STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAMACIO GREEN, )

)

Petitioner, )

)

vs. ) Case No. 08-2168

)

MIAMI-DADE COUNTY, )

)

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 (DOAH), on January 26 and 27, 2009, and March 10, 2009, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Leslie Holland, Esquire

801 Northeast 167th Street, Second Floor North Miami Beach, Florida 33162

For Respondent: Scott B. Mario, Esquire

Assistant County Attorney Miami-Dade County

111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993

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 October 26, 2007, Petitioner filed an employment discrimination complaint with the FCHR, alleging that his former employer, Miami-Dade County (County), had discriminated on the basis of "sex" and engaged in unlawful "retaliation" against him. According to the complaint, which contained the following statement of "particulars," the "most recent discrimination took place" on December 14, 2006:

I was employed by Miami-Dade County as a Park & Recreational Manager 1 until I was terminated on December 14, 2006. I have been discriminated against due to my sex, male, and . . . I have been retaliated against in violation of the Florida Civil Rights Act of 1992.

I was hired by Miami-Dade County [i]n March 2006. My immediate supervisor was Rhonda Ham. In late May 2006, Ms. Ham began to make inappropriate requests [to] me for money. I gave the money that she requested to her because I was afraid of losing my job. The money was never repaid. Shortly after Ms. Ham began asking me for money, she began asking me for sexual favors. Again, I complied with her requests because I was afraid of losing my job. In early November, I began to distance myself from Ms. Ham.

The last date of sexual activity was October 31, 2006. I received a poor evaluation in November 2006. I rebutted that evaluation in writing.

In early December 2006, I was required by my employer to attend an equal employment

opportunity harassment program. During the program, I asked a question about how to deal with stress by a supervisor in the workplace. After the program, I spoke with the county employee instructor, Beatri[z] Lee. I told Ms. Lee that I was experiencing stress from a supervisor and I told her about the money I had given to my supervisor. In response, Ms. Lee asked me if I was still on probation, and when I told her that I was, she told me that my supervisor could terminate me at any time.

I then became afraid to tell Ms. Lee about the sexual activity. A couple of days later, while waiting for a department meeting to begin, I saw my immediate supervisor and the regional manager, Carolyn Gibson, talking. Subsequently, Ms. Gibson walked up to me and said: "[Y]ou're being stressed by your supervisors. You have not begun to be stressed by me."

On December 7, 2006, Ms. Gibson requested a meeting with me wherein she asked me questions about my relationship with

Ms. Ham. I responded to her questions in writing on December 8, 2006. On

December 14, 2006, I was given an unsatisfactory performance evaluation and terminated immediately.

I was subjected to a hostile work environment by the actions of my immediate supervisor Rhonda Ham. I was discriminated against based on my sex, male, and I was retaliated against with poor performance evaluations and by being terminated from my position, because I refused to continue to lend money and to engage in sexual activity with Ms. Ham, and because I asked questions about, and complained about, Ms. Ham's behavior toward me. The sex discrimination and retaliation are in violation of the Florida Civil Rights Act of 1992 and Title VII of the Civil Rights Act of 1964, as amended.

On March 25, 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 April 29, 2008, filed with the FCHR a Petition for Relief, which contained the following "Addendum":

1. Respondent has violated the Florida Civil Rights Act of 1992, as amended, in the manner more specifically described below:

   
   

   I was sexually harassed and subsequently poorly evaluated and terminated in retaliation for my opposition to the sexual harassment in violation of the Florida Civil Rights Act.

   
   

   I was employed by the respondent Miami-Dade County, as a Park and Recreational Manager from March 2006 until my termination on December 14, 2006. Commencing in mid-2006 my immediate supervisor, Rhonda Ham, began a pattern of asking me for money. Shortly thereafter, she began to solicit me with unwanted requests for sexual favors.

   Ms. Ham made it clear to me that my compliance with her requests for sexual favors was a condition of passing probation. Ms. Ham solicited me for sexual favors on at least ten occasions and, in virtually each instance, she reminded me that I was on probation. I complied with her requests for several months solely because of my fear of lo[]sing my job. I am a single father and the sole support of my three young children who live with me.

   The last date of sexual activity with

   Ms. Ham was on or about October 31, 2006. At that time, I informed Ms. Ham that I was emotionally "tired" and that I could no longer comply with her requests for sexual favors. On or about November 3, 2006,

   Ms. Ham again solicited me for sexual favors and I refused. On November 17, 2006, I received an unsatisfactory performance evaluation from Ms. Ham. During the period in which I had complied with Ms. Ham's requests for sexual favors, she had never brought to my attention the alleged performance deficiencies identified in this evaluation. On November 27, 2006, I submitted my rebuttal to this evaluation.

   
   

   In early December 2006, the respondent required me to attend, for the first time, an EEO harassment training program. The trainer was Ms. Beatri[z] Lee. During the training, I questioned Ms. Lee regarding how to handle difficulties with a superior.

