99-005113 Anne R. Webster vs. Metropolitan Dade County, Clerk Of The County Court Status: Closed Recommended Order on Friday, July 28, 2006.

Summary: Petitioner failed to demonstrate that Respondent discriminated and retaliated against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNE R. WEBSTER, )

)

Petitioner, )

)

vs. ) Case No. 99 - 5113

)

METROPOLITAN DADE COUNTY, CLERK )

OF THE COUNTY COURT, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was h eld in this case

on November 30 and December 1 - 2, 2004 and February 3 - 4,

August 24 - 25, and December 15, 2005, in Miami, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petit ioner: Anne R. Webster, pro se

12000 Northeast 16th Avenue, B - 27

Miami, Florida 33161 - 6566

For Respondent: William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Ce nter

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the basis of race, color,

sex, religion, presu med handicap, national origin, age, and

marital status; and whether Respondent retaliated against

Petitioner in violation of the Florida Civil Rights Act of 1992,

as amended.

PRELIMINARY STATEMENT

Anne R. Webster filed a Charge of Discrimination with the

F lorida Commission on Human Relations (FCHR) against the

Metropolitan Dade County, Clerk of the County Court (Clerk)

alleging that the Clerk discriminated against her on the basis

of race, color, sex, religion, presumed handicap, national

origin, age, marit al status, and retaliation. On August 2,

1999, the FCHR issued a Determination of No Cause and a Notice

of Determination of No Cause. By Order filed October 27, 1999,

the FCHR granted Ms. Webster an extension of time to file, on or

before November 12, 19 99, a Petition of Relief from an Unlawful

Employment Practice (Petition for Relief). Ms. Webster filed a

Petition for Relief with the FCHR against the Clerk. On

December 9, 1999, the FCHR referred this matter to the Division

of Administrative Hearings (D OAH).

The hearing was originally scheduled for March 10, 2000.

Ms. Webster requested a continuance of the hearing, to which the

Clerk did not object, and the hearing was continued. The

hearing was re - scheduled for May 25, 2000. On May 5, 2000, a

Notice of Appearance was filed by counsel for Ms. Webster.

Subsequently, counsel for Ms. Webster requested a continuance,

to which the Clerk did not object. The continuance was granted,

and the hearing was re - scheduled for July 26, 2000. On July 20,

2000, Ms. Webster's counsel filed another motion for

continuance, to which the Clerk did not object, and the hearing

was continued. Subsequently, the hearing was re - scheduled for

November 8, 2000. By Order dated November 7, 2000, the hearing

was continued and this matter was placed in abeyance based on

the parties' representation that they were engaging in ongoing

discovery and serious settlement negotiations. After a passage

of time, the parties represented that settlement was not

successful and, therefore, a hea ring was necessary; the hearing

was scheduled for January 12, 2001. Afterwards, the parties

requested a different hearing date, and the hearing date was

changed to January 25, 2001.

This matter was transferred to the undersigned. The

hearing scheduled fo r January 25, 2001, was changed to a video

teleconference hearing. On January 23, 2001, Ms. Webster's

counsel of record filed a request to withdraw. The request to

withdraw was heard at the hearing and was orally granted. An

Order dated January 26, 2001 , was issued granting the request to

withdraw. Additionally, on January 23, 2001, counsel for

Ms. Webster requested a continuance of the hearing scheduled for

January 25, 2001, to which the Clerk did not object. This

motion was also considered at the hea ring. An Amended Order

dated February 9, 2001, was issued granting the continuance and

holding the case in abeyance to provide an opportunity for

Ms. Webster to obtain new counsel or a qualified representative.

Subsequently, an order was issued directing Ms. Webster to

provide a status report as to her progress in obtaining

representation in this matter. Base upon her response, the case

was continued in abeyance by Order dated December 18, 2001. The

parties again attempted to resolve this matter without the need

for a hearing but were unsuccessful. Further, Ms. Webster was

unable to obtain representation and was proceeding pro se . She

frequently filed pleadings requesting the undersigned to

instruct her as to how to handle her case, which the undersigne d

could not do.

By Order dated August 22, 2002, the parties were directed

to provide dates for the re - scheduling of the hearing in this

matter. The hearing was re - scheduled for June 10 and 11, 2003.

Ms. Webster attempted to engage in discovery. She

reque sted a continuance and the hearing scheduled for June 10

and 11, 2003, was continued. With the concurrence of the Clerk,

as guidance for and assistance to Ms. Webster, she was provided

with a copy of McDonnell Douglas Corporation v. Green , 411 U.S.

792, 9 3 S. Ct. 1817 (1973). The length of time necessary for

the hearing increased, and the hearing was re - scheduled for

March 16 through 18, 2004.

