An administrative hearing was conducted in this case on May 17, 2021, via Zoom, before James H. Peterson III, Administrative Law Judge with the Division of Administrative Hearings (DOAH).
For Petitioner: Elise L. Alex-Tanner, pro se
Cole, Scott & Kissane, P.A.
Whether Respondent, Gateway Foundation (Respondent or Gateway), violated the Florida Civil Rights Act of 1992,1 by discriminating against the employment of Elise L. Alex-Tanner (Petitioner) because of her age, gender, or race, or in retaliation for her engagement in protected activities.
1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination.
Petitioner filed an Employment Complaint of Discrimination (Discrimination Complaint) with the Florida Commission on Human Relations (the Commission or FCHR) on December 26, 2019, which was assigned FCHR No. 202022381.
After investigating Petitioner’s allegations, the Commission’s interim executive director issued a determination of “no reasonable cause” dated February 1, 2021 (Determination), finding that “it is unlikely that unlawful discrimination occurred in this matter.” An accompanying Notice of Determination notified Petitioner of her right to file a Petition for Relief for an administrative proceeding within 35 days from the Determination.
Thereafter, Petitioner filed a Petition for Relief dated March 5, 2021, and on March 9, 2021, the Commission forwarded the petition to the Division of Administrative Hearings bearing a transmittal date of March 5, 2021, for the assignment of an administrative law judge to conduct an administrative hearing.
The undersigned was assigned the case and scheduled it for an administrative hearing, which was held on May 17, 2021, via Zoom conference. During the hearing, Petitioner testified on her own behalf, but presented no exhibits. Although Petitioner requested to present the testimony of another witness, that witness was excluded because Petitioner had not timely revealed the witness as required by the Order of Pre-hearing Instructions and the witness did not otherwise have personal knowledge of the facts in this case. Gateway presented the testimony of its senior human resource partner, Catherine Graham, and Petitioner’s former supervisor and director of the program at Gateway, Dan Eberlein. Respondent offered
16 exhibits, which were received into evidence as Respondent’s Exhibits R-1 through R-16.
The proceedings were recorded and a transcript was ordered. The parties were given 30 days from the filing of the transcript to submit their proposed recommended orders. The two-volume Transcript of the hearing was filed June 7, 2021. Thereafter, Respondent timely filed its Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.2 Petitioner did not file a proposed recommended order until July 22, 2021, nevertheless, it was considered but did not change the analysis in this Recommended Order.
Gateway is a not-for-profit organization that provides substance abuse treatment to individuals in residential, outpatient, and correctional program settings at prison facilities.
Gateway has a contract with the Florida Department of Corrections (FDOC) to provide substance abuse treatment services to incarcerated individuals at FDOC facilities.
Gateway employees assigned to work within FDOC facilities must comply with Gateway policies and procedures set forth in Gateway’s Code of Conduct and Employee and Professional Boundaries policy, as well as correctional facility policies and procedures.
Gateway’s policies and procedures require employees to follow defined standards of conduct that prohibit, inter alia, insubordination, intimidating coworkers, acting contrary to the best interests of the employer, indecent activity, accepting client gifts, and violations of policy.
In accordance with Gateway’s policies and procedures, employees must maintain professional behavior and boundaries with clients, including having no social, sexual, or romantic relationships.
2 Unfortunately, Respondent’s Proposed Recommended Order was less helpful because it did not cite to the record as instructed. See pp. 388-389 of Transcript (“should refer back to the record”).
Gateway employees working within assigned correctional facilities must maintain security clearance from the correctional facility or be subject to termination.
On January 2, 2019, Gateway hired Petitioner as a Counselor I at the Marion County Correctional Institution located in Ocala, Florida.
Petitioner’s job functions were to provide substance abuse disorder treatment through group and individual counseling for incarcerated clients while under employer supervision.
Gateway relies heavily on its counselors to demonstrate proper judgment regarding substance abuse issues to effectively and safely guide clients recovering from serious addiction. Gateway managers at treatment facilities provide regular coaching and supervision to employees to recognize good performance, address conduct issues, and provide feedback to help the employee have job success.
Petitioner was 38 years old at the time of her hire. Her supervisor was Dan Eberlein, who, as program director for Gateway at the facility, had three years’ experience with Gateway, and 28 years of prior experience working for the FDOC.
