10-007914 Antionette Mack vs. Agency For Persons With Disabilities (Tacachale) Status: Closed Recommended Order on Tuesday, December 28, 2010.

Summary: Respondent's actions in terminating Petitioner's employment were not based upon unlawful discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTIONETTE MACK , )

)

Petitioner, )

)

vs. ) Case No. 10 - 7914

)

AGENCY FOR PERSONS )

WITH DISABILITIES , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearin g was held pursuant to notice, on November 8 , 20 10 ,

via video teleconference with sites in Gainesville and

Tallahassee , Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCE S

For Petitioner: Antoinette Mack

1322 N ortheast 31st Avenue

Gainesville , F lorida 3 2 609

For Respondent: Julie Waldman, Esquire

Agency for persons with D isabilities

1621 Northeast Waldo Road

Gainesville , Florida 3 2 609

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment C h arge of Discrimination

filed by Petitioner on January 2 6 , 20 10 .

PRELIMINARY STATEMENT

On or about January 2 6 , 20 10 , Petitioner, Antoinette Mack ,

filed a n Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) , which al leged that the

Agency for Persons with Disabilities violated Section 760.10,

Florida Statutes, by discriminating against h er on the basis of

race , which result ed in h er termination .

The allegations were investigated and on July 1 5 , 20 10 ,

FCHR issued its D etermination : N o C ause. A Petition f or Relief

was filed by Petitioner on August 12 , 20 10 . In the Petition for

Relief, Petitioner also alleges that she was discriminated

against on the basis of her age, which was not alleged in her

Employment Charge of Discrimination. 1/

FCHR transmitted the case to the Division of Administrative

Hearings on or about August 18 , 20 10 . A Notice of Hearing by

Video Teleconference was issued setting the case for formal

hearing on Nov ember 8 , 20 10 . The hearing proceeded as

scheduled.

At hearing, Petitioner testified on h er own behalf and

presented the testimony of Gloria Burkett . Petitioner did not

offer any e xhibits into evidence . Respondent made an ore tenus

motion to dismiss which was denied. Respondent presented the

t estimony of Bernice Huff and Sharon Taber . Respondent Ós

Exhibit s letter ed A through C w ere admitted into evidence.

The hearing was not transcribed. Petitioner filed a post -

hearing written submission and Respondent filed a Proposed

Recommended Order , which have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American fe male who was

employed by APD from July 200 5 until h er termination on or about

Ju ne 5 , 200 9 . At all times relevant to this pro ceeding,

Petitioner was a member of the Select Exempt Service (SES), a

category of employment with the State of Florida.

2. Respondent, A gency for Persons with Disabilities (A PD ) ,

is an employer within the meaning of the Florida Civil Rights

Act. A PD is a state agency responsible for, among other things,

providing residential treatment, training, and behavioral care

to vulnerable, developmentally disabled individuals in an

institutional setting.

3. Tacachale is an Intermediate Care facility for mentally

retar ded persons and it is located in Gainesville, Florida .

Jasmine Home at Tacachale is a group home for nine

developmentally disabled women with significant behavioral

problems . The staff who work at Jasmine Home are expected to

provide monitoring of the residents /clients to ensure their

safety and well - being.

4. Petitioner worked for Respondent as a Behavior Program

Specialist Supervisor in Jasmine Home. As a supervisor,

Ms . Mack's duties were to oversee the direct care of the

residents in the gro up home . Part of a supervisor's duties is

to ensur e that proper behavioral techniques are followed. When

a resident engages in a behavioral episode, certain behavioral

intervention techniques are used to calm the resident. These

techniques range from ve rbal redirection to physical management

techniques. Th e s e may include techniques that safely place the

resident in a prone position to ensure that the resident does

not hu rt herself or others. Staff members are trained in

techniques to do this type of in tervention safely without

causing injury to the residents .

5. On December 13, 2008, a resident in Jasmine Home

engaged in behavior that required staff intervention. A staff

person, Gloria Burkett , and a co - worker initiated a "take - down"

of this resident . Petitioner came into the room to assist in

this intervention .

6. A staff member who observed this intervention called

the Florida Abuse Hotline alleging the use of inappropriate

intervention techniques by Petitioner and Ms. Burkett . This

commenced an external investigation into these allegations .

Concurrently, Tacachale began an internal investigation.

7. During the pendency of the dual investigations, both

Petitioner and Ms. Burkett were reassigned away from direct

client contact. This reassign ment is standard practice at

Tacachale when a staff member is named as a possible perpetrat o r

of abuse toward a resident .

8. Sharon Taber is the Programs Operations Administrator

who oversees the facility of which Jasmine House is a part.

