11-000870 Cynthia B. Medina vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, February 8, 2012.

Summary: Petitioner, a Hispanic female, failed to demonstrate that her dismissal from employment was caused by anything other than her inability to perform essential requirements of her position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA B. MEDINA , )

)

Petitioner, )

)

vs. ) Case No . 11 - 0 870

)

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Respondent. )

)

RECOMMENDED ORDER

A form al hearing was conducted in this case on August 9,

2011 , in Daytona Beach , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David W. Glasser, Esqu ire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach , Florida 32 11 4

For Respondent: Jane Almy - Loewinger , Esquire

Department of Children and Families

210 North Palmetto Avenue , Suite 430

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue is whether Respondent , the Department of Children

and Families ( the " Department ") , committed unlawful employmen t

practice s contrary to s ection 760.10, Florida Statutes (20 10 ) , 1 /

by discriminating against Petitioner b ased on h er race or

national origin .

PRELIMINARY STATEMENT

On or about September 7 , 2010 , Petitioner Cynthia B. Medina

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

Relations ("FCHR") a n Employment C harge of Discrimination

against the Department . Petitioner alleged that s he had been

discriminated against pursuant to c hapter 760, Florida Statutes ,

and Title VII of the Federal Civil Rights A ct as follows:

I was employed for a period of an estimated

6 years as a child protective investigator.

I am a Hispanic female. I was terminated

from my position on April 1, 2010. Prior to

my termination there were charges against me

regarding battery on a minor. While these

charges were ongoing, I was not allowed

client contact. My employer stated that the

offense that I was charged [with] was a

disqualifying charge pursuant to Florida

Law. I was terminated when my employer

stated that removal from cl ient contact was

causing too much of a burden in my

department. The charges were resolved out

of court after I was terminated.

An African American female who was a

convicted felon who was also has been

removed [sic] from client contact in my

office for a longer period of time was not

terminated.

The FCHR investigated Petitioner's Employment Charge of

Discrimination . In a letter dated December 27 , 2010 , the FCHR

issued its determination that there was no reasonable cause to

believe that an unlawful emplo yment practice occurred .

On January 2 8 , 2010 , Petitioner timely filed a Petition for

Relief with the FCHR . On February 17 , 2011 , the FCHR referred

the case to the Division of Administrative Hearings (" DOAH " ) .

The case was initially scheduled for hearing on May 9 and 10,

2011. Two continuances were granted. The hearing was

ultimately convened and completed on August 9, 2011 .

At the hea ring, Petitioner testified on h er own behalf and

presented the testimony of William Boyd, a program operations

operator w ho supervised Petitioner's investigative unit at the

time of her dismissal; Reginald Williams, the DCF circuit

administrator who made the final decision to terminate

Petitioner's employment; and Janice Coshiol, the secretary for

Petitioner's investigative unit. PetitionerÓs Exhibits 1

through 3 were admitted into evidence. Respondent presented the

testimony of Rafael Bello, a program administrator for the

Department, and Natalie Brewster, an employee in DCF's human

resources office. Respondent's Exhibits 2 through 11 were

admitted into evidence. Respondent's Exhibit 1 was renumbered

as Joint Exhibit 1 and as such was admitted into evidence.

The one - volume transcript of the proceeding was filed on

August 25 , 2011. The Department timely filed its P roposed

R ecommended O rder on August 30, 2011. On September 6 , 2011,

Petitioner filed a Motion for E nlargement of Time, seeking an

extension of the time for filing her proposed recommended order

to September 21 , 2011 , due to a delay in Petitioner's ability to

pay for her copy of the transcript . The motion was granted by

order dated September 14 , 2011. In compliance with the order

granting extension, Petitioner filed her P roposed R ecommended

O rder on September 21, 2011.

FINDINGS OF FACT

1. The Department is an e mployer as that term is defined

in s ubs ection 760. 02(7) , Florida Statutes.

2. Petitioner , a Hispanic fe male, began employ ment with

the Department on July 2, 2004, as a child protective

investigator ("CPI"). Petitioner was assigned to Unit 013 in

DeLand . She worked for the Department in that capacity until

her employment was terminated on April 1, 2010.

