11-004466 Patricia Herring vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, November 30, 2011.

Summary: Petitioner failed to establish a prima facie case of gender discrimination, sexual harassment or retaliation. Accordingly, her Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA HERRING, )

)

Petitioner, )

)

vs. ) Case No. 11 - 4466

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice , a formal hearing was held in this case

on November 9, 2011, in Gainesville, Florida, before W. David

Watkins , the duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Owen Massey, Esquire

Massey and Duffy, PLLC

855 East University Avenue

Gainesville, Florida 32601

For Respondent: Todd Evan Studley, Esquire

Florida Department of Correction s

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

1. Did Respondent, the Florida Department of Corrections

(Department or DOC ), sexually harass or discriminate against

Petitioner, Patricia Herring ( Herring ), on account of her sex?

2 . Did DOC retaliate against Ms. Herring for opposing an

unlawful employment practice?

PRELIMINARY STATEMENT

On March 16 , 20 11 , Ms. Herring filed a Charge of

Disc rimination against the Department wit h the Equal Employment

Opportunity Commission (EEOC) and the Florida Commission on

Human Relations (Commission). The Charge alleged race and sex

discrimination an d retaliation. On August 19, 2011 , the

Commission issued a Determination of No Cause. On Au gust 31,

2011, Ms. Herring filed a Petition for Relief from an Unlawful

Employment Practice with the Commission. On September 1 , 201 1 ,

the Commission transmitted the Petition to the Division of

Administrative Hearings (DOAH) to conduct a Final Hearing. B y

notice dated September 12, 2011, t he undersigned set the final

hearing for November 9, 2011, and t he hearing was held as

scheduled.

At the commencement of the final hearing, Petitioner

announced that she was withdrawing her claim of discrimination

base d upon race. Rather, Petitioner was proceeding on her

claims of sexual harassment and gender discrimination, as well

as her retaliation claim.

Ms. Herring testified on her own behalf. Petitioner also

called Donald Davis, Warden of the Columbia Correctio nal

Institution (CCI). Petitioner's Exhibit 1 (Employee Earnings

Statement) was received in evidence. The Department presented

the testimony of Tony Anderson and Michael Willis , both

Assistant Warden s at CCI , and Dorothy Minta, Inspector in the

DOC Offic e of the Inspector General. The Department's Exhibit 1

(Investigative Memo); Exhibit 2 (statement of Petitioner's

training history); and Exhibit 3 (Petitioner's letter of

resignation) were received into evidence. Both parties reserved

their closing argum ents for inclusion in post - hearing

submittals . The parties agreed to submit their Proposed

Recommended Orders within 10 days of the hearing.

Although a court reporter was present at the final hearing,

neither party ordered the proceedings transcribed, an d

consequently, no transcript has been filed with the Division .

Both parties timely submitted their P roposed R ecommended O rder s,

and they have been given careful consideration in the

preparation of this R ecommended O rder.

All citations are to Florida S tatutes (2010) unless

otherwise indicated.

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 . Petitioner began her career wi th the Department on

February 17, 1989 , as a Correctional Officer at the Madison

Correctional Institute.

2 . Over the next 21 years, Petitioner steadily rose

through the ranks of correctional officers until her final

promotion, to Major, on July 23, 2010. Petitioner was

classified as a Select Exempt Service employee by DOC. As such,

Petitioner could be transferr ed to any DOC facility based on

need. Over this period of time Petitioner was assigned, and

sometimes reassigned, to DOC facilities in Madison, Hamilton and

Columbia counties. At the time of her promotion to Major,

Petitioner was assigned to CCI.

3 . On March 2, 2011, Major Dillard Jones observed a CCI

inmate washing two cars, one of which belonged to Petitioner.

Upon questioning by Major Jon es, the inmate admitted to washing

personal cars on several occasions, a violation of DOC policy.

Accordingly, Major Jones filed a written report of the

incident. 1 /

4 . During the time of the incident - giving rise to the

charge , Donald Davis was the Warde n of CCI. Warden Davis

regularly held morning staff meetings in a conference room with

his assistant wardens and other employees of the facility.

5 . Petitioner contends that during the morning staff

meeting of March 3, 2011, Warden Davis stood up to get himself a

cup of coffee, and asked if anyone else would like some coffee.