The Clerk was engaging in discovery to which Ms. Webster

was not responding. During a telephone conference, th e parties

requested a re - scheduling of the hearing, which was granted, and

the hearing was re - scheduled for April 14 through 16, 2004.

A telephone conference was held regarding the Clerk's

failure to adequately respond to discovery from Ms. Webster and

reg arding a continuance of the hearing due to the inadequate

responses. As to the continuance, the parties had been notified

by the undersigned that a death had occurred in his family which

prevented the hearing from going forward, and the hearing was

cancel ed. By Order dated April 22, 2004, among other things,

the Clerk was directed to sufficiently respond to the discovery

and to show cause why sanctions should not be imposed.

Subsequently, Ms. Webster was filing pleadings and exhibits

which were confusing as to whether she desired to re - open

discovery, with the undersigned pointing - out that he was not

persuaded that discovery should be re - opened, and as to whether

pleadings filed by her and entitled exhibits were already

admitted and could be used as eviden ce at hearing, representing

that the Clerk already had copies of them. By Order dated

August 24, 2004, among other things, Ms. Webster was directed to

make a decision as to whether she wanted to re - open discovery,

which the undersigned was not persuaded s hould occur, the

parties were advised that rulings on the admissibility of

exhibits would be made at hearing, and the parties were directed

to provide dates for re - scheduling the hearing. The hearing was

re - scheduled for November 30 through December 2, 20 04.

Prior to hearing, the Clerk had agreed to assist in making

sure that certain witnesses appeared at hearing without being

served with a subpoena and had agreed that subpoenas for certain

witnesses would be accepted by an identified person in the

Clerk's office. Confusion developed in the Clerk's office as to

what was to be done regarding accepting the subpoenas, which

resulted in several pleadings being filed by Ms. Webster. Also,

among other things, Ms. Webster requested to have read into the

hearing record, instead of testifying, certain affidavits

prepared by her for her own testimony so that she would not be

"mis - understood"; the Clerk objected; and this request was

denied. Additionally, Ms. Webster requested that certain

documents that she regarde d as evidence of the Clerk's pretext

to be admitted into evidence prior to hearing and before any

argument by the Clerk would be permitted; the Clerk did not

respond to the request; and the undersigned denied the request

indicating that admissibility of do cuments was the decision of

the undersigned not the Clerk.

The final hearing in this matter was not concluded on

December 2, 2004. The hearing was re - scheduled for February 3

and 4, 2005.

Again, the final hearing in this matter was not concluded

on Februa ry 3 and 4, 2005. The hearing was re - scheduled for

August 24 through 26, 2005. The undersigned issued an order

regarding the appearances of witnesses on behalf of Ms. Webster.

As a result of a hurricane impacting the Miami area, the hearing

was not held on August 26, 2005. The hearing was re - scheduled

for December 15, 2005, at which time the final hearing was

completed.

At hearing, Ms. Webster testified in her own behalf,

presented the testimony of 23 witnesses, and entered 120

exhibits (Petitioner's Ex hibits numbered 1, 2B, 4A, 4B, 4C, 4E,

4F, 4G, 4H, 4I, 10A, 10B, 10C, 11A, 11B, 11C, 12A, 12B, 12C,

12D, 12E, 12G, 13, 15A, 15B, 15C, 15D, 15E, 15F, 15I, 15J, 15K,

16A, 16B, 16C, 16D, 16E, 16F, 16G, 16H, 16I, 16J, 16K, 16L, 16M,

16N, 16O, 16P, 17A, 17B, 1 7C, 17D, 17E, 17F, 17G, 18A, 18B, 19B,

20B, 22, 23C 1 , 23C 2 , 24A, 24B 24C 24D, 24E, 25A, 25B, 25C, 25D,

25E, 26A, 26B, 26C, 27A, 27B, 27C, 27D, 27F, 27H, 28, 29, 30A,

30B, 30C, 30D, 30E, 31A, 31B, 31C, 31D, 31E, 32A, 32B, 35, 44,

47A, 47B, 47C, 47D, 47E, 50 , 51, 52A, 52B, 52C, 52D, 53, 54, 55,

56, 57, 73, 74, 75, 76, 77, 105, and 107) into evidence.

Ms. Webster, with the consent of the Clerk, proffered the

testimony of some of her witnesses. The Clerk did not call any

witnesses to testify and entered two e xhibits (Respondent's

Exhibits numbered 4 and 2) into evidence.

The Clerk ordered a transcript of the hearing. The

following volumes, with hearing dates, were filed by the Clerk

with DOAH, to which Ms. Webster filed pleadings protesting the

failure of the Clerk to file these volumes: on September 27,

2005 -- Volumes I and II of the hearing held on November 30, 2004,

and Volume III of the hearing held on December 1, 2004; and on

September 28, 2005 -- Volume IV of the hearing held on December 1,

2004, and Volume s V and VI of the hearing held on December 2,

2004. The court reporter filed with DOAH, on September 14,

2005, two volumes of the hearing held on August 24 and 25, 2005.

