12-001565 Jimitre R. Smith vs. Sanford Housing Authority Status: Closed Recommended Order on Thursday, January 3, 2013.

Summary: Petitioner part-time job was eliminated and unnecessary as housing units were not leased. Petitioner failed to prove discrimination based upon her gender and pregnancy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMITRE R. SMITH , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1565

)

SANFORD HOUSING AUTHORITY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to no tice, a hearing was conducted in this case

before J. D. Parrish, an Administrative Law Judge of the

Division of Administrative Hearings, on November 16, 2012, in

Sanford, Florida.

APPEARANCES

For Petitioner: Jimitre R. Smith, pro se

804 South Bay Avenue

Sanford, Florida 32771

For Respondent: Ricardo Lanier Gilmore, Esquire

Saxon, Gilmore, Carraway,

and Gibbons, P.A.

Suite 600

201 East Kennedy Boule vard

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

Whether Respondent, Sanford Housing Authority (Respondent),

committed an unlawful employment practice as alleged in the

Petition for Relief filed with the Florida Commission on Human

Rel ations (FCHR) and, if so, what relief should Petitioner,

Jimitre Smith (Petitioner), be granted.

PRELIMINARY STATEMENT

On October 3, 2011, Petitioner filed a Complaint of

Discrimination with the FCHR claiming that her former employer,

Respondent, had dis criminated against her based on gender and

pregancy. According to the complaint , the most recent act of

discrimination took place on January 13, 2011.

On April 6, 2012, following the completion of its

investigation of Petitioner's complaint, the FCHR iss ued a

Notice of Determination: No Cause, advising Petitioner that a

determination had been made that "no reasonable cause exists to

believe that an unlawful employment practice occurred."

Thereafter, on or about April 30, 2012, Petitioner filed a

Petition for Relief. The case was forwarded to the Division of

Administrative Hearings for formal proceedings on April 30,

2012. A Notice of Hearing scheduled the matter for hearing for

June 21, 2012. Thereafter , the case was continued , but was

ultimately heard on November 16, 2012.

At the hearing, Petitioner testified in her own behalf and

presented the testimony of Ericka Sipp. PetitionerÓs Exhibits

2, 3, and 4 were admitted into evidence. Respondent presented

the testimony of Vivian Bryant and Ayub Flemin g. RespondentÓs

Exhibits C, F, G, and H were also admitte d in evidence. A

transcript of the proceedings has not been filed.

The parties were granted until November 27, 2012, to file

proposed orders. Respondent timely filed a p roposed r ecommended

o rder that has been considered in the preparation of this

Recommended O rder. Petitioner filed an Objection to (sic)

Respondent Ó s p roposed o rder. As indicated at the conclusion of

this order, Petitioner may file exceptions to the findings of

this order with th e FCHR. There is no procedure for Petitioner

to file exceptions to a partyÓs proposed order.

FINDINGS OF FACT

1. Petitioner is a female who was pregnant during a

portion of the time events occurred related to her employment

with Respondent.

2. At the time of PetitionerÓs initial employment with

Respondent, the Sanford Housing Authority operated public

housing complexes within its geographical area pursuant to a HUD

program to provide housing assistant to low income, qualified

residents.

3. At some p oint, the Orlando Housing Authority stepped in

to take over the management of RespondentÓs properties. Due to

the deteriorating condition of RespondentÓs properties,

residents were provided Section 8 vouchers so that they could

obtain private rental oppo rtunities. In the midst of the

transition period, PetitionerÓs employment with Respondent

ended.

4. Petitioner was initially hired by Respondent to replace

a receptionist who was out on maternity leave. The assignment

was part - time and temporary. It be gan on or about March 31,

2010.

5. When the receptionist returned to work, Petitioner was

offered a second part - time job as leasing clerk. Although the

record is not clear when this second job started, it is

undisputed that Petitioner sought and was gr anted maternity

leave due to her own pregnancy on September 27, 2010.

6. It was during this time period that the Orlando Housing

Authority stepped in to take over RespondentÓs responsibilities.

Mr. Fleming, an employee of the Orlando Housing Authority,

served as the Interim Executive Director for Respondent.

7. In November 2010 residents were advised of the plan to

demolish the substandard housing units. Since the units would

not be leased, a leasing clerk was no longer required. Although

Petitioner had been told she could return to work after her

maternity leave, there was no position available for her at that

time.

8. Once the Orlando Housing Authority took over

management, all of the day - to - day work was assigned to its

employees. Respondent kep t a handful of maintenance workers ,

but there is no evidence Petitioner sought and/or was denied

that type of job. Petitioner claimed she should have been

offered or allowed to apply for a job with the Orlando Housing

Authority. There is no evidence that entity was required to

hire her or that it refused to hire her because of her gender or

pregnancy or that Respondent refused to recommend Petitioner for

employment due to her gender or pregnancy.

