The formal hearing was held in this proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Pensacola, Florida, on May 12, 2008. The appearances were as follows:
For Petitioner: Edna M. Rubin, pro se
For Respondent: Rodney M. Johnson, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination
from employment for purportedly making complaints concerning alleged discriminatory practices toward Hispanic employees.
This cause arose when the Petitioner, Edna M. Rubin, filed a Charge with the Florida Commission on Human Relations (Commission) against the Respondent Agency alleging that she had been retaliated against for opposing an alleged unlawful discrimination practice directed toward Hispanic employees. She maintains she was dismissed from her employment by the Respondent for this reason. The Charge of Discrimination was filed with the Commission on August 15, 2007, and the matter proceeded to investigation by the Commission. A Determination that no reasonable cause existed for believing that an unlawful employment practice occurred was issued by the Commission on January 17, 2008.
On or about February 13, 2008, the Petitioner filed a Petition for Relief with the Commission requesting an Administrative Hearing and the cause was duly transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge.
The cause came on for hearing as noticed. At the hearing the Petitioner presented Exhibit "A" which was admitted into evidence and 12 witnesses. The Respondent presented Exhibits "A" and "B" which were admitted into evidence and relied on its
cross-examination of the Petitioner's witnesses otherwise.
After the hearing was concluded the parties requested an extended period to submit proposed recommended orders. The Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
The Petitioner was hired by the Escambia County Health Department (Department) the Respondent herein, as a Community Health Nursing Supervisor.
It was the Petitioner's duty to supervise nursing staff under her direction and to perform their employee evaluations. She, in turn, was responsible to her supervisor, Jennifer Carter.
The Petitioner maintains that she was retaliated against by the Respondent, in the employment action taken, because she complained to her supervisors concerning what she claimed was discriminatory conduct toward Hispanic employees by other employees of the Respondent. The Petitioner, for instance, made reference to an employee, Annette Thrasher, who purportedly made reference to "those people" in a meeting when referring to Hispanic people or employees. The Petitioner, however, did not make a formal complaint about that matter when offered the opportunity to do so.
Maribel Reyes is a Hispanic employee. She testified that another employee, possibly employee Thrasher, criticized her as well as Esperanza Rietz, also a Hispanic employee, for speaking the Spanish language at work.
Ms. Reyes and/or Ms. Rietz took a complaint about this matter to the Petitioner. The Petitioner did not act to resolve it, however, and therefore Ms. Reitz took her concerns about criticism of her speaking in Spanish to the Petitioner's supervisor, Ms. Carter. The issue was then resolved quickly by Ms. Carter, who assured Ms. Rietz that she could speak any language she wished; that there was no prohibition against that.
The Respondent had contended that this was one of the instances of purported discrimination against Hispanic employees which she purportedly defended against and made complaint about to the Respondent's management. In fact, the complaint had been made to her by the Hispanic employee referenced above and she had done nothing about it. In any event, the fact that the Petitioner's supervisor, Ms. Carter, acted quickly to assure
Ms. Reyes and indeed Ms. Rietz, that the Respondent's management did not tolerate employment conduct indicative of such discrimination, tends to belie the Petitioner's contention that the Respondent retaliated against her for making a complaint about discrimination against Hispanic employees. Rather, it was her supervisor, and the Respondent's management who acted to
ensure that such potentially discriminatory conduct was not condoned. This belies any likelihood that the Respondent would have retaliated against the Petitioner for following the same policy, had she done so.
When she was hired the Petitioner's supervisor,
Ms. Carter, instructed her to include Ms. Carter in any meetings and/or discussions with employees concerning those employees' performance evaluations, especially if the evaluations were contemplated to be negative ones. The Petitioner was still a probationary employee herself, and Ms. Carter, as her supervisor wanted to ascertain that she had followed instructions and was doing the employee performance evaluations in accordance with the Respondent's relevant personnel rules and policies. In fact, however, the Petitioner failed to follow Ms. Carter's instructions and completed a number of performance evaluations and meetings with the affected employees without informing
Ms. Carter or securing her presence at those discussions.
The testimony of witnesses Jessie Wilson and Jennifer Carter, established that the Petitioner gave Jessie Wilson an unfair and inaccurate employee performance evaluation. She excessively criticized and was rude toward Jessie Wilson. The Petitioner apparently made a comment somewhat to the effect that Ms. Wilson, who is white, had a "Jim Crow" attitude or an "overseer" mentality.
