LAURA LANCASTER, Petitioner, vs. FLAGLER COUNTY SCHOOL DISTRICT, Respondent. / | Case No. 21-1150 |
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on May 21, 2021, via Zoom teleconference, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Petitioner: Laura Beth Lancaster, pro se
3207 Victory Palm Drive Edgewater, Florida 32141
For Respondent: Dylan J. Hall, Esquire
Bush & Augspurger, P.A. 411 East Jackson Street Orlando, Florida 32801
STATEMENT OF THE ISSUES
The issues are whether Respondent, Flagler County School District (“School District”), subjected Petitioner to discrimination on the basis of her disability, in violation of section 760.10, Florida Statutes,1 and/or whether
1 Citations shall be to Florida Statutes (2020) 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.
Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
PRELIMINARY STATEMENT
On September 3, 2020, Petitioner, Laura Lancaster (“Ms. Lancaster” or “Petitioner”), filed with the Florida Commission on Human Relations (the “FCHR”) a Charge of Discrimination against the School District. The Charge of Discrimination stated as follows:
I have filed a previous charge against Flagler County School District based on my sex, sexual harassment and retaliation. That charge is actively under investigation and the charge numbers assigned are 202023621 (FCHR) and 150-2020- 00662 (EEOC). Flagler County School District also discriminated against me based on my disability. The sexual harassment I endured while employed with Flagler County School District exacerbated my mental health disability and eventually cause me [sic] to take a medical leave of absence from my position with the school district. Following my leave of absence, I was moved to a satellite location which was the equivalent of exiling me from the individuals I needed to interact with to do my job. I was told that the move to the satellite location was only supposed to be temporary; however, I was never permitted to return to my original work location. Flagler County School District treated me in a negative and disparate manner after learning of my disability. The continued negative treatment left me with no option but to end my employment with the school district.
On September 14, 2020, the FCHR issued a Notice of Rights in the FCHR Case No. 202023621, EEOC Case No. 15D202000662 (the “sexual harassment claim”), referenced in Ms. Lancaster’s Charge of Discrimination in the instant case. The Notice of Rights informed Ms. Lancaster that the FCHR “was unable to conciliate or make a reasonable cause determination within 180
days of the filing of the complaint in this matter.” Pursuant to section 760.11(4) and (8), Ms. Lancaster was presented with two options: 1) bring a civil action against the School District in any court of competent jurisdiction within one year of the date of the notice; or 2) request an administrative hearing with DOAH by filing a Petition for Relief within 35 days of the date of the notice. Ms. Lancaster did not file a Petition for Relief to obtain a DOAH hearing in the sexual harassment claim, but still has until September 13, 2021, to bring a civil action in a court of competent jurisdiction.
As to the Charge of Discrimination in the instant case, the FCHR conducted an investigation of Ms. Lancaster’s allegations. On February 22, 2021, the FCHR issued a written determination finding that there was no reasonable cause to believe that the discriminatory and/or retaliatory acts had occurred.
On March 28, 2021, Ms. Lancaster timely filed a Petition for Relief with the FCHR. On March 29, 2021, the FCHR referred the case to DOAH for the assignment of an ALJ and the conduct of a formal hearing. The final hearing was scheduled for May 21, 2021, on which date it was convened and completed.
At the hearing, Ms. Lancaster testified on her own behalf and presented the testimony of: her husband, Julian Lancaster; and School District employees Tina Hutto, Geri Drayton, and Kristy Gavin. Ms. Lancaster’s Exhibits 1, 2, 4 through 9, 11 through 19, 23, 24, 27, 28, and 30 through 34 were entered into evidence.
The School District presented the testimony of School District employee Lakisha Ayers-White. The School District’s Exhibits 2H, 2N, 2O, and 2P were entered into evidence.
The two-volume Transcript of the final hearing was filed with DOAH on June 21, 2021. Respondent filed its Proposed Recommended Order on July 6, 2021, outside the 10-day period allotted for the submission of proposed orders under Florida Administrative Code Rule 28-106.216(2). Petitioner did not object to the late filing and Respondent’s Proposed Recommended Order has therefore been considered in the preparation of this Recommended Order.
Petitioner did not file a proposed recommended order.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The School District is an employer as that term is defined in section 760.02(7).
Ms. Lancaster, born on April 12, 1980, began working as a bookkeeper for the School District’s Transportation Department on January 13, 2011. She resigned from her position on November 7, 2019.