   When the training session was concluded, I spoke to Ms. Lee regarding some of Ms. Ham's conduct toward me and the stress that it had caused. I also informed her that I was on probation. She informed me that I could be terminated at will, due to my probationary status. Days later, Ms. Gibson, the regional manager and Ms. Ham's immediate supervisor, approached me and stated facetiously, "you're being stressed by your supervisors…you have not begun to be stressed by me."[2]

   
   

   Thereafter, on December 7, 2006, Ms. Gibson questioned me about my relationship with Ms. Ham. On December 8, 2006, I commenced preparing a memorandum to Ms. Gibson in which I expressed my opposition to the

   sexual harassment that Ms. Ham had subjected me to. On December 11, 2006, I delivered this memorandum to Ms. Gibson's office. On December 14, 2006, in retaliation for this protected opposition to the sexual harassment by Ms. Ham, I was given another

   unsatisfactory evaluation and I was terminated from my position. It is significant to note that, although the November 17, 2006 evaluation provided that I would be re-evaluated in one and one-half months, I was terminated prior to expiration of this period.

   
   

2. The disputed issues of material fact raised by the respondent's stated position and investigation in this case, and which I contend should be resolved in the affirmative, are listed below:

   
   

   1. Whether the sexual overtures of Ms. Ham were unwanted by me.

      
      

   2. Whether the respondent was aware of my protected activity at the time that I was terminated.

      
      

3. The ultimate facts alleged and entitlement to relief are listed below:

   
   

   1. I was sexually harassed by my immediate superior, by being repeatedly solicited for unwanted sexual favors and being forced to comply with the requests for sexual favors, as a condition of my passing probation.

      
      

   2. W[ithin] three weeks after I ceased complying with my supervisor's requests for sexual favors, I was given a poor evaluation.

      
      

   3. Within three days after I expressed my opposition regarding the sexual harassment, I was given a second poor evaluation and terminated, in retaliation for my protected activity.

      
      

   4. I am seeking reinstatement to my position with back pay and benefits, money damages for my humiliation and mental anguish, and costs.

      On May 5, 2008, the FCHR referred the matter to 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]."

      The final hearing in the instant case was originally scheduled for July 14 and 15, 2008. On June 27, 2008, Petitioner filed an unopposed motion requesting that the hearing be continued because his recently retained attorney was not available for hearing on July 14 and 15, 2008, and, in any event, the attorney "required additional time in which to conduct discovery on [P]etitioner's behalf." The motion was granted, and the hearing was rescheduled for September 17 and 18, 2008. On September 4, 2008, Petitioner filed a second unopposed motion for continuance, this time on the ground that the taking of depositions could not be completed prior to the scheduled commencement of the hearing. This second motion was also granted, and the hearing was rescheduled for December 4 and 5, 2008. On November 18, 2008, the County filed an unopposed motion requesting that the final hearing be continued on the ground that its counsel would not be sufficiently recovered from spinal surgery to be able to appear at the hearing. This third, and final, motion for continuance was granted, and the hearing was rescheduled for January 26 and 27, 2009.

      On January 23, 2009, the parties filed a Joint Prehearing Stipulation, which contained, among other things, the following "[c]oncise [s]tatement of the [n]ature of the [c]ontroversy," "[b]rief [g]eneral [s]tatement of each [p]arty's [p]osition," and "[c]oncise [s]tatement of [f]acts which are [a]dmitted and [r]equire no [p]roof":

      1. Concise Statement of the Nature of the Controversy

         
         

         This is a sexual harassment and retaliatory dismissal case that is brought pursuant to the Florida Civil Right Act, Section 760.01, Florida Statutes, et seq.

         
         

      2. Brief General Statement of each Party's' Position

Petitioner, a former probationary employee with Respondent's Parks and Recreation Department, contends that he was sexually harassed by his immediate supervisor, Rhonda Ham, forced to comply with her requests for sexual favors on the explicitly stated condition of passing probation, and that the sexual harassment culminated in tangible employment actions, i.e., failure to properly supervise the Petitioner, his low evaluations and his termination. For purposes of addressing the threshold question of whether Petitioner can prove sexual harassment, Petitioner contends that he was subjected to quid pro quo type of sexual harassment. The Petitioner further contends that, when he opposed Ms. Ham's advances, he was retaliated against and terminated from his position.

Respondent denies Petitioner's allegations. Respondent contends that Petitioner was engaged in a consensual sexual relationship with his supervisor, and that he was not

subjected to sexual harassment. Respondent contends that Petitioner was terminated for a legitimate, non-discriminatory and non- retaliatory reason, i.e., his poor performance. Moreover, even if some impermissible motive were a factor in the decision to terminate Petitioner, a claim Respondent expressly denies, the same decision would have been reached for legitimate, non-discriminatory reasons.

Respondent further contends that Petitioner failed to take advantage of preventive or corrective measures or opportunities provided by the County, in that he failed to report the alleged sexual harassment in accordance with Respondent's sexual harassment policy. Finally, Respondent maintains that Petitioner's claims are barred, in whole or in part, by his own misconduct, evidence of which was acquired after the termination of his employment, which would have warranted Petitioner's discharge had the misconduct been known at the time it occurred.