3. In a letter to Petitioner dated April 1, 2010, Reginald

Williams, the Department's circuit administrator for Circuit 7,

wrote that Petitioner's emp loyment was being terminated Ð as a

result of your inability to Perform Essential Job Duties. Ñ

Mr. Williams' letter characterized this as a Ð Non - Disciplinary

Dismissal, Ñ and encouraged Petitioner to reapply for her

position Ð once resolution occurs and you can provide a final

disposition of this matter. Ñ

4. The matter to which Mr. Williams referred was a pending

criminal charge of battery on a minor child , a disqualifying

offense under s ection 435.04(2)(j), Florida Statutes . On

October 30, 2009, Petitioner was involved in a physical

altercation at Universal Studios theme park. No one was

arrested at the scene, but on January 15, 2010, the state

a ttorney for the Ninth Judicial Circuit in Orlando filed charges

of battery and disorderly conduct against Petiti oner.

5. William Boyd, the Department administrator who oversaw

day - to - day operations of investigative units in a three - county

area that included DeLand , testified that Petitioner reported

the October 30, 2009 , incident to her immediate supervisor as

soon as it happened. Petitioner reported that she was the

victim in the incident, but that criminal charges were pending

against her. Petitioner told her supervisor that the state

attorney's office had yet to decide whether to charge her.

6. Prior to the fi ling of charges by the state attorney,

Petitioner continued to perform the job duties of a CPI . A

large portion of those duties include d making direct contact

with families concerning allegations of abuse, neglect, or other

maltreatments.

7. The state at torney filed the charges via information on

January 15, 2010, and on the same date issued a summons to

Petitioner.

8. On the morning of January 28, 2010, Petitioner receive d

the summons. She telephoned her immediate supervisor, Dave

Howe, who told her to bring in the paperwork so that Mr. Boyd

could be notified of the situation. Petitioner did as Mr. Howe

instructed . She had no immediate meeting with Mr. Boyd, and

continued to perform her regular duties.

9. On February 12, 2010, the Department's H uma n R esources

office ("HR") received a copy of the summons and sought more

detail from Petitioner. On February 16, 2010, Petitioner

notified HR that she would not be required to appear in court,

that her attorney had entered a plea of not guilty on her

b ehalf, and that a pretrial conference had been scheduled for

March 15, 2010. On February 17, 2010, Petitioner provided HR

with the police report from the October 30, 2009 , incident.

10. On February 19, 2010, Petitioner met with Mr. Boyd and

was told that she could not have direct client contact until her

pretrial conference. Direct contact was prohibited by s ection

435.06(2)(b) which provides:

If an employer becomes aware that an

employee has been arrested for a

disqualifying offense, the employer must

r emove the employee from contact with any

vulnerable person that places the employee

in a role that requires background screening

until the arrest is resolved in a way that

the employer determines that the employee is

still eligible for employment under thi s

chapter.

11. Petitioner was instructed to come to work during her

regular hours. Petitioner would perform "light duty" work on

her caseload that did not involve client contact, i.e., case

processing, telephone contacts with service providers,

confirm ing home services, and closing out cases. Petitioner was

not assigned new cases.

12. Petitioner testified that she was able to ma nage her

caseload by engaging in "trade - offs" with other CPIs in her

office. Petitioner would enlist a CPI to perform the cl ient

contact portion of one of her cases, and in exchange she would

complete the office work necessary to close one of the other

CPI's cases.

13 . On March 15, 2010, Petitioner provided HR with

paperwork indicating that her court date had been moved from

M arch 15 to April 7, 2010. It was at this point that

Petitioner's supervisors began to question whether the

Department could con tinue to carry Petitioner as a light - duty

CPI wh ile the date of resolving her criminal case remained

indefinite.

14 . In a lette r dated March 17, 2010, Mr. Williams

notified Petitioner that he was "initiating a non - disciplinary

dismissal based on your inability to perform the essential

functions of your job as a Child Protective Investigator in our

Family Safety program." The lett er stated the following as the

Department's rationale for its proposed action:

During three weeks you have been removed

from client contact, the efficiency of the

DeLand Child Protective Investigator unit

has been affected. Had you been in the case

rotati on, you would have been assigned 14

cases. In addition, approximately 20 cases

in your caseload had to be transferred or

handled by other Child Protective

Investigators. A typical caseload for the

DeLand CPI is 12 to 15 cases. As a result

of your inabil ity to take cases during these

3 weeks, each CPI was assigned 3 more cases

than they would normally would [sic]. This

is an increase of 20% to 25% per CPI. In

addition, there were shifts that needed to

be reallocated while you were removed from

rotation. Specifically, one night on - call

shift, six days of swing shifts and one

weekend shift had to be distributed to other

CPIs in the center. This increased the

number of assigned shifts for the DeLand

PI's.