In her Discrimination Complaint, Petitioner alleges:
I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable for the following reason(s):
Complainant (CP), an African American female, began her employment with Respondent on 01/02/2019 and held the position of Counselor I. CP was subjected to disparate treatment, retaliation, different terms and conditions of employment and was held to a different standard because of her age
(37) sex and race. CP performed the duties and responsibilities of her position in a satisfactory manner and was not the subject of any disciplinary
issues. CP was subjected to harassment, sexual harassment and discrimination at the hands of Daniel (Dan) Eberlein, Director of Program. Dan would make sexual insinuations about clients and about CP when she would ask questions about them or meet with them for counseling sessions. Dan wrote CP up because she refused to sign a PIP because she didn’t agree with what Dan was documenting and made false allegations in the write up and physically assaulted and lied on CP. Dan told other staff members that CP was being inappropriate with clients and made her out to be this sexual unprofessional counselor because she wouldn’t mistreat the clients in the manner that Dan and other staff would. CP was retaliated by receiving write ups and monitored by equal level coworkers and staff, which is not allowed. CP was physically assaulted receiving a sprained wrist, CP was the only party put under investigation after her Supervisor (Dan) physically assaulted her. CP states Dan was not investigated nor reprimanded, and Dan was immediately allowed to continue work after CP was escorted off premises. CP was suspended without pay during investigation and failed to be updated on the progression of the investigation, parties purposely withheld documentation from investigation and lied about it, CP had to make all initial contact during investigation process, and no one would contact her nor update her during investigation. Subsequently CP was terminated.
Petitioner was employed by Gateway for a total of approximately
10 months. During this period, Petitioner was repeatedly warned in writing, and verbally, of her continuing failure to observe professional boundaries, meet job expectations, and follow Gateway’s policies and procedures.
On February 1, 2019, within 30 days of her hire, Petitioner was stopped at the prison gate by FDOC personnel, warned of a dress code violation, and sent home to change.
On June 12, 2019, Petitioner, again, was warned of dress code violation by FDOC personnel and sent home to change. According to a staff supervision form dated June 14, 2019, Petitioner’s interaction with FDOC security staff that day “was less than professional.” At the hearing, Petitioner testified that the FDOC security staff that sent her home was composed of older black female officers who were harassing her.
According to Petitioner, the security staff harassed her because they “barely have a high school diploma,” and were jealous of her education and good looks. Petitioner’s testimony in that regard, while plausible, was without corroboration and is not credited. Rather, Petitioner’s testimony revealed her attitude toward those security staff and is consistent with the report that her interactions with them that day were unprofessional.
In addition to warning Petitioner about unprofessional conduct with security staff, that same staff supervision form dated June 14, 2019, reflects that Petitioner was warned that she violated Gateway’s Employee Ethical and Professional Boundaries policy by accepting gifts in the form of cards from clients. At the hearing, Petitioner denied accepting more than one card, but admitted accepting one card from an inmate. Although Petitioner refused to sign the June 14, 2019, Staff Supervision Form, she testified that she was aware of the concerns expressed in that form.
During her employment with Gateway, Petitioner attended multiple staff meetings, including staff meetings on July 2, 2019; July 10, 2019; and July 25, 2019, where she was provided training on professional boundaries with clients and staff expectations.
At those trainings, and as explicitly set forth in Section 2.5 of Gateway’s written Employee Ethical and Professional Boundaries policy, Petitioner was warned and advised:
Employees must not engage in any dialogue with a client of a sexual or inappropriate nature or respond to inappropriate dialogue from clients in an unprofessional manner that might encourage a
client to pursue such line of conversation. Clients should be immediately informed by the employee of the consequences if such discussion continues. The employee is to report this interaction to a supervisor immediately after the interaction occurs.
On August 8, 2019, Petitioner was issued a written corrective action form reporting that Petitioner angrily argued with and criticized a colleague’s client management methods. While not agreeing with the way the incident was described in the form, Petitioner testified that she did not get along with the fellow employee, and explained that that she was in a bad mood that day because the son of a friend had been recently murdered. Petitioner signed the corrective action form on August 27, 2019.
