12-002551 Marlene Serrano vs. Orange County Fire Rescue Status: Closed Recommended Order on Friday, February 8, 2013.

Summary: Petitioner failed to establish prima facie case of discrimination because she was not qualified to retain the job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENE SERRANO , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2551

)

ORANGE COUNTY FIRE RESCUE , )

)

Respondent . )

)

RECOMMENDED ORDER

On December 17, 201 2 , a n administrative hearing in this case

was held by video teleco nference between Tallahassee and Orlando,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott Christopher Ad ams, Esquire

LaBar and Adams, P.A.

1527 East Concord Street

Orlando, Florida 32803

For Respondent: Susan T. Spradley, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue in this case is whether Orange County Fire

Rescue (Respondent) committed an act of unlawful employment

discrimination against Marlene Serrano (Petitione r) in violation

of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

On December 12, 2011, the Petitioner filed a discrimination

complaint with the Florida Commission on Human Relations (FCHR),

alleging that the Respondent had committed unlawful employment

discrimination against the Petitioner because of her race and

national origin.

On May 29, 2012, the FCHR issued a "reasonable cause"

determination, and, on June 21, 2012, the Petitioner filed a

Petition for Relief with the FCHR. On July 27, 201 2, the FCHR

forwarded the case to the Division of Administrative Hearings for

further proceedings.

The administrative hearing was initially scheduled for

October 1, 2012, and was subsequently rescheduled for

December 17 and 18, 2012, upon the joint request of the parties.

The hearing concluded after the first day of hearing.

At the hearing, the Petitioner testified on her own behalf,

presented the testimony of two additional witnesses, and had

Exhibits numbered 1 and 2 admitted into evidence. The Responde nt

presented the testimony of five witnesses and had Exhibits

numbered 1 and 2 admitted into evidence. Joint Exhibits

numbered 1 through 28 were also admitted into evidence.

Prior to the hearing, the parties filed a J oint P re - h earing

S tipulation including a statement of admitted facts that are

accepted and have been inc orporated herein as necessary.

A T ranscript of the hearing was filed on January 7, 2013.

Both parties filed p roposed r ecommended o rders on January 14,

2013 , that have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. The Petitioner is a Puerto Rican - born Hispanic female.

At all times material to this case, the Petitioner was employed

by the Orange County Fire Rescue Department (FRD), a unit of the

Orange Cou nty government.

2. In order to increase the number of firefighters

available to the Respondent, the FRD posted a job advertisement

in July 2008 ("Job Req. #007931"), seeking to hire state -

certified paramedics who were capable of becoming state - certified

f irefighters.

3. The advertisement clearly indicated that applicants

should be state - certified paramedics who were "[c]apable of

successfully completing and maintaining the Florida State

Firefighter certification after three (3) years of being hired."

4. Employees hired into the new paramedic - firefighter

positions were identified as "paramedics." Employees hired as

paramedics only were identified as "PMOs."

5. On September 8, 2008, the FRD officially hired four

paramedics for the positions advertised by Job Req. #007931. The

group included the Petitioner, two Caucasian females (Sarah

Wilson and Jennifer Massey) and a Caucasian male (Shane

Doolittle).

6. It was commonly understood by those hired, including the

Petitioner, that they were required to ob tain state certification

as firefighters by September 18, 2011, the third anniversary of

their employment.

7. Pursuant to the advertised job requirements, the

paramedics were required to pass a physical ability test

(referred to as the "CPAT") and complet e the Orange County

firefighter orientation program. The Petitioner passed the CPAT

on her second attempt and completed the orientation program.

8. Candidates seeking to be certified by the State of

Florida as firefighters are required to complete a 450 - hour

firefighter training course (commonly referred to as

Firefighter I and II Minimum Standards classes) and to pass a

firefighter certification exam.

9. The Petitioner had completed the Firefighter I and II

Minimum Standards classes as of December 17, 2 010 .