While Ms. Tabe r did not participate in the investigations, she

reviewed the findings of both .

9. According to Ms. Taber, there is no set time for the

length of staff reassignments in these circumstances . T he

length of the staff reassignment is based upon the safety of the

residents. The investigation took a long time and,

consequently, Petitioner remained reassigned for a long time.

10. The internal investigative report concluded that the

resident was mistreated by Petitioner. Ms. Taber reviewed the

investigati ve report and concurred with the report's conclusion

that Petitioner participated in an inappropriate restraint on

the Jasmine resident , and, therefore, mistreated the resident .

11. Ms. Taber was also aware that the Florida Abuse

Hotline concluded its i nvestigation finding that there were

"some indicators" of abuse.

12. As a result of the findings of both investigations,

Ms. Taber determined that Petitioner had implemented

inappropriate intervention techniques which put the

client /resident at risk in v iolat ion of A PD policies and

procedures . In reaching her determination and recommendation

for disciplinary action , Ms. Taber also considered that

Petitioner was a supervisor and that the agency "expects more"

from supervisors.

1 3 . Ms. Taber made a referral to the Human Resources

Department for disciplinary action. Her recommendation was

termination of Petitioner's employment.

14 . By letter dated June 3, 2010, APD notified Petitioner

that she was being dismissed from her position. The letter

furt her informed Petitioner that as a Select Exempt Service

employee, she served at the pleasure of the agency and was

subject to termination at the discretion of the agency head.

Consequently, Petitioner was not entitled to an employment

hearing or grievance proceeding.

15 . Petitioner believes that her subordinates w ere hostile

to her and that they were prejudiced in their viewpoints. By

relying on the staff's statements regarding the incident,

Petitioner believes that APD did not handle the investigation

p rofessionally.

16. Although Petitioner was given the opportunity to write

a statement to APD regarding the incident and did write a

statement , Petitioner believes she should have been interviewed

during the investigation. Petitioner concluded that becaus e APD

did not handle the investigation the way Petitioner believes it

should have been handled, that she was discriminated against

because of her race.

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

jurisdiction over the parties and s ubject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (20 10 ).

18 . Section 760.10(1), Florida Statutes (20 10 ) , states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of race.

19. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Valenzuela

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

2009); Brand v. Florida Power Corporation , 633 So. 2d 504, 509

(Fla. 1st DCA 1994).

20. In the instant case, Petitioner alleged in her Charge

of Discrimination which she filed with FCHR that APD

discriminated against her on the basis of race w hen it

terminated her employment.

21 . Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfeld v. Babbitt , 168

F.3d 1257, 1266 (11 th Cir. 1999) . Direct evidence of

discrimination is evidence that, if believed , esta blishes the

existence of discriminatory intent behind an employment decision

w ithout inference or presumption. Maynard v. Board of Regent s ,

34 2 F.3d 1 281 , 1 289 (11 th Cir. 2003 ).

22 . "Direct evidence is composed of 'only the most blatant

remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor."

Schoenfeld v. Babbitt , supra . Petitioner presented no direct

evidence (e.g., racial slurs) of race discrimination.

23. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89.F. 3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

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

24 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

in McDonnell D ouglas v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981) , is applied . Under this well established model of proof,

the complainant bears the initial burden of establishing a prima

facie case of dis crimination. When the charging party, i.e. ,

Petitioner, is able to make out a prima facie case, the burden

to go forward shifts to the employer to articulate a legitimate,

non - discriminatory explanation for the employment action. See

Department of Correc tions v. Chandler , 582 So. 2d 1183 (Fla. 1st

DCA 1991) (court discusses shifting burdens of proof in

discrimination cases). The employer has the burden of

production, not persuasion, and need only persuade the finder of

fact that the decision was non - disc riminatory. Id. Alexander

v. Fulton County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The

employee must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. Schoenfeld v. Babbitt , supra at

1267. The employee must satisfy this burden by showing directly

that a discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment de cision is not worthy of belief. D epartment of

Corrections v. Chandler , supra at 1186; Alexander v. Fulton

County, Georgia , supra . Petitioner has not met this burden.

25. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner]." EEOC

v. Joe's Stone Crabs, Inc. , 296 F. 3d 1265, 1273 (11th Cir.

2002); see also Byrd v. RT Foods, Inc. , 948 So . 2d 921, 927

(Fla. 4th DCA 2007) ("T he ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times." ) .