This case is complicated by the fact that only Petitioner’s allegation of discrimination on the basis of a disability is at issue. The FCHR separately investigated Petitioner’s earlier complaint regarding sexual harassment and discrimination on the basis of sex, as well as retaliation for complaining about the harassment. The FCHR was unable to make a reasonable cause determination within the allotted 180 days. The FCHR notified Petitioner of her litigation options as to the sex discrimination/sexual harassment complaint. Petitioner allowed the 35-day window to file for a DOAH proceeding to lapse, but as of the date of this Recommended Order still has time to file a complaint in the proper court. At the hearing in this case, a great deal of testimony was provided as to the particulars of the sexual harassment claim. Petitioner presents the sexual harassment claim and disability claim as intertwined issues, arguing that her mental/emotional disability was triggered by the sexual assault and exacerbated by the School
District’s response. Therefore, findings of fact on the sexual harassment claim are necessary to reach the disability claim. However, any relief to be provided to Petitioner in this proceeding is limited to her disability and retaliation claims.
Ms. Lancaster’s difficulties at work commenced when she was accosted sexually by a fellow employee, Emilio Viera, in May 2018. Ms. Lancaster testified that Mr. Viera, who was about 75 years old at the time, entered her office, closed the door, and forced himself on her. He attempted to kiss her but she turned away. Mr. Viera proceeded to kiss her neck and grope her breasts and buttocks. Ms. Lancaster was stunned by the attack but eventually managed to push Mr. Viera away and leave the office.
Ms. Lancaster testified that on the following day, Mr. Viera chased her down in his car as they were each driving away from work. Ms. Lancaster stated that Mr. Viera sped past her then cut her off, forcing her to slam on her brakes. She nearly t-boned Mr. Viera’s vehicle.
Once Ms. Lancaster stopped her car, Mr. Viera got out of his car and pounded on the window of her car. He was attempting to give something to Ms. Lancaster, who at length managed to maneuver her car around
Mr. Viera’s and get away.
Ms. Lancaster told her husband what had happened with Mr. Viera but did not report these incidents to anyone at the School District at the time they happened.
Ms. Lancaster reported the incident to the Flagler County Sheriff’s
Office on August 14, 2019, more than a year after it happened. The Sheriff’s Office Incident Report states that Ms. Lancaster reported that, shortly after these incidents, Transportation Department employees were relocated while a mold problem in their unit was addressed. She and Mr. Viera worked at separate locations during this time. At the hearing, Ms. Lancaster was not questioned as to the reason why she and Mr. Viera were separated at work. It is undisputed that Mr. Viera left her alone during the separation.
In May 2019, the employees were moved back into their home unit.
Ms. Lancaster stated that Mr. Viera began coming around again. He noticed a tattoo on her back and made suggestive comments about it. He followed her into her office.
Ms. Lancaster testified that at this time she reached out to Andy West, the Director of the Transportation Department. She told him that Mr. Viera was making her uncomfortable. Mr. West assured her that he
would take care of the situation. Mr. West told Ms. Lancaster that Mr. Viera would be instructed to come to Mr. West if he had any business in the office and to leave Ms. Lancaster alone.2
Ms. Lancaster testified that either Mr. West did not follow through on his assurances or Mr. Viera chose to ignore Mr. West’s instruction. On
July 16, 2019, Mr. Viera came into Ms. Lancaster’s office when no one else was around. Ms. Lancaster did not describe what Mr. Viera did or said while in her office, aside from winking at her, but she testified that his presence caused her to enter a “trauma state.”
Ms. Lancaster testified that, after her troubles with Mr. Viera began, she had taken to carrying a pocket knife for protection. When Mr. Viera left her office on July 16, 2019, Ms. Lancaster turned the knife on herself. She cut her wrists. She then went to a coworker, Geri Drayton, and asked for help. Ms. Drayton called the police. Ms. Lancaster was involuntarily detained under the Baker Act and placed in the Palm Point Behavioral Health hospital. She was hospitalized until July 22, 2019.
2 Counsel for the School District attempted to cast doubt on Ms. Lancaster’s testimony by noting that there were no documents to support her story that she went to Mr. West for help. Counsel also pointedly asked Ms. Lancaster why she did not call Mr. West as a witness to support her testimony. However, Ms. Lancaster offered credible testimony, under oath, that she went to Mr. West, told him what was going on with Mr. Viera, and requested Mr. West’s protection. If the School District wished to dispute Ms. Lancaster’s credible testimony, it could have called Mr. West as its own witness. The School District chose not to do so.
Ms. Lancaster’s testimony on this point is credited.
On July 24, 2019, Ms. Lancaster’s physician, Leslie Williams, wrote the following letter, addressed “To Whom It May Concern” and sent to the School District:
Mrs. Lancaster is a patient of mine who has experienced [an] acute episode of chronic condition, requiring hospitalization from 7/16/19 – 7/22/19. She is taking medication as prescribed but is not yet cleared for return to work. She will be evaluated by a specialist on 8/1/19 and further decision regarding return to work will be determine [sic]. Please excuse patient from work until cleared.
The letter did not further specify Ms. Lancaster’s “chronic condition.” In response to the letter, the School District placed Ms. Lancaster on leave pursuant to the Family and Medical Leave Act.
