vs.
Case No. 19-0439
Respondent.
A formal hearing was conducted in this case on March 21, 2019, in Ocala, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge with the Division of Administrative Hearings (“DOAH”).
For Respondent: Patrick G. Gilligan, Esquire
Gilligan, Gooding, Franjola & Batsel, P.A.
The issue is whether Respondent, City of Ocala (“the City”), retaliated against Petitioner, Nyleah Jackson (“Petitioner” or “Ms. Jackson”), for exercising her right to
file a claim of employment discrimination against the City pursuant to section 760.10, Florida Statutes (2018).1/
On October 2, 2017, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (“FCHR”). Petitioner alleged the City discriminated against her because of her race by failing to promote her to an Administrative Specialist III position, instead hiring a Caucasian female with less education, seniority, and applicable job experience.
Upon FCHR notifying Petitioner that it had failed to complete its investigation within the statutorily allotted
180 days, Petitioner notified FCHR that she wished to go forward with an administrative hearing at DOAH. She filed a Petition for Relief with FCHR on July 16, 2018. FCHR referred the matter to DOAH, which assigned it DOAH Case No. 18-3639.
The case was heard by Administrative Law Judge James H. Peterson III on September 5, 2018. In a Recommended Order dated December 28, 2018, Judge Peterson found that the evidence did not support a finding of illegal discrimination and concluded that the FCHR should dismiss the Petition for Relief. In a Final Order dated March 26, 2019, the FCHR adopted Judge Peterson’s Recommended Order in toto. The allegations made by
Petitioner in DOAH Case No. 18-3639 are not at issue in this
proceeding. That case will be generally referenced in this Recommended Order as the “discrimination complaint.”
On March 23, 2018, Petitioner filed a second Employment Complaint of Discrimination with the FCHR, this time alleging that the City had illegally retaliated against her for complaining internally about the City’s discriminatory actions against her and for filing her original Employment Complaint of Discrimination. Again, the FCHR did not complete its investigation within 180 days after the filing of the complaint. Petitioner elected to file a Petition for Relief in order to proceed with an administrative hearing. The FCHR referred the matter to DOAH on January 24, 2019. The case was assigned to the undersigned and scheduled for hearing on March 21, 2019, on which date it was convened and completed. This case will be referenced in this Recommended Order as the “retaliation complaint,” except where specific reference is necessary to distinguish the Employment Complaint of Discrimination from the Petition for Relief.
Petitioner testified on her own behalf and entered Petitioner’s Exhibits A through H into evidence. Respondent called Petitioner as a witness in its case and also presented the testimony of the following City employees: Human Resources and Risk Management Director Jared Sorensen; Administrative Assistant III Erica Wilson; and Fiscal Administrator Judy Wade.
Respondent’s composite Exhibits 1 and 2 were entered into evidence.
At the final hearing, the parties agreed to file their proposed recommended orders within 30 days of the filing of the Transcript at DOAH. The one-volume Transcript of the hearing was filed at DOAH on April 1, 2019. Both parties timely filed their Proposed Recommended Orders on April 29, 2019.
The City is an employer as that term is defined in section 760.02(7).
Petitioner, an African American female, was hired by the City as an Administrative Specialist II on May 2, 2016. She worked in that job position until her resignation on February 7, 2018. Petitioner initially worked in the City’s Electric Utility Department and then transferred to the Public Works Department. Her duties were primarily secretarial, clerical, and administrative.
Petitioner testified that when she started in Public Works, her direct supervisor was Tom Casey, but that at some point Judy Wade appeared to take over at least some of those supervisory duties. In her telling, Petitioner never recognized Ms. Wade as her direct supervisor except as to specific tasks delegated by Mr. Casey.
Ms. Wade was the Fiscal Administrator for Public Works.
She testified that Tom Casey and Darren Park are her superiors in Public Works. Ms. Wade credibly testified that she was Petitioner’s direct supervisor for the entire time that Petitioner worked in Public Works. Ms. Wade’s supervisory duties included monitoring Petitioner’s attendance at work and her leave requests.