One of the employees, Fran Wood, stated that she would, handed

Warden Davis her cup, and asked him to "top it off . " According

to Petitioner, Warden Davis then placed his hand on h is genital

area and pretended to urinate in the cup. After this behavior,

laughter erupted in the conference room. Petitioner stated that

she was offended by Warden Davis' actions.

6 . At hearing, Warden Davis flatly denied that he ever

touched his geni tal area during the staff meeting, or feigned

urinating in Ms. Wood's coffee cup. He did acknowledge,

however, that there was laughter associated with his getting a

cup of coffee for Ms. Wood. He explained that the laughter was

because roles had been rev ersed, and he was getting coffee for a

subordinate that would normally be getting it for him.

7 . The Department called as witnesses two assistant

wardens who were in attendance at the March 3, 2011, meeting,

Tony Anderson and Michael Willis. Neither Mr. Anderson nor

Mr. Willis saw Warden Davis touch his genital area or pretend to

urinate in a coffee cup during the meeting. However, on cross -

examination both witnesses testified that it was not unusual for

Warden Davis to get coffee for subordinates at th e staff

meetings, including low - level employees and him doing so would

not normally occasion laughter .

8 . Following the March 3, 2011, staff meeting Petitioner

called Warden Davis' supervisor, Timothy Cannon, to inform him

of the incident. Mr. Cannon ad vised Petitioner to prepare a

written incident report , which Petitioner did that same day.

9 . It is standard DOC protocol to remove a complainant

from the workplace during the pendency of the Department's

investigation of the complaint. Consistent with this policy ,

Petitioner was placed on special assignment to Suwannee

Correctional Institution (SCI) on March 7, 2011. There was no

effect on Petitioner's rank, rate of pay, or work schedule by

virtue of the tran sfer.

10 . Petitioner was not given an of fice nor assigned any

duties at SCI. She testified that she felt as if the other

employees were purposely keeping her at a distance, and that the

Warden wished she would simply "disappear . " Notwithstanding

this treatment, Petitioner did not view this ass ignment as a

form of retaliation, and in fact, preferred it since the

Suwannee facility was closer to her home.

11 . Dorothy Minta has been employed as an investigator in

the DOC Inspector General's office since 2001. Ms. Minta was

assigned to investigat e the allegations surrounding the March 3,

2011 , incident. Ms. Minta interviewed (under oath) all 13

individuals who were in attendance at the March 3, 2011, staff

meeting. None of the other twelve individuals, including

Ms. Wood , 2 / c orroborated Petition er's statement that Warden Davis

placed his hands on his genitals and feigned urinating in

Ms. Wood's coffee cup.

12 . The Investigative Memorandum , dated October 11, 2011,

and written by Emily Davis of the DOC Office of Employment

Investigations , 3 / inclu des the following finding:

Complainant contends she was subjected to

sexual harassment by Respondent. However,

the only incident of alleged sexual

harassment was Warden Davis acting as if he

was urinating in a cup during a warden's

meeting on March 3, 201 1. Witnesses,

including the individual to whom the alleged

incident was d irected , deny this occurrence.

13 . As a part of the DOC Management Performance Evaluation

Process, DOC employees receive an annual evaluation by their

supervisors. The evaluatio n form consists of a range of five

performance ratings on a number of "performance expectations . "

A rating of 5 would reflect "Exceptional" performance, while a

rating of 1 would reflect "Unacceptable" performance. The

evaluation period for Ms. Herring i s March 1st through

February 28th of each year.

14 . On April 14, 2011, Ms. Herring received her

performance evaluation for the 2010 /2011 evaluation period . The

evaluation was done by Tony And erson, an assistant Warden at

CCI. 4 / Mr. Anderson assigned Ms . Herring a score of 3 ("Meets

Expectation") on each of the nine performance expectations.

Mr. Anderson was not Petitioner's immediate supervisor at CCI. 5 /

This was the first time that Mr. Anderson had done a performance

evaluation of Petitioner.

15 . M s. Herring was surprised and disappointed in the

April 2011, performance evaluation. Previously she had received

scores that were overwhelmingly 4's and 5's. 6 / Ms. Herring felt

she had done her job very well while at CCI, and was

particularly concerned b ecause scores of 4 or 5 are required in

order to qualify for future promotions.