The overall unit statistics have also been

impact ed by your removal from rotation. In

January, the DeLand CPI unit was ranked 10

out of 13. At the end of February, the

DeLand CPI unit was ranked 13 out of 13. In

addition, there has been a demonstrated

increase in overtime worked, which adversely

affec ts the budget as well as the well - being

of the unit. There has been an increase of

30 - 40 hours of overtime worked in the past 3

weeks.

As you may already be aware, we are

currently experiencing a high number of

vacancies in our Circuit 7 Child Protection

units. Your position is vital to the

organization and the children & families

that we serve. I regret to inform you that

we can no longer hold this position for you

due to current business levels. We need

every available CPI position able to have

clien t contact. However, you may apply for

any vacant position that does not require

direct client contact in a caretaker

position. Once your legal matters have been

settled, you are welcome to apply for any

employment at the Department.

15. The letter went on to inform Petitioner of her right

to meet informally with management representatives "to discuss

the reasons why you should not be dismissed at this time." The

meeting was scheduled for and held on March 22, 2010, in Daytona

Beach.

16. Petitioner's p resentation at the March 22 meeting did

not change Mr. Williams' mind. In the April 1, 2010 , letter

notifying Petitioner of her dismissal, Mr. Williams wrote:

While we recognize that you have not been

convicted of the charges made against you,

there are s till pending charges which are

potentially disqualifying for a Level 2

position, also known as a position of

special trust, under F.S. Chapter 435.04.

A Child Protective Investigator is

considered a position of special trust.

We are making our decision based on the

needs of the clients and our business.

Although a conviction has not occurred, the

outcome of your situation could result in

conviction. Having a pending charge of

Battery where the victim is a minor

undermines your credibility and judgment

regarding clients. Allowing you to have

client contact knowing this charge is

pending could cause embarrassment to and

discredit to the Department of Children and

Families. At this time we cannot hold your

position pending resolution due to business

nee ds. There is no definite time frame as

to which you resolution [sic] will come to

fruition. We need every available Child

Protective Investigator position to be able

to work with our clients in the field. Once

resolution occurs and you can provide a

fin al disposition of this matter, you can

reapply to this or any other position for

which you feel you are qualified. . . .

17. Court records indicate that Petitioner's case came up

for trial on April 12, 2010. T he court referred Petitioner to a

pre - trial d iversion program and held the case in abeyance. On

June 8, 2010, Petitioner was approved for participation in the

pre - trial diversion program, successful completion of which

would result in an order of dismissal or a nolle prosequi by the

state attorney.

18. On June 15, 2010, Petitioner signed a "Pre - trial

Diversion Contract ." The contract provided that prosecution

would be deferred for six months if Petitioner abided by the

conditions set forth therein, and that the charges would be

dropped at the end of six months if Petitioner met all the terms

of the contract. The contract provided that Petitioner would

complete an anger management class, perform 40 hours of

alternative community service, pay fees related to the diversion

program, and "pay restitut ion in the amount of $250.00 joint and

several." Petitioner was required to report to an assigned

officer once a month.

19. Petitioner testified that she completed the diversion

program's requirements within one month, but that her contract

did not provi de for early termination of the program. The state

attorney entered a nolle prosequi on December 23, 2010.

20. Mr. Boyd testified regarding the exigent circumstances

that the Department believed necessitated Petitioner's

dismissal. When Petitioner was p ulled from client contact, her

role in the office became very limited. Her unit, which at full

strength consisted of six or seven CPIs, was already down one

person until a new CPI could be interviewed and hired. Three

other CPIs (Carol Suarez, a Hispanic female, and Barry Candage

and Rob Westcott, both white males) were out of the office on

medical leave for four to six weeks dur ing this period . A

fourth CPI, Jodi Cea, a white female, was limited to light duty

for medical reasons. She was eventually sen t home on medical

leave for several weeks because there was not enough light duty

work to go around.

