

had supplied a specific document to Mr. Malezi. Ms. Holmes

thought she had. She went to Mr. Malezi's cubicle to confirm

her memory and locate the document . Ms. Holmes entered

Mr. Malezi's cubicle, o pened a top compartment of the cubicle,

and began searching for the document.

6 . Ms. Cox and Ms. Williams saw her there. They stopped

outside Mr. Malezi's cubicle to speak to Ms. Holmes. Mr. Malezi

found the three of them talking at his cubicle. He was upset by

what he viewed as a search of his cubicle by co - workers.

7 . On February 13, 2009, Mr. Malezi sent his supervisor,

Ms. Jackson , an e - mail complaining that Ms. Holmes had searched

his cubicle with help from Ms. Cox and Ms. Williams. The e - mail

di d not complain of discrimination on account of sex or other

characteristic. The e - mail read as follows:

Hi Ms. Jackson,

When our one on one meeting adjourned this

afternoon, I headed back to my cubical

[sic]. To my surprise, your [sic] As [sic]

Ms. Nicol a [sic] was whispering to others

he's coming when I arrived at my cubical

[sic]. Ms. Holmes and Ms. Cox were at my

cu b ical [sic] searching thru [sic] my space

looking for some sort of document. I

learned later that my space is government

property and it can be searched at any time

and by extensi o n anybody. That's fine but

why would someone need a lookout if

everything is on the up and up? I mentioned

[sic] this because if I am going to judge

[sic] by m y work then public perception

should be that it is go ing to be a fair

assessment. There is now a whisper

champaign [sic] t o tell other workers that

they update or are updating trac 55 when

there is a continua n ce date. Beverly our

senior c l erk was only person [sic] to

produce something on it with trac 55

referenced. [F]ortunately, Ms. Change left

me her training files and her note indicate

[sic] th at the court team is to update trac

with or without a continuance date with 55.

I will you [sic] her ( Ms. c hange [sic]) note

if you like. I will end this note with, I

am just trying to do my job and I will

follow directions from my superio r s, I know

[sic] I initial my one on one already but I

just can't believe that Ms. c hange [sic] had

anything to say about me not following her

direction.

8 . Ms. Jackson spok e to all the individuals involved. She

determined that no o ne had violated DOR Standards of Conduct.

She determined that Ms. Holmes only looked in a cupboard used to

store documents and manuals. Ms. Holmes was looking for a

manual that Ms. Jackson had a sked about. Ms. Jackson d id not

take disciplinary action against any of the individuals.

Ms. Jackson's handl ing of the issue was reasonable and even -

handed.

9 . Also in February , Mr. Malezi complained about

scheduling. His complaints recurred during his tenure with DOR.

Mr. Malezi complained that he was assigned the most cases each

month and attributed that to his gender. Mr. Malezi was wrong.

1 0 . Some months Mr. Malezi was assigned more cases than

other members of the team. Some he was not. A number of

factors affected scheduling including vacations and employee

illness. During a representative seven - month period Mr. Malezi

handled the most cases of his seven - person team in only three of

the months. Two of those months he only handled four more cases

than the person with the next most cases. A third month, he

only had three more cases than the person with the second most

cases.

1 1 . In addition , the Office of the Attorney General's

docketing decisions determined how many cases each worker w as

responsible for each month, not DOR personnel. Ms. Holmes

assisted Ms. Jackson in schedulin g different Court Team members

to different court days. At the time of the DOR scheduling

decisions neither individual knew how many cases would be heard

each d ay. That was determined later when the lawyers of the

Office of Attorney General determined which cases it would call

up for hearing which day. After Mr. Malezi complained , Ms.

Jackson worked with the Office of the Attorney General to even

out the number of cases scheduled for each docket.

1 2 . Like all members of the C ourt T eam, Ms. Malezi was

encouraged to nurture good, working relationships with the

Assistant Attorneys General representing DOR in the child

support hearings. He incorrectly inte r preted this as permitting

him to question administrati v e staff at the Office of the

Attorney General about hearing scheduling and changes.

Consequently , he questioned an administrati ve staff member,

Jeremiah Ortiz , about a canceled hearing.