* * *

1. Concise Statement of Facts which are Admitted and Require no Proof

   
   

   1. Respondent is a political subdivision of the State of Florida.

      
      

   2. Petitioner was employed by Respondent as a Parks and Recreation Manager 1 from

      March 20, 2006[3] until December 14, 2006.

      
      

   3. During most of his employment, Petitioner's immediate supervisor was Rhonda Ham.

As noted above, the final hearing in this case was held on January 26 and 27, 2009, and March 10, 2009. Over the three days of hearing, 16 witnesses testified: Rhonda Ham, Carolyn

Gibson, Rodney Watkins, Jerome Jamison, Respondent, Jennifer Williams, Dorothy Marshall, Debbie Williams, Lewis Mahoney, Aquilla Andrews, Tremaine Morgan, Beatriz Lee, Harriet Johnson, Tommy Streeter, Terry Harden and James Stewart. In addition, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 7, and 13 through 15, and

Respondent's Exhibits 1 through 4, 7, 8, 11, 12, 17 through 26,

28, 30, 31, 34 through 37, 39, and 45 through 52.

At the close of the evidentiary portion of the hearing, the undersigned, on the record, set the deadline for the filing of proposed recommended orders at 35 days from the date of the filing of the complete hearing transcript with DOAH.

The complete Transcript of the final hearing (consisting of five volumes) was filed with DOAH on March 25, 2009.

Accordingly, proposed recommended orders had to be filed no later than April 29, 2009.

On April 23, 2009, the County filed a motion requesting an extension of time, until May 19, 2009, for the filing of proposed recommended orders. On April 24, 2009, Petitioner, through counsel, filed a response to the County's motion, in which it was stated:

Due to significant financial hardship that the petitioner is experiencing, the undersigned attorney is not authorized to agree to the three week extension requested

by the respondent. However, the petitioner will not oppose a two week extension of time.

By order issued April 27, 2009, the undersigned extended the proposed recommended order filing date to May 15, 2009.

The County and Petitioner filed their Proposed Recommended Orders on Friday, May 15, 2009, and Monday, May 18, 2009, respectively. Accompanying Petitioner's Proposed Recommended Order was an unopposed motion requesting that the Proposed Recommended Order be deemed timely filed. Upon consideration, the motion is hereby GRANTED.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. The County is a political subdivision of the State of Florida.

2. The County Park and Recreation Department (Department) is a department of County government.

3. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park.

4. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the

   Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson.

5. Ms. Ham has been married to her husband Earl for the last 13 or 14 years.

6. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted.

7. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children."

8. Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU.

9. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft.

10. One of Petitioner's teammates on the University of Miami football team was James Stewart.5

11. As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together.

12. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation.

13. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park.

14. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park.

15. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6

16. Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park).

17. Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing.

18. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson.

19. It was Ms. Gibson who hired Petitioner.

    
    

20. She did so after reviewing Petitioner's application and interviewing him.

21. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following:

    I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal.

    
    

22. The application form had an "Employment History" section, which contained the following instructions:

    List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience.

    
    

23. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami

    Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him.

24. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner.

25. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County.

26. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form.

27. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows:

    I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment.

    I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department.

    
    

    I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter.

    
    

    I further certify that I fully understand the County policy on outside employment outlined below.

    
    

    MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA)

    
    

    1. No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time.

       
       

    2. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained.

       
       

    3. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment.

       
       

    4. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by

    his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58)

    
    

28. When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it."

29. On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment.

30. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment.

31. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation.

32. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following:

    I have received a copy of this Unlawful Harassment Policy and understand that it

    contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents.

    
    

    If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784.

    
    

33. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows:

    POLICY

    
    

    The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights.

    Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment.

    Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate

    sanctions, depending on the circumstances. These may range from counseling up to and including termination.

    
    

    Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation.

    
    

    * * * COMPLAINT PROCEDURE

    Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so.

    Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints.

    
    

    All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment.

    
    

    If the investigation confirms the existence of unlawful harassment, the Fair Employment

    Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender.

    
    

    * * *

    
    

34. At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham.

35. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount

    $125.00 to help her purchase a dance outfit for her daughter.

    
    

36. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated.

37. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park.

38. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006.

39. On each occasion, Petitioner was the one who initiated the physical contact.

40. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner.

41. There was no further sexual activity between Ms. Ham and Petitioner after October 2006.

42. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered.

43. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park.

44. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school.

45. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?"

46. Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out.

47. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting."

48. Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them.

49. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office."

50. Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation.

51. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory.

52. The evaluation contained the following narrative:

    
    

    1. ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory

       
       

       Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in

       participant enrollment in spring and summer camp, and [the] after school program.

       However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program.

       
       

    2. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement

       
       

       Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8]

       
       

       Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9]

       
       

    3. PERSONAL DEVELOPMENT RATING: Satisfactory

       
       

       Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional

       development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills.

