STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. VALENTINE ANDELA, )
)
Petitioner, )
)
vs. ) Case No. 08-1154
)
UNIVERSITY OF MIAMI, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings, on May 22, 2008, by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Dr. Valentine B. Andela, pro se
924 Garrett Road, #404
Upper Darby, Pennsylvania 19082
For Respondent: Eric D. Isicoff, Esquire
Teresa Ragatz, Esquire Isicoff, Ragatz & Koenigsberg
1200 Brickell Avenue, Suite 1900
Miami, Florida 33131 STATEMENT OF THE ISSUE
Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint
Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
PRELIMINARY STATEMENT
On September 13, 2007, Petitioner filed an employment discrimination complaint with the FCHR, alleging that his former employer, the University of Miami (UM), had discriminated against him based on his race (black) and national origin (Cameroonian). According to the complaint, which contained the following "discrimination statement," the "most recent discrimination took place" on April 11, 2007:
I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable for the following reason(s):
I believe I was harassed and terminated because of my race (black) and national origin (Cameroonian). I began working for the University of Miami, Sylvester Comprehensive Cancer Center in June 2005. I was employed as a post-doctoral associate.
While I was conducting an extensive cancer research project, my supervisor, Dr. William Harrington, Jr., regularly treated me in a prejudiced and unprofessional manner. On or about August 20, 2006, when I returned from leave, Dr. Harrington was extremely hostile and rude to me. At about this same time, I went to human resources with my concerns with how Dr. Harrington handled the research article of which I was the lead author. On or about September 12, 2006, the University of Miami, providing no rationale terminated my employment. I believe Dr. Harrington had
undue influence on this decision. I also feel that, had I been a white associate and/or had I been from Brazil, I would not have been treated so distastefully by
Dr. Harrington nor would I have been unjustly dismissed. Furthermore, on or about April 11, 2007, Dr. Harrington attempted to publish a bogus research article listing me as the lead author. I feel this highly unethical act was done, in part, to further harm my reputation in this particular field and to disrupt my future employment status.
On February 7, 2008, following the completion of its investigation of Petitioner's complaint, the FCHR issued a Notice of Determination: No Cause, advising that a determination had been made that "there [was] no reasonable cause to believe that an unlawful employment practice ha[d] occurred."
Petitioner, on or about March 2, 2008, filed with the FCHR a Petition for Relief, which contained the following "description of the facts upon which [he] intend[ed] to [rely] at the formal hearing [to prove] that an Unlawful Employment Practice [had] occurred":
That the [R]espondents (Dr. Harrington and the University of Miami) harassed and discriminated with respect to terms of employment, promotion and compensation, on the basis of [P]etitioner[']s race (Black) and national origin (Cameroonian).
That the [R]espondents discharged the [P]etitioner based on the foregoing.
That the [R]espondents further harassed and retaliated against [P]etitioner for engaging in protected activities, specifically, for filing a complaint and for seeking legal remedies.
The "further harass[ment] and retaliat[ion]" referenced in item
3 was described in greater detail as follows in the "critical [contested] facts" portion of the petition:
Petitioner provided specific evidence to indicate that six months after his unlawful termination, [R]espondent (Dr. Harrington) submitted a bogus manuscript to a medical research journal, listing [P]etitioner as the first author, without [P]etitioner[']s consent and signature, as is required. Petitioner specifically identified the malicious and criminal actions on the bogus manuscript that were designed to further compromise [P]etitioner[']s credentials. (See bogus research manuscript entitled "Profiling of Epstein Barr virus (EBV) microRNAs in primary lymphomas uncovers CXCL11/I-TAC as a target for ebv-mir-BHRF1- 3." Contrast annotations for author contributions in original and bogus research manuscript to appreciate the fraudulent and malicious intent on the part of the [R]espondent, Dr. Harrington.) . . . .
Petitioner provided evidence that in an unrelated matter concerning the [P]etitioner[']s car being swindled by the University of Miami police department and their contract tow truck service, the University offered to settle on the matter by compensating [P]etitioner for the cost of his losses, and [P]etitioner agreed to settle on an amount far less than his losses only because [P]etitioner was constrained financially and had to co-sponsor an African Organization for Research and Training In Cancer (AORTIC) meeting in South Africa scheduled for October 2007, and cover his
travel expenses. When the [R]espondent found out that [P]etitioner had filed a discrimination charge with the [C]ommission, they tied the settlement offer to the [P]etitioner signing a full and general release agreement which would essentially preclude [P]etitioner from seeking redress [as to] any issue related to his status as a University employee or student - including instances of discrimination. This was a calculated, ruthless and malicious attempt by the [R]espondent to cover up (see letter from the University of Miami Office of the Vice President and General Counsel dated September 12th 2007 and signed by Judd J. Goldberg, the Assistant General Counsel and; the Full and General Release Agreement drafted by Alan S. Fish, Vice President of Business Services for the University of Miami).
Petitioner will provide evidence that he has graduated from [R]espondent[']s Master of Arts in International Administration (MAIA) program but his Masters Degree has not been issued or released because thesis advisors and the program director [are] non- committal possibly on [R]espondent[']s instruction or out of fear that the [R]espondent would retaliate. Furthermore, [R]espondent disabled [P]etitioner[']s student account.
On March 7, 2008, the FCHR referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge "to conduct all necessary proceedings required under the law and submit recommended findings to the [FCHR]."
As noted above, the final hearing in this case was held on May 22, 2008.2 Three witnesses testified at the hearing:
William Harrington, M.D.; Petitioner; and Nicole Lergier. In addition, 67 exhibits (Petitioner's Exhibits A, B, B (Supplement), C, and D, and Respondent's Exhibits 1 through 62) were offered and received into evidence.
At the close of the evidentiary portion of the hearing, the undersigned, on the record, set the deadline for filing proposed recommended orders at 14 days from the date of the filing of the hearing transcript with DOAH.
The Transcript of the final hearing (consisting of one volume) was filed with DOAH on June 17, 2008. Accordingly, proposed recommended orders had to be filed no later than July 1, 2008.
Petitioner and UM timely filed their Proposed Recommended Orders on July 1, 2008.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Petitioner is a very well-credentialed, internationally-recognized cancer researcher who is black and a native of Cameroon. He has been granted lawful permanent residence status in the United States (with an EB-1 classification, signifying that he is an alien with "extraordinary ability").
Petitioner received his Doctor of Medicine degree in 1999 from the University of Yaounde I in Cameroon. He spent the next five years as a post-doctoral fellow at the University of Rochester Medical Center in Rochester, New York.3 He worked in the Department of Orthopaedics (under the supervision of Randy
N. Rosier, M.D., Ph.D.) for the first two of these five years and the James P. Wilmont Cancer Center (under the supervision of Dr. Rosier and Joseph D. Rosenblatt, M.D.) for the remaining three years. Petitioner enjoyed a considerable amount of independence, and was "very productive," during his time at the University of Rochester Medical Center.
In June 2005, Petitioner began working as a post- doctoral associate assigned to the Viral Oncology (VO) program at UM's Sylvester Comprehensive Cancer Center (Sylvester) in Miami, Florida. He remained in this position until his termination (which he claims was discriminatorily motivated) in September 2006.
Sylvester "serves as the hub for cancer-related research, diagnosis, and treatment at [UM's] Miller School of Medicine" (Miller).
The VO program is administratively housed in the Division of Hematology/Oncology of Miller's Department of Medicine. Dr. Rosenblatt, Petitioner's former supervisor at the University of Rochester Medical Center, is now, and has been at
all times material to the instant case, the Chief of the Division of Hematology/Oncology.
According to the Sylvester website, the goals of the VO program include:
Investigating the mechanisms of oncogenesis and innate immune subversion in viral associated cancers including those that arise in immunocompromised patients.
Devising novel and targeted therapeutic and preventive strategies for viral associated malignancies.
Implementing basic and clinical international collaborative studies in developing nations that have a high incidence of these tumors.
William Harrington, Jr., M.D., is now, and has been at all times material to the instant case, "in charge" of the VO program.
Dr. Harrington, who is white, is a 1984 Miller graduate. He has been working for UM since his graduation 24 years ago. For the past 17 or 18 of these years, he has held positions having supervisory authority over other UM employees.