10. On December 22, 2010, the Petitioner took the

firefighter certification exam at the Central Florida Firefighter

Academy and failed the hose and ladder components of the exam.

11. When the Petitioner failed to pass the exam, the

Respondent placed her in a fire station with a ladder truck

company so that she could improve her ladder skills.

12. On February 22, 2011, the Petitioner retook the

firefighter certification exam at a training facility in Ocala,

Florida, where she successfully completed t he hose component of

the exam, but agai n failed the ladder component.

13. A candidate for firefighter certification is permitted

to take the exam twice. A candidate who twice fails the exam is

required to retake the Firefighter II Minimum Standards class

before being permitted to retake the certification exam.

14. On March 8, 2011, the Petitioner met with FRD officials

to assess her progress towards obtaining the firefighter

certification.

15. The Petitioner had received notice of the meeting on

March 1 , 2011, from Assistant Fire Chief Brian Morrow. Similar

meetings occurred with the other paramedics employed by the

Respondent .

16. During the meeting, the Petitioner advised the FRD

officials that she intended to dispute t he results of her second

test.

17. The Petitioner was aware that she could not retake the

certification exam without retaking the Firefighter II Minimum

Standards class. Although the Petitioner contacted a training

facility to inquire about course schedules, she did not attempt

to ret ake the training course.

18. The March 8 meeting and discussion was memorialized in

a letter to the Petitioner dated March 14, 2011. The letter

contained an assessment of her progress towards certification.

The letter also noted that she was required t o obtain her state

certification prior to September 18, 2011, and that failure to

obtain certification by that date could result in termination of

her employment. The Petitioner received the letter on March 16,

2011.

19. In an email dated March 22, 201 1 , to FRD

Lieutenant John Benton, the Petitioner advised that she was

trying to determine how she would be able to go to class and

maintain her work schedule. Lt. Benton forwarded the email to

Assistant Fire Chief Morrow.

20. Assistant Fire Chief Morrow replied to the Petitioner's

email on March 29, 2011, wherein he advised her that the FRD had

met its obligation to fund the certification training. He asked

the Petitioner to advise him of the status of her appeal, to

identify the class she was planning t o take, and to outline her

schedule and specify the hours she would use as vacation time and

as "time trades." He asked for a response "as soon as possible"

and invited the Petitioner to contact him dir ectly to resolve any

questions.

21. The Petitioner r eceived Assistant Fire Chief Morrow's

March 29 email, but did not respond to it .

22. Assistant Fire Chief Morrow subsequently contacted the

Petitioner by telephone to inquire as to the issues noted in the

email, but received little additional information from the

Petitioner regarding her plans .

23. After receiving the official notice that she had failed

her second attempt at the certification exam, the Petitioner

filed an administrative appeal (DOAH Case No 11 - 1556) to dispute

the scoring of the exam. A hearing was conducted before an

Administrative Law Judge (ALJ) on May 24, 2011.

24. On July 7, 2011, the ALJ issued a Recommended Order

finding that the Respondent failed the exam and recommending that

the appeal be denied. By Final Order dated August 20, 2011, the

State of Florida, Department of Financial Services, Division of

State Fire Marshall, adopted the findings and recommendation of

the ALJ and denied the Petitioner's appeal of the exam grading.

25. The Final Order specifically noted that the

P etitioner's certification was denied until she obtained a

passing score on the exam .

26. The Petitioner made no further efforts to become a

state - certified firefighter. She did not register to retake the

Firefighter II Minimum Standards class .

27. As of September 17, 2011, the Petitioner was not a

certified firefighter and was not actively engaged in seeking

certification.

28. Because the Petitioner did not meet the published job

requirements and was making no effort to meet them, the

Respondent termina ted the Petitioner from employment on

September 17, 2011.

29. The Respondent offered to permit the Petitioner to

resign from her employment rather than be terminated , but she

declined t he offer.

30. At the hearing, the Petitioner testified that , after

sh e twice failed to pass the certification exam and was

unsuccessful in challenging the scoring of the second attempt,

she had no further interest in obtaining the certification.