       
       

    4. PLANNING AND ORGANIZING RATING: Needs Improvement

       
       

       Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm.

       
       

    5. INTERPERSONAL SKILLS

       RATING: Needs Improvement

       
       

       Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park.

       
       

       You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command.

       
       

    6. COMMUNICATIONS

       RATING: Unsatisfactory

       
       

       Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working

       knowledge of the computer. The computer is an essential tool that is used everyday.

       Our reliance on them is an ever increasing fact.

       
       

       Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager.

       During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support.

       
       

       You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given.

       
       

    7. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement

       
       

       Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers.

       However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons.

       
       

    8. ADDITIONAL FACTORS RATING: Not Applicable

       RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase?

       Deferred. Re-evaluate in 1 1/2 months/

       Is employee eligible for permanent status? N/A

       
       

       IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE?

       
       

       Mr. Green, to improve your overall performance, concentrate on the following:

       
       

       1. Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision.

          
          

       2. Demonstrate more leadership before subordinate staff.

          
          

       3. Enroll in department management courses. They will help in your professional growth.

          
          

       4. Enroll for "Service Excellence" training to enhance you customer service skills with patrons.

          
          

       5. Plan, organize and market at least 2 annual special events at West Little River Park.

          
          

       6. Enroll [in] computer courses to be more proficient in the use of the personal computer.

          
          

       7. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor.

       
       

       You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made.

       
       

53. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows:

    SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT

    
    

    In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period.

    However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner.

    
    

    SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT

    
    

    In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not

    on task is not only incorrect but also absolutely unprofessional.

    
    

    SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT

    
    

    I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself.

    At that time the situation was resolved without further discussion.

    
    

    The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms.

    Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter.

    SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY

    
    

    The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help.

    Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to

    Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is

    pertaining to the issue of the broken chain of command.

    
    

    SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT

    
    

    I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time.

    
    

    Overall, I feel this evaluation was a personal attack for some personal reason,

    i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation.

    
    

54. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15

55. On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner:

    I was informed by your PSA Jerome Jamison that you have been delegating your

    Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately.

    
    

    The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager.

    
    

56. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows:

    On Monday, December 4, at approximately 2:18

    p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m."

    I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van.

    
    

    This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before.

    
    

    Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result.

    I need the Unusual Incident Report detailing the details on the missing van keys today.

    
    

57. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from

    Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows:

    Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and

    Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way

    Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now.

    Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement.

    What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice."

    When in fact, you were the one that was doing all of the yelling and I have a witness to prove it.

    
    

    As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself.

58. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment.

59. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment."

60. The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint.

61. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private.

62. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received.

63. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were

    "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially."

64. During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were.

65. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham.

66. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation.

67. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed."

68. The evaluation contained the following narrative:

    
    

    1. ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory

       
       

       Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy.

       
       

    2. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement

       
       

       Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation.

       
       

    3. PERSONAL DEVELOPMENT RATING: Unsatisfactory

       
       

       Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended.

       Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills.

       
       

       Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17]

       
       

    4. PLANNING AND ORGANIZING RATING: Unsatisfactory

       
       

       Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the

       trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager.

       
       

    5. INTERPERSONAL SKILLS RATING: Unsatisfactory

       
       

       Mr. Green, improvement is still needed to foster teamwork at West Little River Park.

       
       

       During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson.

       
       

       You have also reacted defensively when receiving constructive criticism from your supervisor.

       
       

    6. COMMUNICATIONS

       RATING: Unsatisfactory

       
       

       Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact.

       
       

    7. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory

       
       

       Mr. Green, I encourage you to avail yourself of all the resources available to educate

       yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers.

       
       

    8. ADDITIONAL FACTORS RATING: Not Applicable

       
       

       RATER'S OVERALL EVALUATION: Unsatisfactory

       
       

       Is employee eligible for merit increase? Deferred. Not Granted.

       
       

       Is employee eligible for permanent status? Not Granted.

       
       

69. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance."

70. On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated.

71. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.)

    Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could.

72. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to

    Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing."

    Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner.

73. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham."

    Ms. Williams agreed to provide such help.

    
    

74. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows:

    Subject: Wrongful Conduct from Immediate Supervisor

    
    

    This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham

    and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors.

    
    

    Sincerely Damacio Green

75. Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied.

76. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region

    2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her

    administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk.

77. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job."

78. During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter.

79. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006.

80. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King

    Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before.

81. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination).

82. Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals.

83. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded.

84. Ms. Lee issued her investigative report in February

    
    

    2007.

    
    

85. In her report, Ms. Lee recommended that Ms. Ham be

    
    

    suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate."

86. By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual

    sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."

    CONCLUSIONS OF LAW

    
    

87. The parties included in their Joint Prehearing Stipulation the following stipulations regarding the law governing the instant case, which the undersigned hereby accepts and incorporates in this Recommended Order:

    1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.