By an Amended Order to Show Cause dated December 9, 2005,

the Clerk was directed to s how cause why sanctions should not be

imposed for failing to file the volumes of the transcript for

the hearing held on February 3 and 4, 2005. At the hearing on

December 15, 2005, the Clerk persuaded the undersigned that good

cause existed not to impose sanctions for the failure to file

the volumes of the transcript. Three volumes for the hearing

held on February 3 and 4, 2005 were filed on December 23, 2005.

The Clerk filed with DOAH, on January 24, 2006, the one volume

of the transcript of the hearing held on December 15, 2005. All

of the volumes of the transcript had now been filed with DOAH.

At the request of the parties, the time for filing post -

hearing submissions was set for more than ten days following the

filing of the transcript. The Transcri pt, consisting of 12

volumes, was filed on September 14, 27, 28, and December 23,

2005, and January 24, 2006. Ms. Webster filed her post - hearing

submission prior to the conclusion of the hearing, and,

therefore, she was permitted to file an amended post - h earing

submission. The Clerk requested an extension of time to file

its post - hearing submission; the request was granted, and the

post - hearing submission was accepted. Subsequently, Ms. Webster

requested to file an amendment to her post - hearing submissio n,

to which the Clerk did not file a response; the request was

granted, and the amendment was accepted. The Recommended Order

was further delayed by the undersigned's surgery.

The parties' post - hearing submissions were considered in

the preparation of thi s Recommended Order.

FINDINGS OF FACT

1. Ms. Webster is a female, Caucasian, who prefers to be

referred to as "a White Anglo," and a Quaker of German descent.

She was born on September 7, 1943. At the time of the hearing,

she was married. She is a memb er of the protected class as it

relates to discrimination.

2. At all times material hereto, the Clerk was an employer

as defined by the Florida Civil Rights Act of 1992, as amended.

3. Ms. Webster has a Bachelor of Business Administration

and a Master of Business Administration. She was a certified

public accountant (CPA) but voluntarily relinquished her Florida

CPA license to the Board of Accountancy in October 2003.

4. Ms. Webster had been an employee with Metropolitan Dade

County since February 21, 1 978. She was employed with the Clerk

as an Accountant II in the Comptroller's Division since 1982.

Adolphus James was the supervisor of her accounting unit and to

whom she reported.

5. Mr. James' supervisor was Margaret Enciso, the Deputy

Comptroller. M s. Enciso reported to Martha Alcazar, the

Comptroller.

6. Ms. Alcazar reported to Ricky Schechtman, the Director

of the Office of Administrative Services. Ms. Schechtman had

the authority to terminate employees under her supervision.

7. Ms. Webster's un it was comprised of employees who were

majority Hispanic descent. In the unit, she saw herself as a

"minority White Anglo American woman of Quaker religious

customs." She saw the Hispanic workers as shutting her out by

speaking Spanish.

Dismissal

8. On August 10, 2005, Ms. Webster was issued a

Disciplinary Action Report (DAR) by her supervisor, Mr. James.

Mr. James was recommending her dismissal from employment with

the Clerk, as her performance was unacceptable and in direct

violation of personnel rule s. In the DAR, Ms. Webster was

charged with "violating the County's Personnel Rules, Chapter

VIII, Section 7: Paragraph: A, B, D and S," which were indicated

as follows:

(A) That the employee is incompetent or

inefficient in the performance of his [sic]

duty.

(B) That the employee has been offensive in

his [sic] conduct toward his [sic] fellow

employees, wards of the County or public.

(D) That the employee has violated any

lawful or official regulation or order, or

failed to obey any lawful and reason able

direction given him/her by a supervisor,

when such violation or failure to obey

amounts to insubordination or serious breach

of discipline which may reasonably be

expected to result in lower morale in the

organization or result in loss,

inconvenience or injury to the County

service or to the public.

(S) That the employee is antagonistic

towards superiors and fellow employees,

criticizing orders, rules and policies, and

whose conduct interferes with the proper

cooperation of employee and impairs the

e fficiency of the County service.

9. Mr. James attached to the DAR specific facts and

instances. Some of the facts and instances included the

following:

(a) Non - Performance: Ms. Webster failed to complete

assigned reconciliations -- after she returned fr om a medical

leave of absence from February to mid - June, in a memo from

Mr. James, dated June 19, 1995, Ms. Webster was given until

July 14, 1995, to complete reconciliations of some general

ledger accounts for May 1995; the reconciliations for May 1995

we re not completed as directed; and two months of

reconciliations were not completed as requested and they had to

be assigned to other personnel.