As the head of the VO program, Dr. Harrington runs a "small" laboratory (Dr. Harrington's lab) staffed by a post- doctoral associate, lab technicians, and a research nurse (all of whom he directly supervises).
Dr. Harrington's lab is a "hundred percent funded by [competitive] peer review grants": four from the National
Institutes of Health (NIH); one from the Leukemia Society; and one from the State of Florida. It is "one of the best-funded labs" at UM.
In addition to running his lab, Dr. Harrington also sees and treats patients at UM's Jackson Memorial Medical Center (Jackson Memorial). Approximately 95% of his patients are indigent, with a large number of them being of African descent (black).
Dr. Harrington "specializes" in viral lymphomas, with a strong emphasis on diseases that occur predominantly in persons of African descent (certain AIDS-related lymphomas, HTLV-related lymphomas, and Burkitt lymphoma).
Over the years, Dr. Harrington has had occasion to do work outside the United States, in areas where these diseases are prevalent, including the Afro-Brazilian state of Bahia, where, approximately 12 years ago, he met his wife Tanya, who is of African descent.
Dr. Harrington has also "worked with colleagues in Zambia . . . on AIDS-related lymphomas and pediatric Burkitt lymphomas."
Approximately seven or eight years ago, Dr. Harrington "sponsored post-doc[toral] trainees from Zambia in his lab."
Dr. Harrington was introduced to Petitioner by Dr. Rosenthal. After reviewing Petitioner's "bio-sketch,"
Dr Harrington interviewed Petitioner and was sufficiently impressed to offer Petitioner an unadvertised post-doctoral position in his lab.
Dr. Harrington hired Petitioner because Petitioner had the "skillset" Dr. Harrington was looking for. Dr. Harrington was particularly influenced by Petitioner's background, including publications, in NF-kappaB signaling, which was an "area[] of [Dr. Harrington's] interest." Moreover,
Dr. Harrington thought Petitioner was a "smart capable man."
At the time he hired Petitioner, Dr. Harrington was aware Petitioner was black and from Cameroon. Neither Petitioner's race, nor his national origin, played any role in Dr. Harrington's hiring decision.
As a post-doctoral associate, Petitioner was the "senior lab person" working under Dr. Harrington's supervision. He was expected to assume a "higher level [of responsibility] than other staff personnel in [the] lab . . . in terms of doing a given set of experiments or [other] work."
Dr. Harrington and Petitioner initially enjoyed a cordial working relationship. They had "excellent rapport" and even socialized after work hours. At Dr. Harrington's invitation, Petitioner came over to Dr. Harrington's house approximately "every other Friday" and for the Thanksgiving holiday.
Although Dr. Harrington did not hire Petitioner specifically to "build[] international research programs," once Petitioner was hired, Dr. Harrington did discuss the matter with Petitioner, and he authorized Petitioner to initiate contact with cancer investigators in Cameroon to explore the possibility of their collaborating with Dr. Harrington on a project involving NF-kappaB signaling and Burkitt lymphoma.
After having received Dr. Harrington's authorization, Petitioner "made contact with some of [his] mentors back in Cameroon, all [of whom were] involved in [Cameroon's] national cancer control program."
On July 13, 2005, Dr. Harrington himself sent an e- mail to these Cameroonian investigators, which read as follows:
Thank you Dr. Mouelsone for your response. I was considering putting together a project on Burkitt lymphomas that would principally be a study on the biology of the tumor in endemic and HIV associated cases. We would collaborate with investigators in Brazil and Africa. The study would be focused on targets that could be exploited in novel therapies as well the role of ebv [Epstein Barr virus] in different types of tumors.
We already have IRB approval for collection of residual lymphoma specimens as well as protocols for the processing that would be required. A challenge in any grant is keeping the project focused and attractive scientifically for the reviewers. The participating center would have to have the capability to identify and consent patients as well as processing and storage . . . .
Therefore one would need reagents, a research nurse (maybe 50%) salary and liquid
nitrogen dewar as well as some support for a PI. Maybe I could send everyone the aims of a recently submitted grant to see if it would be possible. I could send our informed consent document since it broadly covers all viral associated tumors. I am attaching a recent article and I sincerely appreciate your help. I also am a fan of the Cameroon's football team the "indomitable lions."
Dr. Harrington ultimately determined to collaborate exclusively with the Brazilian investigators, with whom he had a longstanding professional relationship, and not with the Cameroonian investigators, on this particular project.
During the first several months of Petitioner's employment, he engaged in research involving NF-kappaB signaling. He also helped write an article (entitled, "Zidovudine: A Potential Targeted Therapy for Endemic Burkitt Lymphoma") that was published in the East African Medical Journal. When presented with the draft of the article that Petitioner had prepared, Dr. Harrington commented to Petitioner (by e-mail dated July 28, 2005), "[T]his is better than the one I wrote."
Petitioner also contributed to the preparation of a successful NIH grant application submitted on September 1, 2005, by Dr. Harrington (as Principal Investigator/Program Director) seeking funding for his lab, as well as for collaborators in Brazil and at the University of North Carolina at Chapel Hill,
to "investigate in primary BLs [Burkitt lymphomas] the form of EBV [Epstein Barr virus] latency and its relationship to NF- k[appa]B"; to "determine the susceptibility of primary tumor cell lines to antiviral apoptosis"; and to "investigate commonly available, inexpensive agents that are known to induce the EBV lytic cycle and potentiate phosphorylation of AZT [azidothymidine, also known as Zidovudine]."
The grant application was "based on . . . work that had been done [prior] to [Petitioner's coming to work in
Dr. Harrington's lab]."
The following individuals were listed as the "key personnel" on the grant application: Dr. Harrington; Iguaracyra Araujo, M.D., of Brazil; Jose Barreto, M.D., of Brazil; Carlos Brites, M.D., Ph.D., of Brazil; Dirk Dittmer, Ph.D., of the University of North Carolina at Chapel Hill; and Isildinha Reis, Ph.D., of UM.
The following statements were made on the grant application concerning Dr. Reis' and Petitioner's anticipated roles in the proposed project:
Isidinha Reis, Ph.D. (Biostatistician) will be in charge of the statistical component of this project including periodic analysis of data pertaining to this grant. She will participate in phone conferences with
Ms. Shank and Luz. She will be particularly important for the conduct of this study since she is Brazilian by birth and fluent in Portuguese. 7.5% support is requested.
Valentine Andela (Post Doctoral Fellow) will be in charge of all the day-to-day laboratory aspects of Dr. Harrington's component of the project. This includes receipt of isolates shipped from Brazil and then forwarding them to Dr. Dittmer, cell culture, DNA and RNA preparation and hybridization, EMSA and immunoblot analysis, cryopreservation of samples, etc. 50% support is requested.
In the fall of 2005, Dr. Harrington discussed with Petitioner an article published in a "science magazine" that reported on Epstein-Barr virus (EBV) microRNAs, which, at the time, was a relatively unexplored area of research and one in which Dr. Harrington "definitely [did] not" have any "expertise."
During the discussion, Petitioner expressed an interest in studying EBV microRNAs. Dr. Harrington "agreed [this] would be an interesting project to pursue," and he "thought [Petitioner] could do a good job" on it.
With Dr. Harrington's approval, Petitioner thereafter started his research of EBV microRNAs, a project that consumed most of his work time during the remainder of his employment with UM. The project included helping draft a manuscript detailing the findings of the research. The experiments that Petitioner did as part of the project were on tumor samples that had been "collect[ed]" and "intial[ly] analy[zed]" by Brazilian
investigators with whom Dr. Harrington had collaborated with in the past.
In November 2005, Petitioner advised Dr. Harrington that he was considering participating in a clinical residency program, and Dr. Harrington "agreed to help [Petitioner] out" in any efforts he might make to seek a residency position. At Petitioner's request, Dr. Harrington wrote a letter of reference (dated November 16, 2005), "highly recommending" Petitioner for such a position. Dr. Harrington indicated in his letter, among other things, that in the "relatively brief time" that Petitioner had worked for him, Petitioner had "exceeded
[Dr. Harrington's] expectations and made novel findings in the area of lymphoma and Epstein Barr virus." In addition to writing this letter of reference, Dr. Harrington, on Petitioner's behalf, contacted Stephen Symes, M.D., who at the time was the "head of the [Jackson Memorial medical] house staff program." Dr. Symes told Dr. Harrington that the "logical thing for [Petitioner] to [first] do [was] . . . a clinical rotation" at a teaching hospital, such as Jackson Memorial (during which he would act as either an observer or as an actual member of a medical team).
