STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GREGORY R. LULKOSKI,
vs.
Petitioner,
Case No. 17-5192
ST. JOHNS COUNTY SCHOOL DISTRICT,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in
St. Augustine, Florida, on January 29 through 31, 2019, before
David Watkins, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gregory Ryan Lulkoski, pro se
212 River Island Circle
St. Augustine Florida 32095
For Respondent: Robert J. Sniffen, Esquire
Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A.
123 North Monroe Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
PRELIMINARY STATEMENT
Petitioner filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (FCHR) on December 22, 2016, claiming that the St. Johns County School District (District) retaliated against him for engaging in activity protected by the FCRA. Following its investigation, the FCHR rendered a “No Reasonable Cause” determination on August 17, 2017.
On September 30, 2017, Petitioner filed a Petition for Relief requesting an administrative hearing regarding the FCHR’s No Reasonable Cause determination pursuant to section 760.11(7).
The matter was referred to the Division of Administrative Hearings on September 21, 2017, and the undersigned subsequently issued a Notice of Hearing. At the request of the parties, the hearing was continued several times and was ultimately conducted on January 29 through 31, 2019.
At hearing, Petitioner testified on his own behalf and called the following witnesses: Cathy Mittelstadt, the District’s Deputy Superintendent of Operations; Cathy Weber, the District’s Director of Salary and Benefits; Danielle Cook, Administrative Assistant to the Chief of Community Relations of the District; Michael Degutis, the District’s Chief Financial Officer; Kelly Barrera, the Chairperson of the District’s elected School Board; Tim Forson, the District’s Superintendent;
JoJean Ponce, Edward Lambert and Joan Gibson-Long, all employees at First Coast Technical College (FCTC) in varying capacities; and Dr. Joseph Joyner, the District’s former Superintendent.
Petitioner moved exhibits numbered 1, 3, 4, 5, 8, 11, 12, 15
through 18, 35, 36, 37, 39, 40, 41, 48, 49, 65, 66, 76, 77, 80,
81, 83, 89, 90, 95, 97, 100, 111, 112, 132, 143, 148, 150, 175,
216, and 220 into evidence, many subject to objection, including objections regarding whether they were permitted to be entered as substantive evidence and on the grounds of hearsay.
The District offered the testimony of Ms. Mittelstadt, Ms. Weber, and Ms. Ponce. It offered Respondent’s Exhibits numbered 1, 2, 3, 5, 6, 7, 11, 15, 16, 22, 23, 24, 26, 30,
and 34, all of which were received in evidence.
The six-volume Transcript of the final hearing was filed on February 25, 2018. Thereafter, both parties filed Proposed Recommended Orders, and by permission of the undersigned, responses to the parties’ respective Proposed Recommended Orders, all of which have been carefully considered in the preparation of this Recommended Order.
Unless otherwise noted, all statutory references are to the 2018 version of the Florida Statutes.
FINDINGS OF FACT
Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the
entire record of this proceeding, the following Findings of Fact are made:
Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI).
On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues.
To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on
temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016.
On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016.
Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term.
As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated
as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination.
Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt.
Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same.
FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood
that he was being appointed to a temporary employment contract not to extend past December 21, 2016.
Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it.
Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer.
In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools.
The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position.
Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay.
Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant,
and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as
Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so.
Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and
Ms. Weber both indicated that they did not retaliate against Petitioner for any reason.
In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire.
Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was
retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint.
This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The
June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint.
Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment.
On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged:
Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators.
In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he
suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment.
Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign.
Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those
weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic.
Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him.
Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or
Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard.
Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being
given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard.
As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form.
The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple
avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule.
Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District.
Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class.
Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family.
Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter of, and parties to, this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See § 120.57(1)(j), Fla. Stat.
The FCRA, at section 760.10(7), prohibits retaliation in employment as follows:
(7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. (emphasis added).
Florida courts have held that because the Act is patterned after Title VII of the Civil Rights Act, as amended, federal case law dealing with Title VII is applicable. See
e.g., Fla. Dept. of Cmty. Aff. v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
The FCRA does not prohibit all misconduct in the workplace, but only discrimination that is motivated by a protected class, defined as a person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. § 760.10(1), Fla. Stat. The burden of proving retaliation follows the general rules enunciated for proving discrimination. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178
(2d Cir. 1996).