(b) Insubordination -- Ms. Webster "exhibited" gross

insubordination toward Mr. James, on August 4, 1995, when sh e

failed to meet with him after he repeatedly directed her to meet

with him before she left for the day (the meeting was re -

scheduled). Further, this instance was not the only instance

where she failed to follow directives of Mr. James — “When he asks

you [ Ms. Webster] to refrain from certain behavior or when he

explains your duties, you frequently directly ignore what he

tells you and proceed to do only what you wish to do.”

(c) Disruptive Behavior -- Ms. Webster exhibited disruptive

behavior constantly. In particular, on August 7, 1995, she

indicated to a co - worker, Julio Lucio - O'Farrill, who is

Hispanic, that his constant working on his computer was

disturbing her. Mr. Lucio - O'Farrill spoke with Mr. James who

instructed Ms. Webster not to interfere with t he co - worker doing

his work. Later, Ms. Webster asked another co - worker, Devon

Marrett, who is African - American, whether he knew anyone "like

him [Mr. Marrett]" who could "take care of" Mr. Lucio - O'Farrill.

Mr. Marrett inquired what Ms. Webster meant by her remarks, and

she responded, "a big, black and ferocious man from Liberty

City." On other occasions, Ms. Webster has requested

information, which has nothing to with her duties and

responsibilities, from workers outside her unit, and the workers

felt t hat she was being disruptive in preventing them from doing

what they were required to do. Further, on other occasions,

Ms. Webster has approached workers, who were engaged in a

conversation, and demanded to know what they were discussing and

demanded to j oin in the conversation.

10. Mr. James also attached to the DAR, the Metro - Dade

Personnel Department Essential Job Functions Form; his

memorandum to Ms. Webster, dated June 19, 1995, regarding "Work

Assignments; the aforementioned reconciliations; and a

m emorandum from Mr. James to Ms. Webster, dated July 24, 1994,

regarding "Work assignments and Performance."

11. At hearing, as to the reconciliations, the evidence

demonstrated that the expectation for Ms. Webster to complete

the reconciliations was appro priate and warranted and that she

failed to complete them.

12. At hearing, as to insubordination, the evidence

demonstrated that Mr. James gave reasonable directives, that the

directives were lawful, and that Ms. Webster failed to comply

with the directiv es.

13. Further, at hearing, as to Ms. Webster's disruptive

behavior, the evidence demonstrated that her attitude towards

Mr. Lucio - O'Farrill was that he was a Hispanic who believed that

women should be controlled by men but that she, being a "White

Anglo " woman was not going to allow him to control her; and that

he wanted her to be as a "wife" to him, but she was not going to

do that. The evidence further demonstrates that her attitude

towards him caused disruption in the workplace.

14. As to Mr. Marret t, the evidence demonstrates that he

was offended by Ms. Webster's remark to him, and that he

believed that Ms. Webster was inquiring of him as to whether he

knew of an African - American who would harm Mr. Lucio - O'Farrill.

15. Both Messrs. Lucio - O'Farrill and Marrett were

extremely concerned with Ms. Webster's behavior. Mr. Lucio -

O'Farrill was so concerned that he called the police, and a

police report was filed.

16. At hearing, Mr. James testified that he was very

concerned with Ms. Webster's behavior, t hat he had done what he

could do for her, and that he had to consider the well - being of

his staff and the office, as well as her behavior. The

undersigned finds his testimony credible.

17. On August 16, 1995, Ms. Schechtman met with

Ms. Webster to provid e Ms. Webster an opportunity to address the

allegations set forth in the DAR. Ms. Webster was unable to

verbally communicate her response and, therefore, Ms. Schechtman

permitted Ms. Webster to submit her response in writing; which

she did on or about Aug ust 18, 1995 and which consisted of

several pages. Having considered the DAR and Ms. Webster's

response, Ms. Schechtman decided to terminate Ms. Webster. By

letter dated August 22, 1995, Ms. Schechtman notified

Ms. Webster of her termination and, among o ther things, her

rights to appeal.

Suspension

18. Prior to her termination, on February 13, 1995,

Ms. Webster was suspended for six days (February 13 through 20,

1995) by the Clerk based upon a DAR dated February 3, 1995.

19. On February 3, 1995, Mr. Jam es issued a DAR against

Ms. Webster. Mr. James was recommending her suspension from

employment with the Clerk. In the DAR, Ms. Webster was charged

with violating the "County's Personnel Rules, Chapter VIII,

Section 7: Paragraph D" as follows:

That the em ployee has violated any lawful or

official regulation or order, or failed to

obey any lawful and reasonable direction

given him/her by a supervisor, when such

violation or failure to obey amounts to

insubordination or serious breach of

discipline which may reasonably be expected

to result in lower morale in the

organization or result in loss,

inconvenience or injury to the County

service or to the public.