21. Mr. Boyd testified that during the time Petitioner was

on light duty, her unit had two or three CPIs doing the case

load of six or seven. Four cases per CPI were transferred to

other units. These transfers were a hardship for the receiving

units because the units are arranged geographically, meaning the

receiving CPIs were required to travel far outside their usual

areas. Some had to travel from Putn am County to the Seminole

County line.

22. Mr. Boyd testified that Petitioner was a valued

employee. She was a good investigator, and her ability to speak

Spanish was a critical asset to the DeLand unit because W est

Volusia County has a large and growing Hispanic population.

Petitioner was one of only two Spanish speakers in her unit, and

other CPIs often requested her assistance in the field.

Mr. Boyd stated that he fully expected Petitioner to reapply for

her position after her criminal charges were c leared, and that

she would have been readily welcomed back to the Department.

23. Mr. Williams testified that, given the uncertainty of

Petitioner's position in March 2010 and the short - handedness of

her unit, there was no alternative to terminating her

e mployment. The possibility of administrative leave was not

considered because the resolution of Petitioner's court case was

indefinite. The Department was willing to keep Petitioner on

light duty when it believed she was going to court for a final

hearin g on March 15, but it could not continue to do so for an

unknown period of time. Even if he had known that Petitioner's

case would be resolved in December, Mr. Williams would have

dismissed Petitioner because her unit could not function for

several months with a CPI who could not perform the essential

functions of her position .

24. Mr. Williams decided that a non - disciplinary dismissal

was the best option because it would allow the Department to

fill the vacancy immediately, and would allow Petitioner to

reapply to the Department after the charges were dismissed.

Like Mr. Boyd, Mr. Williams left no doubt that the Department

would welcome Petitioner's return.

25. Both Mr. Boyd and Mr. Williams denied that

Petitioner's race or national origin played any pa rt in the

decision to terminate her employment.

26. Mr. Williams testified that the employees out on

medical leave were not given special consideration over

Petitioner. He stated that he has dismissed employees on

medical leave when it became apparent ov er time that their

problems were not resolving and they might never be able to

resume a full caseload. In the cases of Ms. Suarez,

Mr. Cundage, and Mr. Westcott, physicians had given the

Department a time frame for their return to full duties , and

they re turned to work within that time frame . 2 / A s of April 1,

2010, it was uncertain whether Petitioner would ever return to

the CPI rotation.

27 . Petitioner contends that at least one other CPI, a n

African - American female named Beverly Greenwade, was in a

position similar to Petitioner's but was not dismissed from her

job.

28 . Ms. Greenwade was hired as a CPI in the DeLand unit in

June 2007. In October 2007, Ms. Greenwade was removed from the

CPI case assignment rotation because her background screening

r evealed a disqualifying felony on her record. 3 / She was kept on

light duty until mid - January 2008, when she received an

exemption from employment disqualification and returned to her

regular CPI duties.

29 . Petitioner contends that her position was simil ar to

that of Ms. Greenwade, but that the Department chose to carry

Ms. Greenwade on light duty for a period of three and one - half

months , pending action on her exemption request, whereas the

Department fired Petitioner after slightly more than one month

o f light duty.

30 . Mr. Williams testified that Ms. Greenwade's position

was distinct from Petitioner's i n two ways. First,

Ms. Greenwade's offense did not involve a minor child and was at

least 23 years old. Ms. Greenwade had received a pardon from

the G overnor in 1999, making it much more likely that she would

obtain an exemption from the Department. The Department's

exemption process was finite; Mr. Williams knew that he would

have an answer within 60 to 90 days of Ms. Greenwade's

application.

31 . Sec ond, Mr. Williams stated that in October 2007 , the

DeLand unit was not shorthanded . All of the units in the

circuit were fully staffed, and the overall caseload was less at

the time Ms. Greenwade was seeking an exemption. The Deland

unit was able to abso rb several months of Ms. Greenwade's

placement on light duty.