Ms. Lancaster testified that on July 25, 2019, she met with Mr. West and Ben Osypian, who at that time was the Director of Human Resources (“HR”) for the School District. The ostensible subject of the meeting was
Ms. Lancaster’s return to work. Mr. Osypian advised Ms. Lancaster to fill out a complaint form about the incidents that led to her hospitalization.
Ms. Lancaster submitted a School District complaint form on August 13, 2019. She wrote that her complaint was “bullying, sexual
harassment, and hostile work environment” that “has led to me unable [sic] to return to work at moment [sic] and has caused severe depression.” In an email dated August 14, 2019, Mr. Osypian advised Ms. Lancaster that her complaint needed to be more specific, including the names of the persons about whom she was complaining and the dates, times, and details of what happened. Ms. Lancaster responded that she was not comfortable putting the details on paper and would provide the details at an in-person meeting with Mr. Osypian.
Ms. Lancaster testified that Mr. Osypian never responded. After she did not hear back from Mr. Osypian, Ms. Lancaster met with her union representative, Lakisha Ayers-White, a vice president of the Flagler
Educational Support Personnel Association (“FESPA”). On August 16, 2019, Ms. Ayers-White wrote the following letter on behalf of Ms. Lancaster to Earl Johnson, a School District administrator:
I am writing to you on behalf of Mrs. Laura Lancaster, a Flagler County employee and FESPA member. On June 27, 2019, Mrs. Lancaster notified Mr. West, Director of Transportation, that a problem had developed within her worksite. The problem was that information vital to processing payroll was not being submitted to her. The established procedure was for coworkers to submit all necessary paperwork every Monday by 9:30 a.m.
On July 26, 2019, Brun Hudson, President of FESPA, and myself were meeting with Mr. West regarding other issues. At the end of that meeting we asked Mr. West what action he would take to rectify the problems Mrs. Lancaster had brought to his attention. I shared copies of several emails requesting assistance to resolve the issues. Mr. West responded that he would let us know what he would do.
To date, we have not heard from Mr. West what action he plans to take to rectify the situation. The hostility in the office has persisted and escalated to the point where Mrs. Lancaster was forced to take leave from work. Mrs. Lancaster is currently receiving assistance to better handle stress and trauma.
Additionally, Mrs. Lancaster has sought an injunction to protect her from coworker, Emilio Viera. She had informed Mr. West of an incident that previously occurred at work involving Mr. Viera and a more recent interaction that have left Mrs. Lancaster feeling unsafe.
The leadership of FESPA feels that we have given Mr. West ample time to rectify the procedural problems that are impacting Mrs. Lancaster’s ability to complete her work in a timely and efficient manner. A safe and healthy environment
is essential not only to Mrs. Lancaster’s wellbeing, but also to her ability to perform her duties as an employee of Flagler County Schools. Mrs. Lancaster desires to return to work as soon as possible but cannot return if the problems she has identified persist.
Mrs. Lancaster filed a complaint on August 13, 2019. She received a response from Mr. Osypian asking for more information. She is happy to comply with his request but replied to him that she would prefer to supply the details at a face-to-face meeting. I am requesting to schedule a meeting to find an appropriate resolution and return Mrs. Lancaster to work.
Please contact me at your earliest convenience to schedule a date and time for us to meet and resolve these issues.
Ms. Ayers-White’s letter points to a discrepancy in Ms. Lancaster’s narrative of events. In her testimony, Ms. Lancaster exclusively focused on Mr. Viera as the source of her distress at work and cause of her hospitalization. In fact, Ms. Lancaster was also experiencing some sort of conflict with other employees in the Transportation Department involving untimely submission of payroll information. Ms. Lancaster did not testify as to the specifics of this conflict, aside from an allegation that these employees were bullying her. The documentary evidence sheds no more light than that provided by Ms. Ayers-White’s letter.
However, it is notable that Ms. Ayers-White’s letter attributes
Ms. Lancaster’s absence from work and need for mental health counseling primarily to this payroll-related conflict, not to the incidents with Mr. Viera. Ms. Ayers-White testified that she visited Ms. Lancaster in the hospital and that Ms. Lancaster made it clear that Mr. Viera was the cause of her hospitalization. She was not questioned as to the apparent contradiction between her testimony and the August 16, 2019, letter.
Ms. Lancaster testified that she had no further response from the School District before August 22, 2019, when the Circuit Court in Flagler County entered a Final Judgment of Injunction for Protection Against Stalking against Mr. Viera. The injunction prohibited Mr. Viera from coming within 500 feet of Ms. Lancaster’s residence or workplace. The injunction allowed Mr. Viera to be present outside of the work building to the extent necessary to perform his own duties as a school bus aide, but it forbade him from contact with Ms. Lancaster. Ms. Lancaster testified that she agreed to the terms of the injunction at the court hearing, which Mr. Viera also attended.