20. Mr. James attached to the DAR specific facts and

instances. Some of the facts and instances incl uded the

following:

(a) Recent Absences -- Ms. Webster had unplanned absences

over the past two months which resulted in inconveniences to

management and co - workers in that they had to perform her work

requirements which were her responsibility; and indica tes with

specific instances of absences, beginning with December 8, 1994

through January 27, 1995, for which a leave of absence was

granted, with some of the leave being granted for her inability

to "focus" on her work, "accomplish work objectives," lack o f

job performance, "unusual and disruptive behavior" in the

office, and to prepare to attend the fitness for duty physical

examination (FFDPE).

(b) Unusual and Disruptive Behavior -- specific instances

and dates were indicated, beginning December 5, 1994 th rough

January 30, 1995, in which Ms. Webster, among other things, was

attempting to train an employee who was not under her

supervision and she (Ms. Webster) became upset when it was

brought to her (Ms. Webster's) attention; was going through the

office li stening to conversations, including management

conversations, and being uncooperative and critical of co -

workers; continued to complain about not having sufficient work

space and about the work environment even after she was advised

by her supervisor to co ncentrate on her work; repeatedly

mentioned that group problems existed at work, which were

related to ethnic backgrounds; refused to follow her

supervisor's directives and exhibited behavior which was

disruptive to the work environment; was continually co unseled to

work on past - due work but walked around the office, talking

about ham operators; caused an employee concern due to what he

described as a glazed look in her eyes; and was making strange

and nonsensical telephone calls to other employees.

(c) La ck of Job Performance and Inability to Met [sic]

Work Objectives -- failure to meet required job requirements and

related work objectives, with specificity; failure to be

responsive to counseling and to show improvement; and, on

occasion, been insubordinate when queried regarding status of

past due work.

21. Mr. James also attached a "Facts" section in which he

indicated, among other things, the following: that a meeting was

held on January 17, 1995, with Martha Alcazar, Acting

Comptroller, Ms. Webster, and himself regarding a FFDPE

scheduled for January 19, 1995, as a result of Ms. Webster's

recent absences, disruptive behavior and lack of performance on

the job; that the FFDPE was re - scheduled at a later date,

January 26, 1995, at Ms. Webster's request; tha t Ms. Alcazar

requested Ms. Webster to come into her (Ms. Alcazar's) office on

January 20, 1995, to complete the paperwork for the FFDPE but

that Ms. Webster failed to do so; that Ms. Webster failed to

attend the FFDPE on January 26, 1995; and that she (Ms . Webster)

was previously informed that her failure to comply with the

directive may result in disciplinary action up to and including

dismissal.

22. Furthermore, Mr. James recommended that Ms. Webster be

suspended without pay until she complied with all the

requirements of a FFDPE; that she be required to participate in

the Employee Assistance Program (EAP), which had been beneficial

to her in the past, before returning to and during work; that

management be provided monthly status reports from Ms. Webste r's

doctor and/or professional counselor; and that her failure to

comply with the recommendations result in disciplinary action up

to and including dismissal.

23. At hearing, Mr. James testified that Ms. Webster's

behavior gave him more concern than anyth ing else in that it was

unusual for her and her work pattern and that he wanted to help

her, as much as he could, with her behavior and retain her

position. The undersigned finds his testimony credible.

24. By letter dated February 13, 1995, the Clerk n otified

Ms. Webster that she was suspended without pay until she

submitted to a FFDPE and complied with the recommendations

associated therewith and that it was recommended that she

participate in the EAP, with monthly status reports provided to

management from her doctor or professional counselor. He

further advised her that she had two weeks to comply, and, if

she did not, disciplinary action would result up to and

including dismissal.

25. A letter dated February 3, 1995, was also sent to

Ms. Webster by Martha Alcazar, the Acting Comptroller.

Ms. Alcazar indicated, among other things, that a meeting was

held on January 17, 1995, with Mr. James, Ms. Webster, and

herself regarding a FFDPE scheduled for January 19, 1995, as a

result of Ms. Webster's recent absences, disruptive behavior and

lack of performance on the job; that Ms. Webster was informed at

the meeting that failure to comply with the directive may result

in disciplinary action; that Ms. Webster requested a re -

scheduling of the FFDPE for January 26, 1995; that Ms. Webster

failed to appear for the FFDPE; that, as a result of

Ms. Webster's failure to appear, she failed to comply with a

direct order; and that her disciplinary action session was

scheduled for February 9, 1995, specifying the particul ar

violation.

26. By letter dated February 14, 1995, Ms. Webster was

notified by the Clerk that, among other things, her examination

was scheduled for February 21, 1995. He further advised her

that her failure to comply would result in disciplinary act ion

up to and including dismissal.