Petitioner’s testimony that she was unaware Ms. Wade was her direct supervisor for all purposes is not credited.
On or about August 25, 2017, Petitioner presented a formal grievance to the City alleging that she had been discriminated against because of her race when she was not hired for a vacant Administrative Assistant III position.
On or about August 31, 2017, Human Resources and Risk Management Director Jared Sorensen spoke with Petitioner and asked her to clarify whether she was pursuing a formal grievance under the City’s Collective Bargaining Agreement (“CBA”) with the International Brotherhood of Electrical Workers or under the City’s Employee Handbook. Petitioner responded that she wished to file her grievance under the CBA.
On September 13, 2017, Petitioner sent an email to Mr. Sorensen, with copies to Mr. Casey and Mr. Park. The email stated as follows, in relevant part:
Both the City of Ocala Employee Handbook and Collective Bargaining Agreement allows [sic] a response in writing within 10 business days of receipt of the grievance. I spoke with Tom Casey and Darren Park as well as sent my grievance, via interoffice to Human Resources, on August 25, 2017. From my meeting, I gathered that classification matters, discriminatory/biased hiring decisions and equal pay issues is [sic] in the Human Resource jurisdiction. I received a call last week from Jared stating that the target response date was September 8th, 2017 but I would have a definitive response by September 11th, 2017. I plan to hold my employer/HR accountable and liable to this deadline as promised. It is now
September 13th with no response.
The email concluded with a demand for a response regarding Petitioner’s remedies no later than September 14, 2017.
The record evidence indicates that the City’s response was delayed for two reasons. First, Petitioner had indicated that she wished to pursue her grievance through the CBA, and Mr. Sorensen’s conversations with Petitioner’s union representative led him to believe that Petitioner’s grievance
was going to be refiled to clearly establish a starting date for the CBA process. Second, Hurricane Irma had just passed through the state, causing significant damage in Marion County and delaying the City’s ability to respond to non-emergency matters such as Petitioner’s grievance.
Of greater significance to this retaliation case, Petitioner’s direct supervisor, Ms. Wade, was not copied on any of the correspondence regarding Petitioner’s discrimination claim or her grievance. The only way Ms. Wade would have known of these matters was through word-of-mouth in the office.
Ms. Wade credibly testified that she was unaware of any of these matters at the time they were occurring. Petitioner believed that Ms. Wade knew of her complaints, but provided no direct evidence of Ms. Wade’s knowledge.
One week after her email to Mr. Sorensen, on September 20, 2017, Petitioner interviewed for an open position in the City’s Fleet Department. The Fleet Department is separate from Public Works and is located in a different building.
Ms. Wade testified that Petitioner did not inform her that she would be absent from the Public Works office or that she would be interviewing for a position in the Fleet Department. Ms. Wade stated that she checked Petitioner’s office and saw that she was not present. Ms. Wade asked a co- worker about Petitioner’s location and was informed that Petitioner was out at a job interview.
Petitioner testified that she told Ms. Wade that she would be out of the office. She did not tell Ms. Wade why she was going out. Petitioner testified that she believed Ms. Wade
was not her supervisor and had no reason to know that she was going out on a job interview. Petitioner stated that she told Mr. Casey why she would be out of the office.
Petitioner did not call Mr. Casey as a witness to corroborate her version of events. As indicated above, the undersigned does not credit Petitioner’s assertion that she did not believe Ms. Wade was her direct supervisor.
When Petitioner returned to the office, Ms. Wade informed her that she was required to use paid time off (“PTO”) for personal business such as job interviews. Ms. Wade sent a request through “Kronos,” the City’s payroll software system, to dock Petitioner for 30 minutes of PTO for the time she was not in the office.
Within a few days of making the Kronos request, Ms. Wade discussed the matter with Mr. Sorensen, who told her that City policy provided that employees could interview for
other open positions within the City without using any PTO. The time used for such internal interviews was to be treated as regular work time. Evidence produced at the hearing indicated that Petitioner had gone out on such internal interviews previously and not been charged with PTO.