9. When Petitioner was cleared for return to work in

Dec ember 2010, there was not a job to return to as Respondent

did not have a position for her. There is no evidence that

Respondent hired anyone during or after PetitionerÓs pregnancy

or that Petitioner was refused a job that she was qualified to

perform. H ad a suitable job been available, it most likely

would have come through the Orlando Housing Authority.

10. In January of 2011 , Respondent formally eliminated

RespondentÓs part - time position through a reduction in workforce

decision. At that time , Petiti oner received a severance payment

from Respondent and an offer for other job training

opportunities.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 12 0.57(1) and 760.11, Fla. Stat. (2012).

12. The Florida Civil Rights Act of 1992 (the Act) is

codified in s ections 760.01 through 760.11, Florida Statutes

(2011). "The Act, as amended, was [generally] patterned after

Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C.

§ 2000, et seq. , as well as the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applicable

to cases [involving counterpart provision s of the Florida Act."

FSU v. Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA 1996); see also

Joshua v. Cty of Gainesville , 768 So. 2d 432, 435 (Fla.

2000)("The [Act's] stated purpose and statutory construction

directive are modeled after Title VII of the Civil Rights Act of

1964.").

13. The Act makes certain acts prohibited "unlawful

employment practices," including those described in

s ection 760.10, Florida Statutes (2011), which provides:

(1) It is an unlawful employment practice

for an employer:

(a) T o 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, because of such

individual's race, color, religion, sex,

national ori gin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

(2) It is an unlawful employment practice

for an employment agency to fail or refuse

to refer for employment, or otherwise to

disc riminate against, any individual because

of race, color, religion, sex, national

origin, age, handicap, or marital status or

to classify or refer for employment any

individual on the basis of race, color,

religion, sex, national origin, age,

handicap, or m arital status.

(3) It is an unlawful employment practice

for a labor organization:

(a) To exclude or to expel from its

membership, or otherwise to discriminate

against, any individual because of race,

color, religion, sex, national origin, age,

handic ap, or marital status.

(b) To limit, segregate, or classify its

membership or applicants for membership, or

to classify or fail or refuse to refer for

employment any individual, in any way which

would deprive or tend to deprive any

individual of employm ent opportunities, or

adversely affect any individual's status as

an employee or as an applicant for

employment, because of such individual's

race, color, religion, sex, national origin,

age, handicap, or marital status.

(c) To cause or attempt to cause an

employer to discriminate against an

individual in violation of this section.

(4) It is an unlawful employment practice

for any employer, labor organization, or

joint labor - management committee controlling

apprenticeship or other training or

retrainin g, including on - the - job training

programs, to discriminate against any

individual because of race, color, religion,

sex, national origin, age, handicap, or

marital status in admission to, or

employment in, any program established to

provide apprenticeship or other training.

(5) Whenever, in order to engage in a

profession, occupation, or trade, it is

required that a person receive a license,

certification, or other credential, become a

member or an associate of any club,

association, or other organization , or pass

any examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, or

other credential, seeking to become a member

or associate of such club, association, or

other o rganization, or seeking to take or

pass such examination, because of such other

person's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(6) It is an unlawful employment practice

for an employer, labor organization,

employm ent agency, or joint labor - management

committee to print, or cause to be printed

or published, any notice or advertisement

relating to employment, membership,

classification, referral for employment, or

apprenticeship or other training, indicating

any pref erence, limitation, specification,

or discrimination, based on race, color,

religion, sex, national origin, age, absence

of handicap, or marital status.

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - manage ment committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participa ted in any manner in

an investigation, proceeding, or hearing

under this section.

(8) Notwithstanding any other provision of

this section, it is not an unlawful

employment practice under ss. 760.01 - 760.10

for an employer, employment agency, labor

organiz ation, or joint labor - management

committee to:

(a) Take or fail to take any action on the

basis of religion, sex, national origin,

age, handicap, or marital status in those

certain instances in which religion, sex,

national origin, age, absence of a

par ticular handicap, or marital status is a

bona fide occupational qualification

reasonably necessary for the performance of

the particular employment to which such

action or inaction is related.

(b) Observe the terms of a bona fide

seniority system, a bon a fide employee

benefit plan such as a retirement, pension,

or insurance plan, or a system which

measures earnings by quantity or quality of

production, which is not designed, intended,

or used to evade the purposes of ss. 760.01 -

760.10. However, no such e mployee benefit

plan or system which measures earnings shall

excuse the failure to hire, and no such

seniority system, employee benefit plan, or

system which measures earnings shall excuse

the involuntary retirement of, any

individual on the basis of any f actor not

related to the ability of such individual to

perform the particular employment for which

such individual has applied or in which such

individual is engaged. This subsection

shall not be construed to make unlawful the

rejection or termination of employment when

the individual applicant or employee has

failed to meet bona fide requirements for

the job or position sought or held or to

require any changes in any bona fide

retirement or pension programs or existing

collective bargaining agreements dur ing the

life of the contract, or for 2 years after

October 1, 1981, whichever occurs first, nor

shall this act preclude such physical and

medical examinations of applicants and

employees as an employer may require of

applicants and employees to determine

f itness for the job or position sought or

held.