On August 27, 2019, Petitioner was given, and signed, a performance evaluation wherein she obtained a low score (1.9 out of 4.0) and was warned of required improvement based largely on her continued unprofessional conduct and poor communication with others.
On October 14, 2019, Petitioner was warned again in a staff supervision form for violating Gateway’s Employee Ethical and Professional Boundaries Policy for disclosing personal information to a client concerning Petitioner’s Caucasian husband and mixed children. At the time it was issued, Petitioner refused to sign the form because she did not agree with its contents but testified at hearing that she was aware of the concerns set forth in the form.
Because of her violations, Petitioner received increased scrutiny from her supervisor, Mr. Eberlein, who met with Petitioner on multiple occasions to discuss the dress code and boundary violations and to counsel her in open- door meetings. He also suggested that she meet with another more experienced employee to mentor her in proper behavior and attire.
During this time, Mr. Eberlein kept track of when inmates visited Petitioner’s office.
Petitioner perceived Mr. Eberlein’s increased scrutiny as harassment and a hostile work environment.
On October 18, 2019, Petitioner made a call to Catherine Graham with Gateway’s human resources to report harassment and a hostile work environment. In a follow-up e-mail to Ms. Graham that day, Petitioner stated:
Good morning. I’m having a [sic] issue that I have been dealing with for several months and I feel like I am working in a hostile work environment. My issue is with the director, Dan Eberlein. I have dealt with him making statements about my clothing, my hair and about inmates, implying that someone provoked certain behaviors.
Allowing a fellow coworker to make sexist statements about - - I mean sexist statements without nothing being done about it. He himself making sexist statements about the way I look and implementing certain rules that I - - that only apply to me and not my coworkers.
At this point I feel like I cannot properly do my job because I am stressed out and having breakdowns on and off the job because I don’t know what to do right at this point because my work ethic is being overlooked due to the harassing behavior.
This behavior is not okay, and I refuse to continue having to deal with it. Thank you for your time.
While Petitioner testified that she had spoken to her then-current supervisor, Mr. Roberts, on several occasions about her concerns, she did not call Mr. Roberts as a witness or provide further evidence beyond her testimony of the alleged harassment.
Petitioner made no allegation, and there is no evidence that
Mr. Eberlein ever made any improper advancements or sexually harassed Petitioner. The essence of Petitioner’s alleged hostile work environment claim is based on what she perceived as too much scrutiny. Under the
circumstances, however, increased scrutiny of Petitioner’s performance was justified.
Notwithstanding her warnings and training, on October 31, 2019, Mr. Eberlein caught Petitioner surreptitiously copying a sexually explicit document given to her by a client.
The document, entitled “Arrest Warrant,” promised “kissing, licking, and sucking” and various other “obscene action” all over the arrestee’s “sweet and sexy body” until climatic “moaning and screaming.”
The document (Sex Warrant) was attributed to, but was not issued by, the executive department of the State of Florida, the Secretary of State, and Governor. Neither the Secretary of State, Governor, nor any executive agency of the State of Florida issued the Sex Warrant.
At the hearing, Petitioner admitted she was given the Sex Warrant by an inmate, and that she ran a google search on Gateway’s computer to locate copy of the Sex Warrant. She also admitted that she discussed the document with the inmate who gave it to her, and that she used Gateway’s copy machine to make copies of the document for personal use.
After Mr. Eberlein caught Petitioner copying the Sex Warrant, which was considered prison contraband under both Gateway’s and FDOC’s policies, Mr. Eberlein confiscated the document and had an immediate meeting with Petitioner in his office, with the door open, to discuss the inappropriate nature of the document and Petitioner’s continuing violations of FDOC and Gateway policies and procedures.
Petitioner’s possession and copying of the Sex Warrant in the FDOC facility constituted a violation of Gateway’s Employee Ethical and Professional Boundaries Policy and Code of Conduct.
Petitioner’s possession and copying of the Sex Warrant for a prisoner client was sufficient grounds for Petitioner’s termination.
When, during the meeting, Mr. Eberlein reminded Petitioner of her duty to report the client to the FDOC for the Sex Warrant, because it was
contraband, Petitioner refused because she was concerned over what would happen to the prisoner client. During the meeting, Petitioner became angry, snatched the Sex Warrant off Mr. Eberlein’s desk, and abruptly left his office.