1 3 . Ms. Jackson ha d counseled Mr. Malezi about developing

his working relationships with lawyers from the Office of the

Attorney General. However, Ms. Holmes corrected Mr. Malezi for

contacting Jeremiah Ortiz , a docketing paralegal for the Office.

Ms. Holmes wanted the do cketing commun i cations to route through

her. This was reasonable given her responsibility for docketing

for the entire team. Also , since Mr. Ortiz was not a lawyer, he

was not one of the employees to whom Ms. Jackson had directed

Mr. Malezi's attention. Mr. Jackson properly and fairly

corrected Mr. Malezi for h is communication with Mr. Ortiz .

1 4 . On May 13, 2010, Ms. Jackson sent all employees an

e - mail reminding them of their responsibility to work only

during scheduled hours. The e - mail also remind ed employee s that

over - time or work outside of normally scheduled hours had to be

approved in advance and that adjustments to account for

unavoidable overtime that could not have been pre - approved had

to be approved by a supervisor .

1 5 . The e - mail was cl ear. It said:

Please be advised that there should [be] no

one working outside of their normal

scheduled work hours unless you have

obtained approval to do so from me or your

man a ger. No one should be flexing any time

to make adjustments for late arrival or

exiting early without approval.

With [the] exception of those individuals

who are working overtime on special projects

and persons that have approved flex

schedules (i.e. 4 day and 4 1/2 day work -

week). [sic]

I realize that times may arise whe n you are

forced to stay late because you are

interviewing a client. Sometimes it is

difficult to avoid such instances, however,

I encourage each t eam to monitor their

waiting list as often as possible especially

toward the end of the day.

Your cooperati on in this matter is greatly

appreciated. If you have any questions,

please do not hesitate to see me or your

manager. Thank you.

1 6 . Mr. Malezi received this e - mail along with the other

Court Team members. He chose to interpret it as admonishing

peo ple he believed were not working their full assigned hours

and decided it really was not directed at him too. After

receiving the e - mail, Mr. Malezi worked outside his scheduled

work time, without approval, on at least fifteen different days

for periods ranging from fifteen to fifty - seven minutes.

Ms. Jackson learned about this in a memor a ndum she received from

Mr. Malezi later.

1 7 . In May 2009 , one of the cases on a docket covered by

Mr. Malezi involved a request for payment by a father of full

child s upport. The father, who was the legal father named on

the birth certificate, requested a DNA test. The court ordered

the test, but then v acated the order because the individual was

the legal father. Nonetheless , the test was administered. The

results e xcluded the father as the biological father.

1 8 . Since the individual was the legal father, DOR

proceeded to seek retroactive support and medical coverage

consistent with its policies. At the hearing Mr. Malezi,

without authority and contrary to policie s, recommended that the

court only require medical support. The court followed his

recommendation. Mr. Malezi claimed the Assistant Attorney

General handling the case suggested the recommendation. But he

was the DOR representative with the duty to ensur e DOR acted in

compliance with its policies and guidelines.

19 . When the order came to DOR, it was flagged as an error

and reviewed by Ms. Jackson. She asked Mr. Malezi about the

order. He acknowledged making the recommendation to limit the

order to me dical support because he felt it was inequitable to

seek support if the legal father was not the biological father.

2 0 . DOR had a Personal Computer Policy for Users, Policy

Number DOR - ITP - 001. The policy permitted some personal use of

the computer. But it clearly prohibited "activities related to

the employee's outside business or commercial activities." The

DOR Standards of Conduct include an intranet link for the

policy. They also summarize the policy that personal computer

use is permitted if "brief , occasional and not inappropriate."

Commercial use is inappropriate.

2 1 . On May 19, 2009, Mr. Malezi used the DOR computer and

computer network to solicit offers from two companies to lease

his Alaska crab harvesting quota. The e - mails caused one of th e

companies solicited to send a reply by e - mail to the DOR

computer and computer system. Mr. Malezi's efforts to lease the

quota were a commercial activity unrelated to DOR activities.

They violated the DOR policies limiting employee use of

computers for non - work communications.

2 2 . DOR Standards of Conduct governing outside employment

permit rental of "employee owned real or personal property

unless the property is rented to a State of Florida agency or

the lessee is a subject of the employee's officia l duties."