16 . On April 22, 2011, Petitioner filed a second formal

discrimination complaint with DOC, which , in addition to

allegations of racial and sexual discrimination and harassmen t ,

also included a charge of retaliation. These charges were

directed at Warden Davis, Assistant Warden Anderson, and Timothy

Cannon, DOC's North Florida Regional Director. In addition to

alleging that her April performance rating was evidence of

retalia tion against her, Petitioner also alleged:

At the time of my arrival, Suwan n ee

C.I. had two (2) vacant positions for

Correctional Officer Major. I was under the

impression I was going to be permanently

assigned there since there w ere already

vacancies. Instead , on April 7, 2011, a

Promotion/Lateral Moves list was put out and

I was not on the Lateral Move List to be

assigned to Suwannee and remained assigned

to Columbia C.I.

Upon reviewing the list I observed two

Captains were promoted to Major to fill

these Major positions. With me already

being a Major and doing the required job, I

feel I should have received one of these

positions. This was deliberate retaliation

on Mr. CannonÓs part by not permanently

assigning me to a facility. He already knew

of the MajorÓs position vacancies at

Suwannee C.I. and could have easily

permanently assigned me there on March 4,

2011, knowing I cannot return to Columbia

C.I. with all of the friction and enemies

IÓve made because I filed a complaint.

17 . Since Ms. Her ring was promoted to Major on July 23,

2010, she held that rank during the majority of the 2010/2011

evaluation period. It is not unusual for performance ratings to

be lower immediately following a pro motion since promotions

generally include additional r esponsibilities .

18 . Petitioner (and other witnesses) acknowledged that

som e evaluators are known to be stricter in their evaluations

than others. Mr. Anderson testified that he based the

performance review on his personal observations of Ms. Herring,

with additional input from Petitioner's immediate supervisor,

Colonel Maddox. Mr. Anderson was adamant that his evaluation of

Petitioner was not influenced by Petitioner's gender, or the

complaint she filed against Warden Davis.

19 . On or about July 22 , 2011, Petitioner was notified by

Mr. Cannon that she was being reassigned from the Suwannee

facility to the Gainesville Correctional Institution (GCI),

effective July 25, 2011. Petitioner was unhappy to learn of her

impending transfer, since travel to G ainesville would mean an

hour and a half commute each way to her new assignment, and

would make it even more difficult for her to care for her ailing

mother.

20 . Petitioner was surprised to learn of the transfer,

since it was her understanding that all three of the M ajor

positions at Gainesville were already filled. Mr. Cannon did

not explain to Petitioner the reason for the transfer, but on

cross - examination Petitioner acknowledged that there may have

been a legitimate business reason for her transfer that she did

not know .

21 . Petitioner reported for work at GCI on July 25, 2011,

and stayed at the facility for a "few hours" during which time

she met with the GCI Warden , Eric Lane . During their

conversation, Warden Lane reportedly told Petitioner th at he had

instructions to "watch her closely . " According to Petitioner,

this information, coupled with the unexplained transfer to

Gainesville, confirmed that she was being retaliated against for

filing the two complaints against Warden Davis and the othe rs.

Petitioner testified that she was well aware of the "techniques"

used by DOC to force an employee to resign, and recognized that

she had become the victim of those techniques.

22 . That same day Petitioner submitted a letter of

resignation, effective August 4, 2011. The letter stated that

she was resigning for "personal reasons , " and that it had been a

"blessing and a pleasure to have had such great experience over

the past 22 years of service in my career with this agency."

The letter made no menti on of any negative feelings toward DOC

or any of her former co - workers.

CONCLUSIONS OF LAW

23 . Ms. Herring advances two claims. First, she maintains

that DOC discriminated against her on account of her sex by

creating a hostile work environment and by constructively

discharging her. Second, she claims that the Department

retaliated against her for complaining of unlawful harassment.

24 . Sections 120.569 and 120.57(1), Florida Statutes

(201 1 ) , grant DOAH jurisdiction over the subject matter of this

proceeding and of the parties.

Gender Discrimination

25 . Section 760.10(1)(a), Flor ida Statutes , makes it

unlawful for an employer to take adverse action against an

individual because of the individual's sex. Section 7 60.10(7)

makes it unlawful for an employer to discriminate against any

person because that person has opposed an unlawful employment

practice.