Petitioner had planned to participate in a two-week clinical rotation at Jackson Memorial in December 2005, but had to change his plans because, when December came, he was still
immersed in the EBV microRNA research project he had undertaken and had no time to do the rotation.
Dr. Harrington was pleased with the quality of the work that Petitioner was doing on the project.
In an e-mail he sent Petitioner on March 6, 2006, Dr. Harrington stated that he was "really excited about [Petitioner's] work," which he described as "novel and probably the best thing to come out of [his] little lab."
On or about March 20, 2006, Dr. Harrington provided Petitioner with his written annual performance evaluation. He gave Petitioner an overall rating of "exceeds standards," with Petitioner receiving an "exceeds" rating in the categories of "Job Knowledge," "Supervision Required," "Quality of Work," "Adaptability," "Customer Service," and "Safety," and a "meets" rating in the category of "Time Management." Dr. Harrington made the following handwritten comment on the evaluation with respect to the latter category:
I would like him to maintain more regular hours but his work is outstanding.
Dr. Harrington felt compelled to make this comment because, although he "liked the work [Petitioner] was doing," "there were issues [regarding Petitioner's] disappearing for long periods of time [from Dr. Harrington's lab without telling Dr. Harrington where he was] and [Dr. Harrington] thought that this was
becoming problematic." These "unexplained absences" from the lab were becoming more frequent and Dr. Harrington felt like Petitioner was "pushing the envelope."
The improvements that Dr. Harrington had hoped to see in Petitioner's attendance did not materialize, and the relationship between the two deteriorated precipitously.
On March 29, 2006, following a confrontation he had with Dr. Harrington, Petitioner sent an e-mail to
Dr. Harrington, in which he advised:
I did not mean to be rude this afternoon and you are absolutely right in pointing out that I am tense and consequently reactive.
All things considered, I am putting undue pressure on myself. I am pretty much accepted in the Master of Arts in International Administration (MAIA) program at the UM. It is a professional degree program that puts a lot of weight on a practicum of the degree candidate[']s choice. I had proposed to implement the strategy articulated in the attached manuscript, which was previously funded in 2003 by an NCI-UICC grant for international cancer research and technology transfer.
I am going to commit[] to the MAIA program, get it done in a year, and then reassess. I can go on to work in international developmental aid or go on to do a residency. If I was pushing for a tenure track faculty position, it is in part because I wanted to pursue the first option, but do it gradually over 3 years under your wing. Of course, I was counting on that plan being in line with your grand scheme,
i.e. developing international programs.
Dr. Harrington responded that same day by sending Petitioner the following e-mail:
Ok I can help you with letters etc. I understand and that sounds like a good program. I want to expand these studies to Africa and hopefully in the future we can work together. I need your help on this paper. I think you have done very nice work. Things are pretty tough in the academic arena these days.
A few days later, on April 1, 2006, Dr. Harrington, upset with what he felt was Petitioner's continuing lack of respect for his supervisory authority over the operation of the lab, sent Petitioner an e-mail, in which he stated the following:
I have given this some thought and I don't think that this is working out with you. I am tired to see that you have simply disappeared without even a word to me and although you do very nice work it isn't worth it to me at this point. I also did not like the way you simply dismissed the fact that I had to do the work as outlined in the grant. I have tried very hard to go out of my way to accommodate you but at this point I feel that I have no authority at all. I want you to sit down on Monday and give me all the data for this paper, raw and otherwise. I also received all the pictures from Iguarcyra and the tumors are on the way. If you don't want to finish this then I will send everything to [D]irk. It is too bad because there is a lot we could have accomplished.
Later that month, on April 28, 2006, reacting to another instance of Petitioner's being away from the lab when he
was expecting Petitioner to be there, Dr. Harrington sent the following e-mail to Petitioner:
I have been waiting around here to look at the figures. If you don't come in you should call, or if you leave for the majority of the day, you should call. I have spoken to you about this to no avail. You are a smart guy but am sick of this.
Finish your paper and find another job. You will have to leave the computer here too. I will not ask for a raise for you nor a faculty position.
Dr. Harrington sent Petitioner a follow-up e-mail the next day, which read as follows:
I really am disgusted. You have thrown away everything this year, both for you and me.
Your unstable behavior makes me question everything you have done also and so I will have to cancel submitting this paper until Lan[4] or JC can repeat some of the work.
You are throwing away your tuition benefits also and have adversely affected everyone, most of all yourself. I have contacted the appropriate ones about this. I strongly urge you to do all I have outlined below.[5] I will not consider anything else.
In an April 30, 2006, e-mail to Dr. Harrington, Petitioner responded:
I will let the facts speak for themselves. Prior to joining your lab, I spent over five years working in a highly interactive and competitive environment. My record is infallible. You have in fact benefited tremendously from my intellect, my experience and especially my poise.
I trust you would assemble an ethics committee to probe my work. I expect a letter of termination in due form and I
would transfer all of the research material accordingly.
This e-mail generated the following response from Dr. Harrington, which was communicated to Petitioner later that day by e-mail:
Poise, what a joke. If you walk off with the data and th[]e computer I will call security.
The morning of May 2, 2006, Petitioner sent the following e-mail to Dr. Harrington:
Dear Dr. Harrington:
Per your request, I will transfer everything to Lan no later than next week, Monday the 8th.
This was all a set up anyway, to bog me down in the lab. So I would not make a fuss about any of this. I will put this all behind me.
Nonetheless, I have backed up every relevant document that exonerates me from any denigration.
In a way, I should thank you for throwing me out to the world and bringing me to face my fears. So thank you.
Valentine
Dr. Harrington replied a little more than a hour later, stating in an e-mail to Petitioner:
I have always t[h]ought that you were the smartest person that has worked for me.
Your work is really beautiful and I certainly could not have done it. I am very disturbed over this and I don't see why you
could not level with me. Your behavior at times was just too much, not your demeanor but the fact that you simply went on mental walkabouts and disappeared. You have to get a grip on your ego and not wear it on your sleeve. I had really thought we could have basically kicked ass in this area but I don't think that you realize the precarious nature of this business and that you have to be careful about straying into something or somebody that will leave you []no[] grant money. Valentine you can ask Joe. I spent most of my time bragging about your work to everyone. If you are smart, which you obviously are, then you don't have to go around telling that to people, they know.
The most important thing is that you get along with people and when you would just not show up without even calling it really pissed me off. It was telling me that I am not even worth a phone call. I can be a real asshole, again ask Joe, and I have done myself harm from being so. But like it or not I am a lot older and more senior than you. You will far surpass me in research if you get a grip on your ego. If not there will be an ever shrinking number of people that care. I would like for you to call me on my beeper or cell.
Petitioner defended himself in the following manner in an e-mail he sent to Harrington later that morning:
You cannot say that I [am] an egomaniac. I give of myself and I give very generously. That is the record I left in Rochester and that is the record I have left in your lab. To say people there will be an ever shrinking number of people who care is again not true. You should know that whenever I call[ed] on a favor from Rochester, for example getting into the . . . MA in Intl Admin [program], the response was immediate and overwhelmingly positive. I never thought I was smart and never said it. This much I know, I work very hard and I have a
generous heart and I will not l[]ose my way. Those are all the values I ever had and I will stick to it. God promised the path would be rough, but the landing would be safe.
Again, thank you. Valentine.
The final e-mail of the morning was sent by
Dr. Harrington to Petitioner. In it, Dr. Harrington informed Petitioner:
I am trying to get in contact with the [B]razilians and check on the id of the sa[m]ples one final time and I will try to submit the paper this week.
The "paper" to which Dr. Harrington was referring in his e-mail was the manuscript (written by both Petitioner and
Dr. Harrington) of the EBV microRNA research project Petitioner was spearheading (EBV microRNA Manuscript).