       
       

    2. It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's sex. Section 760.10(1)(a), Florida Statutes.[22]

       
       

    3. It is also an unlawful employment practice to discriminate against any person because the person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.[23]

       
       

    4. The provisions of Chapter 760, Florida Statutes, [specifically, Sections 760.01 through 760.11, Florida Statutes, which, together with Section 509.092, Florida Statutes, comprise the Florida Civil Rights Act of 1992 (Act)] are analogous to those of Title VII of the Civil Rights Act[s] of 1964 [and 1991], 42 U.S.C. Sections 2000e, et seq. Cases interpreting Title VII are therefore applicable to Chapter 760, Florida

       Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).[24]

       
       

    5. Sexual harassment cases based on

       carried-out threats by supervisors often are referred to as "quid pro quo" cases.

       Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998).

       
       

    6. To establish a prima facie claim for sexual harassment under a theory of quid pro quo, Petitioner has the burden of proving the following by a preponderance of the evidence: (a) he belonged to a protected class; (b) he was subjected to unwelcome harassment; (c) the harassment was based on sex; and (d) the employee's reaction to the harassment affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment. Hens[o]n v. City of Dundee, 682 F.2d 897, 908 (11th Cir. 1982).

       
       

    7. Sexual harassment cases involving bothersome attentions and sexual remarks usually are referred to as "hostile work environment" cases if the offensive conduct is sufficiently severe and pervasive. Ellerth, 524 U.S. at 753.

       
       

    8. To establish a hostile environment sexual harassment claim, Petitioner must prove the following by a preponderance of the evidence: (a) he belonged to a protected class; (b) he was subjected to unwelcome harassment; (c) the harassment was based on sex; (d) the harassment was sufficiently severe or pervasive to alter terms and conditions of employment and create a discriminatorily abusive working environment; and (e) a basis for holding the employer liable. Hens[o]n, 682 F.2d at 903- 905.

       
       

    9. Pursuant to Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998), and

       Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), the labels "quid pro quo" and "hostile environment" are relevant only to the extent that they illustrate the distinction between cases involving carried out threats and those involving offensive conduct in general, in order to assist in resolving a "threshold question whether a plaintiff can prove discrimination." Ellerth, 524 U.S. at 743.

       
       

    10. In other respects, cases involving claims that an employer is liable for sexual harassment should be separated into two groups: (a) harassment that results in a tangible employment action such as discharge, demotion or undesirable reassignment; and (b) harassment not involving a tangible employment action but which is sufficient to constructively alter an employee's working conditions. Ellerth,

        524 U.S. at 761-763; Faragher, 524 U.S. at 790, 807.

        
        

    11. As a general proposition, only a supervisor, or other person acting with the authority of the employer, can cause an injury that results in an adverse tangible employment action. Ellerth, 524 U.S. at 762. Therefore, an employer is automatically vicariously liable when a supervisor engages in harassment that results in an adverse tangible employment action. See Ellerth, 524 U.S. at 763; Faragher, 524 U.S. [at] 790.

        
        

    12. A supervisor or any other co-employee may be guilty of harassment that does not result in an adverse tangible employment action. In such a case, the employer can avoid liability by proving the following two elements as an affirmative defense: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee reasonably failed to take advantage of any preventive or corrective

        opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807.

        
        

    13. To establish a prima facie case of retaliation, the plaintiff must show: (1) that he engaged in protected activity; (2) that he suffered an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse action. See Weeks v. Harden Manufacturing Corp, 291 F.3d 1307, 1312 (11th Cir. 2002)[25]; Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir. 2000).[26]

        
        

88. The Act not only makes certain acts, such as those described in Section 760.10(1)(a) and (7), Florida Statutes, "unlawful employment practices," it also gives the FCHR the authority, 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, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice,27 including back pay."28 §§ 760.10 and 760.11(6), Fla. Stat.

89. 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 federal 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."

    § 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).

90. "[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); as well as "transfers, job assignments . . . , and failures to compensate adequately" (Bailey v. Synthes, 295 F. Supp. 2d 344, 354 (S.D. N.Y. 2003)).

91. "[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).

92. 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.'").

93. "[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).

94. "[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).

95. In the instant case, Petitioner alleged in the employment discrimination complaint he filed with the FCHR on October 26, 2007, that, as a County employee, he was the victim of unlawful employment practices committed by the County, when he "was discriminated against based on [his] sex, male, and [he] was retaliated against with poor performance evaluations and by being terminated from [his] position, because [he] refused to continue . . . to engage in sexual activity with Ms. Ham, and because [he] asked questions about, and complained about,

    Ms. Ham's behavior toward [him]."

    
    

96. Petitioner had the burden of proving, at the administrative hearing held in this case, that he was the victim of the sexual harassment and retaliation about which he had complained. 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."'); Scholz v. RDV Sports, 710 So. 2d 618, 624 (Fla. 5th DCA 1998)(plaintiff has "ultimate burden of proof of intentional discrimination"); and 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.'").