It is undisputed that Mr. Viera had no further contact with Ms. Lancaster after the injunction was issued.
On August 27, 2019, a meeting was convened to discuss the terms of Ms. Lancaster’s return to work. Present at the meeting were Ms. Lancaster and her husband, Julian Lancaster; Mr. Johnson; Ms. Ayers-White; School District General Counsel Kristy Gavin; and Tammy Whittaker, another School District employee. It was agreed by all present at the meeting, including Ms. Lancaster and her union representative, that the School District would move Ms. Lancaster away from the main building to the Transportation Department’s satellite location at Matanzas High School, to
protect her from contact with Mr. Viera and the employees she had accused of bullying her.
At the time of the meeting, Mr. Viera was out of work indefinitely for medical reasons. Both of the Lancasters testified that the tone of the meeting was that the School District had accumulated evidence sufficient to ensure Mr. Viera would not be a problem when he returned. They understood that Ms. Lancaster’s assignment to the Matanzas office would be temporary, until Mr. Viera returned to work and the School District could make a final decision as to his employment.
Ms. Gavin testified that there was no discussion as to whether the assignment to Matanzas was temporary. Ms. Gavin stated that the move to Matanzas had more to do with the bullying coworkers than with Mr. Viera, who was subject to an injunction to stay away from Ms. Lancaster. Ms. Gavin testified that Ms. Lancaster said that the coworkers were yelling at her and trying to sabotage her work. The conversation was about making
Ms. Lancaster feel comfortable while she and her coworkers worked through their issues. The Matanzas assignment was temporary “until [Ms. Lancaster] had a comfort level of returning to be with [her] coworkers.”
Ms. Gavin testified that Ms. Lancaster was asked if she would be able to perform her job duties from the Matanzas location and what could be done to facilitate her work. Ms. Lancaster assured the group that she could do her job from Matanzas. The School District established new timelines for the submission of payroll items to Ms. Lancaster to ensure that she could do her work in a timely manner.
Ms. Gavin testified that most of the discussion at the August 27 meeting was an airing of Ms. Lancaster’s concerns about her coworkers. Mr. Viera was discussed only briefly. Ms. Lancaster told the group that she had a physician’s appointment on September 3, 2019, and believed that she would be released to return to work at that time.
Ms. Gavin testified that in all of her discussions with Ms. Lancaster, nothing about a disability ever came up. Ms. Gavin stated that the School District provided Ms. Lancaster with information about its Employee
Assistance Program (“EAP”) and was aware that she availed herself of EAP counseling services, but was not made aware of any specific disability claimed by Ms. Lancaster.
Due to an impending hurricane, Ms. Lancaster’s physician
appointment was moved to September 9, 2019. On that date, Ms. Lancaster’s examining nurse practitioner, Irene Talarico, wrote that Ms. Lancaster “may return to work effective today with no restrictions.”
On September 13, 2019, Mr. Viera returned to work. On September 18, 2019, Ms. Lancaster sent an email to Ms. Gavin and
Mr. Johnson asking whether Mr. Viera’s return meant that her assignment to Matanzas was permanent. On October 1, 2019, Ms. Gavin responded, “No, as we discussed Mr. Viera will be reminded of the injunction that is in place and that he is not to go into the building and/or have any direct communication with you.”
In connection with this email exchange, Ms. Gavin testified that she was involved in this process only because the School District was trying to fill the position of Director of HR. Mr. Osypian had left the position and the new Director, Jewel Johnson, was just coming on to the job. Ms. Gavin was attempting to transition all HR-related issues to Ms. Johnson at the time
Ms. Lancaster inquired about the import of Mr. Viera’s return.
About an hour after receiving Ms. Gavin’s response, Ms. Lancaster
replied as follows:
I am sorry I am really confused. The last discussion we had about this situation and Emilio Viera is that I would come up to [Matanzas] temporarily until he return [sic] from leave so HR could have a formal meeting with him. I am still waiting to hear what that outcome is as I have not got one. I would like to know what the district is doing in regards to Emilio Viera actions [sic] towards me that happen at work. The injunction was something I had to file to protect myself to make sure this man didn’t hurt me again not only at work but outside of work. Please let me know.
Three days later, on October 4, 2019, Ms. Gavin responded, “I have spoken to HR regarding this and they should be getting back with you regarding this matter.” Ms. Gavin testified that at this time, Ms. Johnson was trying to finalize the investigation into the matter between Mr. Viera and Ms. Lancaster.
On October 7, 2019, Ms. Johnson sent the following email to Ms. Lancaster:
Please excuse my delayed response to your written statement. Dr. Johnson did submit those to my office for follow up on the day of the Transportation Department Meeting. I am new to the details of your case; would you by chance be able to provide me with the names of witnesses to any of the episodes outlined in your statement? Email me back or call my office with that information.