On or about May 12, 2006, following an instance of Petitioner's not "com[ing] in [to the lab] nor call[ing] to advise [Dr. Harrington] of [his absence]," Dr. Harrington spoke with Petitioner about his "unexcused absences" and provided him with specific verbal instructions regarding his attendance and use of his work time. In a May 12, 2006, e-mail, Dr. Harrington informed Desiree Uptgrow of Sylvester's human resources office of the talk he had had with Petitioner and the directives he had given him. The e-mail read as follows:
I spoke to Mr. Andela regarding his unexcused absences from work. I referred to the recent time on Friday, when he did not come in nor call to advise me of this. I also spoke to him about concentrating on work and not other activities while in the lab. I will not excuse this or any further incidents. He is expected to comply with the following: 1) arrival at work at a reasonable hour, by this I mean between the hours of 9 to 10 am and cessation of work at a reasonable hour by this I mean 5-6 pm.
2) Weekly goals will be outlined by me in terms of expected experiments to be performed (of course results may vary since the nature of research may not be predictable). 3) an attitude of collegiality in that if there is down time for whatever reason help would be offered by him to other lab personnel. 4) no unexplained long absences from the lab during the day. An expected lunch break of an hour is acceptable. Further deviations from the above will result in a second and third entry into his file whereupon he will be subject to dismissal.
William Harrington MD
As he put it in his testimony at the final hearing,
Dr. Harrington "had no problem with [Petitioner's] going somewhere for an hour or going somewhere for a couple of hours and doing something, but [he] had problems with [Petitioner's] simply disappearing and not giving [him] . . . the courtesy of letting [him] know what was going on."
On June 1, 2006, Dr. Harrington (as the corresponding author) submitted the EBV microRNA Manuscript (which was entitled, "Targeted Suppression of CXCL11/I-TAC by EBV encoded
BHRF1-3 microRNA in EBV related B-Cell Lymphomas" and is hereinafter referred to as the "First Manuscript") to Blood, a medical journal published by the American Society of Hematology. Petitioner was listed as the first author in the manuscript.
Among the other individuals given authorship credit were the Brazilian investigators. It was Dr. Harrington's decision to include them. He felt that "they clearly deserved to be co- authors" and that "it would have been unethical to not have included them." Petitioner disagreed with Dr. Harrington's assessment of the Brazilian investigators' entitlement to authorship credit.
In a July 17, 2006, decision letter, Blood's associate editor advised Dr. Harrington that the First Manuscript had been evaluated and deemed "not acceptable for publication in Blood."
On July 20, 2006, after what he considered to be further instances of insubordinate conduct on Petitioner's part, Dr. Harrington sent an e-mail to Ms. Uptgrow (as a follow-up to the May 12, 2006, e-mail he had previously sent her), in which he stated the following:
There have been a couple of recent incidents which I want to submit in writing. Last week Mr. Andela called me and said that his flight from DC was cancelled or overbooked and he would be late. I replied that this was OK but he never called, emailed or showed up to work. Yesterday he came in past 11 am and also did not call. More concerning is that I had asked him to set up
an experiment and later asked my lab tech to assist. When I spoke to my tech this morning he told me that Mr. Andela was not doing the experiment because he saw no reason to. I consider this to be insubordination.
Later that same day (July 20, 2006), Ms. Uptgrow sent an e-mail to Nicole Lergier and Lynetta Jackson of Miller's human resources office advising of Dr. Harrington's desire for "assist[ance] in the termination of [Petitioner] based on [Petitioner's] continue[d] lack of following
instructions "
The afternoon of July 24, 2006, Dr. Harrington and Petitioner engaged in the following argumentative e-mail exchange, evidencing the further decline of their relationship:
1:51 p.m. e-mail from Dr. Harrington to Petitioner
I asked you to do the bl-8 line and Peterson line. I don't care to hear that you chose not to do them.
2:05 p.m. e-mail from Petitioner to Dr. Harrington
Sorry but I don't know what you are talking about - and it is very disconcerting. I told you we had done the BL8 line and you told Lan to send the Peterson line to Dittmer for profiling. That's where we left off on that - this was reiterated at the meeting you convened with Lisa, Lan, Julio and I.
2:10 p.m. e-mail from Dr. Harrington to Petitioner
No that is not true. Lan said that you did not want to do another primary and I said repeatedly that I wanted it done. Your problem [V]alentine is that you think that you are in charge, ie I want a tenured position, I don't want to do old things etc. while I have to keep the grant money coming in. I respect your ability to do certain things and you are a s[m]art guy but clearly you would prefer to be autonomous. The question is how do you attain that.
2:44 p.m. e-mail from Petitioner to Dr. Harrington
Dr. Harrington- that is hearsay - you and I had this conversation over the BL8 and the P[e]terson and I said the BL8 had been done and I would run the P[e]terson line in parallel with the dicer exp[erimen]t, once I had gotten the conditions right.
I don't think I am in charge - and just how could I, when day in and day out you seek to undermine every "independent" effort I make, that's what[']s expected of a post-doctoral fellow... Every independent effort I have led has panned out - not because I am smart but because I put the time and effort to think it through.
When I joined your lab, it was on a 1 year stint - and now I am starting on my second year because you[] wanted it that way. I joined your lab to work on NFkappB, which is what you are funded for and what I had some expertise in, but then you had me work on something totally novel - miRNAs - and the work is done. If I asked for a tenure track position - it is because I recognized (or I thought I did) that you needed someone permanent in the lab - furthermore I was investing too much time and effort on the miRNA work... despite my best efforts (which
you do not acknowledge) this is not working out.
So I am going right back to the drawing board by doing a residency - we had agreed on this back in May that I was taking a month off in August to do a rotation. I am taking off to Europe for a short vacation on the 6th of August to prepare for my 2 week clinical rotation.
So to answer your question - I am giving up on any autonomy and I am going right back to doing a residency.
3:02 p.m. e-mail from Dr. Harrington to Petitioner
You never told me about vacation time but ok... you said you would be out for aug (without pay) so am I to presume that aug 6th will be your last day? We don't seem to get along and that's that, no hard feelings.
3:09 p.m. e-mail from Petitioner to Dr. Harrington
August 5th would be my last day.
3:17 p.m. e-mail from Dr. Harrington to Petitioner
And I will try my best to make sure that happens[.] [Up] until the 5th I would appreciate it if you did run Peterson and bl-8 since they will be cleaner than the primaries.
Although not obligated to do so, Dr. Harrington agreed to make sure that Petitioner was paid for the two weeks that, according to his July 24, 2006, 2:44 p.m. e-mail to
Dr. Harrington, he was going to be spending doing his clinical rotation (after his trip to Europe).
Petitioner left Miami on August 5, 2006, and went to Russia to participate in a two-week "short course" for which he received three credits towards his MAIA degree at UM. (He had enrolled in the MAIA degree program earlier that year.)
On August 10, 2006, while he was still in Russia, Petitioner sent the following reply to an e-mail he had received from Dr. Harrington "regarding when [his] return date from the 2 week clinical rotation would be":
Sorry I missed that - the 8th of September. Thanks.
Petitioner returned to Miami from Russia on August 18 or 19, 2006, "exhausted" and "burned out." He stayed home to rest until returning to work on September 8, 2006. He never did the clinical rotation he told Dr. Harrington he was going to do, but he nonetheless was paid by UM (as Dr. Harrington said he would be) for the two weeks he represented he was going to be engaged in this activity.
At no time during his absence from work did Petitioner tell Dr. Harrington he was, in fact, not doing a clinical rotation. He concealed this information because he "wanted to avoid a confrontation" with Dr. Harrington.
Dr. Harrington, however, was not entirely in the dark about the matter. On August 22, 2006, through e-mail correspondence, he had checked with Dr. Symes to see if
Petitioner had "ever showed up for a clinical rotation" at Jackson Memorial and had been told by Dr. Symes that he had "not heard from [Petitioner] at all."
When Petitioner returned to work on September 8, 2006, Dr. Harrington asked him for documentation showing that he had done a clinical rotation at Jackson Memorial during the time he had been away. Petitioner told Dr. Harrington that he did not have any such documentation. Dr. Harrington understood Petitioner to "follow[] that up by saying he had done a clinical rotation in Rochester." Dr. Harrington then "asked [Petitioner] for documentation of that clinical rotation," which Petitioner was unable to produce. The conversation ended with
Dr. Harrington telling Petitioner to leave the lab and go home, explaining that he would be bringing the matter to the attention of the human resources office.
