TIFFANY L. RUSINKO, Petitioner, vs. THE EXCHANGE CLUB CENTER FOR THE PREVENTION OF CHILD ABUSE OF THE TREASURE COAST, INC., Respondent. / | Case No. 19-5482 |
RECOMMENDED ORDER
The final hearing in this matter was conducted before Administrative Law Judge ("ALJ") Robert E. Meale ("Judge Meale") of the Division of Administrative Hearings ("DOAH"), on October 13 and 14, 2020, and November 5, 6, 9, 10, and 12, 2020, via Zoom conference. This matter was transferred to ALJ Brittany O. Finkbeiner for disposition due to Judge Meale’s retirement.
APPEARANCES
For Petitioner: Tiffany Rusinko, pro se
615 Southeast Eighth Avenue Okeechobee, Florida 34974
For Respondent: Seth A. Kolton, Esquire
Shendell & Pollock, P.L. Suite 150
2700 North Military Trail Boca Raton, Florida 33431
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent, The Exchange Club Center for the Prevention of Child Abuse of the Treasure Coast, Inc. ("Respondent"
or "Exchange Club"), is liable to Petitioner, Tiffany L. Rusinko ("Petitioner" or "Ms. Rusinko"), for employment discrimination and retaliation.
PRELIMINARY STATEMENT
Petitioner filed a complaint with the Florida Commission on Human Relations ("Commission"), alleging that Respondent discriminated against her pursuant to chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"), when it terminated her employment. The Commission conducted an investigation and, on August 28, 2019, issued a determination that there was no reasonable cause to conclude that an unlawful employment practice occurred. Petitioner submitted a Petition for Relief with the Commission on October 1, 2019, seeking review by DOAH. After several continuances, the final hearing commenced on October 13 and 14, 2020, and proceeded to conclusion on November 5, 6, 9, 10, and 12, 2020.
On April 20, 2021, this case was transferred to the undersigned. During a status conference on April 21, 2021, the undersigned informed the parties that it was unclear based on the record which exhibits had been entered into evidence at the final hearing. The parties collaborated and were able to stipulate to which exhibits were admitted, as reflected in their Joint Notice of Filing List of Final Hearing Exhibits, filed on May 6, 2021.
Petitioner testified on her own behalf and offered the live testimony of Shannon McGighan, Victoria Woodruff, Crystal Santamarina, Rafe Tucker, Tammy Watson, and Jeffrey Rusinko. Petitioner’s Exhibits 1, 3, 5 through 9,
11 through 14, 16 through 27, 29 through 33, 35 through 37, 42 through 44,
46, 47, 49, 50 through 52, 58, 61, 63 through 65, 68, 69, 71, 72, 74, 76, 78, 79
through 81, 85 through 87, 90 through 92, 94, 95, and 100 through 102 were entered into evidence. Respondent offered the testimony of Andrea Medellin, Brent Pierce, Chris Robertson, and Christann Hartley.
Respondent’s Exhibits 2 through 4, 6, 8, 9, 12 through 17, 43a through 43c, and 57 through 69 were entered into evidence.
A transcript of the proceedings was not ordered. Respondent filed a proposed recommended order on February 2, 2021, which was duly considered in the preparation of this Recommended Order.
All references to the Florida Statutes refer to the 2017 version, unless otherwise stated.
FINDINGS OF FACT
Respondent was a child abuse prevention agency that provided services to families in Martin, St. Lucie, Indian River, and Okeechobee Counties. Among other things, Respondent sought to prevent child abuse and neglect through education and parenting skills classes to parents of at-risk children. All of Respondent’s programs were funded by outside sources including grants and fundraising. Respondent ceased operations in September 2020.
Petitioner was hired by Respondent on March 1, 2013, as a "Parent Educator" with Respondent’s Safe Families Program on a full-time basis. Petitioner understood that during her employment with Respondent, she was required to adhere to the Human Resources Personnel Policies & Procedures Manual ("Policies & Procedures"), as well as the Code of Ethics of the National Association of Social Workers ("Code of Ethics"). Upon hiring, Petitioner received copies of the Policies & Procedures and the Code of Ethics. Petitioner was required to sign and acknowledge receipt and review of both.
On February 27, 2017, Petitioner was promoted to the position of "Program Supervisor" for the Safe Families Program. Her salary in that position was $40,000. This was also a full-time position and, as part of her responsibilities as a Program Supervisor, Petitioner supervised four parent educators.
In June 2017, Petitioner agreed to take on the role of a Supervisor in Respondent’s PAT Program in addition to her role as a Program Supervisor for Respondent’s Safe Families Program. Petitioner remained a full-time employee of Respondent and her salary was increased to $44,000.