The Petitioner was overly critical, demeaning, and rude toward employees at various times. She embarrassed and criticized Esperanza Rietz, an employee she supervised, in front of the employee's co-workers and disclosed her personal medical information improperly to Ms. Rietz's co-workers.
Velda Gardner is a Health Technician in the health unit. Ms. Gardner took a long lunch period one day, taking an extra hour. She took the extra hour from administrative leave she was entitled to as "compensation time." The Petitioner wrongfully docked her the hour of administrative leave time.
Ms. Gardner demonstrated to the Petitioner, with a witness, that she was entitled to the hour of administrative leave time or compensation time but the Petitioner refused to accept her truthful explanation. She effectively and wrongfully accused Ms. Gardner of lying.
In addition to prompting employee Jessie Wilson to file a grievance against the Petitioner because of the untrue, inaccurate, and overly disparaging evaluation concerning
Ms. Wilson's performance, the Petitioner yelled at and criticized Ms. Wilson in front of her peers. She also treated other employees in front of peers in a similar fashion at various times.
Ms. Rietz worked as a Spanish language interpreter for the Respondent. The Petitioner disparaged her in front of other employees. Ms. Rietz felt demeaned by this.
On another occasion the Petitioner approached a physician, Dr. Tamalo, in the hallway outside her office and commenced yelling at him and berating him in a loud, rude manner. This was overheard by witnesses Virginia Howard and Gracie Stovall, employed, respectively, in the nearby Family Planning Clinic and Family Health Clinic. According to these two witnesses, "everyone in adjoining rooms could hear it." The Petitioner behaved in a very loud, rude disparaging way to
Dr. Tamalo and another physician.
Jennifer Carter, as referenced above, is employed by the Family Health Clinic and is the Petitioner's supervisor. She corroborated the testimony of witness Jessie Wilson concerning the Petitioner's "Jim Crow" reference and described the above-named witnesses' and employees' complaints concerning the Petitioner's conduct towards them, corroborating the nature of their complaints. Witness Carter described Respondent's Exhibit A, which is Jessie Wilson's performance evaluation, as
being in some respect harsh and demeaning, with the same sort of criticisms directed at the Respondent's Exhibit B, the performance evaluation of Tammy Buckney. These evaluations were not done in accordance with Ms. Carter's instruction.
Ms. Carter, in fact, had to re-formulate and re-draft three of the six employee evaluations she received from the Petitioner because they were inaccurate, overly disparaging, and not done according to her instructions. Ms. Carter is the Assistant Community Health Nurse of the Escambia County Health Department.
Ms. Carter thus corroborated the testimony of other employees that the Petitioner's treatment of staff members under her supervision was frequently rude and demeaning. Ms. Carter also corroborated the testimony of Ms. Reyes in establishing that no discrimination against Hispanic people was tolerated by the Respondent, nor to the knowledge of Ms. Carter had occurred.
Dr. John Lanza is director of the Escambia County Health Department. He is the ultimate supervisor of the Petitioner as well as all other employees of the Department, including Jennifer Carter. Dr. Lanza has been with the Department of Health for 15 years. He has never heard any reports of discrimination against Hispanics or as to Ms. Rubin herself. Ms. Rubin is Black.
Dr. Lanza became aware through reports of his management team, such as Dr. Susan Turner, Barbara McCullough, and Jennifer Carter of the Petitioner's disparaging, and rude treatment of employees under her supervision. He also learned that she failed to participate in her clinic duties. Dr. Lanza, as director of the health department, is authorized to dismiss
Department personnel. He dismissed the Petitioner because she failed to follow her supervisor's instructions, was unacceptably rude and overly critical of employees under her supervision.
She was demeaning at times toward employees and even was rude to two physicians at the Department whom she had no authority to supervise. These criticisms, which have been established as true by the preponderant evidence in this record, and the fact that all this deficient conduct occurred while the Petitioner was still in her probationary period after her hiring, motivated Dr. Lanza to dismiss the Petitioner from employment. When
Dr. Lanza made this decision he was unaware of any allegation of any discrimination directed toward Hispanic employees anywhere in the Escambia County Health Department. Because he was unaware of such allegations of discrimination, akin to that complained of in the Petition for Relief, he could not have retaliated against the Petitioner for taking a stand or making complaints about alleged discriminatory conduct directed toward Hispanic employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).