I know you currently have a temporary “safety- type” plan. Once the final outcome is made I will need to speak with you about next steps and transition options. I can come to your location to make it easier if you prefer. I’ll be back in touch with that date and please let me know if there are any additional witnesses that you can provide.
This email highlights a complaint Ms. Lancaster made about the
School District’s response to her complaint about Mr. Viera. Ms. Johnson appeared to be starting her inquiry from scratch in October, despite the fact that the complaint was submitted on August 13 and a meeting had been convened on August 27 that gave Ms. Lancaster the impression that an investigation of Mr. Viera was underway. Ms. Lancaster also pointed to the fact that on September 19, 2019, Mr. West had contacted her and asked for a written statement. She asked him what had happened to the statement she had already submitted. Mr. West answered that he did not have a statement.
Ms. Lancaster testified that on October 18, 2019, Mr. West came into her office with a big smile on his face and told her that Mr. Viera would be allowed to keep his job. She was very upset and asked for details about the investigation and how the School District came to that decision.
In a letter to Ms. Lancaster dated October 19, 2019, Ms. Johnson
provided the School District’s response to Ms. Lancaster’s complaint:
This is in response to the formal Complaint Form you submitted on August 13, 2019 concerning:
Alleged bullying.
Sexual harassment allegations.
Hostile work environment.
The following outlines the District’s response to the
issues listed above:
request information for our Employee Assistance Program (EAP) is attached.
Two of the guiding principles of Flagler County Schools are trust and respect for all and a commitment to individual needs. The complaint process, and all of its components, helps to ensure that our employees have this opportunity. If you have any questions or continued concerns regarding this matter do not hesitate to contact my office.
The School District’s Policy Manual Rule 662 defines “sexual harassment” as follows:
Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when:
submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual’s education).
submission to or rejection of such conduct by an individual is used as the basis for an employment or employment decisions [sic] affecting that individual; or such conduct substantially interferes with an employee’s work performance, or creates an intimidating, hostile or offensive work environment.
Sexual harassment, as defined above, may include but is not limited to the following:
verbal harassment or abuse;
pressure for sexual activity;
repeated remarks to a person with sexual or demeaning implications;
unwelcome or inappropriate touching;
suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one’s employment.
Ms. Lancaster was astounded that the School District’s conclusion that Mr. Viera’s conduct did not meet its definition of “sexual harassment.”
Mr. Viera had admitted to the acts alleged by Ms. Lancaster, his only defense
being that he believed that he was responding to her “signals.”
Ms. Lancaster’s confusion was compounded when she learned of the contents of the following disciplinary letter that Ms. Johnson sent to Mr. Viera on October 17, 2019:
This correspondence serves as written reprimand for your inappropriate actions in the workplace. During our investigation and from your own admittance intimate actions (hugging, kissing, touching) took place in your work station with another Flagler County School employee on or about May 10, 2018. Such behavior violates School Board Rule 662(3) which defines inappropriate touching in the definition of sexual harassment. It is the expectation of the District to maintain safe, productive environments where all employees can serve the needs of our students.
Any further actions of this nature may result in further disciplinary action up to and including termination. Should you have any questions or require any assistance do not hesitate to contact me or your Director, Andy West.
The School District provided no explanation for the contradictory letters sent to Mr. Viera and then two days later to Ms. Lancaster, both
written by the School District’s Director of HR. Ms. Lancaster questioned not just the apparent duplicity of the letters but the School District’s settling on the weak response of a reprimand for Mr. Viera’s actions.
At the hearing, Ms. Gavin attempted to rationalize the School District’s actions. She first argued that the aspects of Ms. Lancaster’s
complaint regarding the unwanted kissing and touching by Mr. Viera in 2018 were made outside the 60-day window provided by Policy Manual Rule 649 for complaints involving harassment or discrimination. Ms. Gavin stated that the only incidents within the allowable scope of rule 649 were Mr. Viera’s 2019 acts of commenting on Ms. Lancaster’s tattoo and entering her office prior to her cutting her wrists, hence the relatively mild disciplinary action.
Ms. Gavin’s explanation is not satisfactory because it fails to explain why the reprimand letter to Mr. Viera expressly mentions the acts he committed in 2018, “hugging, kissing, touching,” and does not mention the 2019 acts. Under Ms. Gavin’s reading of rule 649, the 2018 acts should have been off limits for disciplinary action against Mr. Viera. However, they were considered and apparently formed the basis for the action taken by the School District.
Second, Ms. Gavin testified that the School District’s collective bargaining agreement states that “if it goes beyond 18 months it cannot be considered as a part of the disciplinary process because it’s too old and it’s deemed they’re given a clean slate.” The “18 months” statement is related to Ms. Gavin’s insistence that the incidents of kissing and groping occurred in 2017, not 2018. Ms. Gavin based this testimony on her recollection that the mold remediation project in the Transportation Department was completed in November 2017. The Sheriff’s Office Incident Report stated that, after the kissing and groping incident, Ms. Lancaster and Mr. Viera were separated at work due to the mold problem.