Between July 27, 2017, and August 11, 2017, Petitioner was late or did not report to work as required due to various personal matters.
On or about September 27, 2017, Respondent hired a "Program Manager" to manage Parent Educators in the Safe Families Program. The new Program Manager was paid a higher salary than Petitioner, which Petitioner believed was due to Respondent discriminating against her because of her race and gender.
Thereafter, Petitioner sent a text message to Respondent’s Executive Director expressing her displeasure with her responsibilities and her rate of pay. Petitioner demanded a salary increase commensurate with what Petitioner believed she should be paid.
Petitioner communicated with Andrea Medellin about her responsibilities and salary, which contravened Respondent’s Policies & Procedures. Andrea Medellin was the Executive Director of an agency that funded one of Respondent’s programs.
On February 12, 2018, Petitioner submitted a grievance to Respondent claiming that she was the subject of discrimination based on race and gender. Specifically, she claimed that her salary and job responsibilities varied from those of a co-worker who was a Black male, but who had a similar title and experience.
On February 13, 2018, Respondent issued a Corrective Action Notice to Petitioner, which resulted in Petitioner being placed on probation for ninety days.
Based on her prior demand, Respondent gave Petitioner a cost-of- living increase that commenced in her February 16, 2018, paycheck and continued until her termination.
In February and March 2018, Petitioner had several e-mail exchanges with her supervisor, Respondent’s Human Resources Director, and Respondent’s Executive Director, wherein she raised concerns about her salary and job responsibilities.
On March 13, 2018, Petitioner submitted another grievance to Respondent reiterating her prior allegations of discrimination and claiming that she was the subject of a campaign of harassment and retaliation.
Respondent subsequently became aware that Petitioner was making disparaging remarks about Respondent on social media, in violation of Respondent’s Policies & Procedures. Petitioner also allowed Respondent’s clients to be present in her home in violation of the Code of Ethics.
Although several witnesses testified that Petitioner was a dedicated employee, Respondent ultimately determined that her termination was appropriate based on her violations of the Policies & Procedures and Code of Ethics. Respondent terminated Petitioner’s employment on March 26, 2018.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
The burden of proof in this proceeding is on Ms. Rusinko as the Petitioner. See Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). To prove a violation of the FCRA, Ms. Rusinko must establish a prima facie case of discrimination by a preponderance of the evidence. See Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009). A preponderance of the evidence is defined as "the greater weight of the evidence," or evidence that "more likely than not" tends to prove a certain proposition. S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014).
Discrimination
The FCRA prohibits discrimination in the workplace. Among other things, the FCRA makes it unlawful 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 race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
§ 760.10(1)(a), Fla. Stat.
The FCRA, as amended, is patterned after Title VII of the Civil Rights Act of 1964 and 1991 ("Title VII"). Thus, federal decisional authority interpreting Title VII is applicable to cases arising under the FCRA. Johnson
v. Great Expressions Dental Ctrs. of Fla., P.A., 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014).
A plaintiff can establish a prima facie case for discrimination either by direct or circumstantial evidence. Direct evidence requires actual proof that the employer acted with a discriminatory motive when making the employment decision in question. Scholz v. RDV Sports, Inc., 710 So. 2d 618, 624 (Fla. 5th DCA 1998). Circumstantial evidence, on the other hand, requires a petitioner to satisfy the four-prong test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, Petitioner’s claim is based on circumstantial evidence.
Based on the United States Supreme Court’s analysis in McDonnell Douglas, in order to establish a prima facie case based on circumstantial evidence, Petitioner must show that she:
belongs to a protected class;
was qualified to do the job;
was subjected to an adverse employment action; and
the employer treated similarly situated employees outside the class more favorably.
McDonnel Douglas, 411 U.S. at 802-03.
If Petitioner were to satisfy all four prongs of the McDonnell Douglas framework, then the burden would shift to Respondent to produce evidence of a legitimate, non-discriminatory reason for its adverse employment action. Id.
It is undisputed that Ms. Rusinko has established the first three prongs of the McDonnell Douglas test in that she is a white female, was qualified for her job, and was terminated by Respondent. Therefore, the only remaining question with respect to Ms. Rusinko’s discrimination claim is whether similarly situated employees outside her class were treated more favorably under the fourth prong.
In order to satisfy the fourth prong, Petitioner must show that she was treated less favorably than similarly situated individuals outside her class, through an analysis of valid comparators. Comparators must be "similarly situated in all material respects." Lewis v. City of Union City, Ga., 918 F. 3d 1213, 1218 (11th Cir. 2019).
Petitioner identified a comparator, a Black male, who was employed in a similar position at the Exchange Club. However, Petitioner did not present evidence to support a finding that he was similarly situated to her in all material respects. Significantly, there was no evidence that the comparator had a history of performance issues similar to Petitioner.