27. By letter dated February 22, 1995, the Clerk notified

Ms. Webster that, among other things, her psychological

evaluation was scheduled for February 28, 1995. Again, he

further advised her that her failure to comply would result in

disciplinary action up to and including dismissal.

28. By letter dated March 10, 1995, the Clerk clarified

his letter dated February 13, 1995, regarding the results of her

disciplinary action hearing. He advised her, among other

things, t hat the dates of her suspension were February 13

through 20, 1995, a six - day suspension, and that beginning

February 21, 1995, she was placed on administrative leave,

pending the results of the physical and psychological

examinations.

29. By letter dated March 23, 1995, Ms. Alcazar notified

Ms. Webster, among other things, that her (Ms. Webster's) doctor

indicated that she (Ms. Webster) should return to treatment with

her (Ms. Webster's) physicians who should provide the Clerk with

progress reports and her recommendations concerning ability to

return to work and that, based on the progress reports,

Ms. Webster would be contacted regarding the terms and

conditions of her returning to work.

30. In letters from a psychologist and a psychiatrist,

dated April 1 2 and 19, 1995, respectively, both recommend that

Ms. Webster be permitted to return to work. Neither the

psychologist nor the psychiatrist was performing the FFDPE.

31. By letter dated May 9, 1995, Mr. James notified

Ms. Webster, among other things, tha t her FFDPE was scheduled

for May 12, 1995.

32. The physician who performed the FFDPE recommended on

May 12, 1995, that Ms. Webster be returned to her previous

duties.

Appeal of Suspension and Dismissal

33. Ms. Webster appealed her six - day suspension and

dismissal. By agreement of the parties, the cases were heard by

a Hearing Examiner of the American Arbitration Association in a

two - day hearing. The Hearing Examiner rendered his decision on

March 1, 1996, with findings of fact and conclusions, and

reco mmended sustaining the six - day suspension and dismissal of

Ms. Webster.

34. The Hearing Examiner's findings included a finding

that Ms. Webster's response to the six - day suspension and

dismissal did not refute the contentions of the Clerk and "to a

great degree" address issues that were either "not relevant to

the personnel actions" or "unrelated" to them. The undersigned

concurs in the Hearing Examiner's findings.

35. The Hearing Examiner's further findings included a

finding that Ms. Webster's conduct constituted insubordination

and that the testimony supports the violations in the DAR

relating to the termination.

36. The evidence in the instant matter also demonstrates

that Ms. Webster engaged in insubordination and committed the

violations indicated in the DAR regarding her termination.

37. As conclusions, the Hearing Examiner included, among

other things, a conclusion that the Clerk, as Ms. Webster's

employer, had a responsibility to and did assist Ms. Webster in

resolving the behavior that she was exhibiting; that Ms. Webster

was clearly and repeatedly provided with warnings by her

supervisor as to the consequences of the failure of her non -

compliance with work standards and assigned work, but she still

failed to comply; that her failure to comply a dversely affected

the work of the other employees in her unit; that her conduct

and verbal statements towards her African American and Hispanic

co - workers conveyed an attitude of intolerance and prejudice;

and that she was provided ample opportunity to cha nge her

behavior but she failed to do so.

38. The evidence presented in the instant matter

demonstrates and supports the conclusions expressed by the

Hearing Examiner.

39. On March 20, 1996, the County Manager, Armando Vidal,

P.E., having reviewed the re cord of the Hearing Examiner, upheld

the six - day suspension and dismissal of Ms. Webster.

Retaliation

40. Ms. Webster filed a discrimination complaint with the

Clerk's Affirmative Action Office (AAO) alleging that the DAR of

August 10, 1995, (the dismissa l) was in retaliation for her

having filed a formal discrimination complaint with the Clerk's

AAO on July 13, 1995. The complaint was against "management in

general for employment actions taken and not taken against her

and the manner in which her co - work ers interact with her." The

complaint related to behaviors of co - workers as perceived by

Ms. Webster and her reaction based on her perception; the

exhibited pattern of dominance by men over women; differential

treatment with her than men because upper man agement suggested

that she be placed on two medical leave of absences and a FFDPE

be performed; a violation of Title I of the ADA when a vacancy

occurred for the Deputy Controller position in that she was not

considered due to her not applying because she was on medical

leave; women in lower positions than men and performing equal

work but not receiving equal remuneration; and the DAR of

August 10, 1995.