The Sheriff’s Office Incident Report is hearsay that was not confirmed
at hearing by Ms. Lancaster’s sworn testimony. When Ms. Lancaster made her report to the Sheriff’s Office on August 14, 2019, she was less than a month removed from cutting her own wrists and being involuntarily committed under the Baker Act. She could have been mistaken as to the reason for the separation. However, the credible documentary evidence and
Ms. Lancaster’s testimony all place the date of the initial incidents with
Mr. Viera in May 2018.
Ms. Gavin’s seizing on the detail of the mold remediation to excuse the School District’s disciplinary slap on the wrist to Mr. Viera cannot be credited. It is not only contrary to the evidence, it lacks internal logic. By
Ms. Gavin’s own testimony, incidents more than 18 months old cannot be considered in the disciplinary process. However, Ms. Johnson’s disciplinary letter to Mr. Viera references only these supposedly stale incidents as grounds for the reprimand. Even on its own terms, Ms. Gavin’s argument fails.
Finally, Ms. Gavin noted that, even if Ms. Lancaster had timely filed her complaint against Mr. Viera, the School District’s progressive discipline policy would in all likelihood have led to his referral for counseling and possibly a suspension without pay. She added that if the School District had recommended termination, the union would have filed a grievance protesting that the collective bargaining agreement was not being followed.
This explanation is also unsatisfactory. Notwithstanding the progressive discipline policy, Policy Manual Rule 662 prohibiting sexual harassment provides that a substantiated charge against an employee may result in suspension or termination. The union may or may not have grieved the decision, and may or may not have succeeded in the grievance proceeding, but the School District had ample options under its rules to dismiss
Mr. Viera. Instead, however, the School District decided that Mr. Viera’s admitted sexual assault did not merit discipline more severe than a reprimand. Ms. Gavin’s effort to hide this decision behind the cloak of progressive discipline and/or trepidation about a union grievance is not credible or worthy of merit.
Having found Ms. Gavin’s explanations implausible, the undersigned is constrained to observe that the purpose of this proceeding is not to second- guess the School District’s decision as to Mr. Viera’s discipline. However, the
School District’s contradictory statements in the letters to Ms. Lancaster and Mr. Viera, coupled with the mere reprimand for what Ms. Lancaster believed to merit much more severe discipline, had a demonstrable impact on
Ms. Lancaster and partly led to her resignation. Thus, some discussion as to
the School District’s explanation for its actions is merited.
Ms. Lancaster testified that after receiving the October 19, 2019, letter from Ms. Johnson, her feelings of isolation and depression deepened. She felt herself trapped alone at the Matanzas office, separated from her colleagues in the Transportation Department. Now that Mr. Viera was back at work and still assigned to the main office, she believed her assignment to the Matanzas office would be permanent. She was unable to attend department meetings and events. The Transportation Department held a cookout to which she was not invited. Ms. Lancaster could not understand why the School District did not reassign Mr. Viera so that she could return to work with her colleagues. She felt that she was being punished for filing a complaint.
Further, Ms. Lancaster felt that she was unable to adequately perform her job from the Matanzas office. She could not be in direct contact with department employees, who found it more difficult to submit their paperwork to her in a timely fashion. Ms. Lancaster was receiving documents late, which in turn caused her to turn in the payroll data late. She stated that she was getting complaints from fellow employees.
Ms. Lancaster testified that it made no sense that the only “accommodation” that the School District was willing to make for her mental disability was to isolate her at Matanzas, her only other choice being to return to the place where her attacker worked and where her only protection from him was a piece of paper, i.e., the injunction.
Ms. Lancaster produced a School District Official Grievance Form (“Official Grievance Form”) that she signed and dated on October 25, 2019. On the form, she stated that she wished to grieve the result of the
investigation memorialized in Ms. Johnson’s letter of October 19, 2019. As to the “specific relief sought,” Ms. Lancaster wrote:
Mrs. Lancaster wants to return to her office in Transportation confident that she will be safe;
To be an active member of the Transportation Department, free to attend department meetings and events; 3) Desires to rectify the perception and her sense of being punished for filing the complaint.
The form was signed only by Ms. Lancaster. The space provided for the signature of a School District administrator was blank. The School District denied ever receiving this Official Grievance Form. Ms. Lancaster testified that the filing of the form led to a meeting between her, Florida Education Association union representative Blanca Sotelo, and Ms. Johnson on or about November 1, 2019. Ms. Lancaster produced contemporaneous emails between her and Ms. Sotelo discussing the contents and filing of the grievance, including editorial comments by Ms. Sotelo about a draft of the form completed by Ms. Lancaster. Whether the form was never submitted to the School District or whether Ms. Johnson received and misplaced it, the School District does not deny that the November 1, 2019, meeting occurred.