At this point, Dr. Harrington had decided that it was "just impossible to continue the working relationship" he had with Petitioner and that Petitioner had to be terminated. He was convinced that Petitioner had lied to him about doing a clinical rotation and that, by having been absent from work for the two weeks he was supposed to have been doing such a rotation, Petitioner had effectively abandoned his job. Moreover, Dr. Harrington felt that Petitioner had "exploited" him and was continuing to disregard his supervisory authority.
Later in the morning on September 8, 2006, Petitioner sent Dr. Harrington the following e-mail:
Hi Dr. Harrington
This is just written confirmation that you asked me not to resume work today and to stay away until you had convened a meeting with human resources. Thanks
Valentine
Petitioner never returned to Dr. Harrington's lab.
September 8, 2006, was his last day in the "work environment" of the lab.
As he had promised he would, Dr. Harrington made contact (by e-mail) with the human resources office. He concluded the e-mail by stating:
At this point, under no circumstances will I allow Mr. Andela back into my lab and he is dismissed.
Lynetta Jackson of the human resources office responded to Dr. Harrington by sending him, on September 11, 2006, the following e-mail:
Dr. Harrington,
I'm still out of the office for medical reasons. This matter is being referred to Nicole Lergier/Karen Stimmel for follow-up.
Nicole Lergier was the human resources employee who handled the matter.
Ms. Lergier met with just Petitioner on September 14, 2006. At the outset of the meeting, she informed Petitioner that there was a "request for [his] termination" made by
Dr. Harrington. She explained that Dr. Harrington "was concerned that [Petitioner] had taken several weeks off to complete a clinical rotation for which [Petitioner] had been paid but [for] which [he] had never registered," and that Dr. Harrington considered Petitioner's conduct to be "job
abandonment and . . . grounds for immediate termination." She then went on to tell Petitioner that the purpose of the meeting was to give Petitioner the opportunity, without Dr. Harrington's being present, to give his side of the story and "to bring forward any issues."
Petitioner took advantage of this opportunity. He defended himself against the charges Dr. Harrington had made against him and countercharged that Dr. Harrington had been abusive, "manipulative[,] and unprofessional." At no time did Petitioner complain to Ms. Lergier that Dr. Harrington was "prejudiced against [him] because [he was] black or because [he was] from Cameroon."
Petitioner indicated to Ms. Lergier that he "had no interest in going back to Dr. Harrington's lab," but that, among other things, he wanted the EBV microRNA Manuscript to be published.
On the same day that the meeting took place, Petitioner sent the following e-mail to Ms. Lergier:
This is in response to Dr. William J. Harrington's complaint that I abandoned my job functions. The attached e-mails dated Monday 7/24/2006 indicate that I was gone on leave, without pay. What[']s more, there [is] evidence of professional misconduct, manipulation and negative inputs on
Dr. Harrington's part. This is not the first instance. The e-mails dated Tuesday 5/2/2006 to 4/28/2006 document another one of many such instances. The time I took off in August was not nearly enough to recover from a tremendously negative work environment where I nonetheless made many positive contributions, in ideas, manuscripts and grants. The facts speak for themselves.
At this point, I do not intend to return to work with Dr. Harrington and I trust Human Resources would find a constructive solution to this problem.
Approximately an hour later, Petitioner received an e- mail from Dr. Harrington, which read as follows:
Your paper will be submitted with you as first author. I have 9 tumor blocks corresponding to the patients in [B]razil and a couple of new ones here that we will assay for eber, cxcl-11 (we got a new ab.) and LMP-1. Lan has repeated the rpa's on the lines (BL-5, R) and several new primaries and they look very good, cleaner than the previous ones. Once I get this done I will send you a draft prior to submission.
Dr. Harrington subsequently submitted a revised version of the First Manuscript (Revised Manuscript) to Blood.
The Revised Manuscript was "shorter," but not "substantially different from the [First] [M]anuscript." Petitioner was still listed as the first author, which Dr. Harrington "thought was [only] fair since . . . [Petitioner] had done most of the lab work on that article." Dr. Harrington did not believe that, in submitting an "abbreviated" manuscript with Petitioner's name on it as first author, he was doing anything that was contrary to Petitioner's interests or desires.
Notwithstanding Dr. Harrington's best efforts, the Revised Manuscript, like the First Manuscript, was rejected for publication in Blood.
Although listed as the first author, Petitioner had not "sign[ed] off" on, or even seen, the Revised Manuscript before its submission to Blood. He ultimately received an e- mailed copy from Dr. Harrington. The next day, upon running into Dr. Harrington on the UM campus, Petitioner told him:
[Y]ou cannot put my name on a paper that I didn't write. You can't have me as a first author on a manuscript that I didn't sign off on. Take my name off that paper. I have moved on.
Dr. Harrington complied with Petitioner's request. Petitioner's name was not on the version of the EBV microRNA Manuscript
Dr. Harrington submitted to another medical journal, Cancer Research, "sometime in late 2007," which was accepted for publication and published in March 2008.
On or about September 20, 2006, Petitioner was contacted by Ms. Uptgrow and given the option of resigning his position or being terminated. Petitioner told Ms. Uptgrow that he "wasn't going to resign."
On September 25, 2006, Dr. Harrington sent Petitioner the following letter, advising Petitioner that his employment was being terminated "effective immediately":
As you know, you have been counseled many times regarding your unsatisfactory performance and attendance issues.
Unfortunately, these problems persist despite our counseling efforts. There have been several emails and conversations that have taken place, which you were advised that any further incidents would result in additional disciplinary action.
Specifically, we had agreed you would take the weeks of August 5, 2006 - August 18, 2006- off for vacation and this would [be] followed by a 2 week clinical rotation[.] [Y]ou notified your supervisor that you would return on September 8, 2006, 3 weeks after completing your vacation.
Despite all of the previous warning and effort to work with you on the problems that concerned your supervisor, it has continued. Due to your failure to adhere to University policies and procedures and ongoing problems, you have left us no alternative but to terminate you effective immediately. Any accrued vacation will be paid to you in your final paycheck.
You are to return all University property issued to you upon employment to Desiree Uptgrow to expedite the processing of your final check. Please contact Benefit Administration, (305)284-6837, regarding
continuation of benefits you may be entitled to. You should receive information regarding COBRA benefits from the Office of Benefits Administration in a separate letter. If you do not receive this letter, please contact the Office of Benefits Administration at (305)243-6835.
Dr. Harrington's termination of Petitioner's employment was based solely on what Dr. Harrington perceived to be Petitioner's deficiencies as an employee. Neither Petitioner's race, nor his national origin, played any role in this or any other action Dr. Harrington took affecting Petitioner.
On September 29, 2006, four days after his termination, Petitioner sent the following e-mail to Dr. Harrington:
Hi Dr. Harrington:
Dr. Symes urged me to do a 2 week clinical rotation/observership with Hem/Onc as the department of internal medicine no longer offers this. Would it be possible to do it with you, starting next week, Wednesday the 3rd of October. Thanks for your consideration.
On the advice of UM legal counsel, Dr. Harrington did not respond to this e-mail.
Instead of seeking other employment following his termination, Petitioner "focused" on completing the requirements to obtain his MAIA degree at UM. In accordance with UM policy, he continued to receive tuition remission benefits for the 2006
fall semester (the semester in which he was terminated), but after that semester, the benefits ceased.
Petitioner believes that he has completed the requirements for his MAIA degree and is entitled to receive his diploma and final transcript, which UM has withheld. UM's records, however, reflect otherwise. They reveal that he has not yet received any credit for the Practicum in International Administration (INS 517) course that he needs to obtain his degree.
This course involved Petitioner's writing and defending a thesis.
In the spring of 2007, while Petitioner was working on his thesis, his car, which was parked on the UM campus, was ticketed by the City of Coral Gables police and subsequently towed by Downtown Towing Company for "safekeeping."
After unsuccessfully attempting to retrieve his vehicle, he demanded that UM compensate him for his loss.
UM (acting through its Assistant General Counsel, Judd Goldberg, Esquire) and Petitioner engaged in settlement negotiations.
At least as early as August 8, 2007, UM insisted, as a condition of its agreement to any settlement, that Petitioner sign a full and general release reading, in pertinent part, as follows:
In exchange for the promises which the University makes in this Agreement, Andela agrees to waive voluntarily and knowingly certain rights and claims against the University.