Failure to establish a prima facie case of discrimination ends the inquiry. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). Petitioner has not made a prima facie showing, by a preponderance of the evidence, that Respondent discriminated against her based on her race or sex.
Retaliation
In order to prove a prima facie case of unlawful employment retaliation, Ms. Rusinko must establish that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal relationship between the two events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). To establish this causal relationship, Ms. Rusinko 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. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Ms. Rusinko has not established a prima facie case of retaliation. Ms. Rusinko established that she complained about her pay and filed grievances alleging discrimination; and it is undisputed that she was terminated. However, Ms. Rusinko did not prove any causal connection
between the complaints about her pay or the grievances and her termination.
The Exchange Club provided a convincing non-retaliatory reason for
terminating Ms. Rusinko’s employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
BRITTANY O. FINKBEINER
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 26th day of May, 2021.
Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Gary Shendell, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 | Tiffany Rusinko 615 Southeast Eighth Avenue Okeechobee, Florida 34974 Seth A. Kolton, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 |
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 |
|---|---|---|
| Aug. 19, 2021 | Agency Final Order | FCHR Order No. 21-050 Page2 
Findings of Fact 
A transcript ofthe proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript ofthe proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries. Inc. v. Commission on Human Relations. et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Troshkin v. State of Florida, Department of Health, Duval County Department of Health, FCHR Order No. 20-008 (November 30, 2020), Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10, 2014), Gantz, et al. v. Zion's Hope. Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008). We adopt the Administrative Law Judge's findings of facts. 
Conclusions ofLaw 
We find the Administrative Law Judge's application of the law to the facts to result in a correct disposition ofthe matter. We adopt the Administrative Law Judge's conclusions of law. 
Exceptions 
Petitioner submitted to the Commission her Written Exceptions to the Recommended Order with attachments on June 9, 2021. 
Petitioner's first exception takes the position that Complainant is entitled to a new hearing due to the case having been transferred to Judge Finkbeiner under the circumstances described above. 
Section 120.57(1)(a), Florida Statutes (2020) states in pertinent part, "[A]n administrative law judge assigned by the division shall conduct all hearings under this subsection ... If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary." 
Petitioner's remaining exception essentially take issue with conclusions relating to Petitioner's claim of retaliation drawn from the evidence presented by the Administrative Law Judge in the Recommended Order. 
As indicated, above, no transcript of the proceeding before the Administrative Law Judge was filed with the Commission. 
In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. See, e.g., Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007), Herring v. Department of Corrections, FCHR Order No. 21-050 Page3 
FCHR Order No. 12-004 (February 21, 2012) and Holloman v. Lee Wesley Restaurants, d/b/a Burger King, FCHR Order No. 14-041 (October 9, 2014). 
With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, "The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added]." Section 120.57(1)(1), Florida Statutes (2019). As indicated, above, in the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See, National Industries, Inc., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 11, 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 12, 2005), Coleman, supra, and Gantz, supra. 
Further, the Commission has stated, "It is well settled that it is the Administrative Law Judge's function 'to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge's role to decide between them.' Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986)." Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005) and Eaves v. IMT-LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011). 
Therefore, Petitioner's exceptions are rejected. 
Dismissal 
The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. 
The parties have the right to seek judicial review ofthis Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk ofthe Commission. Explanation ofthe right FCHR Order No. 21-050 Page4 
to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.11 0. 
DONE AND ORDERED this fj_ day of d~ ,2021. 
FOR THE FLORIDA COMMISSION ON U N RELATIONS: 
Commissioner Darrick McGhee, Panel Chairperson; Commissioner Libby Farmer; and Commissioner Angela Primiano 
Filedtbisl1dayof ~~ ,2021, in Tallahassee, Flon 
2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 
Copies furnished to: 
Tiffany L. Rusinko c/o Martin E. Leach, Esquire Feiler & Leach, P.L. 901 Ponce de Leon Blvd., Suite 300 Coral Gables, Florida 33134-3009 
The Exchange Club Center for the Prevention of Child Abuse ofthe Treasure Coast, Inc Gary R. Shendell, Esquire and Seth A. Kolton, Esquire Shendell & Pollock, P .L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 
Brittany 0. Finkbeiner, Administrative Law Judge, DOAH 
John Scotese, Legal Advisor for Commission Panel 
I HEREBY CERTIFY that a copy 
the ~oing has been mailed to the above listed addressees this ( cJ day of 
,2021. b1 
I . 
By: ~?J;i 1/.}>i/lr-J Clerk of the Co sswn Florida Commission on Human Relations |
| May 26, 2021 | Recommended Order | Petitioner did not establish that her termination was the result of an unlawful employment practice, or that she was retaliated against for engaging in a protected activity. |