31. There is no evidence that the Petitioner requested an

extension of the app licable three - year certification deadline.

Nonetheless, the Petitioner has asserted that the Respondent

provided deadline extensions to other paramedics and that the

Respondent's actions , in not providing an extension to her and in

terminating her employm ent, were based on her race or national

origin. There is no evid ence to support the assertion.

32. The March 14, 2011 , letter specifically referenced the

published job requirements set forth in Job Req. #007931, as well

as the applicable provisions of th e Collective Bargaining

Agreement (CBA) governing the Petitioner's employment by the

Respondent.

33. The Petitioner was a member of the Orange County

Professional Fire Fighters Association. Her employment by the

Respondent was subject to a CBA dated Dec ember 14, 2010, between

the Respondent and the Orange County Professional Fire Fighters

Association, Local 2057, International Association of Fire

Fighters.

34. Section IV, Article 60, of the CBA provided as follows:

ARTICLE 60 - PARAMEDIC

PROMOTIONS/STAT US CHANGE

60.01 Employees in the Paramedic

classification agree to, upon reaching

three (3) years of employment [ sic ] to meet

the requirements of the Firefighter

classification. Either upon reaching three

(3) years of employment, or upon the desire

of t he department, the employee shall be

moved from the Paramedic pay plan to Step 1

of the Firefighter pay step plan or to the

higher nearest step to the employee's

Paramedic current rate of pay.

60.02 Nothing in this Agreement shall

prohibit the Orange Cou nty Fire/Rescue

Department from terminating the employment

of a Paramedic when upon reaching three (3)

years employment the minimum requirements for

the position of Firefighter have not been

met.

Employees not meeting the minimum

qualifications by the thr ee (3) year

employment anniversary may be separated from

county employment without a predetermination

hearing (PDH) and without access to Article

17 - Grievance and Arbitration Procedure of

this contract. It is the sole discretion

of Fire Rescue Managemen t to extend the

three (3) year time frame limitation due to

case - by - case circumstances and/or operational

need.

35. The evidence establishes that certification deadlines

have rarely been extended by FRD officials. The evidence fails

to establish that FRD officials have considered race or national

origin in making decisions related to deadline extensions.

36. Sarah Wilson, a Caucasian female, was hired at the same

time as the Petitioner and the deadline by which she was required

to have obtained firefi ghter certification was September 18,

2011.

37. Ms. Wilson completed the training course on

September 15, 2011. She was scheduled to sit for the

certification exam on October 4 and 5, 2011.

38. The scheduling of the exam was the responsibility of

the tr aining facility. Neither Ms. Wilson nor the Respondent had

any control over the testing date or the scheduling of the exam.

The Respondent permitted Ms. Wilson to remain employed beyond the

certification deadline and through the dates of the exam, an

ext ension of 17 days.

39. The extension granted to Ms. Wilson was the only time

that the Respondent has allowed a paramedic more than 36 months

of employment in which to obtain the required certification.

40. Ms. Wilson passed the firefighter exam on Octobe r 4

and 5, 2011 , and became a state - certified firefighter. Had

Ms. Wilson not passed the exam on October 4 and 5, 2011, her

employment would have been terminated by the Respondent.

41. At the time of the hearing, Ms. Wilson retained all

required certific ations and remained employed as a firef ighter

paramedic with the FRD.

42. In contrast to Ms. Wilson, the Petitioner was making no

effort to obtain the required certification when the

certification deadline passed.

43. There was no evidence that the Res pondent's extension

of Ms. Wilson's certification deadline was based upon race or

national origin.

44. Jennifer Massey, a Caucasian female who was hired at

the same time as the Petitioner, left her employment with the

Respondent prior to the certification deadline .

45. Shane Doolittle, a Caucasian male, was hired at the

same time as the Petitioner , and the deadline by which he was

required to have obtained firefighter certification was

originally September 18, 2011. However, Mr. Doolittle was called

to a ctive military duty for three months during the three - year

certification period.