41. The complaint was investigated by AAO's Senior

Affirmative Action Specialist, Carmen Dieguez, for w hich a

report, dated August 21, 1995, of the investigation was

prepared. In the process of preparing the report, Ms. Dieguez

attended the hearing on the DAR of August 10, 1995, as an

observer. In essence, Ms. Dieguez found Ms. Webster's formal

discrimina tion complaint with the AAO to be meritless and

concluded, among other things, the following:

After having discussed the complainant's

actions with her and management which

precipitated the DAR and which are

specifically addressed in said document and

havi ng attended the DAR hearing on

August 16, 1995 as an observer, I conclude

that Webster's superiors have not retaliated

against her as, [sic] she alleges. The

incidents described in the DAR of non -

performance, insubordination and disruptive

behavior appear to have been of concern to

management even before Webster filed her

complaint of discrimination. And, it is

management's responsibility to discipline

employees for what appear to be job - related

reasons. . . . It is, therefore, concluded

that the DAR pres ented to Webster is not

intended to retaliate or otherwise

discriminate against her.

42. On August 25, 1995, the Director of AAO, Marcia

Saunders, issued a report to the Clerk on Ms. Webster's formal

complaint of discrimination filed with the Clerk's AAO . The

report included Ms. Dieguez's report. Ms. Saunders concurred

with Ms. Dieguez that Ms. Webster's complaint was meritless.

Ms. Saunders stated, among other things, in her report the

following:

I have reviewed her [Ms. Dieguez's] report

and the conc lusions drawn therein of the

seven allegations which were made. You will

find that none have been found to be

substantiated. To the contrary, there has

been corroboration that she [Ms. Webster]

instead, whether consciously or

unconsciously, harassed her fellow - workers

about diversity issues i.e. their 'group

behavior patterns and communication styles'

to the point that some individuals found her

behavior to be offensive and intrusive.

Webster's preoccupation with making

assumptions about race/ethnic/cult ural and

her own religious differences may be

somewhat misguided. . . .

Webster also alleged that an August 10th

D.A.R. she received was in retaliation

because of filing this formal discrimination

complaint. Dieguez attended the D.A.R.

hearing as an obse rver to ensure the issues

presented were not in regard to, nor

appeared to be precipitated by this

complaint. She [Ms. Dieguez] affirms that

the issues addressed in the hearing were not

retaliatory but a progressive process

related to Webster's performanc e,

insubordination and disruptive behavior.

Discrimination statutes do not preclude an

employer from exercising its right and

responsibility to discipline an employee in

accordance with lawful personnel rules and

procedures.

43. The evidence in the inst ant matter demonstrates that

the retaliation purported by Ms. Webster is meritless. The

undersigned concurs in the conclusion reached by the Clerk's

AAO.

44. At the hearing in the instant matter, Ms. Webster

insisted, among other things, that her being a White Anglo

Quaker caused communication and attitude problems between her

and the Clerk's employees. She testified that the majority of

the Clerk's employees were Hispanic and wanted her to act as a

Hispanic woman as it concerned relations with Hispanic men,

i.e., to act as their "wife"; and that they failed to understand

her behavior, such as her shyness, low tone in talking, and the

lowering of her head when she spoke. But, the evidence

demonstrated that Ms. Webster, among other things, tried to

force her ways upon them and acted irrationally when the

employees would not conform to what she wanted. Further, the

evidence at the instant hearing demonstrates that Ms. Webster

stereotyped her fellow employees and made prejudiced remarks

about them. Ms. Web ster is correct that ethnic differences can

cause communication problems but one cannot force someone to

conform to one's way in order to communicate.

45. At hearing, no evidence was presented demonstrating

that similarly situated employees were treated d ifferently.

46. Ms. Webster presented evidence as to her financial

situation since her termination.

47. Ms. Webster presented evidence as to costs that she

incurred associated with the hearing in the instant matter.

CONCLUSIONS OF LAW

48. The Division o f Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11 and 120.569,

Florida Statutes (2006), and Subsection 120.57(1), Florida

Statutes (2006).

49. Section 760.10, Florida Statutes (1995), provides in

pertinent 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, term s, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would dep rive 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.

* * *

(7) It is an unlawful employment practice

for an employer . . . 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, assis ted, or participated in any

manner in an investigation, proceeding, or

hearing under this section.

50. A three - step burden and order of presentation of proof

have been established for unlawful employment practices.

McDonnell Douglas Corporation v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company ,

112 F.3d 1398, 1403 (10th Cir. 1999). The initial burden is

upon Ms. Webster to establish a prima facie case of

discrimination. McDonnell Douglas , at 802; Aramburu , at 1403.

Ms. Webster establishes a prima facie case of discrimination by

showing: (1) that she belongs to a protected group; (2) that

she was subjected to an adverse employment action; and (3) that

her employer treated similarly situated employees outsid e the

protected group differently or more favorably. McDonnell

Douglas , supra ; Holifield v. Reno , 115 F.3d 1555 (11th Cir.

1997); Aramburu , supra . See Kendrick v. Penske Transportation

Services , 220 F.3d 1220 (10th Cir. 2000) (similarly situated

employee s need not be outside the protected group).