This is an exception to the requirement for prior approval of

dual employment. I t is not an exception to the limitations on

use of the DOR computers and computer system imposed by DOR's

Personal Computer Policy for Users.

2 3 . On June 10, 2009 , Mr. Malezi placed a memorandum in

Ms. Jackson's inbox addressed "to Whom It May Concern." The

memorandum expressed his perceptions and complaints about his

experience as an employee of DOR.

2 4 . The memorandum read as follows:

6/10/2009 11:10 AM

From: Kwasi Malezi

To: whom it may concern; [sic]

Subject: Responding to previous and up to

June 10, 2009 one on one meeting.

Please be advised that I am responding to

a one on one meeting I had on 6/10/09 with

my department head, Nicola Jackson. Let me

be clear, I have grave misgiving [sic] on

how I have been treated since my arrival at

DOR CSE in October 08. My tenure so far has

been exemplified by illegal searches of my

personal work space to admonishment because

I complained about my lack of training .

In addition, I have been told to associate

myself with stakeholders who are out of my

chain of command and because I have not in

the past associated myself with them, I

received negative marks on my EEO&D. The

truth is I had tried to reach out to the se

stakeholders; [sic] Jeremiah Ortiz of the AG

and I was told that "I am not to contact him

or anybody else who is not an attorney on

the case I am working again [sic]".

I have been denied breaks because I was

working on official DOR business during th is

time and was not allow [sic] too [sic] take

a break when the task was complete.

Further, I have been warned by some of my

fellow Court team members not too [sic]

speak out or alert superiors to problems I

see within our process.

I have been given su bstantially more work

assignments then [sic] rest of my team

([sic] I have provided incontrovertible

proof -- the dates are March 2 to June 10

2009 [sic]. I am the least experienced

member but I am tasked with working

substantially more cases then [sic] se nior

members of the team. It is a glaring

comment; [sic] on how thing s are done on the

court team, that the least experienced

person does the most work. Therefore it is

apparent and most reasonable minds would

agree that whoever assigned & approved this

amount of work to a neophyte clearly wants

failure as a final outcome.

Through out [sic] my tenure at DOR, I have

conducted myself with professionalism, [sic]

courtesy at all times. Moreover, from day

one I arrived at work early and begin [sic]

working at my desk before my schedu1ed work

time, but it is still not good enough for my

supervisor. I am subject to Nettling [sic],

even though others have violated the same

work schedule. I am told to establish trust

or communications with my team, members. I

have helped prep other team members' dockets

and I assist them when I know that they are

supposed to do their own work. I do not

drink alcohol, nor do I gamble at the Hard

Rock Casino. I have ask [sic] for guidance

or some sort of gauge to determine if I am

fitting in as a team member, but I have not

been given any direction to improve my

purported perceived non - cooperation with

some of my team members. Let me end this

note with hope that the reader of this

letter will fully investigate my claim and

ta ke the appropriate actions.

It is with deep regret that I make the

following statement in 2009. Let me be

clear, I believe that I am being mistreated

because of my sex. I am the only male in my

section. I have never been late to work, in

fact I have been early, I am the least

experience [sic] member but I am tasked with

substantially more work then [sic] the

females on my team and finally, I have been

subject to illegal searches.

2 5 . Ms. Jackson gave the memor a ndum to Ms. Marshall , the

Service Cente r Manager . Ms. Marshall referred Mr. Malezi's

complaint s to Jackie Mounts, Discrimination and Sexual

Harassment Intake Officer for the DOR Office of Inspector

General . Once management refers a complaint of discrimination

to the Inspector General, management sets the matter aside and

defers to the Inspector General to investigate it. Ms. Jackson

and Ms. Marshall did not inform Ms. Holmes or any other Court

Team member of Mr. Malezi's complaint.

2 6 . Ms. Mounts conducted a preliminary review of the

complaint. She determined that it did not provide sufficient

information to refer the complaint to investigations. She twice

sought additional information from Mr. Malezi to no avail .

2 7 . The Office of Inspector General provided Mr. Male z i

the Departmen t's discrimination complaint form and the web

address for the Department's on - line reporting system to

initiate a formal complaint. He did neither. Consequently the

Office of Inspector General closed the matter.