97. Sexual harassment and retaliation are intentional acts of discrimination. See Ellerth, 524 U.S. at 756 ("Sexual harassment under Title VII presupposes intentional conduct."); Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006)("The ultimate question in any retaliation case is whether the employer's adverse action against the employee was motivated by retaliatory intent."); Ocheltree v. Scollon Productions, Inc., 308 F.3d 351, 361 n.9 (4th Cir. 2002)("Title VII prohibits intentional sex discrimination as well as discrimination that has a disparate impact on a particular sex. Sexual harassment is a 'distinct . . . form' of intentional sex discrimination."); and Stubbs v. Department of Transportation, No. 02-1437, 2002 Fla. Div. Adm. Hear. LEXIS 1366 *20 (Fla. DOAH October 3, 2002)(Recommended Order)("The retaliation claim fails because Mr. Stubbs did not establish that he engaged in any statutorily

    protected activity nor that there was any discriminatory animus.").

98. "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.").

99. "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).

100. "[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).

101. "[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).

102. In cases involving allegations of quid pro quo (or tangible benefit) sexual harassment and cases involving allegations of retaliation (but not cases involving hostile environment sexual harassment29), 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.30 "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.[31] 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[32] for unlawful discrimination." Schoenfeld, 168 F.3d at 1267 (citations omitted).

103. "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.").

104. 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); and 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.").

105. The instant case was "fully tried," with Petitioner and the County having both presented evidence.

106. A review of the evidentiary record reveals that Petitioner failed to meet his burden of proving that the County unlawfully discriminated against him in the manner described in the employment discrimination complaint he filed with the FCHR.

107. Petitioner's case against the County is built upon his claim that he was subjected to unwelcome demands for "sexual favors" by his immediate supervisor, Ms. Ham. According to Petitioner, at first, he unwillingly capitulated to these demands and kept quiet about his mistreatment for fear of losing his job, but subsequently, in late October 2006, stopped yielding to Ms. Ham's unwanted advances and, thereafter, on Monday, December 11, 2006, finally broke his silence and complained about Ms. Ham's sexually harassing him (by placing the aforementioned "Wrongful Conduct from Immediate Supervisor" letter in Ms. Gibson's desk drawer).

108. Petitioner's effort (through his own self-serving testimony, as well as the corroborating testimony of his former college teammate, James Stewart33) to portray himself as a submissive subordinate who, to save his job, quietly endured the indignity of participating in an unwanted, nonconsensual sexual relationship with his immediate supervisor, was wholly unconvincing. More credible was the testimony of Ms. Ham that, not only did Petitioner willingly, without any pressure, participate in a sexual relationship with her, it was he who

     pursued her and instigated the relationship. Petitioner was not timid about letting his supervisors know when he felt he was being mistreated. Had he actually been sexually harassed by

     Ms. Ham, as he now claims he was, he surely would have complained about it before he did (which was after he was terminated, not on December 11, 2006, as he falsely testified).

109. Inasmuch as the preponderance of the record evidence affirmatively establishes that Petitioner was not subjected to unwelcome sexual advances by Ms. Ham, Petitioner cannot prevail on his claim that he was the victim of sexual discrimination (in the form of sexual harassment) by the County in violation of Section 760.10(1)(a), Florida Statutes.

110. Petitioner's claim that he was unlawfully retaliated against by the County in violation of Section 760.10(7), Florida Statutes, for his complaining about being sexually harassed by Ms. Ham must likewise be rejected, not only because his complaint was first made after he had been terminated (and therefore could not have resulted in the retaliation alleged in his complaint), but also because it was not made in good faith and thus (timing aside) was not protected by the Act.

111. In view of the foregoing, Petitioner's employment discrimination complaint must be dismissed in its entirety.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations issue a final order finding the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint.

DONE AND ENTERED this 29th day of May, 2009, 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

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2008).

2 Petitioner added the following in a footnote:

It should be noted that Ms. Gibson is also a

close personal frie[n]d of Ms. Ham['s], and is godmother to her child."

3 Petitioner subsequently withdrew from this stipulation to the extent that it provided that Petitioner's employment began on March 20, 2006.

4 Despite being the godmother of Ms. Ham's daughter for the past ten or 11 years, Ms. Gibson has not socialized with Ms. Ham outside of work or work-related events.

5 Mr. Stewart testified on Petitioner's behalf at the final hearing in this case. He gave purported eyewitness testimony (which the undersigned has found to be implausible, contrived, and unworthy of belief) regarding an alleged September 2006, sexual encounter between Petitioner and Ms. Ham at West Little River Park, during which Ms. Ham supposedly "slapped the hell out of [Petitioner]" and forced Petitioner, against his will, to have sexual intercourse with her.

6 Park and Recreation Manager 1s had to "serve a 26 pay period (one year) probationary period" before becoming permanent status employees.

7 During this three-week period, Petitioner's immediate supervisor was Patrick Oliver.

8 There were occasions when Petitioner sent home a subordinate with whom he was angry, only to find that he had to call the subordinate back to work because there were not enough employees left at the park to properly supervise the children. Ms. Gibson personally admonished Petitioner about this, telling him that it was "just not good practice."