51. Once Ms. Webster establishes a prima facie case, a

presumption of unlawful discrimination is created. McDonnell

Douglas , at 802; Aramburu , at 1403. The burden shifts then to

the Clerk to show a legitimate, nondiscriminatory reason for its

action. McDonnell Douglas , at 802; Aramburu , at 1403. If the

Clerk carries this burden, Ms. Webster must then prove by a

preponderance of the evidence that the reason offered by the

Clerk is not its true reason, but only a pretext for

discrimination. McDonnell Douglas , at 804; Aramburu , at 1403.

52. However, at all times, the ultimate burden of

persuasion that the Clerk intentionally discriminated against

her remains with Ms. Webster. Texas Department of

Community Af fairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2d 207 (1981).

53. Applying the prima facie standards, the evidence

demonstrates that Ms. Webster has satisfied the first two prongs

but failed to satisfy the third prong of the test. She has

dem onstrated that she belongs to the protected class (race,

color, sex, religion, national origin, age, and marital status)

and that she was subjected to an adverse employment action

(dismissal). However, she failed to demonstrate that the Clerk

treated simi larly situated employees, whether inside or outside

the protected group, differently or more favorably. Holifield ,

supra at 1562; McGuinness v. Lincoln Hall , 263 F.3d 49, 53, 54

(2d Cir. 1997); Shuway v. United Parcel Service, Inc. , 118 F.3d

60, 64 (2d Ci r. 1997); Anderson v. WBMG - 42 , 253 F.3d 561, 565

(11th Cir. 2001); Kendrick , supra .

54. Assuming Ms. Webster had established a prima facie

case, the Clerk has demonstrated a legitimate, nondiscriminatory

reason for its employment action of terminating her . The Clerk

demonstrated that she failed to complete assigned and required

reconciliations, which were her responsibility, even after she

was directed to do so; that she committed gross insubordination;

and that she engaged in constant disruptive behavior at the

workplace. All valid reasons for termination according to the

County's Personnel Rules.

55. Further, Ms. Webster failed to demonstrate that the

Clerk's reasons for terminating her were not the true reason,

but a pretext for discrimination.

Handic ap

56. A prima facie case of discrimination under the

Americans with Disabilities Act (ADA) is established by showing

that Ms. Webster "(1) had, or was perceived to have, a

"disability"; (2) was a "qualified" individual; and (3) was

discriminated against because of her disability. (citation

omitted) The ADA defines "disability" as "(A) a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual; (B) a record of such

impairment; or (C) being regard ed as having such an impairment."

[citation omitted] Curruthers v. BSA Advertising , 357 F.3d

1213, 1215 (11th Cir. 2004) (citation omitted).

57. Ms. Webster is "regarded" as disabled "if her employer

perceives her as having an ADA - qualifying disability, even if

there is no factual basis for that perception. [citation

omitted]. As with actual impairments, however, the perceived

impairment must be one that, if real, would limit substantially

a major life activity of the individual. [citations omitted]."

Id. at 1216. A person is also "regarded" as being disabled by

meeting one of three conditions: "(1) has a physical impairment

that does not substantially limit major life activities but is

treated by an employer as constituting such a limitation; (2)

ha s a physical or mental impairment that substantially limits

major life activities only as a result of the attitude of an

employer toward such impairment; or (3) has no physical or

mental impairment but is treated by an employer as having such

an impairment . [citation omitted] Rossbach v.City of Miami ,

371 F.3d 1354, 1359, 1360 (11th Cir. 2004). In order to prevail

under this theory, the person "must show two things: (1) that

the perceived disability involves a major life activity; and (2)

that the percei ved disability is ‘substantially limiting’ and

significant. [citation omitted].” Id. at 1360.

58. Ms. Webster failed to demonstrate a prima facie case

of discrimination under the ADA. The evidence was insufficient

to demonstrate that she suffered from an ADA disability.

Furthermore, she failed to demonstrate that the perceived

disability (mental impairment) involved a major life activity

and that the perceived disability was substantially limiting and

significant.

59. Furthermore, as previously indica ted, Ms. Webster

failed to demonstrate that that the Clerk's reasons for

terminating her were not the true reason, but a pretext for

discrimination.

Retaliation

60. Ms. Webster failed to demonstrate that she was

retaliated against through her dismissal fo r filing a

discrimination claim against the Clerk with the Clerk's AAO.

61. The evidence demonstrates that Ms. Webster was

terminated for legitimate non - discriminatory reasons.

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 discrimination complaint of

Anne R. Webster against Metropolitan Dade County, Clerk of the

County Court.

DONE AND ENTERED this 28th day of July, 2006, in

T allahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of July, 2006.

COPIES FURNISHED:

Anne R. Webster

12000 Northeast 16th Avenue, B - 27

Miami, Florida 33161 - 6566

William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Kno x Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Cecil Howard, 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 ri ght 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.