2 8 . On October 19, 2009, Ms. Mounts sent Mr. Malezi a

letter advis i ng him the case was closed. The letter also

reminded him of his right to file a compla i nt with the Equal

Employment Opportunity Commission and the Florida Commission on

Human Relations and provided the applicable deadlines.

29 . Ms. Marshall also sent Mr. Malezi a memorandum on

June 19, 2009 addressing his complaints and accurately

describing what DOR had done to address them .

3 0 . Ms. Marshall's letter accurately stat ed that

Mr. Malezi's June 10 letter was the first she learned that he

had been arriving early and working before his scheduled hours.

Ms. Marshall correctly reminded Mr. Malezi that DOR was required

to accurately compens a te employees for all hours worked. Her

letter directe d him to immediately cease working hours o utside

his regularly scheduled work hours unless authorized . And

Ms. Marshall directed Mr. Malezi to the location of the DOR work

hour policy on the intranet. Finally , Ms. Marshall directed

Mr. Mal e zi to identify the dates and amount of time he worked

e ach day that he had arrived early and submit the information to

his supervisor "as quickly as possible." This was necessary so

that DOR could fulfill its obli g ation under the Fair Labor

Standards Act to compensate him for all hours worked.

3 1 . Ms. Marshall's memorandum reminded Mr. Malezi ,

accurately, that Ms. Jackson had looked into his complaint that

his cubicle had been searched. Ms. Marshall pointed out that

Ms. Jackson had looked into the complaint at the time and

determined that Ms. Holmes had looked in an overhead bin for an

agency manual but had not searched his cubicle, doing things

like opening desk drawers.

3 2 . Addressing the workload complaints, Ms. Marshall

accurately reminded Mr. Malezi that Ms. Jackson had addressed

the discrepancy in docket size and case numbers and had told him

that in their June 10, 2009 , meeting. She also pointed out that

the docket size variances affected all the C ourt T eam members

not just him.

3 3 . Ms. Marshall's letter accurately described

Mr. Malezi's difficulty, despite counseling, demonstrating

teamwork and establishing professional relationships, as

follows:

Demonstrating teamwork and establishing

professional relationships are crucial

components of success. Althoug h you ma y

have assi s ted a co - worker or two, we have

identified that this is an area still in

need of improvement. An example would be

your very limited, if any, partic ipation in

team meetings and discussions. You have

failed to establish the same rapport that

your peers have developed with our Legal

Service Provider, the Office of Attorney

General (OAG). Our efforts are in

partnership with the OAG and the

relationship s and trust formed helps us to

perform the duties entrusted to us.

3 4 . Mr. Malezi did not comply with Ms. Marshall's

direction to submit information as quickly as possible about the

time he had worked outside of his scheduled work hours. Instead

he sent an e - mail va g uely reitera t ing that since he started work

in October 2008 he was usually at work by 7:00 a.m. every day,

often by 6:30 a.m. His e - mail states that until May 2009 , he

was attending to personal matters or general education before

his schedul ed work time. It further states that by May 2009 , he

was working on DOR business in the time before his scheduled

start time of 8:00 a .m. This means that Mr. Malezi was working

outside his scheduled hours without authority after receipt of

Ms. Jackson's memorandum reminding employees that they should

not work outside their scheduled work hours.

3 5 . Mr. Malezi went on to say he c ould not tell how long a

task took. His e - mail reveals no sign of any effort by

Mr. Malezi to determine what he did on any day or how long it

took. Mr. Malezi concludes asking Ms. Marshall to accept his e -

mail as compliance with her request. It was not compliance with

Ms. Marshall's request , and did not reflect even a cursory

effort to comply. Furthermore , either Mr. Malezi was dishonest

in his response or he was dishonest in his June 10 memorandum

when he stated "from day one I arrived at work early and begin

[sic] working at my desk before my scheduled work time . . .."

3 6 . Because M r. Malezi did not cooperate in efforts to

determine how many additional hours he had worked, Ms. Marshall

sought information and assi s tance from the Office of Inspector

General. By reviewing records obtained from the Department of

Children and Families of access to the Department's FLORIDA data

base system, she made the best possible judgment about

Mr. Malezi's additional hours. DOR paid him for those hours.