Petitioner has the ultimate burden to establish impermissible retaliation either by direct or indirect evidence. Direct evidence is evidence that, if believed, would prove the existence of illegal retaliation without inference or presumption. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189
(11th Cir. 1997). Direct evidence includes actions or statements of an employer that reflect retaliatory attitude correlating to the retaliation complained of by the employee. See Id. There is no direct evidence of retaliation in this case.
Absent direct evidence, Petitioner has the burden of establishing a prima facie case of retaliation. St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); Berman v. Orkin Exterminating Co., 160 F.3d 697, 701 (11th Cir. 1998).
To establish a prima facie case of discrimination in retaliation by indirect evidence, Petitioner must show:
(1) that he was engaged in statutorily protected expression or conduct; (2) that he suffered an adverse employment action; and
(3) that there is a causal relationship between the two events.
See Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997).
Petitioner’s June 27th Complaint is protected activity under the participation clause of the FCRA. That clause, in
section 760.10, provides in relevant part that retaliation, because an employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section,” is prohibited. Petitioner’s June 27th Complaint constitutes participation clause activity and is thus protected. See Guess v. City of Miramar, 889 So. 2d 840, 846 (Fla. 4th DCA 2004), receded from on other grounds, Palm
Bch. Cnty. Sch. Bd. v. Wright, 217 So. 3d 163, 165 (Fla. 4th DCA
2017).
Petitioner’s grievances introduced at the hearing are not protected activity because they do not amount to participation or opposition clause activity. The grievances were not filed in conjunction with, or after the filing of, a formal charge, and therefore they are not participation clause activity. See § 760.10, Fla. Stat.; Guess, 889 So. 2d at 846. To be protected under the opposition clause in section 760.10, Petitioner must establish a subjective good faith belief that his employer engaged in an unlawful employment practice under employment discrimination law and that his belief was objectively reasonable in light of the facts. Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.
1997). The objective reasonableness must be measured against existing substantive law. Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1351 (11th Cir. 1999). A petitioner’s belief
that a certain practice is discriminatory cannot be objectively reasonable "[w]here binding precedent squarely holds that particular conduct is not . . . unlawful . . . and no decision of this [Circuit] or of the Supreme Court has called that precedent into question or undermined its reasoning." King v.
Piggly Wiggly Ala. Distr. Co., 929 F.Supp.2d 1215, 1228 (U.S. Dist. Ct., N. Dist. Ala.). Furthermore, a belief that there is a violation of anti-discrimination laws must be sufficiently clear from the complaint to put the employer on notice of that belief. See Murphy v. City of Aventura, 383 Fed. App’x. 915,
918 (11th Cir. 2010) (“A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.” (quoting EEOC Compl. Man. (CCH) §§ 8–II–B(2) (2006))(internal quotation marks omitted)).
As noted, Petitioner only introduced three grievances into evidence--grievances he labels his first, ninth, and tenth grievances. Petitioner’s first grievance was filed on May 21, 2015. That grievance, fairly summarized, alleges that Petitioner was subjected to a hostile work environment by co- worker Will Waterman, who was not pleasant to him at times, and that the president of FCTC at the time, Sandra Fortner, was engaging in nepotism by favoring friends and family for
positions and affording them special treatment. Nowhere in this grievance does Petitioner ever complain that he was being subjected to a hostile work environment because of a protected class. Nowhere in this grievance does Petitioner mention a protected class at all.
Petitioner’s ninth and tenth grievances purport to concern violations of equal employment opportunity laws. Both grievances were filed on June 13, 2016, and both allege that Ms. Fortner denied applicants a fair shot at positions at FCTC because she favored hiring friends and family, whom Petitioner refers to as associates.