32. Petitioner pointed to another allegedly disparate

aspect of the Department's treatment of Ms. Greenwade. After

she was granted an exemption and returned to the CPI rotation,

Ms. Greenwade proved unable to keep up with the CPI caseload

during her probationary period. Her job performance was such

that the Department concluded she could not be retained as a

permanent employee in the CPI position. However, rather than

terminating Ms. Greenwad e's employment, the Department offered

her a demotion to ACCESS Florida, which manages the state's food

stamp, Medicaid, and temporary cash assistance programs. 4 /

33. Petitioner testified that she worked for the City of

New York for ten years in the food stamp and Medicaid programs.

Petitioner questioned why the Department would not give her an

opportunity to move into an ACCESS program position not

involving client contact as an alternative to terminating her

employment.

34. Mr. Williams testified that Ms. Greenwade had

performed unsatisfactorily as a CPI. She no longer had the

option of being a CPI, and therefore was offered a position in

the ACCESS program. Mr. Williams stated that Petitioner was not

offered the lesser job in the ACCESS program becau se he hoped

that she would resolve her legal difficulties in short order and

return to the DeLand office as a CPI. Mr. Williams testified

that the idea of placing Petitioner in an ACCESS position was

never even discussed within the Department because his intent

was always to rehire Petitioner in her old position.

Mr. Williams stated that, even as of the date of the hearing, he

would rehire Petitioner as a CPI.

35. Petitioner's situation differed from that of any of

the other employees under consideration because, as of April 1,

2010, her inability to perform the full functions of a CPI was

of indefinite duration. If she were convicted of misdemeanor

battery on a minor, she would be disqualified from employment

for at least the period of her "confinement, supervision, or

sanction," see section 435.07(1)(b) , plus the time it would take

to apply for and receive an exemption . Given the strains that

the DeLand unit was already experiencing, it was reasonable for

the Department to conclude that it could not ca rry Petitioner on

light duty for a period of time that might well stretch into

years.

36. Petitioner offered no credible evidence that t he

Department 's stated reasons for h er termination were a pretext

for race or national origin discrimination. The logi c of the

decision not to offer Petitioner a temporary ACCESS position may

be questioned, but there was no animus underlying the decision;

it reflected the fact that the Department held Petitioner in

higher esteem than it did Ms. Greenwade. The Department wanted

Petitioner ready to step back into her CPI position as soon as

her case was resolved.

37 . Petitioner offered no credible evidence that t he

Department discriminated against h er because of h er race or

national origin in violation of s ection 760.10.

3 8. Far from displaying any ill will toward Petitioner,

the Department personnel who testified at the hearing spoke

highly of her work as an investigator and her value to the

DeLand unit as a translator. They expressed not only

willingness but an affirmat ive desire to rehire Petitioner as a

CPI.

39 . The greater weight of the evidence establishes that

Petitioner was terminated from h er position with the Department

due to the uncertain duration of her inability to perform all the

duties of her position, i n light of the existing case load strain

being experienced by her unit .

CONCLUSIONS OF LAW

40 . 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. (2 011).

41 . The Florida Civil Rights Act of 1992 (the " Florida

Civil Rights Act " or the " Act " ), c hapter 760, Florida Statutes,

prohibits discrimination in the workplace .

42 . Subsection 760.10 , Florida Statutes, states the

following , in relevant part :

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, becaus e of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

43 . The Department is an "employer" as defined in

s ubsection 760.02(7) which provides the following:

"Employer" means any person 5 / employing

15 or mo re 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.

44 . 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 s ection 760.10. See

Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D.

Fla. 2002); FSU v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Fla . Dep Ó t of Com t y . Aff . v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

45 . Under the McDonnell analysis, in employme nt

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 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 employer 's offered

reas ons for its adverse employment decision were pre - textual.

See Texas Dep Ó t of Comty . Aff . v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

46 . In order to prove a prima facie case of unlawful

employment discrimination under c hapter 760, Petitioner must

establish that: (1) s he is a memb er of the protected group; (2)

s he was subject to adverse employment action; (3) t he Department

treated similarly situated employees outside of h er protected

classifications more favorably ; and (4) Petitio ner was qualified

to do the job and/or was performing h er job at a level that met

the employer' s legitimate expectations . See , e.g. , Jiles v.

United Parcel Serv ., Inc. , 360 Fed. Appx. 61, 64 (11 th Cir.

