92-005565 Sara Wright vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Wednesday, October 27, 1993.

Summary: No discrimination harrassment when demotion was already determined in Public Employees Relations Commission proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARA WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5565

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled case on July 21, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Sara Wright, pro se

Post Office Box 142

Winter Park, Florida 32789

For Respondent: Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

STATEMENT OF THE ISSUES

Petitioner, Sara Wright, alleges that the Department discriminated against

her because of age by demoting her into a position she could not perform in

order to get rid of her, and retaliated against her for filing her complaint

with the Commission, in violation of section 760.10, F.S. The issues are

whether the alleged discrimination and retaliation took place, and, if so, what

relief is appropriate.

PRELIMINARY STATEMENT

Petitioner's allegations are found in her complaint filed with the Florida

Commission on Human Relations on December 19, 1991. The complaint alleges that

because of her age and in retaliation for filing a charge of discrimination

(FCHR No. 103-79), she has been harassed, threatened with being fired,

reassigned to another position and notified on November 15, 1991, that she was

being demoted.

After a determination of "no cause" was entered by the Commission, Ms.

Wright filed a petition for relief, reiterating her allegations. The case was

referred to the Division of Administrative Hearings for formal hearing.

Petitioner testified in her own behalf and presented the testimony of one

other witness.

Respondent presented the testimony of two witnesses and offered 6 exhibits,

all of which were received in evidence.

A transcript was filed and the Respondent submitted a proposed recommended

order on August 12, 1993. Respondent's proposed findings of fact are

substantially adopted here. On September 15, 1993, Petitioner filed thirty-one

numbered paragraphs, styled "proposed findings of fact". These have been

considered as a summary of Petitioner's argument. To the extent that they are

accounts of incidents which were not raised at hearing, or do not relate to the

allegations of the complaint, they are rejected.

FINDINGS OF FACT

1. Petitioner, Sara Wright has been continually employed by the Florida

Department of Highway Safety and Motor Vehicles for twenty-seven years. She

started as a clerk and moved up the career ladder to inspector, then to

supervisor and was assigned duties as a records technician. She was demoted

back to inspector (License and Registration Inspector) in February 1992, with no

reduction in pay. This is her current position. She is sixty years old.

2. Glenn Turner is currently the assistant director of the Division of

Motor Vehicles of the Department of Highway Safety and Motor Vehicles. Prior to

becoming assistant director, Glenn Turner was chief of the Bureau of Licenses

and Enforcement (herein after "the Bureau") having assumed that position on July

9, 1990.

3. The Bureau has two primary missions, to handle consumer complaints

against motor vehicle dealers and to license motor vehicle dealers and

auctioneers.

4. When Mr. Turner became the bureau chief, a review of the Bureau's needs

was developed, entitled "State of the Bureau", setting forth the Bureau's

mission, goals and objectives, and needs assessment for fiscal years 1990-91 and

1991-92.

5. At the time the State of the Bureau Report was issued, there were 63

License and Registration Inspector positions assigned to the Bureau. The

Bureau's goal was to bring that number up to 65. Additional inspector positions

were needed because of the increased volume of work.

6. Inspectors carry out the functions of the Bureau by investigating

consumer complaints, regulating motor vehicle dealers, issuing notices of

violations to improperly registered motor vehicles and verifying motor vehicle

identification numbers.

7. Since becoming bureau chief, Mr. Turner has instituted a program to

upgrade inspectors as money becomes available. To date, 56 inspector positions

have been upgraded. Ms. Wright's position is the next one scheduled to be

upgraded.

8. At the time Mr. Turner became bureau chief, Ms. Wright was a records

technician in the Bureau's Region V, Winter Park office, but reported directly

to the bureau chief rather than the regional administrator, which was unusual.

9. Based upon his review of the State of the Bureau Report and his

knowledge of the Bureau, Mr. Turner determined that Ms. Wright's position should

be changed to an inspector position to better utilize her position. Ms.

Wright's duties as a records technician should have been performed by other

personnel.

10. Around August of 1990, Ms. Wright told Mr. Turner that she was

dissatisfied with her current position because she was not receiving a uniform

allowance and did not have a state vehicle to drive to and from work. Mr.

Turner told Ms. Wright that he had concerns about her position of records

technician and thought it would be better for her to be an inspector. Bureau

reorganization was under way, but had not been completed and reclassification

was not done at that time.

11. In 1991, Ms. Wright requested that her position be audited, claiming

that she was being worked out of class.

12. On October 29, 1991, Hazel Drombolis, chief of personnel services for

the Department, submitted a position audit report to Mr. Turner. The audit

concluded that Ms. Wright was being worked out of class and recommended that Ms.

Wright's position be reclassified to Highway Safety Specialist.

13. Mr. Turner agreed with the finding in the position audit that Ms.

Wright was working out of class, and as a result of the analysis of the needs of

the agency, he felt that Ms. Wright should be reassigned to the position of

License and Registration Inspector.