Subsequent to the meeting, Ms. Johnson sent the following email to Ms. Lancaster and Ms. Sotelo:
Thank you for coming in today to follow up with me. Please be advised of the following:
Moving forward more problem solving will be used if/when problems arise because of Ms. Lancaster’s separated workstation. In regard to the most recent situation with another employee’s phone, Ms. Lancaster’s extension will be transferred over to the MHS Transportation Center. In addition, each employee should route their calls when away from their desk for any extended period of time so that the line is covered.
Cooperation will be given to Ms. Lancaster’s [sic] while participating in counseling sessions (i.e., in the event she needs to leave early or come in late). The details were not specified during our talk today but the following should continue to be followed to avoid any confusion between Ms. Lancaster and Mr. West. I understand from Mr. West that Ms. Lancaster already does the following when she needs to leave the office:
Advance notice, 3-5 days, should be given to the Supervisor so that planning and coverage (if needed) can be arranged.
up to 30 min window of time is allowed for this. Anything over the allotted time will require a leave form.
Email notice to the Supervisor once in the office or when leaving the office for these sessions.
Thank you again and don’t hesitate to contact my
office if you have any other concerns.
The conciliatory tone of Ms. Johnson’s email does not jibe with
Ms. Lancaster’s recollection of the November 1, 2019, meeting and casts further doubt on Ms. Lancaster’s memory that Ms. Johnson was in possession of the Official Grievance Form. Ms. Lancaster testified that Ms. Johnson advised her to drop her grievance. Ms. Lancaster stated that Ms. Johnson believed it would do no good for Ms. Lancaster to pursue it any farther and told Ms. Lancaster that the School District administration would support her view.
Ms. Lancaster testified that she felt “like I hit a brick wall.” She broke down in Ms. Johnson’s office. She cried and said, “I guess I give up.” Neither of the other participants at the meeting testified to confirm or contradict
Ms. Lancaster’s version of the meeting. Ms. Lancaster was a generally credible witness, but the contrast between her testimony about the meeting and Ms. Johnson’s subsequent email causes the undersigned to question
whether Ms. Lancaster’s subjective emotional response to events reflected the objective reality of the meeting.
On November 7, 2019, Ms. Lancaster sent the following email to Ms. Johnson:
Due to the emotional and mental damage that has been caused from flagler county schools [sic] for reporting a crime that was committed against me and the lack of care and concern I received from administrators thus feeling as being punished for someone else’s wrongdoing, I no longer will be able to continue my employment with the school system.
On the same date, Ms. Johnson replied, “Thank you for letting me
know, I’m sorry to hear that you feel this way. I will process your resignation effective the date of this email.”
The facts found above demonstrate that the School District responded poorly to Ms. Lancaster’s complaints about Mr. Viera. Ms. Lancaster went to her supervisor, Andy West, for help in May 2019 after Mr. Viera recommenced his harassment of her. Mr. West took no effective action. Based on the totality of the evidence, it appears probable that Mr. West did not even bother to report the matter to anyone outside the Transportation Department. Mr. Viera continued to stalk Ms. Lancaster, leading to
Ms. Lancaster cutting her wrists and being hospitalized under the Baker Act.
Ms. Lancaster filed a complaint against Mr. Viera on August 13, 2019. The School District produced no evidence that Ms. Lancaster’s complaint was formally investigated. It appears that Ms. Gavin spoke to some witnesses without putting anything in writing, then handed the matter off to the new Director of HR, Ms. Johnson, who seems to have restarted the investigation from scratch, asking Ms. Lancaster on October 7, 2019, for the names of
witnesses. Ms. Johnson’s investigation also resulted in no written witness statements and no written record. The result of the investigation was an inexplicable reprimand of Mr. Viera.
However, as noted at the outset, this case is not about Ms. Lancaster’s complaint of sexual harassment and discrimination on the basis of sex, which was the basis for her separate sexual harassment claim. This case concerns Ms. Lancaster’s allegation that the School District discriminated against her on the basis of her mental disability. The evidence produced at the hearing does not support that allegation.
The first and ultimately insuperable problem with Ms. Lancaster’s complaint is that she never made the School District, or anyone outside her family, aware of her claimed disability while she was employed there. In a letter dated September 9, 2019, Ms. Lancaster’s medical provider cleared her to return to work “with no restrictions.” Even at the hearing, Ms. Lancaster did not precisely describe her diagnosis.3 Ms. Gavin credibly testified that in her many conversations with Ms. Lancaster, the issue of a disability was never raised.4 Ms. Ayers-White—who was Ms. Lancaster’s union representative, who visited her in the hospital after she was Baker Acted, and who witnessed the injunction hearing for Mr. Viera—testified that she had no idea Ms. Lancaster was claiming a disability until she read her FCHR petition. Geri Drayton, the coworker who phoned the police after
Ms. Lancaster cut her wrists, testified that she never knew about a disability and did not recall Ms. Lancaster asking for any accommodations. School District employee Tina Hutto, testifying on behalf of Ms. Lancaster, stated that she never knew about Ms. Lancaster having a disability and did not recall Ms. Lancaster ever telling her that she was having difficulty performing her job.