Ms. Wade, having learned that she was mistaken regarding City policy, took steps to restore Petitioner’s PTO. On September 26, 2017, Ms. Wade submitted a payroll correction
to adjust Petitioner’s pay to her full regular hourly rate. On October 3, 2017, Ms. Wade informed Petitioner of her mistake and that she had reversed the docking of Petitioner’s PTO.
Petitioner contended that Ms. Wade’s docking of her pay was in retaliation for her complaint of discrimination and filing of a grievance. Petitioner stated that Ms. Wade’s reversal of the PTO decision was due solely to the fact that Petitioner contacted her union representative about the matter. Petitioner conceded that the only evidence connecting her discrimination complaint to Ms. Wade’s action on September 20, 2017, was their proximity in time. Ms. Wade credibly testified that she did not know about Petitioner’s discrimination complaint on September 20, 2017, and that no one working for the City ever instructed her to take any adverse action against Petitioner.
On October 2, 2017, the FCHR received Petitioner’s initial Employment Complaint of Discrimination. The FCHR sent a Notice of Filing of Complaint of Discrimination to the City.
The Notice was dated October 3, 2017, but was not received by the City until October 6, 2017. Ms. Wade testified that she was unaware of any potential claim of discrimination by Petitioner prior to October 6, 2017.
Petitioner claimed that Ms. Wade was aware of Petitioner’s intention to file the discrimination complaint when
Ms. Wade originally docked Petitioner’s PTO in September 2017. To support this claim, Petitioner first testified that one of the emails she sent regarding her potential discrimination complaint was copied to Ms. Wade. When the actual emails were produced by the City and showed that Ms. Wade was not copied on any of them, Petitioner testified that she had told Ms. Wade of her discrimination complaint at a meeting that included Ms. Wade and Mr. Park.
Ms. Wade credibly testified that she had no memory of discussing the discrimination complaint with Petitioner at a meeting. Petitioner did not produce Mr. Park as a witness to corroborate her testimony regarding a meeting. Ms. Wade’s testimony is credited on this point. Petitioner failed to demonstrate that Ms. Wade’s actions on September 20, 2017, were in retaliation for Petitioner’s discrimination complaint.
On November 20, 2017, the City hired Erica Wilson as the new Administrative Specialist III to work in Public Works. She assumed the duties of the previous Administrative Specialist III, Melinda Day, who had retired.
Petitioner and Ms. Day had worked cooperatively in preparing payroll reports for Public Works. Petitioner would summarize the payroll cards for the stormwater division, and Ms. Day would summarize the payroll cards for the streets and traffic divisions. Once the summaries were completed, either
Petitioner or Ms. Day would transmit them by email to the Payroll Department. Petitioner and Ms. Day alternated the task of sending the email to Payroll, with each employee transmitting the information every other week.
After Ms. Day retired, Public Works was shorthanded for a time. During this period, Petitioner began summarizing all of the payroll cards for the stormwater, streets, and traffic divisions, and transmitting all of that information to Payroll on a weekly basis. After Ms. Wilson was hired at Public Works, Petitioner continued to perform her new duties while
Ms. Wilson came up to speed on her new job.
In January 2018, Ms. Wade convened a meeting with Petitioner and Ms. Wilson to discuss the transition for
Ms. Wilson to take over the payroll duties formerly performed by Ms. Day. At the conclusion of the meeting, Ms. Wade announced that Ms. Wilson would be in charge of sending all the emails to Payroll and Petitioner would continue summarizing all of the pay cards for all three divisions of Public Works.2/ In other words, the work would be divided more or less as it was before Ms. Day retired.
At the meeting with Ms. Wade and Ms. Wilson, Petitioner voiced no dispute or concerns with the division of duties ordered by Ms. Wade. Neither Ms. Wade nor Ms. Wilson recalled Petitioner’s being upset by or objecting to the plan
outlined by Ms. Wade. Petitioner herself conceded that she said nothing to indicate her disagreement with the re-assignment.