Petitioner’s complaints are not objectively reasonable because he did not allege that he was discriminated against on the basis of any protected class, or otherwise complain or oppose any action that was a violation of employment discrimination law as measured against existing substantive law. Petitioner’s complaints that Ms. Fortner engaged in nepotism in hiring that may have had the effect of excluding a minority applicant from a position is not objectively reasonable for the simple fact that Petitioner concedes in the complaints themselves that such employment decisions were not motivated by an animus towards any particular motivated class, but rather were motivated by favoritism towards family and friends. While such favoritism may be an unfair practice, it is not illegal
under the FCRA, which only prohibits employment decisions that are motivated by animus towards a protected class. Indeed, the practice of nepotism affected members of different protected classes equally and, essentially, here the “protected class” consisted of those that were not family or friends of
Ms. Fortner. That class of individuals is not protected under the FCRA.
The Eleventh Circuit has repeatedly held that employment decisions motivated by nepotism are not violative of employment discrimination laws. Powell v. Am. Remediation &
Envtl., Inc., 618 Fed. App'x 974, 979 (11th Cir. 2015) (affirming trial court order dismissing case and holding that nepotism is not actionable under Title VII); Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990)
(holding that taking employment action on the basis of nepotism was not discriminatory in violation of Title VII); Thompson v.
Baptist Hosp. of Miami, Inc., 279 Fed. App'x 884, 888 (11th Cir.
2008) (holding that nepotism not to the detriment of a particular class was not discriminatory); Howard v. BP Oil Co.,
32 F.3d 520, 527 (11th Cir. 1994) (reasoning nepotism that has an equal adverse impact on all protected classes is unlikely to conceal a discriminatory motive); Brown v. Am. Honda Motor Co., 939 F.2d 946, 952 (11th Cir. 1991)(holding that discrimination claim lacked merit because nepotism practice affected all
protected classes equally). It should also be noted that the undersigned has already found that these very same grievances were not protected under the FCRA. Lulkoski v. First Coast
Tech. Coll., Case No. 17-2385 (Fla. DOAH Sept. 5, 2018; FCHR Nov. 11, 2018). Accordingly, Petitioner’s only instance of protected activity in this case is his June 27th Complaint.
Petitioner generally alleged two adverse retaliatory actions at the hearing: the subjection to a hostile work environment, and his termination. The Eleventh Circuit Court of Appeals recognized the viability of a claim for retaliatory hostile work environment claim in Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012), but at hearing Petitioner failed to establish such a claim on the merits. Specifically, the evidence presented did not establish that the working environment was sufficiently severe and pervasive enough to alter the terms and conditions of Petitioner’s employment. 682 F.3d at 1312.
To prevail on a retaliatory hostile work environment claim, Petitioner must show “the workplace [wa]s permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment.” Id. at 1311 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))(internal quotation marks omitted).
The elements of establishing a retaliatory hostile work
environment are slightly different from a typical retaliation claim given the different nature of the claim. In this regard, Petitioner must establish (1) he engaged in protected activity;
after doing so, he was subjected to unwelcome harassment;
his protected activity was a “but for” cause of the harassment; (4) the harassment was sufficiently severe or pervasive to alter the terms or conditions of his employment; and (5) a basis exists for holding his employer liable either directly or vicariously. See Swindle v. Jefferson Cnty. Comm'n,
593 Fed. App'x 919, 929 (11th Cir. 2014) (citing Gowski, 682
F.3d at 1311–12); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Univ. of Tex. SW. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013).
There is a subjective and objective component to the severe or pervasiveness analysis, prong four. See Harris, 510
U.S. at 21-22. As to the objective requirement, one must show the environment was objectively severe or pervasive under the totality of the circumstances. Id. at 23. This ensures civil rights statutes do not become civility codes and that ordinary workplace interactions are not deemed unlawful harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Gupta
v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53 (2006).
Courts are guided by four elements in determining whether a work environment is severe and pervasive enough to alter the terms and conditions of employment; the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating, and whether the conduct interferes with the ability to perform one’s work duties. Harris, 510 U.S. at 21-22.