3 7 . On August 7, 2009, Mr. Malezi sent Ms. J ackson an

e - mail complain ing that his co - worker Ms . Holmes had "just

excoriated" him in front of the office. He said he was not sure

what Ms. Holmes said but thought she was ac cusin g him of saying

something to another co - worker. Mr. Malezi said he felt

Ms. Holmes was creating a hostile environment and w anted her to

stop. Mr. Malezi did not claim that any of Ms. Holme s 's alleged

remarks re lated to his gender in any way. The e - mail and the

statements Mr. Malezi made when he spoke to Ms. Jackson about

the matter were not complaints about different treatment because

of his gender or claims of retalia t ion.

3 8 . Ms. Jackson called Mr. Malezi and Ms. Holmes into her

office on August 10, 2009 , to discuss the matter. She listened

carefully to each employee's version of events.

39 . Mr. Malezi claimed tha t Ms. Holmes was yelling at him

in a hallway about a conversation he had with another employee

and that he was behind "some mess." Ms. Holmes said she was

suspic i ous of Mr. Malezi because she saw him whispering when he

was us u ally quite loud. Ms. Holmes said she told him and the

person he was speaking to that their complaining was driving

Ms. Jackson crazy.

4 0 . Ms. Jackson told Mr. Malezi and Ms. Holmes she would

write up notes of the meeting and look into the incident

further. S he also emphasized to th em the importance of

demonstrating DOR values and always dealing with each other in

professional manner. She told Ms. Holmes that staff may

commun i cate with each other in low tones if they choose and that

it was no concern of hers. Ms. Jackson told both of the

employees that if they had important conversations or disputes

that they should be held in a private place or brought to a

supervisor.

4 1 . Ms. Jackson investigated further as she said she

would. After conducting her investigation , Ms. Jackson

conc luded that Ms. Holmes had acted inappropriately . She took

corrective action. On August 19, 2009, Ms. Jackson issued a

Coaching Memo to Ms. Holmes advising her that her behavior was

not acceptable. The memorandum stated that Ms. Holmes ' behavior

was "rud e, disrespectful, lacked good judgment and clearly

violated the Departments' [sic] Standards of Conduct."

4 2 . In September, 2009, Mr. Malezi complained to

Ms. Jackson about being sent alone to cover a "mass contempt

hearing." This is a hearing where a nu mber of cases in which

courts have issued orders to show cause why a person should not

be held in contempt for failure to comply with a court order are

called up for hearing the same day. Ms. Jackson scheduled

Mr. Malezi to cover the hearing because she had noticed that he

had not yet shared that Court Team duty .

4 3 . B y this time Mr. Malezi had worked on the Court Team

for eleven months. He had considerable experience handling

hearings of all sorts, including c ontempt h earings . Mr. Malezi

had been adequately trained for all types of hearings , although

he had not "shadowed" this particular version of a hearing. At

that point Mr. Malezi was the only Court Team member who had not

handled mass contempt hearings.

4 4 . Mr. M alezi hand l ed the hearing successfully without

incident or disruption. N onetheless , he complained about havin g

been sent to it. Ms. Jackson responded to his complaint by

apologiz i ng for not being aware that he had not shadowed a "mass

contempt" hearing. She, however, correctly asserted that his

months of experience and training had prepared him a dequately

for the "mass contempt" hearing. A ccording to his own

statements Mr. Malezi was capable and handled the hearing just

fine.

4 5 . Although Mr. Malezi ha d thirty days notice of the

assignment , had reviewed the docket to prepare for the hearing,

and had a repeatedly demonstrated the ability and willingness to

complain of Court Team operations, he did not question the

assignment or seek assistance before the hearing. It was only

after the hearing that he sen t an e - mail , following a discussion

with Ms. Jackson, repeating his complaints . His e - mail went on

to reiterate his view of the difficulties he was having as a

Court Team employee and reveal that he thought Ms. Holmes had

scheduled him for the hearing.

4 6 . It said:

I believe that the person who assigned me

this docket knew full w ell the negative

ramifications if I did not conduct myself in

an adroit manner. Ms. Jackson, I have to

proffer this sta t ement to you; If [sic]

these glaring violations of protocol

continue unchecked, how can I move forward.

[sic] I feel that I must proact ively defend

myself from forces that mean me ill will.