There is no dispute that the Respondent is an "employer" as that status is defined in Section 760.02, Florida
Statutes (2007). Likewise there is no dispute that the Petitioner is an "employee" as that status is thus defined. Jurisdiction is established.
Section 760.10(7), Florida Statutes (2007), provides
that:
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 . . .
The Florida Civil Rights Act, Chapter 760, Florida
Statutes, was patterned after Title VII of the Federal Civil Rights Act of 1964. Florida Courts have therefore used the same analysis when considering claims under the Florida Civil Rights Act as is employed in resolving claims under the Federal Act.
See Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385, 1387 (11th Cir. 1998); Castleberry v. Chadbourne, Inc.,
810 So. 2d 1028 (Fla. lst DCA 2002).
In order for a Petitioner to prove intentional discrimination through circumstantial evidence, the burden shifting analysis employed by the court in McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802-805 (1973) is appropriately employed. Under the rationale of that case, a prima facie case of discrimination must be shown by the Petitioner. If the Petitioner establishes a prima facie case of discrimination (here based upon a retaliation), the burden then
shifts to the Respondent employer to demonstrate that the employment decision was motivated by a legitimate, non- discriminatory reason rather than reasons predicated upon prohibited discrimination. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1093 (1981).
If a legitimate, non-discriminatory reason for the employment action taken is articulated by the employer, then the Petitioner has the burden of going forward with evidence to show that the reason offered by the employer is in fact pretextual, and not true reason for the employment decision made and that the true reason is based upon discriminatory animus. See Farley v.
Nationwide Mutual Insurance Company, 197 F.3d 1322, 1337 (11th Cir. 1999). The Petitioner retains the ultimate burden of persuasion in the proceeding, however, to show by preponderant evidence that he or she was the victim of an adverse discriminatory employment decision, here based upon retaliation, and that the Petitioner suffered damages as a result. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Petitioner has not claimed in her Petition for Relief that she has been subjected to discrimination predicated upon her race or otherwise. Rather, she has pled that she was the subject of retaliation based upon her purported exercise of a statutorily or otherwise protected expression or conduct whereby she allegedly complained, and sought to redress alleged
discrimination against Hispanic employees. Thus, under the burden of proof allocation analysis enunciated by the U.S. Supreme Court in the McDonnell-Douglas and Burdine decisions supra, the Petitioner must first establish a prima facie case of retaliation. In order to demonstrate a prima facie case of retaliation the Petitioner must show: (1) that she was engaged in a statutorily protected expression or conduct; (2) that an adverse employment action has occurred, directed at her; and (3) that there is causal connection between the protected expression or conduct that she engaged in and the adverse employment action taken against her. See Farley v. Nationwide Mutual Insurance Company, 197 F.3d 1322, 1336 (11th Cir. 1999).
The Petitioner must establish that her protected activity or conduct and the adverse employment action were related in some way. She must show that the decision-maker, with regard to the adverse employment action alleged, was aware of the protected conduct engaged in by the Petitioner before the adverse employment action was taken.
Once a prima facie case of discrimination based on retaliation has been established, the employer has the opportunity to articulate a legitimate, non-discriminatory reason for the adverse employment action. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997).
Thus, in order to prevail on a retaliation claim the Petitioner must establish that the employer was actually aware of the protected expression or conduct at the time the adverse decision was made. Clover v. Total Systems Services, Inc., 176 F.3d 1346, 1354-56 (11th Cir. 1999); see also Sullivan v. National RR Railroad Passenger Corp., 175 F.3d 1056, 1060 (11th Cir. 1999). See also Brumgart v. Bell South Telecommunication, Inc., 231 F.3d 791, 799 (11th Cir. 2000).
In order to establish that there is a causal link between the conduct engaged in by the Petitioner and the adverse employment action, the evidence must show that the employer's decision was motivated, in part at least, on knowledge of the protected activity engaged in by the Petitioner. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). If this were not the case, impermissible speculation could support a finding that a decision to terminate was causally connected to complaints a Petitioner employee had made. See Foster v. Solvay Pharmaceuticals, Inc., 160 F. Apps. 385, 389 (5th Cir. 2005).