As an initial matter, I conclude the conduct was not frequent. The conduct includes Petitioner requesting a copy of a complaint lodged by Ms. Staufaccher against him and his perceived delay in obtaining that document; a request by a non- supervisory District employee for Petitioner to sign a grant form; and Petitioner’s contention that he was not granted the type of access to SunGard software that he preferred and as quickly as he would have liked. These three events, spanning a period of six months, do not rise to the type of frequent conduct envisioned by applicable precedent. See Guthrie v.
Waffle House, Inc., 460 Fed. App'x 803, 807 (11th Cir. 2012) (dozens of comments or actions over 11 months were infrequent); Godoy v. Habersham Cnty., 211 Fed. App’x. 850, 853-54 (11th Cir. 2006)(summary judgment affirmed on hostile work environment claim where plaintiff endured racial slurs nearly every day).
Indeed, frequent conduct contemplates more pervasive acts than those alleged here. Cf. Miller, 277 F.3d at 1276 (conduct was
frequent where discriminator hurled slurs at plaintiff three to four times daily in a month); Dees v. Johnson Controls World Serv.’s, Inc., 168 F.3d 417, 418 (11th Cir.1999)(summary
judgment for employer reversed where plaintiff alleged “almost- daily abuse”).
I also find the conduct was not severe, physically threatening, or humiliating. Petitioner’s allegations boil down to objections with how the District decided to run its operations, and his objection that, in his opinion, things should have been done differently and more to his liking. This is not the severe and pervasive harassment contemplated by courts finding viable hostile work environment claims.
The law is clear: the FCRA does not guarantee a fair or pleasant working environment. McCollum v. Bolger, 794 F.2d
602, 610 (11th Cir. 1986)(Title VII does not “shield against harsh treatment in the work place”). Petitioner’s allegations of hostility are squarely the type of personnel related issues that court’s counsel against interceding in given that courts do not sit as a super-personnel department of employers, second- guessing decisions an employer makes where there is no evidence of retaliatory intent. Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991). I find that Petitioner thus has not established that the District subjected him to an actionable retaliatory hostile work environment.
Petitioner’s remaining claim, that he was terminated because of engaging in protected activity, also ultimately fails because he cannot show a causal connection between his termination and his protected activity. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). A
petitioner cannot establish a causal connection at the prima facie stage where the decision maker was unaware of the protected conduct. Brungart v. BellSouth Telecomms., Inc., 231
F.3d 791, 799 (11th Cir. 2000).
Petitioner failed to establish that Ms. Mittelstadt, the de facto decision maker in this case, had any knowledge of any protected activity. Ms. Mittelstadt is the de facto decision maker in this case because she was responsible for recommending that Petitioner’s position be eliminated and his contract allowed to expire. While she was not the ultimate decision maker (which was the District’s Executive Cabinet), she was the de facto decision maker because the Executive Cabinet did not reject any of her recommendations, but rather accepted them all without change.
Petitioner ultimately failed to present any evidence that Ms. Mittlestadt was aware of his June 27th Complaint, the only activity that is protected as a matter of law.
Ms Mittelstadt testified she did not know of this complaint when she decided to recommend that Petitioner’s position be
eliminated. Even assuming that the grievances that Petitioner introduced at hearing, and that I have found not to be protected, are protected, Petitioner failed to establish that Ms. Mittelstadt was aware of these grievances. Ms. Mittelstadt could not have acted on retaliatory animus for protected activity she had no idea existed. Accordingly, Petitioner cannot establish his claim that the elimination of his position was in retaliation for engaging in activity protected by the FCRA.
Assuming that Petitioner could establish a prima facie case of retaliation, the burden of production shifts to the District to articulate one or more legitimate non-retaliatory reasons for the non-renewal. The District only need produce admissible evidence it took the alleged adverse employment action for non-prohibited reasons. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 257 (1981).
Credible evidence of record established that the District eliminated Petitioner’s position consistent with the results of Ms. Mittelstadt’s assessment and analysis of the workforce and structure of FCTC, and her proposal for the reorganization and restructuring of FCTC. This assessment was conducted in order to address the serious financial problems at FCTC, to eliminate redundancy between FCTC and District operations, and to bring FCTC in line with how other District
schools operated. The simple fact of the matter is that Respondent’s position, grant writer, was no longer needed given the nature of the District’s operations and the creation of the Career Specialist position.