Furthermore, what does this say about team

cohesiveness and respe c t for your leadership

if someone under your process is actively

trying to undermine another team member for

some vindictive reason. C an y o u imagine and

or visualize what could have happened if I

was not up to the challenge for Mass

Contempt?

In conclusion, I hope that you moni tor and

peruse the calendar doc k e ts & assignments to

m ake sure that everyone is being treated

with fairness. F or my part, I pledge to

unilaterally put all perceived; misdeeds

against me in the past, and start anew.

4 7 . Pam Dailey is the only employee who Mr. Malezi claims

was similarly situated to him and treated more favorably than

him. She was not similarly s ituated. Like Mr. Malezi,

Ms. Dailey was a probationary employee. Unlike him she did not

have a lengthy record of disregard for DOR policies. Ms. Dailey

worked outside of her assigned hours three times during her

probationary period. She was corrected for this. But those

were her only policy violations.

4 8 . Ms. Dailey also signed up for a state employee

discount from a cellular telephone service provider. She

received an e - mail from the provider at her work account

confirming her employment and conse quent eligibility for the

discount. This was a permitted personal communication under DOR

policies. It is not similar to Mr. Malezi's use of the computer

to market his crab harvesting quota.

49 . Before Mr. Malezi's probation period expired, DOR

decided to terminate his employment. Becaus e he was on

probation, DOR did not need to have just cause or a reasonable

basis for discharging him.

5 0 . The memor a ndum from Peg Hutchinson, Revenue Program

Adm inistrator II , to Ann Coffin, Director, Child Support

Enforcement, requesting Mr. Malezi's termination stated reasons

for his termination . They were (1) working unauthorized hours

and not obeying directions to document the time worked so that

DOR could fu lfill its legal obligation to pay for time worked;

(2) using the DOR computer to solicit lease proposals for an

Alaska crab quota he held; (3) supporting in a court proceeding

downward modification of a child support obligation without

authority and contra ry to DOR guidelines; and (4) a conclusion

that managers could not rely up on Mr. Malezi to conform to DOR

rules and policies. The facts in this case fully support all

four reasons for termination.

5 1 . Mr. Malezi filed a complaint with the Florida

Commis sion on Human Relations. The Commission investigated his

complaint and issued a Determination of No Cause on March 22 ,

2010.

CONCLUSIONS OF LAW

5 2 . Sections 120.569 and 120.57(1), Florida Statutes

(20 1 0) , grant t he Division of Administrative Hearings

ju risdiction over the subject matter of this proceeding and of

the parties.

5 3 . Mr. Malezi advances two claims. First, he maintains

that DOR discriminated against him on account of his sex by

creating a hostile work environment through harassment and by

di scharging him. Second, he claims that DOR retaliated against

him for comp laining of discrimination. Mr. Malezi has the

burden of proving his claims by a preponder a nce of the evidence.

Florida Department of Transportation v J.W.C Company Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981).

5 4 . Section 760.10 (1)(a), Florida Statutes (2009) , makes

it unlawful for an employer to take adverse action against an

individual because of the individual's sex. Section 760.10(7)

Florida Statutes (2009), makes it unlawful for an employer to

discriminate against any person because that person has opposed

an unlawful employment practice.

5 5 . Section 760.11(7), Florida Statutes (20 1 0), permits a

party who receives a no cause determination to request a formal

administrative heari ng before the Division of Administrative

Hearings. "If the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 has occurred,

he or she shall issue an appropriate recommended order to the

commission prohibiting the pract ice and recommending affirmative

relief from the effects of the practice, including back pay."

Id.

5 6 . Florida's Chapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently, Florida

courts look to federal case law when interpreting Chapter 760,

Florida Statutes. Valenzuela v GlobeGround North America, LLC. ,

18 So. 3d 17 (Fla. 3d DCA 2009).

5 7 . A party may prove unlawful sex discrimination by

direct or circumstantial evidence. Smith v. Fla. Dep't of

Corr. , Case No . 2:07 - cv - 631, (U.S. Dist. Ct. M. Dist, Fla.

May 27, 2009); 2009 U.S. Dist. LEXIS 44885 ( M. D . , Fla. 2009).