Petitioner contends that Ms. Wade’s decision to take some of Ms. Day’s former duties from her and assign them to Ms. Day’s successor was a retaliatory reduction of her job duties. Again, Petitioner’s only evidentiary support for her
contention is that the alleged retaliatory action occurred after she made her discrimination complaint with the FCHR.
Ms. Wilson testified that she considered the entire matter of payroll duties to be a minor part of her job.
Ms. Wade testified that her only intention in redistributing duties was to restore the status quo ante from before Ms. Day
retired.
Also in January 2018, another event caused Petitioner to believe that Ms. Wade was retaliating against her. Petitioner alleged that Ms. Wade further reduced her job duties by forbidding her to contact vendors used by the City or to contact City employee John Long, who was the City’s Vendor Relations Manager. The specific issue concerned Petitioner’s contacts with UniFirst, the vendor who laundered uniforms for every department of the City.
Petitioner’s routine job duties included taking delivery of uniforms for Public Works employees from UniFirst drivers. She discussed with those drivers any issues regarding
the number of uniforms delivered, the condition of the uniforms, and the amount of the invoice. Petitioner had no responsibility for dealing with UniFirst’s management on behalf of the City as a whole.
In April 2017, Petitioner inserted herself into a quality of service dispute with UniFirst. Uniform shirts were coming back from UniFirst in a soiled and threadbare condition. At first, Petitioner followed protocol and addressed her complaints to Mr. Long, who conveyed them to Jeff Peterson, UniFirst’s district service manager. However, after some back- and-forth between Mr. Long and Mr. Peterson, Petitioner elected to send an email of her own to Mr. Peterson. Ms. Wade considered this action unprofessional and counseled Petitioner about it. Ms. Wade did not believe further discipline was necessary because the situation was unlikely to recur.
However, in January 2018, a similar quality control issue arose with UniFirst. Mr. Long and Petitioner exchanged emails that indicated Mr. Long believed Petitioner was the City’s point person regarding UniFirst, based on her handling of the previous issue in 2017. However, Ms. Wade directed Petitioner not to contact UniFirst management directly because the City employed Mr. Long to handle citywide vendor relations.
Petitioner alleged that Ms. Wade had instructed her to have no contact with anyone from UniFirst, and that this
instruction amounted to a retaliatory reduction of her assigned duties. At the hearing, Ms. Wade made it clear that her order was meant only to stop Petitioner from contacting UniFirst’s management, an action that was never in Petitioner’s scope of duties. Petitioner was still expected to deal with the UniFirst driver who delivered uniforms to Public Works. Her job duties were unchanged.
Petitioner alleged that Ms. Wade retaliated against her by denying her leave to which she was entitled. On February 5, 2018, Petitioner requested that she be allowed to use 2.5 hours of accrued “safety time”3/ that afternoon, and her “floating holiday”4/ on the following day, February 6, 2018.
Ms. Wade denied the request. Petitioner nonetheless left work early on February 5, 2018, and did not come into work on the following day, missing 10.5 hours of work in total. The City applied Petitioner’s accrued PTO time, 6.2 hours, to the time she missed work. For the remaining 4.3 hours, Petitioner was charged for leave without pay.
Ms. Wade testified that she denied the leave request because the Public Works Department has a written policy stating that if an employee is requesting fewer than five days off, the request should be made no less than 48 hours prior to the employee’s absence.5/ Ms. Wade stated that the policy’s purpose was to ensure that enough employees were present to perform
needed work. Supervisors have discretion to deviate from the policy, but only where the employee shows good cause for the failure to provide sufficient notice. In this case, Petitioner provided Ms. Wade with no reason for her request.
Petitioner testified that she was never made aware of the policy, and suggested that the City invented the policy after the fact as a response to her claim of discrimination. Petitioner presented documents showing that she had previously been allowed to take time off with less than 48 hours’ notice.