14. Mr. Turner prepared a response to the audit in the form of a

memorandum to Charles J. Brantley, Director of the Division of Motor Vehicles,

recommending that Ms. Wright's position be reclassified to License and

Registration Inspector, a one paygrade demotion. The work load for inspectors

in Region V had increased significantly from fiscal year 1989/90 to fiscal year

1990/91. For example, notices of violation increased 261 percent; consumer

complaints increased 113 percent; dealer location inspections increased 23

percent and dealer application assists increased 34 percent. Even though the

work load had increased, as of the date of the report, there was one less

inspector position in the region than there had been in 1988. There was a need

for another inspector position and a legitimate basis to reclassify Ms. Wright's

position.

15. Ms. Wright suffered no reduction in salary as a result of her

demotion.

16. Ms. Wright has been doing an outstanding job as a License and

Registration Inspector, according to the Region V Administrator.

17. The Department has received a written report of a physical examination

by a medical doctor which concluded that Ms. Wright was physically able to

perform her job functions. The Department has not been supplied by Ms. Wright

with any written doctor's report stating that she was unable to perform her job

functions.

18. The regional administrator in charge of Ms. Wright's office has told

her that if she needs to rest on the job that she could do so. Ms. Wright's

work load is about average for her position. Inspectors, including Ms. Wright,

are not required to walk parking lots, and are permitted to drive; they are not

required to crawl under automobiles.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction over the

subject matter and parties in this proceeding pursuant to Section 120.57(1),

F.S.

20. Respondent is an "employer", defined in subsection 760.02(7), F.S.,

(1992) as "...any person employing 15 or more employees for each working day in

each of 20 or more calendar weeks..."

21. Subsection 760.10(1)(b), F.S., provides that it is an unlawful

employment practice for an employer to discharge or otherwise discriminate

against an individual because of such individual's race, color, religion, sex,

national origin, age, handicap, or marital status.

22. Since Florida's employment discrimination statute is patterned on

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal

court interpretations of that act is appropriate. School Board of Leon County

v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

23. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the U.S.

Supreme Court established the basic allocation of burden of proof in

discrimination cases. Petitioner retains the burden of proof throughout the

proceeding, although once a prima facie case of discrimination is established,

the Respondent must articulate some legitimate, nondiscriminatory reason for the

challenged action. Then Petitioner must prove that the reasons offered are not

true, but rather a pretext for discrimination. The prima facia case "...raises

an inference of discrimination only because we presume these acts, if otherwise

unexplained, are more likely than not based on the consideration of

impermissible factors..." Furnco Construction Co. v. Waters, 438 U.S. 567

(1978), cited in Burdine, supra. This evidentiary scheme is reiterated in St.

Mary's Honor Center v. Hicks, 113 S.Ct 2742 (1993).

24. The Petitioner has failed to establish a prima facie case either as to

the demotion or to the retaliation. Petitioner's theory as to the demotion is

that the Department placed her in a job whose functions she was physically

unable to perform in an effort to get rid of her. The Petitioner produced no

credible evidence proving that the Department demoted her because of her age.

In addition, the Petitioner produced no credible evidence to show either that

she could not perform the functions of her new job or that the Department had

ever been provided with a physician's statement that she could not. In fact,

the evidence points to the opposite conclusion. As to her claims of

retaliation, Petitioner produced no credible evidence that she was being

harassed or mistreated because of having filed a complaint. Rather, the

evidence shows that she is being treated no differently than other employees in

her position.

25. Even though the Petitioner has not established a prima facie case, the

evidence produced by the Department shows that it had legitimate,

nondiscriminatory reasons for the demotion. First of all, the propriety of the

demotion has already been litigated in Wright v. Department of Highway Safety

and Motor Vehicles, (Final Order entered 4/8/92). In that case the Public

Employee's Relations Commission found that:

Wright's demotion resulted from a

reclassification of her position in good

faith to promote the Agency's legitimate

interests and the Agency did not act

arbitrarily, capriciously, or with an

impermissible motive in making its decision.

Its decision to demote Wright was therefore

proper and her appeal should be dismissed.

(Department's Exhibit #1)

26. The order in the PERC case bars the Petitioner from relitigating these

issues under the doctrine of collateral estoppel. Questions common to both the

PERC case and this FCHR case that were actually adjudicated in the PERC case may

not be relitigated. Seaboard Coast Line Railroad Company v. Industrial

Contracting Company, 260 So.2d 860, 864 (Fla. 4th DCA 1972). Impermissible

motive and the reason for the demotion were issues resolved in the PERC case.

27. Even if these issues could be relitigated, the Department has proven

that it had sound management reasons for abolishing Ms. Wright's Records

Technician position and demoting her to License and Registration Inspector. The

Department has established that it had a need for more inspectors, both

statewide and in its Region V, and that it has been in the process of

reorganizing to meet this need at least since 1990. It also established that

the main duties of the Records Technician position should be performed by other

employees, lessening the need for that position. Based upon the record as a

whole, the Department acted in good faith in demoting Ms. Wright. Petitioner

failed to meet her burden of proof.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That a final order be entered dismissing Ms. Wright's petition.

DONE AND RECOMMENDED this 27th day of October, 1993, in Tallahassee, Leon

County, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of October, 1993.

COPIES FURNISHED:

Sara Wright, pro se

Post Office Box 142

Winter Park, Florida 32789

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

Sharon Moultry, Clerk

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.