In response, consistent with Gateway and FDOC policies and procedures, Mr. Eberlein immediately notified FDOC of the sexually explicit document and the incident.
Upon being notified of the incident, FDOC employees escorted Petitioner from the facility to the parking lot. In addition, FDOC (not Gateway) immediately revoked Petitioner’s security clearance for all Florida correctional facilities, including Marion Correctional Institute, and commenced an investigation.
After her removal from the facility, Petitioner called the Sheriff’s office and accused Mr. Eberlein of grabbing her right wrist to retrieve the Sex Warrant and that, as a result, her wrist was injured.
Sheriff’s deputies responding to Petitioner’s accusations that day, and photos of Petitioner’s wrists taken at the time, indicate that Petitioner showed no signs of having been injured during the alleged incident.
Mr. Eberlein adamantly denied Petitioner’s accusations.
At the time of the alleged incident, Mr. Eberlein was approximately 80 years old with 31 years of combined professional experience with FDOC and Gateway. He had never been previously subject of any similar charge or any charge of discrimination.
Mr. Eberlein was not arrested or criminally charged with any offense related to the incident as reported by Petitioner.
Considering the evidence, it is found that Petitioner’s allegations against Mr. Eberlein are not credible and are not credited.
After responding to the incident, Sheriff’s deputies told Petitioner to leave the facility or be issued a “no trespass” warning. Petitioner left the facility and her suspension commenced.
Gateway investigated Petitioner’s accusations against Mr. Eberlein and found no corroboration.
Revocation of Petitioner’s security clearance was, in and of itself, grounds for her immediate termination, as was her possession of the Sex Warrant under the circumstances. However, rather than immediately terminating Petitioner, Gateway suspended her for 15 days pending a FDOC investigation and a final decision by Gateway.
On November 6, 2019, Gateway notified Petitioner that if the “FDOC will not permit her to return to work within 15 days, she may be subject to corrective action up to and including release from Employment”.
On November 25, 2019, after expiration of 15 days, FDOC had not reinstated Petitioner’s security clearance, and she was terminated by Gateway.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.; see also Fla. Admin. Code R. 60Y-4.016.
The Florida Civil Rights Act of 1992, as amended (the Act), is codified in sections 760.01 through 760.11, Florida Statutes.
Section 760.10(1) provides, in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such
individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
Gateway is an “employer” within the meaning of the Act. See
§ 760.02(7), Fla. Stat. (“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.”); see also
§ 760.02(7), Fla. Stat. (“Person’ includes . . . any governmental entity or agency.”).
As developed in federal cases, a prima facie case of discrimination under Title VII may be established by direct evidence, which, if believed, would prove the existence of discrimination without inference or presumption. Direct evidence, consisting of blatant remarks whose intent could be nothing other than discriminatory, does not exist in this case. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-1359 (11th Cir 1999). Where direct evidence is lacking, one seeking to prove discrimination must rely on circumstantial evidence of discriminatory intent, using the three-part shifting “burden of proof” pattern established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Under McDonnell Douglas, first, Petitioner has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if Petitioner sufficiently establishes a prima facie case, the burden shifts to Respondent to “articulate some legitimate, nondiscriminatory reason” for its action. Third, if Respondent satisfies this burden, Petitioner must prove by a preponderance of the evidence that the legitimate reasons asserted by Respondent are in fact mere pretext. McDonnell Douglas Corp., 411 U.S. at 802-04.
To establish a prima facie case under McDonnell Douglas, for unlawful discrimination under Title VII, Petitioner must show: (1) she belongs to a protected group; (2) that she was subjected to an adverse employment action;
(3) her employer treated similarly situated employees outside her classification more favorably; and (4) she was qualified to do the job. Holifield, 115 F.3d at 1562; McDonnell Douglas Corp., 411 U.S. at 802.
Petitioner did not present enough evidence to show a prima facie case of unlawful discrimination based on her race, gender, or age. While the evidence demonstrates that Petitioner falls within her identified protected groups and that Petitioner suffered an adverse employment action, there is no evidence of record that Gateway treated similarly situated employees outside of her identified protected groups more favorably.
Other than her own speculative belief, Petitioner submitted no evidence to support her contention that she was discriminated against because of her race, gender, or age. Mere speculation or self-serving belief on the part of a complainant concerning motives of a respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001)(“Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.”).