Mr. Malezi did not prove unlawful disc rimination by direct

evidence. There are no facts such as statements about his sex or

assignment of stereotypi cal , sex - based job duties that support a

conclusion that DOR discriminated against Mr. Malezi on account

of his gender.

5 8 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a prepo nderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the pres umption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v GlobeGround North America, LLC. , 18 So. 3d 17 (Fla.

3rd DCA 2009). Facts that are sufficient to establish a prima

facie case must be adequate to permit an inference of

discrimination. Id.

59 . Mr. Malezi argues that he was treated differently than

a similarly situated female employee, Ms. Dailey, and that the

disparate treatment establishes a prima facie case. In order t o

establish a prima facie case of disparate treatment based on

gender discrimination, Mr. Malezi must prove that: (1) he is a

member of a protected class; (2) h e was qualified for his

position; (3) he suffered an adverse employment action; and (4)

similarl y situated employees outside his protected class were

treated more favorably. See Rice - Lamar v. City of Ft.

Lauderdale , 232 F.3d 836, 842 - 43 (11th Cir. 2000).

6 0 . Mr. Malezi is a member of a protected class and

suffered an adverse employment action. DO R accept s that he was

qualified for his position. But he has not satisfied the fourth

element -- the "similarly situated" element -- necessary to

establish a prima facie case of gender discrimination. Ms. Daily

was not similarly situated. Ms. Dailey was also on probation.

But she did not have the extensive record of problems and

offenses that Mr. Malezi had. She had only three incidents of

working outside her scheduled hours, for which she was

corrected. Mr. Malezi had many more. In addition , he had a cted

against DOR policy in a court case, had a history of difficult

relationships with co - workers, made false representations about

working outside scheduled hours, and used DOR computers in

violation of DOR rules.

6 1 . The findings of fact here are not sufficient to

establish a prima facie case. As already noted , Mr. Malezi was

not the subject of any comments about his gender and did not

receive assignments that would indicate consideration of his

gender. In additio n , Mr. Malezi was not treated differently

than any similarly situated female employee. The facts

demonstrate that he was a difficult employee who repeatedly

demonstrated that he would not accept and be governed by the

management and policies of DOR.

6 2 . Ms. Malezi advances a sexually hostile work

environment claim. Under Title VII and Section 760.10, Florida

Statutes (2009), a plaintiff can establish gender discrimination

through sexual harassment by the creation of a hostile work

environment, by showing :

(1) that she [or he] belongs to a protected

group;

(2) that she [or he] has been subjected to

unwelcome sexual harassment;

(3) that the harassment was based on [his

or] her sex;

(4) that the harassment was sufficiently

severe or pervasive to alter the terms and

conditions of employment and create a

discriminatorily abusive working

environment; and

(5) that a basis for holding the employer

liable exists.

Cotton v. Cracker Barrel Old Country Store, Inc. , 434 F.3d 1227,

1231 (11th Cir. 2006). Mr. Malezi was not subjected to

unwelcome sexual harassment.

6 3 . The court in Blizzard v. Appliance Direct, Inc. ,

16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the analysis

required for a retaliation claim. The opinion says:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action; and (3) that the

adverse employment action was causally

relate d to the protected activity. See

Harper v. Blockbuster Entm't Corp. , 139 F.3d

1385 (11th Cir.), cert. denied, 525 U.S.

1000, 119 S. Ct. 509, 142 L. Ed. 2d 422

(1998). Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant mus t articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the ad verse action are

pretextual. Id.

6 4 . The facts show that Mr. Malezi engaged in protected

activity and that he suffered adverse employment action. The

facts do not establish any causal relationship between his

complaints of sex discrimination and his di scharge. The facts

establish that Mr. Malezi was an unsatisfactory employee who was

terminated during his probationary period.

6 5 . Application of the governing law to t he facts does not

support Mr. Malezi's claims of sexual discrimination and

retaliation .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue its Final Order denying Mr. Malezi's Petition

for Relief.

DONE AND ENTERED this 1 2 th day of October , 20 10, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hea rings

this 1 2 th day of October, 2010.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cindy Horne, Esquire

Department of Revenue

Carlton Building, 501 South Calhoun Street

Tallahassee, Florida 32314 - 6668

Kwasi Malezi

201 Northwest 16th Avenue

Pompano Beach, Florida 33069

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.