26 . Sect ion 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before the Division of Ad ministrative 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

practice and recommending affirma tive relief from the effects of

the practice, including back pay." Id .

27 . Florida's c hapter 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 c hapter 760,

Florida Statutes (2009). Valenzuela v GlobeGround North

America, LLC. , 18 So. 3d 17 (Fla. 3rd DCA 2009).

28 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against her. See Fla . Dep't of Tran sp . v. J.W.C. Co . , Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981). 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, ( M.D. Fla. May 27,

2009); 2009 U.S. Dist. LEXIS 44885 ( M. D. Fla. 2009). The record

in this case did not establish unlawful discrimination by direct

evidence.

29 . The direct evidence established, as set forth in the

findings of fact, that Ms. Herring was temporarily transferred

from CCI to SCI pending the inve stigation of her complaint

against Warden Davis, and then from SCI to GCI . The evidence

also established that Petitioner received an average performance

evaluation (as opposed to above - average) by Assistant Warden

Anderson. But there is no evidence that any of these events

were due to her sex.

30 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discr imination. 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 presumption disappears and the

employee must prove that the legitimate reasons we re 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

d iscrimination. Id .

31 . The findings of fact here are not sufficient to

establish a prima facie case of discrimination based on gender .

There is no evidence of record to support an inference that

Petitioner was transferred more frequently , or to less

attractive duty assignments , because she is female. To th e

contrary, Petitioner acknowledged that she was pleased with her

transfer to SCI because it was closer to her home. Similarly,

no evidence was presented that Petitioner received a less

favorable performance evaluation from Assistant Warden Anderson

than did similarly situated male employees.

Hostile Work Environment

32 . Ms. Herring advances a sexually hostile work

environment claim. Under Title VII and s ection 760.10, Florida

Statutes (2009), a plaintiff can establish gender discrimination

through sexu al harassment by the creation of a hostile work

environment, by showing:

(1) that she belongs to a protected group;

(2) that she has been subjected to

unwelcome sexual harassment;

(3) that the harassment was based on her

sex;

(4) that the harassmen t 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, I nc. , 434 F.3d 1227,

1231 (11th Cir. 2006). Ms. Herring was not subjected to

unwelcome sexual harassment.

33 . Even if the "coffee cup" incident took place as

described by Petitioner and is assumed to be unwelcome sexual

harassment, it was not sufficient ly severe or pervasive to alter

the terms and conditions of employment and create a

discriminatorily abusive working environment. Determining

whether harassing conduct is sufficiently severe or pervasive to

alter the terms and conditions of employment has a subjective

and objective component. The plaintiff must subjectively

perceive the environment to be abusive , a nd the conduct must be

severe or pervasive enough to create an objectively hostile or

abusive work environment. Blackmon v. Wal - Mart Stores Ea st,

L.P. , Case No. 09 - 11953; 358 Fed. Appx. 101 (11th Cir. Dec . 23,

2009). If the "coffee cup" incident took place as described by

Petitioner, such behavior would undoubtedly be rude, crass, and

unprofessional. However, t he single incident , which was

dir ected to another female employee, is not objectively severe

enough to establish a hostile work environment. See Smith v.

Fla. Dep't of Corr. , 2009 U.S. Dist. LEXIS 44885 ( M.D. Fla.

( 2009), (stuffed monkey left for days in African - American

employee's work place despite complaints was insufficient

evidence of harassment to preclude grant of summary judgment);

Agee v. Potter , Case No. 06 - 12391, 216 Fed. Appx (1 1th Cir.

Feb . 5, 2007), (abusive conduct, including shouting and threat

to "take care of you," did n ot make summary judgment for

employer an error) .

Retaliation

34 . 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

re lated 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 must 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 th e adverse action are

pretextual. Id .

35 . Ms. Herring claims that her written complaint about

the "coffee cup" incident was a complaint about sex

discrimination and therefore was statutorily protected activity

and that she suffered adverse employment a ction because of it .

As noted above, t he facts found do not establish a complaint

about sex discrimination.