The Clover decision supra illustrates that temporal proximity between the protected conduct engaged in by the Petitioner and the adverse employment decision, is insufficient to create a genuine issue of fact as to causal connection, where there is unrebutted evidence that the decision-maker did not
have knowledge that the employee had engaged in the protected conduct. See Clover, 176 F.3d at 1355-56.
The Petitioner has failed to establish a prima facie case based on retaliation with regard to the termination decision. This is because she failed to establish that the decision-maker, Dr. Lanza, had any knowledge of the purported protected conduct engaged in by the Petitioner (complaining about harassment or discrimination of Hispanic employees). The Respondent produced credible, persuasive and unrefuted evidence that Dr. Lanza had no such knowledge, thus the Petitioner cannot establish a prima facie claim. One of the elements of a prima facie claim based on retaliation is establishing a causal connection between the alleged protected conduct engaged in by the Petitioner and the retaliatory employment decision. The causal connection can not be established if the decision-maker taking the employment action at issue had no knowledge of the Petitioner's conduct which the Petitioner alleged was protected conduct or expression. Thus the Petitioner in this case has not established her prima facie claim for this reason.
Moreover, obviously, a prima facie claim, as referenced above, has as a requisite element the establishment that the Petitioner engaged in statutorily protected conduct or expression. The Petitioner has asserted that she complained of and sought to alleviate what she deemed to be discriminatory
conduct directed at Hispanic employees. The evidence is not clear that she did so, however. Rather, the testimony of Ms. Reyes was to the effect that when she complained that
employees were, in affect, decrying the fact that she spoke in Spanish, while on duty, complaining of this to the Petitioner, she got no action from the Petitioner. It was only when she went to the Petitioner's supervisor, Ms. Carter, that action was taken to alleviate this perceived discriminatory conduct.
Therefore, it is not clear that the Petitioner actually engaged in protected activity as a basis for her claim of retaliation because of it.
However, even if the Petitioner had established a prima facie case, the Respondent advanced legitimate, non- discriminatory reasons for the termination of the Petitioner. The Petitioner was dismissed by Dr. Lanza because she failed to follow her supervisor's instructions, failed to participate in clinic duties, was frequently unacceptably rude and unduly critical of employees under her supervision and was cruel and demeaning toward employees. These reasons are well supported by the testimony of a number of witnesses, in addition to
Dr. Lanza.
Once an employer offers a legitimate, non- discriminatory reason to explain the adverse employment action and its timing, which Dr. Lanza and Ms. Carter did with their
testimony, corroborated by other witnesses, then temporal relationship between the alleged protected conduct and the employment decision is insufficient in itself to sustain the case for a retaliation claim. See Swanson v. General Services
Administration, 110 F.3d 1180, 1188 (5th Cir. 1997). The Swanson decision also provides a good synopsis concerning the proposition that a petitioner's "opinions," standing alone do not constitute competent evidence. 110 F.3d at 1186. In the instant situation the only evidence or testimony concerning the alleged discriminatory motives of the Respondent in terminating the Petitioner is based on the Petitioner's unsupported opinion. That cannot constitute competent proof, standing alone, of discriminatory motives on the part of the Respondent.
In summary, the Respondent articulated legitimate, non-discriminatory reasons for the termination of the Petitioner. The Petitioner failed to offer any evidence to show that there was any knowledge on the part of the decision-maker, Dr. Lanza, of any protected conduct in the form of the Petitioner's alleged complaining of harassment of Hispanic employees. Because the Petitioner failed to establish any knowledge on the part of the decision-maker of the alleged protected conduct or expression, the Petitioner could not establish any causal connection between the termination and the purported protected conduct. Thus, a prima facie case was not
established. It was not established for the additional reason that the Petitioner did not prove that she had actually engaged in protected conduct by actually complaining of incidents of harassment of Hispanic employees. Finally, after the advancement of legitimate, non-discriminatory reasons for the Petitioner's termination, the Petitioner came forward with no evidence to show that the articulated legitimate reasons of the Respondent for the termination were pretextual. Accordingly, the Petition for Relief should be dismissed.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.
DONE AND ENTERED this 6th day of August, 2008, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2008.
Edna M. Rubin
Rodney M. Johnson, Esquire Department of Health
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.