2 6 . To establish a prima facie case, Petitioner must prove

that (1) s he is a member of a protected c lass ( e.g. , Africa n -

American); (2) s he was subject to an adverse employment action;

(3) h er employer treated similarly situated employees, who are

not members of the protected class, more favorably; and (4) s he

was qualified for the job or benefit at issue. See McD onnell ,

supra ; Gillis v. Georgia Department of Corrections , 400 F. 3d 883

(11th Cir. 2005) .

27. At hearing, Respondent moved to dismiss the case

arguing that Petitioner had not established a prima facie case.

Where the a dministrative l aw j udge does not halt the p roceedings

for "lack of a prima facie case and the action has been fully

tried, it is no longer relevant whether the [Petitioner]

actually established a prima facie case. At that point, the

only relevant inquiry is the ultimate, factual issue of

intention al discrimination. . . . [W]hether or not [the

Petitioner] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green

v. School Board of Hill sborough County , 25 F.3d 974, 978 (11th

Cir. 1994); Beaver v. Rayonier, Inc. , 200 F. 3d 723, 727. (11th

Cir. 19 99 ) . See also United States Postal Service Board of

Governors v. Aikens , 460 U.S. 711, 713 - 715 ("Because this case

was fully tried on the merits , it is surprising to find the

parties and the Court of Appeals still addressing the question

of whether Aikens made out a prima facie case. We think that by

framing the issue in these terms, they have unnecessarily evaded

the ultimate question of discrim ination vel non . . . .[W]hen the

defendant fails to persuade the district court to dismiss the

action for lack of a prima facie case, and responds to the

plaintiff's proof by offering evidence of the reason for the

plaintiff's rejection, the factfinder mus t then decide whether

the rejection was discriminatory within the meaning of Title

VII. At this stage, the McDonnell - Burdine presumption 'drops

from the case,' and 'the factual inquiry proceeds to a new level

of specificity.'" ) .

2 8 . After Petitioner p resented her case, Respondent's

witnesses testified that she was terminated for legitimate non -

discriminatory reasons. That is, APD conducted an investigation

which resulted in a conclusion that Petitioner mistreated a

resident by using inappropriate beha vioral intervention

techniques.

2 9 . While Petitioner believes that APD's actions were

intentionally discriminatory, the evidence does not support this

conclusion. Byers v. Dallas Morning News, Inc. , 209 F.3d 419,

427 (5th Cir. 2000) (" Byers has failed to produce any direct

evidence of discriminatory intent by Brown or TDMN or sufficient

evidence indirectly demonstrating discriminatory intent.

Instead, Byers urges this Court to rely on his subjective belief

that Brown discriminated against him because he was white. This

Court will not do so." ) . The evidence contains no persuasive

proof to support a finding that APD's actions were racially

motivated.

30. Petitioner asserts that APD did not follow its

procedures regarding the discipline of employees . She has not

proven that APD's actions were in violation of any procedures.

Moreover, e ven if there were errors in how APD conducted its

investigation, there is no evidence that APD manipulated those

investigations for the purpose of discriminating against

Petitioner because of her race or age. See Department of

Corrections v. Chandler , supra at 1187, quoting Nix v. WLCY

Radio/Rahall Communications , 738 F.2d 1181, 1187 (11th Cir.

1984) ("The employer may fire an employee for a good reason, a

bad reason, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason.") .

31. Finally, whether or not APD followed its internal

procedures regarding Petitioner's termination is not relevant

unless its actions a re based upon unlawful discrimination.

There is no competent evidence that Respondent based its actions

regarding Petitioner on discriminatory reasons.

3 2 . In summary, Petitioner has failed to carry h er burden

of proof that Respondent engaged in racial discrimination toward

Petitioner when it terminated h er .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order finding that the Agency for Persons with

Disabilities is not guilty of the unlawful employment practice

alleged by Petitioner and dismissing P etition er's Charge of

Discrimination .

DONE AND ENTERED this 2 8 th day of December , 20 10 , in

Tallahassee, Leon Count y, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of December , 20 10 .

ENDNOTE

1/ [T]o prevent circumvention of the [FCHR's] investigatory and

conciliatory role, only those claims that are fa irly encompassed

within [ an FCHR charge ] can be the subject of [an administrative

hearing]" and any subsequent FCHR award of relief to the

complainant. Chambers v. American Trans Air, Inc. , 17 F. 3d 998,

1003 (7th Cir. 1994).

COPIES FURNISHED :

Antion ette Mack

1322 Northeast 31st Avenue

Gainesville , Florida 32 609

Julie Waldman , Esquire

Agency for Persons with Disabilities

1621 Northeast Waldo Road

Gainesville , F lorida 3 2 609

Larry Kranert , General Counsel

Florida Commission on Human Relations

2009 A palachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.