Because the District asserted legitimate non- retaliatory reasons for its decision not to renew Petitioner’s contract and eliminate his position, the burden shifts back to Petitioner to show that each and every reason offered by the District is a pretext to engage in retaliation and that “but for” his protected activity, he would not have been retaliated against. Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002); Nassar, 570 U.S. at 352 (2013);
Palm Beach Cnty. Sch. Bd. v. Wright, 217 So. 3d at 165. Petitioner has not done so here.
Indeed, the “but for” burden to show pretext is weighty. Employers may take actions for a good reason, a bad reason, a flawed reason, or for no reason at all, so long as the reason is not retaliatory. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266-67 (11th Cir. 2010).
Consequently, to show pretext, Petitioner must show each of the District’s proffered reasons was not the true reason for its decision, “either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation
is unworthy of credence.” Lucy v. Georgia-Pac. Corrugated I,
LLC, 497 Fed. App’x. 870, 871 (11th Cir. 2012) (quoting Jackson v. State of Alabama State Tenure Comm'n, 405 F.3d 1276, 1289
(11th Cir. 2005)). Petitioner must present concrete evidence in the form of specific facts to establish pretext. See Standard
v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332–33 (11th Cir. 1998).
Here, Petitioner offers no evidence of pretext other than his suspicion that his complaints were somehow related to his non-renewal. This is insufficient to carry his burden and is not competent pretext evidence. To the extent that Petitioner seeks to argue that the reason proffered by the District is pretext because it is illogical or evinces bad judgment, he is entitled to that opinion, but it does not, and cannot, support a showing of pretext. An employee, in showing pretext, must do more than just quarrel with the reason for the challenged action; he must meet the employer's stated reason head on and rebut it. Chapman v. A1 Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Courts may not substitute their business judgment for that of the employer’s. See Alvarez, 610 F.3d
at 1266-67.
The competent evidence of record weighs heavily against a finding of pretext, and reinforces the legitimate reasons for Petitioner’s contract non-renewal. Indeed,
Petitioner was one of many individuals at FCTC placed on temporary employment contracts when the District began operating the educational programs at FCTC. Further, the District communicated with employees at FCTC that it was in the process of reorganizing and restructuring FCTC. Further, Petitioner was non-renewed along with several other individuals as part of a broader reorganization. Finally, Petitioner had the opportunity to apply for another job at FCTC, the Career Specialist position, but he chose not to take that opportunity. Petitioner did not establish that he was unqualified for this position, which encompassed his work duties. Petitioner’s suggestion at the hearing that he should have been placed in a vacant Case Manager position also does not demonstrate pretext. The evidence shows that the District was not filling any positions at the time, rather it was trying to streamline operations at FCTC and, in fact, had implemented a hiring freeze. Petitioner was told he could apply for any position when it became available, and when the position did become available, he did not apply for it. There was no evidence that any other employees that were let go were placed in other jobs or any other evidence to indicate that the District’s actions were pretextual. In sum, based on the totality of the evidence, Petitioner failed to show that “but for” his alleged protected activity his position would not have been eliminated.
Petitioner failed to carry his burden to establish a prima facie case of discrimination in retaliation, by either direct or indirect evidence.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case.
DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida.
S
W. DAVID WATKINS Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2019.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
Gregory Ryan Lulkoski
212 River Island Circle
St. Augustine, Florida 32095 (eServed)
Michael P. Spellman, Esquire Sniffen & Spellman, P.A.
123 North Monroe Street Tallahassee, Florida 32301 (eServed)
Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A.
123 North Monroe Street Tallahassee, Florida 32301 (eServed)
Robert J. Sniffen, Esquire Sniffen & Spellman, P.A.
123 North Monroe Street Tallahassee, Florida 32301 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 12, 2019 | Agency Final Order | |
| Jun. 28, 2019 | Recommended Order | Petitioner did not prove he was discriminated against in retaliation for having filed a prior charge of discrimination against his employer. |