9 On one occasion, Petitioner got into an argument at his park with a child's mother, whom he told to "go home, get [her] husband" and "bring [him] back" to the park so Petitioner could talk to him instead of the mother. The mother subsequently telephoned Ms. Gibson to complain about Petitioner's conduct and received an apology from Ms. Gibson for the way that Petitioner had treated her.

10 Before hiring Petitioner, Ms. Gibson had explained to him that he would be required to "plan, organize, and execute at least two regional special events within [his] first six months" of employment. As it turned out, Petitioner "didn't do any [such special events] during his tenure [with the County]."

11 Ms. Johnson ultimately resigned because she felt Petitioner was "too nasty" and "mean," and she "couldn't work under him."

12 Mr. Morgan and Ms. Johnson complained to Ms. Ham that Petitioner had mistreated them and yelled at them "in front of the kids."

13 Ms. Gibson personally observed Petitioner's inattentiveness at staff meetings and, on two occasions, when asked a question by Petitioner about material that was covered during a staff meeting, chided him for not "hav[ing] notes to refer back to."

14 At no time prior to November 17, 2006, had Ms. Ham ever provided Petitioner anything in writing regarding any performance deficiencies. Her pre-evaluation admonishments to him were "always verbal."

15 The undersigned is convinced, particularly given the tone of the written rebuttal, that had Ms. Ham sexually harassed Petitioner and used her supervisory authority to coerce him to engage in sexual activity with her, as he now claims she did, he would have said something about it in the written rebuttal.

16 Ms. Gibson viewed this "delegat[ing]" of assignments as "cheating" on Petitioner's part.

17 Ms. Gibson had made a similar suggestion to Petitioner. Instead of following this suggestion, Petitioner attempted to hire two of his personal friends, both of whom failed a pre- employment drug test.

18 Petitioner was required to, but did not, input registration and attendance information "into the CITRIX system" on a daily basis. His failure to have done so "hurt[] [Region 2] from a budget standpoint" because it appeared that the region did not "have the [number of] kids [it was] actually programming for" and it therefore received a smaller share of the budget than it otherwise would have.

19 For example, Ms. Gibson had been told by various employees that, during his work day, Petitioner had not been at West Little River Park at times when he should have been. It had also been brought to Ms. Gibson's attention by one of Petitioner's subordinates that Petitioner had been leaving his youngest child at the park "for the staff to baby sit."

20 No such meeting actually took place.

21 Jennifer Williams and Debbie Williams are sisters.

22 Section 760.10(1)(a), Florida Statutes, provides, in pertinent part, as follows:

It is an unlawful employment practice for an employer:

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 . . . sex . . . .

An "employer," as that term is used in the statute, 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."

23 Section 760.10(7), Florida Statutes, provides, in pertinent part, as follows:

It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

"Courts have commonly referred to [these anti-retaliatory] provisions [of Section 760.10(7), Florida Statutes] as the participation and opposition clauses." Guess v. City of Miramar, 889 So. 2d 840, 846 (Fla. 4th DCA 2004). "The FCRA's opposition clause protects employees who have opposed unlawful employment practices. . . . The FCRA's participation clause protects an employee from retaliation if he or she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA." Carter

v. Health Management Associates, 989 So. 2d 1258, 1263 (Fla. 2d DCA 2008)(internal quotation marks omitted).

24 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."); Carter, 989 So. 2d at 1262 ("Because this provision of the FCRA [Section 760.10(7), Florida Statutes] is almost identical to its federal counterpart, 42 U.S.C. § 2000e- 3(a), Florida courts follow federal case law when examining FCRA retaliation claims."); City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008)("Federal case law interpreting Title VII and the ADEA applies to cases arising under the [Act]."); Guess, 889 So. 2d at 846 ("The FCRA [Act] is patterned after Title VII; federal case law on Title VII applies to FCRA claims."); and Florida State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996)("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.")

25 In Weeks, 291 F.3d at 1311-12, the court noted:

To establish that a plaintiff engaged in statutorily protected expression, we have held that a plaintiff must show that she "had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)(citing Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989)). In Little, this standard was succinctly described as follows:

"It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment

practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable."

See also Gilooly v. Missouri Department of Health and Senior Services, 421 F.3d 734, 740 (8th Cir. 2005)("[I]t also cannot be true that a plaintiff can file false charges, lie to an investigator, and possibly defame co-employees, without suffering repercussions simply because the investigation was about sexual harassment. To do so would leave employers with no ability to fire employees for defaming other employees or the employer through their complaint when the allegations are without any basis in fact."); Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004)("[U]tterly baseless claims do not receive protection under Title VII. . . . The purpose of requiring that plaintiffs reasonably believe in good faith that they have suffered discrimination is clear. Title VII was designed to protect the rights of employees who in good faith protest the discrimination they believe they have suffered and to ensure that such employees remain free from reprisals or retaliatory conduct. Title VII was not designed to 'arm employees with a tactical coercive weapon' under which employees can make baseless claims simply to 'advance their own retaliatory motives and strategies.'"); EEOC v. Total System Services, 221 F.3d 1171, 1175 (11th Cir. 2000)("Even if false statements made in the context of an EEOC charge (per the participation clause) are protected and cannot be grounds for dismissal or discipline, . . . this extreme level of protection for untruth is not afforded to false statements made under the opposition clause."); and Sanders v. Madison Square Garden, L.P., 525 F. Supp. 2d 364, 366 (S.D.N.Y. 2007)("It is well

established, as the Court ruled, that in order to constitute protected activity under this provision [of Title VII], the plaintiff's complaint does not have to be correct that the conduct complained of was illegal, but the complaint has to be made in the good faith and reasonable belief that it was.