(c) Take or fail to take any action on the

basis of age, pursuant to law or regulation

governing any employment or training program

designed to benefit persons of a particular

age group.

(d) Take or fail to take any action on the

basis of marital status if that status is

prohibited under its antinepotism policy.

(9) This section shall not apply to any

religious corporation, association,

educational institution, or society which

conditions opportunities in the area of

employment or public accommodation to

members of that religious corporation,

association, educational institution, or

society or to persons who subscribe to its

tenets or beliefs. This section shall not

prohibit a religious corporation,

ass ociation, educational institution, or

society from giving preference in employment

to individuals of a particular religion to

perform work connected with the carrying on

by such corporations, associations,

educational institutions, or societies of

its vari ous activities.

(10) Each employer, employment agency, and

labor organization shall post and keep

posted in conspicuous places upon its

premises a notice provided by the commission

setting forth such information as the

commission deems appropriate to eff ectuate

the purposes of ss. 760.01 - 760.10.

14. The Act gives the FCHR the authority to issue an order

prohibiting the practice and providing affirmative relief from

the effects of the practice, including back - pay, if it finds

following an administrative hearing that an unlawful employment

practice has occurred. See § 760.11, Fla. Stat (2011). To

obtain relief from the FCHR, a person who claims to have been

the victim of an "unlawful employment practice" must, "within

365 days of the alleged violation," file a complaint

("contain[ing] a short and plain statement of the facts

describing the violation and the relief sought") with the FCHR.

§ 760.11(1), Fla. Stat. (2011). Petitioner filed a complaint

within the statutory time limitation.

15. Petitioner's complaint alleged that she was

discriminated against based on her gender and pregnancy.

Presumably , others not in her condition were treated more

favorably.

16. Petitioner was not discriminated against based upon

gender and pregnancy. PetitionerÓs pla ce of business was going

through upheaval and change during her maternity leave.

Residents were being moved from public housing to private

housing. No units would be leased when Petitioner was eligible

to return to work. Petitioner did not present evide nce that any

employee was given more favorable treatment than she.

Respondent did not hire or transfer an employee to do

PetitionerÓs work.

17. Petitioner has the burden of proving the allegations

asserted. "Discriminatory intent may be established th rough

direct or indirect circumstantial evidence." Johnson v. Hamrick ,

155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

18. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presu mption." See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'"). "If the [complainant] offers

direct evidence and the t rier of fact accepts that evidence,

then the [complainant] has proven discrimination." Maynard v.

Bd . of Regents , 342 F.3d 1281, 1289 (11th Cir. 2003). In this

case, Petitioner failed to prove discrimination by direct

evidence. She proved she is a femal e who was pregnant during a

portion of the relevant time period of this case, but she

established little else.

19. Moreover, although victims of discrimination may, by

indirect evidence, be "permitted to establish their cases

through inferential and circu mstantial proof," Petitioner

similarly failed to present credible inferential or

circumstantial proof. See Kline v. Tennessee Valley Auth . , 128

F.3d 337, 348 (6th Cir. 1997).

20. Had Petitioner established evidence of discrimination,

the burden would ha ve shifted to Respondent to articulate a

legitimate, non - discriminatory reason for its action. In this

case, although not required to do so, Respondent addressed

PetitionerÓs claim. As previously stated, once the Orlando

Housing Authority took over the m anagement of the facilities,

Petitioner was not needed as a leasing clerk. Units were being

closed, not leased. Families were being moved to private,

Section 8 - subsidized opportunities. When an employer

successfully articulates a reason for its action, then the

burden shifts back to the complainant to establish that the

proffered reason was a pretext for the unlawful discrimination.

See Malu v. Cty of Gainesville , 270 Fed. Appx. 945; 2008 U.S.

App. LEXIS 6775 (11th Cir. 2008). In this case, the persuas ive

evidence established that Petitioner was not terminated or

denied employment based upon her gender or pregnancy.

RespondentÓs explanation was not a pretext for unlawful

discrimination , and Petitioner established no facts that would

suggest otherwise. In light of the foregoing, Petitioner's

employment discrimination complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida C ommission on H uman

R elations issue a final order finding no cause for an unlawful

employment practice as alleged by Petitioner, and dismissing her

employment discrimination complaint.

DONE AND ENT ERED this 3rd day of January , 2013 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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.doah.state.fl.us

Filed with the Clerk of the

Divi sion of Administrative Hearings

this 3rd day of January , 2013 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Jimitre Rochelle Smith

804 South Bay Avenu e

Sanford, Florida 32771

Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway and Gibbons, P.A.

Suite 600

201 East Kennedy Boulevard

Tampa, Florida 33602

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 A palachee Parkway

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 wi th the agency that

will issue the final order in this case.