Ms. Wade reviewed Petitioner’s documents at the hearing. She did not recall the specific details of any particular leave request, but testified as to her general practice in granting leave with less than 48 hours’ notice. Ms. Wade stated that in some cases, Petitioner had likely made an oral request more than 48 hours prior to the leave, but did not submit the written request into the Kronos system until later. In such cases, Petitioner’s leave request would have been granted.
In other cases, Petitioner had likely presented Ms. Wade with extenuating circumstances justifying the short notice. Ms. Wade demonstrated her department’s even-handed
application of the policy by producing contemporaneous records showing that other Public Works employees had been denied the use of safety hours and floating holidays when they failed to
give 48 hours notice to their supervisors. Petitioner failed to establish that Ms. Wade’s denial of her leave request was retaliatory.
Petitioner offered evidence on two issues that were beyond the scope of her Employment Complaint of Discrimination regarding retaliation. First, she claimed that the City retaliated against her by denying her the ability to use “flex time” to work an extra hour on February 1, 2018, so that she could leave an hour early on February 2, 2018. Petitioner claimed that this denial was in derogation of the City’s policy and prior practice. Second, Petitioner claimed that the City retaliated against her by denying her request to attend a training class.
The City objected to Petitioner’s presentation of this evidence because these matters were not covered in Petitioner’s second Employment Complaint of Discrimination regarding retaliation. Petitioner conceded that these matters were not mentioned in her retaliation complaint, but maintained that she had submitted materials on these issues to, and discussed them with, the FCHR. She also raised the issues in her subsequent Petition for Relief.
The undersigned allowed Petitioner to present her evidence because of the ambiguity of the procedural situation. It appears that during its investigative phase, the FCHR
accepted evidence from Petitioner as to issues outside the four corners of Petitioner’s retaliation complaint. However, the FCHR ultimately issued no finding as to probable cause. Thus, it is unclear which issues the FCHR formally considered. While finding persuasive the City’s argument that Petitioner should be held to the issues raised in her Employment Complaint of Discrimination, the undersigned decided that if he were to err, it would be on the side of allowing Petitioner to present all of her evidence at the hearing.
As to the first issue outside the Employment Complaint of Discrimination, Petitioner testified that, on February 1, 2018, she requested that she be allowed to work an extra hour and then use the “flex time” to take an hour off work the next day. Petitioner presented an email chain between Ms. Wade and her regarding this request. Ms. Wade ultimately denied the request on the ground that the City does not allow employees to “flex ahead,” i.e., work extra time now in anticipation of taking time off later. Ms. Wade told Petitioner that she would be allowed to flex an hour on February 1, 2018, and then work through her lunch hour on February 2, 2018.
Petitioner testified that the City had always allowed her and other employees to flex ahead, and that the denial in this instance could only be explained as retaliation by Ms. Wade for her discrimination complaint. Petitioner did not offer
evidence of the City’s written policy on flex time or evidence that the City even had such a policy. She offered exhibits purporting to demonstrate that she and other employees had been allowed to work extra time on one day to take time off on a later date. However, the coding on these documents was not clear and Petitioner did not adequately explain them.
The City declined to offer evidence on this issue because of its contention that it was outside the scope of Petitioner’s Employment Complaint of Discrimination. Petitioner failed to establish that Ms. Wade’s stated view of the City’s flex time policy was incorrect or that Ms. Wade deviated from past policy and practice by declining to allow Petitioner to flex ahead on February 1, 2018.
As to the second issue outside the Employment Complaint of Discrimination, Petitioner testified that on October 12, 2017, she submitted a request to Ms. Wade to take two training courses being offered by the City: “Attitude Means Everything” and “Communicating with Diplomacy and Tact.”
Ms. Wade gave Petitioner permission to take the first class but denied her permission to take the second.
Ms. Wade testified that the “Communicating with Diplomacy and Tact” course was designated as a “leadership” course, meaning that only supervisors are generally approved to
take it. Petitioner’s position with the City was not supervisory.