Therefore, if the plaintiff did not make a good faith complaint, but rather made up accusations in order to extort money from defendants, then her activity was not protected.")(citation omitted).

26 See also Russell v. KSL Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA 2004)("In order to establish a prima facie retaliation case, the plaintiff must demonstrate the following elements: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the participation in the protected expression and the adverse action.").

27 The "after-acquired evidence" doctrine described by the United States Supreme Court in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 363 (1995), applies to actions, such as the instant one, brought under the Act. See Brown Distributing Co. v. Marcell, 890 So. 2d 1227, 1231 (Fla. 4th DCA 2005)("This testimony, in conjunction with evidence of Marcell's rudeness under the 'after-acquired evidence' doctrine, would have been relevant in limiting Marcell's recovery of damages."). Pursuant this doctrine, reinstatement is not available as "affirmative relief" to an unlawfully terminated employee where the employer acquires post-termination evidence establishing that the employee engaged in pre-termination wrongdoing that would have led to the employee's discharge on those legitimate grounds alone had the employer known about such wrongdoing at the time; and backpay to such an employee is limited to the period before the discovery of this "after-acquired evidence."

28 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.").

29 In these latter cases, "normal principles of pleading and proof allocation," rather the McDonnell Douglas-Burdine shifting burden framework, are applied. Henson, 682 F.2d at 905 n.11.

30 See Myers v. Central Florida Investments, Inc., 237 Fed. Appx. 452, 457 (11th Cir. 2007)("[E]ven if Myers did establish a prima facie retaliation case, CFI has met its burden of offering a legitimate, nondiscriminatory reason for her termination under the applicable McDonnell-Douglas burden-shifting framework."); Johnson v. Booker T. Washington Broadcasting Service, 234 F.3d 501, 510-511 (11th Cir. 2000)("The district court cited to no cases applying the McDonnell Douglas-Burdine framework in post- Ellerth sexual harassment cases, and nowhere in Ellerth does the Supreme Court suggest applying a McDonnell Douglas-Burdine burden shifting framework. We are unwilling to read the McDonnell Douglas-Burdine framework into non-retaliation sexual harassment cases at this point. These types of cases have evolved quite separately from other Title VII cases, and applying a burden-shifting analysis to them would be a departure from precedent."); and Ely v. United States Postmaster General, No. 88-5950, 1990 U.S. Dist. LEXIS 954 *16 (E.D. Pa. January 29, 1990)("Once a plaintiff establishes a prima facie case of quid pro quo sexual harassment, a rebuttable presumption arises that the adverse employment consequence complained of resulted from unlawful sexual harassment, and the burden of production shifts to the employer to introduce evidence of a legitimate nondiscriminatory reason for its action.").

31 "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.").

32 "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."); Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)("The inquiry into pretext centers upon the employer's beliefs, and not the employee's own perceptions of his performance."); 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.").

"Typically, the person with authority over the employment decision is the one who executes the action against the employee. However, that is not necessarily the case. If the [complainant] can demonstrate that others had influence or leverage over the official decisionmaker, and thus were not ordinary coworkers, it is proper to impute their discriminatory attitudes to the formal [or titular] decisionmaker." Russell v. McKinney Hospital Venture, 235 F.3d 219, 226 (5th Cir. 2000).

Under this "cat's paw" theory, "causation may be established if the [complainant] shows that the decisionmaker followed the biased recommendation without independently investigating the [allegations] against the [complainant]. In such a case, the recommender is using the decisionmaker as a mere conduit, or

'cat's paw' to give effect to the recommender's discriminatory animus." Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999)(citation omitted).

33 The testimony of another of Petitioner's witnesses, Dorothy Marshall, although credible, did nothing to help Petitioner establish that he was the victim of Ms. Ham's unwelcome sexual advances. Ms. Marshall testified that, one day in 2006, she walked into Petitioner's office at West Little River Park to inquire about renting space at the park for a birthday party for her daughter and observed Petitioner and a woman "straddling each other," "scissor style," on a chair. Ms. Marshall did not identify Ms. Ham as the woman with whom Petitioner was physically entwined on the chair, nor did she testify that she saw or heard anything indicating that Petitioner was doing something he did not want to do.

COPIES FURNISHED:

Leslie Holland, Esquire

801 Northeast 167th Street, Second Floor North Miami Beach, Florida 33162

Scott B. Mario, Esquire Assistant County Attorney Miami-Dade County

111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993

Larry Kranert, 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.