. . . . The rights and claims which Andela waives and releases in this Agreement include, to every extent allowed by law, those arising under . . . the Civil Rights Acts of 1866, 1871, and 1964, . . . the Florida Civil Rights Act of 1992 . . . and any amendments to said laws. This is not a complete list, and Andela waives and releases all similar rights and claims under all other federal, state and local discrimination provisions and all other statutory and common law causes of action relating in any way to: (a) Andela's employment or separation from employment with the University which accrued or may have accrued up to the date of execution of this Agreement; and/or (b) Andela's status as a student at the University which accrued or may have accrued up to the date of execution of this Agreement. . . .
On September 13, 2007, Petitioner filed his employment discrimination complaint with the FCHR (complaining, for the first time to anyone, that he had been a victim of race and national origin-based discrimination by UM, acting through
Dr. Harrington).
On September 22, 2007, Petitioner sent the following letter to Mr. Goldberg:
I will not surrender my civil rights by signing the full and general release agreement, in order to receive a settlement for my above referenced car that was swindled. Compelling me to surrender my civil rights is an act of retaliation, based
on your knowledge of an employment discrimination complaint filed against the University of Miami.
As specified on page two-paragraph two- of the attached letter from the Florida Commission on Human Relations (FCHR), "the law prohibits retaliation against any person making a complaint, testifying or participating in an investigation, proceeding, or hearing on an alleged unlawful employment practice."
Unless you correct this unlawful act by the end of business day - Monday 24th of October
- I will notify the FCHR.
Mr. Goldberg responded by sending Petitioner the following letter, dated September 24, 2007:
This letter acknowledges receipt of your correspondence of September 22, 2007 addressed to myself and President Shalala.
If you have any further questions regarding this matter, please call my office directly as it is my office that handles all legal matters for the University. Thank you for your attention to this matter.
This letter constitutes communication regarding settlement and cannot be used for any other purpose.
At no time has Petitioner filed any employment discrimination complaint with the FCHR alleging that he was retaliated against for having engaged in activity protected by the Florida Civil Rights Act of 1992 (although he did make such allegations in the Petition for Relief he filed in the instant case).
CONCLUSIONS OF LAW
The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes. "The Act, as amended, was [generally] patterned after Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting [provisions of] Title VII and the ADEA is [therefore] applicable to cases [involving counterpart provisions of] the Florida Act." Florida State University v.
Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); see also Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla.
2000)("The [Act's] stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964."); City of Hollywood v. Hogan, Nos. 4D07-392 and 4D07-495, 2008 Fla. App. LEXIS 8122 *11 (Fla. 4th DCA June 4,
2008)("Federal case law interpreting Title VII and the ADEA
applies to cases arising under the [Act]."); and School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981)("Florida's job discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
2.").
Among other things, the Act makes certain acts
prohibited "unlawful employment practices," including those described in Section 760.10(1)(a) and (7), Florida Statutes, which provide as follows:
It is an unlawful employment practice for an employer:[8]
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The Act gives the FCHR, if it finds following an administrative hearing conducted pursuant to Sections 120.569
and 120.57, Florida Statutes, that an "unlawful employment practice" has occurred, the authority to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay."9 §§ 760.10 and 760.11(6), Fla. Stat.
To obtain such relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR, the Equal Employment Opportunity Commission, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80."10 § 760.11(1), Fla. Stat. This 365-day period within which a complaint must be filed is a "limitations period" that can be "be equitably tolled, but . . . only [based on the] acts or
circumstances . . . enumerated in section 95.051," Florida Statutes. Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997).
"[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete act starts a new clock for filing charges alleging that act." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). "Discrete
discriminatory acts" include "termination, failure to promote, denial of transfer, [and] refusal to hire" (id. at 114); "transfers, job assignments . . . , and failures to compensate adequately" (Bailey v. Synthes, 295 F. Supp. 2d 344, 354 (S.D.
N.Y. 2003)); and, in an academic setting, the denial of tenure (Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)).
"[A] hostile work environment claim is different from a claim for a discrete act of discrimination because the unlawful practice that results in a hostile work environment cannot be said to have occurred on a specific day; rather, it occurs over a period of time. Moreover, a hostile work environment claim is based on the cumulative effect of several individual discriminatory acts." Maggio v. Department of Labor and Employment Security, 910 So. 2d 876, 879 (Fla. 2d DCA 2005). To be actionable, these acts, collectively, must have been "subjectively perceived" by the complainant "as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable." Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999); see also Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 84 (Fla. 5th DCA 2006)("[T]he conduct/harassment [must] be more than merely insulting or rude and boorish behavior. . . . [Furthermore,] [t]he adverse effect on the employee must be subjective, as well as objective. Not only
must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct."). There are "four factors that should be considered in determining whether [the alleged] harassment objectively altered [the complainant's] terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct [was] physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interfere[d] with the [complainant's] job performance." Mendoza, 195 at 1246. Simply "having a contentious relationship with one's supervisor does not rise to the level of an abusive and hostile work environment." White v. Home Depot U.S.A., Inc., 2006 U.S. Dist. LEXIS 54076 *18 (D. Colo. August 3, 2006);
see also Trujillo v. University of Colorado Health Sciences Center, 157 F.3d 1211, 1214 (10th Cir. 1998)("Plaintiff falls short of making a showing of pervasive or severe harassment. The record on appeal provides evidence of little more than a collection of unrelated incidents where Plaintiff and Dr. Hill were at odds. Plaintiff was not subjected to anything that was physically threatening or humiliating, nor was he subjected to any offensive utterances. Plaintiff's list of grievances includes none of the racial comments or ridicule that are hallmarks of hostile work environment claims. The hostile work
environment that Plaintiff portrays is simply a work environment that exhibits the monitoring and job stress typical of life in the real world. Normal job stress does not constitute a hostile or abusive work environment. . . . We cannot vilify every supervisor that implements a policy with which an employee disagrees or that monitors her employees' conduct.")(citations omitted); and Vore v. Indiana Bell Telephone Co., 32 F.3d 1161, 1162 (7th Cir. 1994)("Federal law provides that an employee is to be free from racial discrimination in the workplace, which includes freedom from a racially-hostile work environment. It does not guarantee a utopian workplace, or even a pleasant
one. . . . In short, personality conflicts between employees are not the business of the federal courts.").
Even if only one of the alleged individual discriminatory acts comprising the complainant's hostile work environment claim "occurred within the statutorily defined time period," the claim may nonetheless "be prosecuted[,] and the incidents that occurred outside the limitations period [may] be included in the claim as evidentiary support" that a hostile work environment existed, as alleged by the complainant. Maggio, 910 So. 2d at 879; see also Madison v. IBP, Inc., 330 F.3d 1051, 1056 (8th Cir. 2003)("[O]nly a single act of discrimination or harassment need be shown to have occurred
within the charge filing period because 'hostile environment claims are different in kind from discrete acts.'").
"[B]ecause nothing in the Uniform Rules of Procedure requires respondents to plead affirmative defenses, [the] failure to plead the statute of limitations [does] not result in a waiver of the defense." Leneve Plaisime v. Marriott Key Largo Resort, No. 02-2183, 2003 Fla. Div. Adm. Hear. LEXIS 237 *11 (Fla. DOAH February 14, 2003)(Recommended Order). Regardless of whether this defense is pled, the FCHR may not "find that events occurring outside of the 365-day filing period are 'actionable' unlawful employment practices." Leneve Plaisime v. Marriott Key Largo Resort, No. 98-3179, slip. op. 2 (FCHR November 21, 2003)(Final Order).
"[T]o prevent circumvention of the [FCHR's] investigatory and conciliatory role, only those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the complainant. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).
In the instant case, Petitioner alleged in the employment discrimination complaint that he filed with the FCHR on September 13, 2007,11 that the University, his former employer, acting through Dr. Harrington, had "harassed and
terminated [him] because of [his] race (black) and national origin (Cameroonian)."
Petitioner had the burden of proving, at the administrative hearing held in this case, that not only was he the victim of such discriminatorily motivated action, but also that such action occurred within the statutorily prescribed 365- day "limitations period" or, in the alternative, that circumstances exist justifying the tolling of this period. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."'); Florida Department of Health and Rehabilitative Services v. Career Service Commission,
289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007)("[T]he obligation to demonstrate timeliness in filing a charge is a condition precedent to suit and thus a burden for plaintiffs to carry."); and Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993)("To ultimately prevail on a disparate treatment claim under Title VII, the plaintiff must prove that she was a victim of intentional discrimination.").
"Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001); see also United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 714 (1983)("As in any lawsuit, the plaintiff [in a Title VII action] may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves.").
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, slip op. at 15 n.9 (Fla. DOAH
February 19, 2003)(Recommended Order); see also Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.'"). "If the [complainant] offers direct evidence and the trier of fact accepts that evidence, then the [complainant] has proven discrimination." Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
"[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor. . . .
If an alleged statement at best merely suggests a discriminatory
motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).
Likewise, a statement "that is subject to more than one interpretation . . . does not constitute direct evidence." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).
"[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima
facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to 'articulate' a legitimate, non-discriminatory
reason for its action.[12] If the employer successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld, 168 F.3d at 1267 (citations omitted).
"The analysis of pretext focuses only on what the decisionmaker, and not anyone else, sincerely believed." Little v. Illinois Department of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004); see also Schaffner v. Glencoe Park District, 256 F.3d 616, 622 (7th Cir. 2001)("[T]he issue is not whether Schaffner worked well with others, but whether the Park District honestly believed that she did not. In order to rebut the Park District's articulated reason, Schaffner must present evidence that it did not believe its own assessment. The
affidavits of parents and of Schaffner's coworkers simply do not contradict whether the Park District honestly believed Schaffner worked well with others. . . . Because Schaffner did not present any evidence to contradict the Park District's honest, albeit possibly mistaken belief (as opposed to the underlying truth of that belief), she may not overcome the Park District's second articulated reason for not promoting her."); Komel v.
Jewel Cos., 874 F.2d 472, 475 (7th Cir. 1989)("[T]he fact that the employee takes issue in general terms with the employer's overall evaluation is not sufficient to create a triable issue
on pretext. As we have recently stated, the employee's 'own self-interested assertions [even where accompanied by the conclusory statements of a co-worker] concerning her abilities are not in themselves sufficient to raise a genuine issue of material fact.'"); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)("Smith, of course, testified that he had versatility, and that his competence as an analyst was not confined to the field of logistics. Smith's perception of himself, however, is not relevant. It is the perception of the decision maker which is relevant."); and Breunlin v. Village of Oak Park, No. 07 C 4627, 2008 U.S. Dist. LEXIS 34924 *11-12 (N.D. Ill. Apr. 29,
2008)("What Breunlin supposedly believed is irrelevant to demonstrating that the Village's proffered reason for Breunlin's termination--the Village Manager's lack of confidence in her abilities--is not pretextual. The only relevant inquiry is whether the employer (the Village) honestly believed the reason it offers.").
Where the decision maker is the same person who hired the complainant and that person was aware of, at the time of hiring, the complainant's protected status, it may be inferred that the decision maker, in taking the complained of post-hiring action against the complainant, was not motivated by any discriminatory animus based upon the complainant's protected status and that the proffered reason for taking such action was
not a pretext for such discrimination. See Brown Distributing Company of West Palm Beach v. Marcell, 890 So. 2d 1227, 1232 (Fla.. 4th DCA 2005)(proposed jury instruction on the "same actor inference," which read as follows, found to "accurately state[] the law": "Where the same individual hired Plaintiff Gale Marcell in her temporary position and decided not to hire Plaintiff permanently and the failure to hire occurs within a relatively short time span following the temporary hire, a strong inference exists that discrimination was not a determining factor for the employer, Brown Distributing's, adverse action."); and Mallard v. Florida Gulf Coast University, No. 00-3843, 2001 Fla. Div. Adm. Hear. LEXIS 2392 *11 (Fla. DOAH
February 2, 2001)(Recommended Order)("When the same person both hires and fires an employee within a relatively short period of time, an inference arises that no discrimination has occurred. This inference is based upon recognition of the fact that an employer who is willing to hire an individual within a protected class is unlikely to fire that same person simply because of her membership in the protected class."); see also Williams v. Vitro Services Corp., 144 F.3d 1438, 1443 (11th Cir. 1998)("Although Vitro has pointed to evidence to show that the same individual responsible for hiring Williams after he already was in the protected age group was also responsible for promoting him, for attempting to prolong his stay with Vitro, and, ultimately, for
terminating him, we decline to accord to this 'same actor' factual circumstance a presumption that discrimination necessarily was absent from the decision to terminate Williams. We nonetheless believe that these facts may give rise to a permissible inference that no discriminatory animus motivated Vitro's actions."); Herr v. Airborne Freight Corp., 130 F.3d 359, 362-363 (8th Cir. 1997)("There is a strong inference that discrimination was not a motivating factor if the same person hired and fired the plaintiff within a relatively short period of time. This inference arises because it is unlikely that the same supervisor would hire a woman, only to turn around and discharge her for that reason.")(citations omitted); Bradley v.
Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996)("Sasmor, the person who terminated Bradley, is the same person who originally made the decision to hire her less than a year earlier. In this context, Bradley's allegation that her supervisor wanted a male in the position is at best suspicious. If Sasmor had preferred to place a man in the position, we can see no reason why she would have hired a woman only a year earlier. . . . We therefore hold that where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive."); Lowe v. J.B. Hunt Transport, Inc., 963
F.2d 173, 174-75 (8th Cir. 1992)("The most important fact here is that plaintiff was a member of the protected age group both at the time of his hiring and at the time of his firing, and that the same people who hired him also fired him. If plaintiff had been forty when he was hired, and sixty-five when he was fired, obviously this fact would not be so compelling. But here, the lapse of time was less than two years. It is simply incredible, in light of the weakness of plaintiff's evidence otherwise, that the company officials who hired him at age
fifty-one had suddenly developed an aversion to older people less than two years later.")(citation omitted); and Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)("When the hirer and firer are the same individual, there is a powerful inference relating to the 'ultimate question' that discrimination did not motivate the employer ").
"Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the [complainant]." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Byrd v. BT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007)("The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times."); and Brand v. Florida Power Corp.,
633 So. 2d 504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant satisfies its burden of production showing legitimate, nondiscriminatory reasons for the action taken is immaterial insofar as the ultimate burden of persuasion is concerned, which remains with the plaintiff.").
Where the administrative law judge does not halt the proceedings "for lack of a prima facie case and the action has been fully tried, it is no longer relevant whether the [complainant] actually established a prima facie case. At that point, the only relevant inquiry is the ultimate, factual issue of intentional discrimination. . . . [W]hether or not [the complainant] actually established a prima facie case is relevant only in the sense that a prima facie case constitutes some circumstantial evidence of intentional discrimination." Green v. School Board of Hillsborough County, 25 F.3d 974, 978 (11th Cir. 1994)(citation omitted); see also Aikens, 460 U.S. at 713- 715 ("Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non. . . . [W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by
offering evidence of the reason for the plaintiff's rejection [as a candidate for promotion], the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption 'drops from the case,' and 'the factual inquiry proceeds to a new level of specificity.' After Aikens presented his evidence to the District Court in this case, the Postal Service's witnesses testified that he was not promoted because he had turned down several lateral transfers that would have broadened his Postal Service experience. The District Court was then in a position to decide the ultimate factual issue in the case. . . .
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether 'the defendant intentionally discriminated against the plaintiff.'")(citation omitted); Beaver v. Rayonier, Inc., 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter, Rayonier argues it is entitled to judgment as a matter of law because Beaver failed to establish a prima facie case. That argument, however, comes too late. Because Rayonier failed to persuade the district court to dismiss the action for lack of a prima facie case and proceeded to put on evidence of a non- discriminatory reason--i.e., an economically induced RIF--for
terminating Beaver, Rayonier's attempt to persuade us to revisit whether Beaver established a prima facie case is foreclosed by binding precedent."); and Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed his attack on the trial court's findings largely in terms of whether the plaintiff made out a prima facie case of discrimination. We are mindful, however, of the Supreme Court's admonition that when a disparate treatment case is fully tried, as this one was, both the trial and the appellate courts should proceed directly to the 'ultimate question' in the case: 'whether the defendant intentionally discriminated against the plaintiff.'").
The instant case was "fully tried," with Petitioner and UM having both presented evidence.