36 . Ms. Herring complained of unprofessional conduct by

Warden Davis during the morning staff meeting, including an

alleged crass gesture directe d to a female co - worker. However,

as noted , a single incident of unprofessional behavior that was

not directed at Petitioner , would not amount to discrimination

on account of gender. Similarly, there was no evidence

presented that the less - than - stellar p erformance evaluation done

by Assistant Warden Anderson was in any way related to

Petitioner's gender.

37 . The adverse employment action s asserted here are the

average performance evaluation, the transfer from SCI to GCI

(denial of permanent assignment t o SCI) , and constructive

discharge from DOC . Const ru ctive discharge is established where

working conditions are s o di ffi cult, unpleasant, or intolerable

that a reasonable person in the employee's position would have

felt compelled to resign . See Pennsylv ania State Police v.

Suders , 542 U . S. 129, 141 (2004) .

38 . Based upon the facts of this record, there is no

evidence of a nexus between the protected activity and any of

the events complained of. By Petitioner's own admission the

transfer to SCI was a p referred assignment, and there were no

positions of Major to be filled at SCI at the time of her

transfer to GCI. The greater weight of the evidence

substantiates Respondent's contention that the transfer from CCI

to SCI w as consistent with Departmental p olicy, and that the

transfer from SCI to GCI was based on legitimate,

nondiscriminatory personnel needs of the Department. There was

also no showing that the average performance evaluation was a

retaliatory act .

39 . Petitioner's claim of constructive di scharge is

fatally undermined by the fact that she spent but a "few hours"

on a single day at her new assignment at GCI before tendering

her resignation . This very brief exposure to her new post was

insufficient to conclude that working conditions were so

" di ffi cult, unpleasant, or intolerable " that Petitioner had no

choice but to resign. T he fact that the GCI warden informed

Petitioner that he had been told to "watch her closely" is not

enough to establish an "intolerable" working environment.

Finally, the fact that the assignment to GCI would entail a

longer commute does not justify the conclusion that Petitioner

was constructively discharged. As a 21 - year veteran of DOC,

with multiple reassignments during the course of her career,

Petitioner was certa inly aware that relocations were a fact of

life . Although she may have preferred to stay at SCI,

Petitioner had no legal entitlement to a duty station of her

choosing.

40 . Petitioner failed to establish a prima facie case of

gender discrimination, sexua l harassment or retaliation by a

preponderance of the evidence. Accordingly, her Petition for

Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Hum an

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed against Respondent .

DONE AND ENTERED this 30th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Admini strative 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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearing s

this 30th day of November , 2011 .

ENDNOTES

1 / At hearing, Ms. Herring denied that she instructed the inmate

to wash her car. As set forth in the DOC Investigative

Memorandum of October 11, 2011, DOC concluded that there was

insufficient evidence to find that Petitioner knowingly utilized

inmate labor to wash her car, and hence, no disciplinary action

was taken against her . In its Proposed Recommended Order

counsel for Respondent posits the theory that "the Petition er

fabricated a story involving Warden Davis in the event she would

be disciplined." Although the undersigned has concluded that

Petitioner has failed to prove her charge of sexual harassment

against Warden Davis, this record likewise fails to support the

theory of motive posited by counsel for Respondent.

2 / There is no evidence in this record that Ms. Wood, the target

of the alleged misconduct, filed a complaint against Warden

Davis.

3 / At hearing, Petitioner raised a hearsay objection to the

admissi on of the Investigative Memorandum (Respondent's Exhibit

1), since the author of the memorandum did not testify.

However, pursuant to section 120.57(1)(c), Florida Statutes, the

above finding contained in the memorandum supplements and

corroborates the te stimony of Ms. Minta.

4 / When the performance evaluation was received by Ms. Herring

it did not bear the signature of the evaluator. Subsequently ,

it was returned to Mr. Anderson at CCI, who then affixed his

signature.

5 / Petitioner's immediate superv isor was Colonel David Maddox.

6 / Petitioner's testimony at hearing that she had received "all"

4's and 5's on previous evaluations is not entirely correct.

She was assigned a score of 3 on Performance Expectation #7 on

her 2008/2009 evaluation.

COPIE S FURNISHED :

Michael Owen Massey, Esquire

Massey and Duffy, PLLC

855 East University Avenue

Gainesville, Florida 32601

Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

Denise Crawf ord, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Ord er in this case.