In addition, in view of unrefuted evidence indicating that Petitioner’s security clearance was terminated by FDOC, it was shown that Petitioner was not qualified for her job when she was terminated.
In sum, Petitioner failed to present a prima facie case. “Failure to establish a prima facie case of . . . discrimination ends the inquiry.” Ratliff v. State, 666 So. 2d, 1008, 1013 n.6 (Fla. 1st DCA 1996)[citations omitted].
Even if Petitioner was deemed to have submitted enough evidence to show a prima facie case of unlawful discrimination based on race, gender, or age, unrefuted evidence in this case demonstrates that Gateway had nondiscriminatory reasons supporting its decision to terminate Petitioner.
The ultimate reason for Petitioner’s termination was her loss of security clearance. In addition, her multiple infractions of Gateway’s and
FDOC policies provided legitimate, nondiscriminatory reasons supporting her termination.
In order to prevail on her claims, Petitioner “must show not merely that [Respondent’s] employment decision [was] mistaken but that [it was] in fact motivated by race [gender, or age] . . . a plaintiff may not establish that an employer’s proffered reason is pretext merely by questioning the wisdom of the employer’s reasons, at least not where . . . the reason is one that might motivate a reasonable employer.” Thomas v. Hall, 2011 WL 4021333, *4 (N.D. Fla. 2013).
Petitioner failed to refute the legitimate, nondiscriminatory reason for Gateway’s termination of her employment.
In sum, Petitioner did not demonstrate with credible evidence that the reason asserted by Gateway for Petitioner’s termination— her loss of security clearance— was mere pretext for unlawful discrimination.
Petitioner also failed to demonstrate a prima facie case of unlawful retaliation in violation of the Act or Title VII. Title VII makes it unlawful for employers to retaliate against employees for opposing unlawful employment practices. See 42 U.S.C. § 2000e-3(a); see also § 760.10(7), Fla. Stat. (It is an unlawful employment practice for an employer to discriminate against a person because that person has, “opposed any practice which an unlawful employment practice is” or because that person “has made a charge . . . under this subsection.).”
Just as in discrimination claims based on status, Petitioner may establish a claim of illegal retaliation using either direct or circumstantial evidence. Direct evidence of retaliation does not exist in this case. In relying on circumstantial evidence, tribunals use the McDonnell Douglas analytical framework. See Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). “Under [that] framework, a plaintiff alleging retaliation must first establish a prima facie case by showing that: (1) he engaged in a statutorily protected
activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action.” Id.
In this case, Petitioner failed to establish a prima facie case of retaliation. While the evidence showed that Petitioner had contacted human resources prior to her termination to complain about what she perceived as a hostile work environment, she failed to show a causal connection between that contact and her ultimate termination.
Petitioner successfully showed that, by her conversations and e-mail alleging hostile work environment, she participated in a protected activity. See § 760.10(7), Fla. Stat. (prohibits discrimination 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 . . . under this section.”).
The evidence also demonstrated an adverse employment action; namely, Petitioner’s dismissal.
Petitioner, however, failed to show, by a preponderance of the evidence, a causal link between her participation in a protected activity and her discharge. Petitioner’s loss of her security clearance stemming from yet another violation of policy after her report of alleged hostile work environment was the ultimate cause of her termination, and Petitioner failed to show, by a preponderance of the evidence, a “but for” causal connection between her report of alleged harassment and her termination.3
Therefore, Petitioner failed to carry her burden of persuasion necessary to state a prima facie case for her claim of a retaliatory discharge because of her participation in a protected activity.
Even if Petitioner had demonstrated a prima facie case, Gateway successfully offered and proved legitimate, nondiscriminatory reasons
3 “Title VII retaliation claims must be proved according to traditional principles of but-for
causation…. This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
supporting Petitioner’s dismissal, and Petitioner failed to show, by a preponderance of the evidence, that those legitimate reasons were not the real reasons for her termination.
In sum, Petitioner failed to demonstrate by a preponderance of the evidence that Gateway engaged in unlawful discrimination or retaliation when it terminated Petitioner’s employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order.
DONE AND ENTERED this 28th day of July, 2021, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Division of Administrative Hearings this 28th day of July, 2021.
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.