46. In order to provide Mr. Doolittle with the full

36 months of employment prior to the certification deadline, the

Respondent extended Mr. Doolittle's certification deadlin e by

three months, to December 18, 2011.

47. In contrast to Mr. Doolittle, the Petitioner was

employed and present with the FRD throughout the three - year

period and had a full 36 consecutive months in which to obta in

the required certification.

48. There was no evidence that the Respondent's extension

of Mr. Doolittle's certification deadline was based upon race or

national origin.

49. Mr. Doolittle did not become certified by the extended

deadline, and the Respondent terminated his employment on

Decembe r 18, 2011 .

50. There is no evidence that the Respondent was not

invested in each paramedic successfully completing their training

and meeting the requirements set forth in Job Req. #007931. The

Respondent hired 12 paramedics in 2008. The Respondent pai d the

tuition and equipment costs for each paramedic who sought state

certification as a firefighter. Additionally, the Respondent

paid the salaries and benefits for the paramedics while in

classes or exams, as well as the costs of the employees who

cover ed the shifts of such paramedics.

51. The Petitioner received the same training and benefits

as all other employees seeking certification.

52. The Respondent anticipated that the Petitioner would

ultimately complete the training and exam requirements f or

certification, and she participated in the recruit training

graduation ceremony with her colleagues.

53. The 2008 hires included a Puerto Rican - born Hispanic

male who obtained his firefighter certification prior to the

deadline, and a Caucasian male w ho resigned from employment in

lieu of termination because he had not obtained the firefighter

certification by the deadline and was making no progress towards

doing so.

54. During the termination meeting with the Petitioner, FRD

Chief Michael Howe advise d the Petitioner that she was eligible

for re - employment with the FRD if she obtained the firefighter

certification.

55. About a week after the termination meeting, Chief Howe

called the Petitioner and left a voice message, offering to loan

equipment to t he Petitioner and to sponsor her for a discount on

tuition costs, should she choose to retake the required course

and become re - eligible for the certification exam. Chief Howe

received no response from the Petitioner.

CONCLUSIONS OF LAW

56 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.57(1) and 760.11(4), Fla. Stat. (2012).

57. Section 760.10(1)(a), Florida Statutes (2011), states

that it is unlawful to "discharge or to fail o r 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 individualÓs race,

color, religion, sex, national origin, age, handicap, or m arital

status." Florida courts interpreting the provisions of the

referenced statute have held that federal discrimination laws

should be used as guidance when construing provisions of the

Florida law. See Brand v. Fla. Power Corp. 633 So. 2d 504, 509

(F la. 1st DCA 1994); Fla. Dep't of Cmty. Aff. v. Bryant , 586 So.

2d 1205 (Fla. 1st DCA 1991). Accordingly, the legal analysis

applicable to federal discrimination laws is properly considered

in this case.

58. The Petitioner has the burden to establish

disc rimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the existence

of discrimination without inference or presumption. Carter v.

City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989). Blatant

remar ks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion International Corp. , 907 F.2d 1077, 1081 (11th

Cir. 1990). There is no evidence of direct discrimination in

this case.

59 . Absent direct evidence of discrimination, the

Petitioner has the burden of establishing a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993) ; Texas Dep't of Cmty. Aff. v. Burdine , 450 U.S. 248

(1981); McDonnell Do uglas Corp. v. Green , 411 U.S. 792 (1973) .

In order to establish a prima facie case of discrimination, the

Petitioner must show that: she is a member of a protected group;

she is qualified for the employment position; she was subject to

an adverse employ ment decision; and she was treated less

favorably than were similarly - situated persons outside the

protected class. McDonnell Douglas , 411 U.S. at 802.

60. If the Petitioner establishes the facts necessary to

demonstrate a prima facie case, the employer must then articulate

some legitimate, nondiscriminatory reason for the challenged

employment decision. The employer is required only to "produce

admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision ha d not been

motivated by discriminatory animus." Burdine , 450 U.S. at 257.