2010); Burke - Fowler v. Orange Cty . , 447 F. 3d 1319, 1 323 (11th

Cir. 2006); Knight v. Baptist Hosp . of Miami, Inc. , 330 F.3d

1313, 1316 (11 th Cir. 2003); Williams v. Vitro Serv . Corp . , 144

F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt . Corp. ,

40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

47 . Petiti oner has failed to prove a prima facie case of

unlawful employment discrimination.

48 . Petitioner established that s he is a member of a

protected group, in that s he is a Hispanic female . Petitioner

was subject to an adverse employment action in that s he w as

terminated from h er position as a CPI with t he Department .

Petitioner was qualified to perform the job of CPI . In some

respects, Petitioner's qualifications excelled the basic

requirements for the CPI position. The evidence established

that Petitione r's job performance was entirely satisfactory when

she was legally able to perform all the duties of a CPI.

49 . Petitioner presented insufficient credible evidence

that her race or national origin played any role in the decision

made by the Department to terminate her employment. The

Department made a business decision that it could not carry

Petitioner as a light duty employee for the indefinite period of

time before her trial for an offense that would disqualify her

from employment as a CPI.

50. P etitioner failed to demonstrate that any similarly

situated employee outside of her protected classification was

treated more favorably. None of the employees cited by

Petitioner was similarly situated. The employees who were out

of the office on medical leave had a time certain for their

return to work.

51. As to Ms. Greenwade , the DeLand unit was fully staffed

when she was placed on light duty in 2007, and Mr. Williams had

every reason to believe that she would obtain the requested

exemption from dis qualification in short order.

52. Ms. Greenwade was not treated more favorably than

Petitioner. Ms. Greenwade washed out as a CPI. Her poor

performance as a probationary employee in that job led the

Department to offer her a lesser position in the ACC ESS program

from which she was dismissed at the end of her probationary

period. Petitioner was not offered a lesser position because

the Department wanted her back as a CPI as soon as she was

cleared to perform all the duties of a CPI.

53 . Having f ailed to establish th e element of disparate

treatment , Petitioner has not established a prima facie case of

employment discrimination.

54 . Even if Petitioner had met the burden, t he Department

presented evidence of legitimate, non - discriminatory reasons for

Petitioner's termination. Because of her pending criminal

prosecution, Petitioner was unable to fully perform the duties

of a CPI. The Department was uncertain when Petitioner's

situation would be resolved, or whether the resolution would be

in her favor. The DeLand unit was desperately shorthanded and

unable to carry Petitioner as a light duty CPI without causing

hardship for all of the Circuit 7 child protection units.

55 . Petitioner failed to prove that the Department 's

reasons for dismissing h er were pre - textual. In fact, the

Department expressed a strong desire to rehire Petitioner once

her legal difficulties were resolved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Co mmission on Human Relations

issue a final order finding that the Department of Children and

Families did not commit any unlawful employment practices and

dismissing the Petition for Relief filed in th is case .

DONE AND ENT ERED this 8 th day of February , 201 2 , 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

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8 th day of February , 201 2 .

ENDNOTES

1 / Citations shall be to Florida Statutes (2010) unless otherwise

specified. Section 760.10 has been unchanged since 1992.

2 / Another distinguishing factor in the case of Ms. Suarez was

that she was on the verge of retirement.

3 / The evidence established that in 2007, the Department could

hire a CP I prior to performing background screening. Under

current law, the background screening must be completed prior to

hiring. § 435.06(2)(a), Fla. Stat.

4 / Ms. Greenwade ultimately failed to successfully complete her

probationary period in the ACCESS pro gram and was terminated.

Ms. Greenwade pursued an employment discrimination complaint

against the Department. Her case was dismissed after a DOAH

hearing. See Greenwade v. Dep Ó t of Child . & Fam . Servs . , No.

09 - 3037 (DOAH Apr . 21, 2010, FCHR No. 10 - 056 J une 24, 2010).

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

§ 760.02(6), Fla. Stat.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Davi d W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach, Florida 32114

Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue, Suite 430

Daytona Beach, Florida 32114

Carolyn Dudley

De partment of Children and Families

1317 Winewood Boulevard

Building 1, Room 110F

Tallahassee, Florida 32399 - 0700

Larry Kranert

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.