A review of the evidentiary record reveals no act of race or national origin-based discrimination committed by UM against Petitioner at any time (much less within the 365-day period prior to Petitioner's filing his employment discrimination complaint).
According to Petitioner, UM discriminated against him on the basis of his race and national origin through the actions of his former supervisor, Dr. Harrington. While Petitioner may sincerely believe that Dr. Harrington acted with anti-black and anti-Cameroonian animus in his dealings with Petitioner, the
record not only is devoid of evidence (either direct or circumstantial) to support a finding that Dr. Harrington engaged in such discriminatory conduct,13 it affirmatively establishes otherwise (primarily through the testimony of Dr. Harrington).
Dr. Harrington, the individual Petitioner claims harassed and ultimately (in September 2006) fired him because of his race and national origin, is the same person who had hired Petitioner (back in June 2005) knowing that he was black and from Cameroon and who had gotten along so well with Petitioner at the start that he had Petitioner over to his house to socialize on a bi-weekly basis and even invited him for Thanksgiving. Dr. Harrington's relationship with Petitioner, over time, did sour, but not because of anything to do with Petitioner's race or national origin. Rather, it was due to what Dr. Harrington viewed as Petitioner's continuing lack of respect for Dr. Harrington's authority as his supervisor. The "final straw" leading to Petitioner termination was Petitioner's telling Dr. Harrington, upon Petitioner's return to the lab on September 8, 2008, what Dr. Harrington thought was a lie about Petitioner's doing a clinical rotation while absent from the lab. In short, there was persuasive evidence that
Dr. Harrington, in subjecting Petitioner to the treatment about which Petitioner has complained in his employment discrimination
complaint, was motivated by legitimate business considerations and not by any racial or national origin bias.
In the Petition for Relief that he filed after the FCHR had concluded its investigation of the allegations made in his employment discrimination complaint, Petitioner claimed, for the first time, that UM had engaged in "unlawful retaliation" against him "for engaging in protected activities": a) by submitting the Revised Manuscript to Blood, "listing [P]etitioner as the first author, without [P]etitioner[']s consent and signature, as is required"; b) by "t[ying] the settlement offer" it made to Petitioner concerning the loss of his vehicle and its contents to Petitioner's "signing a full and general release agreement which would essentially preclude [P]etitioner from seeking redress [as to] any issue related to his status as a University employee or student - including instances of discrimination"; and c) by failing to issue and release his MAIA diploma and disabling his student account. UM has responded to this claim of "unlawful retaliation" by not only challenging it on the merits, but by also arguing that it "exceeds the scope of [Petitioner's] Employment Complaint of Discrimination and [therefore] is not properly considered in these proceedings."
"Unlawful retaliation" is prohibited by Section 760.10(7), Florida Statutes.
To establish a violation of Section 760.10(7), Florida Statutes, a complainant must show, as a threshold matter, that he or she engaged in activity protected by Section 760.10, Florida Statutes (by having "opposed any practice which is an unlawful employment practice under this section" or by having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section").
In his Proposed Recommended Order, Petitioner contends that he "engaged in statutorily protected expression by
a) decrying the mishandling of his research manuscript by Dr. Harrington[;] b) generating a masters thesis that articulates on 'Constructivism: An International Relations
Perspective and Framework for Enhancing Opportunities in Global Cancer Control'[;] and c) filing a discrimination charge with the FCHR." Of the "expression[s]" enumerated by Petitioner only the latter, "filing a discrimination charge with the FCHR," is protected by Section 760.10, Florida Statutes.
In addition to showing that he or she engaged in protected activity, a complainant alleging "unlawful retaliation" in violation of Section 760.10, Florida Statutes, must also show that he or she suffered an "adverse employment action" and that there was "a causal connection between the participation in the protected expression and the adverse
action." Russell v. KSL Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA 2004).
In the instant case, Petitioner's evidentiary presentation failed to establish any "causal connection" between the filing of his employment discrimination complaint (the only Section 760.10-protected activity in which he engaged) and the alleged retaliatory acts enumerated in his Petition for Relief.
Accordingly, even assuming (without deciding) that the allegations of "unlawful retaliation" made in Petitioner's Petition for Relief (but not in his employment discrimination complaint) could be considered in this proceeding, they would have to be found lacking adequate evidentiary support.
In light of the foregoing, Respondent's employment discrimination complaint must be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the FCHR issue a final order finding UM not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination complaint.
DONE AND ENTERED this 24th day of July, 2008, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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
Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2008.
ENDNOTES
1/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2007).
2/ The hearing was originally scheduled to commence on May 15, 2008, but was continued at the request of UM.
3/ To obtain his medical degree, Petitioner had to complete a "research thesis" his final year of medical school. He did the research for his thesis (which focused on "bone cancers") at the University of Rochester Medical Center.
4/ Lan was Dr. Harrington's laboratory technician.
5/ These tasks had been "outlined" by Dr. Harrington in two April 28, 2006, e-mails that he had sent Petitioner. The first e-mail read as follows:
I want the following:
please give me a copy of the paper and all the raw data from your experiments pertaining to the figures.
show [L]an and leave written instructions on where all the samples from [B]razil are located.
show me or [L]an exactly how to access the data for your experiments on the computer.
show [L]an where any of the ma specimens are.
after the above please leave the computer in my office or alternatively you can give it to Lisa. You should download anything that you want to keep.
after all this is done you can take some time off ie 2 weeks and if these things above all are fine I will see that you are paid for that time.
Thanks
In the second e-mail, Dr. Harrington stated:
One other thing that I forgot to mention. I need to know where all the mirna samples are. I hope that you realize that you won't get paid until all this is completed to my satisfaction.
6/ Paul Hudgins was the Associate Vice President for Human Resources. Mr. Hudgins "ha[d] to approve all requests for termination" of any Miller employee.
7/ Apparently, Mr. Goldberg had not yet seen the letter, dated September 19, 2007, that the FCHR had sent to UM's Office of Equality Administration, advising UM of the filing of Petitioner's complaint.
8/ An "employer," as that term is used in the Act, is defined in Section 760.02(7), Florida Statutes, as "any person employing
15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person."
9/ The FCHR, however, has no authority to award monetary relief for non-quantifiable damages. See City of Miami v. Wellman, 976 So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on-quantifiable
damages . . . are uniquely within the jurisdiction of the courts."); and Simmons v. Inverness Inn, No. 93-2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27, 1993)(Recommended Order)("In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race. Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non- quantifiable damages) because of racial slurs and epit[he]ts made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e. g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So. 2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So. 2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages.").
10/ "[W]hen a charge is dually filed with the EEOC and the FCHR, the date of filing with the EEOC shall also be considered the date of filing with the FCHR." Wells Fargo Guard Services v. Lehman, 799 So. 2d 252, 254 (Fla. 3d DCA 2001).
11/ September 13, 2007, was more than 365 days from the last day Petitioner had spent in the "work environment" of
Dr. Harrington's lab, but within 365 days of the date of Petitioner's termination.
12/ "To 'articulate' does not mean 'to express in argument.'" Rodriguez v. General Motors Corporation, 904 F.2d 531, 533 (9th Cir. 1990). "It means to produce evidence." Id.; see also Mont-Ros v. City of West Miami, 111 F. Supp. 2d 1338, 1349 (S.D. Fla. 2000)("This burden is merely one of production, not persuasion, and is exceedingly light.").
13/ "Petitioner's speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination." Constantini v. Wal-Mart Stores East, L.P., No. 5326, No. 06-2461, 2007, Fla. Div. Adm. Hear.
LEXIS 127 *13 (Fla. DOAH February 28, 2007)(Recommended Order); see also Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir.
2001)("[A] jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.").
COPIES FURNISHED:
Dr. Valentine B. Andela 924 Garrett Road, #404
Upper Darby, Pennsylvania 19082
Eric D. Isicoff, Esquire Teresa Ragatz, Esquire Isicoff, Ragatz & Koenigsberg
1200 Brickell Avenue, Suite 1900
Miami, Florida 33131
Cecil Howard, General Counsel
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk
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 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 09, 2008 | Agency Final Order | |
| Jul. 24, 2008 | Recommended Order | Petitioner failed to prove that he was victim of employment discrimination based on race and national origin; neither did he prove he was a victim of unlawful retaliation for having engaged in protected activity. |