The employer "need not persuade the court that it was actually

motivated by the proffered reasons. . . ." Burdine , 450 U.S. at

254. This burden has been characterized as "exceedi ngly light."

Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138, 1142 (11th

Cir. 1983).

61. Assuming that the employer articulates a legitimate ,

nondiscriminatory reason for the employment decision, the burden

shifts back to the Petitioner, who must t hen establish that the

reason offered by the employer is not the true reason, but is

mere pretext for the decision.

62. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Peti tioner. Burdine , 450 U.S. at 253.

63. In this case, the Petitioner has failed to establish

the elements required to establish a prima facie case. While the

evidence establishes that the Petitioner is a member of a

protected group and that she was subj ect to an adverse employment

decision, the evidence fails to establish that the Petitioner was

qualified to retain the job for which she was hired, or that she

was treated less favorably than was a similarly - situated person

outside the protected class.

64. The evidence fails to establish that the Petitioner was

qualified to retain her employment as a paramedic. The

Respondent terminated the Petitioner's employment because she was

not qualified for the position. The paramedics hired by the

Respondent in r esponse to Job Req. #007931 were expected to

become state - certified firefighters within three years of their

employment. At the end of the three - year period, the Petitioner

had not obtained the required certification and was making no

effort to become cer tified.

65. There is no evidence that the Respondent's termination

was based on the Petitioner's race or national origin.

66. The Petitioner has also asserted that she was treated

less favorably than were similarly - situated persons outside the

protec ted class, because some paramedics received certification

deadline extensions. The evidence fails to establish that any

similarly - situated paramedics received extensions of the

certification deadline.

67. Initially, it should be noted that there is no evidence

whatsoever that the Petitioner even requested an extension. In

any event, neither Ms. Wilson nor Mr. Doolittle, both of whom

received certification deadline extensions, can be considered

similarly situated to the Petitioner.

68. The only evide nce that an uncertified paramedic has

ever been employed beyond the certification deadline was the 17 -

day extension provided for Ms. Wilson to complete the

certification process. The evidence fails to establish that the

Petitioner and Ms. Wilson were simi larly situated.

69. Upon the expiration of the certification deadline,

Ms. Wilson had completed the required training and was waiting

for the exam to be administered. Neither Ms. Wilson nor the

Respondent had any control over the exam schedule. Had

Ms . Wilson not passed the certification exam, her employment

would have been terminated.

70. In contrast, the Petitioner was not eligible to retake

the certification exam unless she repeated the Firefighter II

Minimum Standards class, and she had not even enrolled in the

course.

71. As to the extension of the certification deadline

applicable to Mr. Doolittle, the three - month extension did

nothing other than to allow him the full three years that was

allotted to all paramedics, including the Petitioner, t o obtain

certification. The three - month extension corresponded directly

to the three - month period during which Mr. Doolittle, on active

military duty, was away from the FRD.

72. When the extended deadline passed without Mr. Doolittle

having obtained th e required certification, the Respondent

terminated his employment in the same way the Petitioner's

employment had been terminated. There is no evidence that

Mr. Doolittle was treated more favorably than was the Petitioner.

73. Because the Petitioner fai led to establish a prima

facie case of discrimination, it is unnecessary to continue the

legal analysis of the Petitioner's complaint. However, presuming

that the Petitioner's evidence had established a prima facie

case, the Respondent has clearly articul ated a legitimate,

nondiscriminatory rationale for the employment decisions

referenced herein, and there is no evidence that the reasons

underlying the Respondent's employment decisions were a pretext

for unlawful employment discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the complaint filed by

the Petitioner against the Respondent in this case.

DONE AND ENTERED thi s 8th day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of February , 2013 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Susan T. Spradley, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32802

Scott Christopher Adams, Esquire

LaBar and Adams, P.A.

1527 East Concord Street

Orlando, Florida 32 803

Cheyanne Costilla, Interim 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 da ys 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.