Petitioner showed Ms. Wade a document that Petitioner stated was a list of employees who had attended the “Communicating with Diplomacy and Tact” course. Petitioner asked Ms. Wade whether all of the listed people were supervisors. Ms. Wade testified that she could not answer the question because she did not know the people on the list, none of whom were employed by Public Works. Petitioner herself did not identify the employees on the list. In the absence of any evidence to demonstrate that Ms. Wade did anything more than follow City policy on training course participation, it cannot be found that Ms. Wade retaliated against Petitioner by denying her request to take the “Communicating with Diplomacy and Tact” course.
On February 7, 2018, Petitioner voluntarily resigned her employment with the City. Petitioner alleged that her resignation was a “constructive discharge” due to the City’s denial of paid leave time for February 6, 2018, as well as the other allegedly adverse retaliatory actions taken by the City since the filing of her discrimination complaint.
Petitioner offered no credible evidence that the City retaliated against her for engaging in protected activity. The only employee specifically cited by Petitioner as allegedly
retaliating against her was her direct supervisor, Ms. Wade. The evidence established that Ms. Wade became aware of Petitioner’s discrimination complaint no earlier than October 6, 2017, after she allegedly retaliated against Petitioner by requiring her to use PTO for an internal job interview.
Additionally, Ms. Wade rectified the situation as soon as Mr. Sorensen corrected her understanding of City policy.
None of the later allegations of retaliation were credible. In January 2018, Ms. Wade gave Petitioner some minor Administrative Assistant III duties at a time when Public Works was shorthanded, then gave those duties back to the Administrative Assistant III position after the new person was hired and learned the job. There was no reason for Petitioner to take offense at this routine reshuffling of minor job duties.
Also in January 2018, Ms. Wade directed Petitioner not to contact UniFirst’s management regarding citywide vendor performance issues. Such contacts were not part of Petitioner’s job duties and Ms. Wade had already counseled Petitioner against taking it upon herself to send emails to UniFirst’s management. Petitioner’s actual job duties in relation to UniFirst’s delivery of uniforms to the Public Works Department never changed.
Ms. Wade’s denial of Petitioner’s February 5, 2018, leave request was in keeping with the express policy of the
Public Works Department that leave requests be made at least
48 hours prior to the employee’s absence from work. The evidence established that this was not a rigid policy, but Petitioner failed to show that she presented Ms. Wade with the kind of extenuating circumstances that historically have been the basis for granting leave requests less than 48 hours before the employee’s proposed absence. There was nothing retaliatory about Ms. Wade’s following the stated policy of Public Works.
Petitioner was allowed to raise two issues that were not included in her Employment Complaint of Discrimination regarding retaliation. As to these issues, Petitioner failed to offer proof sufficient to establish that either Ms. Wade’s denial of her request for flex time or Ms. Wade’s denial of Petitioner’s request to attend a “leadership” training course was an incident of retaliation.
Petitioner failed to prove any incidents of retaliation. Because she voluntarily resigned her position with the City, Petitioner did not establish that the City took an adverse employment action against her in any form.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or the "Act"), chapter 760, prohibits employer retaliation for engaging in protected activity.
Section 760.10 states the following, in relevant part:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The City is an "employer" as defined in section 760.02(7), which provides the following:
"Employer" means 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.
Florida courts have determined that federal case law applies to claims arising under the Florida Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973), applies to claims arising under section 760.10, absent direct evidence of discrimination or retaliation.6/ See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.
1998); Paraohao v. Bankers Club, Inc., 225 F. Supp. 2d 1353,
1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel, 685 So. 2d
923, 925 n.1 (Fla. 1st DCA 1996); Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Under the McDonnell analysis, in employment retaliation cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful retaliation. See, e.g., Burlington Northern & Santa Fe Ry. v.
White, 548 U.S. 53 (2006). If the prima facie case is
established, the burden shifts to the employer to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-retaliatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that the employer's offered reasons for its adverse employment decision were pretextual. See Texas Dep’t of Cmty. Aff. v.
Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
In order to prove a prima facie case of unlawful employment retaliation under chapter 760, Petitioner must establish that: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there was a causal relationship between (1) and (2). See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).7/ To establish this causal relationship, Petitioner must prove “that the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.” Univ. of Tex. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). This standard has also been called “but-for causation.” See,
e.g., Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016).
Petitioner established that she engaged in protected activity by participating in prior employment discrimination litigation.
Petitioner failed to establish that any of the actions of which she complained was an adverse employment action.
Having failed to establish that any retaliation or adverse employment action of any kind occurred, Petitioner has clearly failed to establish the “but-for causation” element of a prima facie case of unlawful employment retaliation under chapter 760.
Even if Petitioner had met her burden and established a prima facie case of retaliation, she failed to show that the City’s legitimate business reasons for their various decisions were false and a pretext for retaliation. To establish pretext, Petitioner must “cast sufficient doubt” on the City’s proffered nondiscriminatory reasons “to permit a reasonable factfinder to conclude that the [employer’s] proffered legitimate reasons were not what actually motivated its conduct.” Murphree v. Comm’r,
644 Fed. Appx. 962, 968 (11th Cir. 2016), quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). If
the proffered reason is one that might motivate a reasonable employer, “an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc). Pretext must be established with “concrete evidence in the form of specific facts” showing that the proffered reason was pretext; “mere conclusory allegations and assertions” are insufficient. Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009), quoting Earley
v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Petitioner failed to provide evidence, aside from her own suspicions, that the City’s proffered reasons for the supervisory actions taken by Ms. Wade were pretextual or used as a means of surreptitious retaliation against Petitioner. Petitioner’s preoccupation with her discrimination complaint appears to have led her to misconstrue routine and customary interactions with other City staff and supervisors as retaliation. There was no evidence that any of Ms. Wade’s supervisory decisions had anything to do with Petitioner’s discrimination complaint. None of the actions of which Petitioner complains was severe enough to constitute “constructive discharge” by the City.
In summary, Petitioner failed to establish that the City took an adverse employment action against her or that any employment action taken by the City was in retaliation for Petitioner’s having engaged in protected activities.
RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ocala did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case.
DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2019.
1/ Citations shall be to Florida Statutes (2018) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
2/ This finding is based on Ms. Wilson’s recollection of events. Petitioner testified that Ms. Wade essentially directed
Ms. Wilson to perform the duties that Ms. Day had previously performed. The slight difference in the division of duties recalled by Petitioner and Ms. Wilson is of no significance to the ultimate finding that no retaliation occurred.
3/ “Safety hours” are awarded by the City to employees of particular departments that have achieved a certain number of days without a loss of time due to accident.
4/ The “floating holiday” is simply an extra day off awarded annually to each City employee.
5/ For five days or more of leave, the employee should make the request at least five days prior to the planned absence.
6/ “Direct evidence is ‘evidence, which if believed, proves existence of fact in issue without inference or presumption.’" Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir. 1987) (quoting Black’s Law Dictionary 413 (5th ed. 1979)). “Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of a protected classification, constitute direct evidence.” Kilpatrick v.
Tyson Foods, Inc., 268 Fed. Appx. 860, 862 (11th Cir. 2008)(citation omitted). Direct testimony that a defendant acted with a retaliatory motive, if credited by the finder of fact, would change the legal standard “dramatically” from the McDonnell test. Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1557 (11th Cir. 1983). Petitioner offered no evidence that would satisfy the stringent standard of direct evidence of retaliation.
To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected
activity; (2) that he or she suffered adverse employment action and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir.), cert. denied 525
U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422
(1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant's asserted reasons for the adverse action are pretextual. Id.
Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009).
Tammy S. Barton, Agency Clerk
Patrick G. Gilligan, Esquire
Gilligan, Gooding, Franjola & Batsel, P.A. 1531 Southeast 36th Avenue
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