3 Ms. Lancaster offered a document in which she described “depression and anxiety and bipolar 1 and PTSD” that she said was diagnosed in 2017. However, this document was an email that she wrote and sent to an FCHR investigator on February 17, 2020, well after she resigned from her position. The undersigned did not admit this document because it had no bearing on the School District’s knowledge of her claimed disability during her employment.
4 It is noted that, despite rejecting Ms. Gavin’s attempts to justify the contradictions between the School District’s outcome letters to Ms. Lancaster and Mr. Viera, the undersigned found Ms. Gavin to be a generally credible fact witness.
Though it did not discipline Mr. Viera to Ms. Lancaster’s satisfaction, the School District does appear to have taken seriously her trauma and the need to make her feel safe at work. Though Ms. Lancaster later bridled against it, the transfer to Matanzas was ordered with the agreement of all involved in order to ensure Ms. Lancaster’s safety, not only from Mr. Viera but from the coworkers she had accused of bullying her. The School District provided her with EAP information and arranged for her to leave work early or arrive late to get to counseling appointments.
The documentary evidence established that until Ms. Lancaster obtained the injunction against Mr. Viera on August 22, 2019, the School District (with the possible exception of Mr. West) was unaware of the gravity of the situation with Mr. Viera. The School District was operating under the assumption that Ms. Lancaster’s major concern was the bullying and obstruction by other employees, and that separating Ms. Lancaster from these employees was the safest option for all concerned. Ms. Lancaster and her union representative, Ms. Ayers-White, agreed to the separation. At the hearing, Ms. Ayers-White was asked whether it made sense for
Ms. Lancaster to come back to the main office. Ms. Ayers-White answered, “I
thought she was fine” at Matanzas.
Ms. Gavin credibly testified as to the School District’s consistent provision of accommodations for disabled employees. The School District consults with the employee’s physician, providing a job description to allow the doctor to assess the employee’s ability to perform and to recommend reasonable accommodations. Ms. Gavin noted one instance in which the School District changed the ceiling tiles in a classroom and provided a microphone to accommodate a teacher with vocal problems. There is no reason to assume that the School District would have refused to at least investigate accommodations had it known Ms. Lancaster was claiming a disability.
Further, other than expressing her own concerns about her job performance, Ms. Lancaster presented no evidence that the School District was dissatisfied with her job performance or that any accommodation was necessary for her to continue performing in a satisfactory manner. Ms. Gavin testified, based on personal observation and her review of the personnel file, that Ms. Lancaster was a very good employee. Ms. Gavin could think of no reason why the School District would not renew Ms. Lancaster in her job position.
Finally, it is noted that, whatever Ms. Lancaster’s subjective experience, little time had actually passed between the decision on Ms. Lancaster’s complaint and her resignation. On October 7, 2019,
Ms. Johnson assured Ms. Lancaster that her current placement was temporary and that “I will speak with you about next steps and transition options” after the final decision on her complaint. The decision letter to Ms. Lancaster was dated October 19, 2019. Ms. Johnson met with
Ms. Lancaster and Ms. Sotelo on November 1, 2019. At least from
Ms. Johnson’s perspective, the meeting was productive, resulting in a plan to make the details of Ms. Lancaster’s job at Matanzas easier and a process for arranging her excused absences from work for counseling sessions.
These findings are not meant to minimize Ms. Lancaster’s anguish and feelings of isolation and estrangement from her colleagues. The District, however, had only a vague sense of Ms. Lancaster’s degree of suffering and was actively taking steps to make her more comfortable emotionally and to make her workplace safe. The School District had no issues with her job performance. The School District was aware of her emotional trauma and was making it convenient for her to receive counseling. The School District was not aware that she was claiming to have a mental disability that required further accommodations. None of the actions undertaken by the
School District was objectively retaliatory, notwithstanding Ms. Lancaster’s
subjective perceptions.
Ms. Lancaster offered no evidence that her separation from employment with the School District was anything other than voluntary.
In summary, Petitioner offered insufficient evidence that she was discriminated against based on her disability. Petitioner also offered insufficient evidence that she was subjected to unlawful retaliation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat.
The Florida Civil Rights Act of 1992 (the “Florida Civil Rights Act” or the “FCRA”), chapter 760, prohibits discrimination in the workplace. The FCRA is modeled after Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq. (Title VII), so that federal case law regarding Title VII is applicable to construe the FCRA. See Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002).
Section 760.10 states the following, in relevant 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.
* * *
(7) 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 School District is an “employer” as defined in section 760.02(7), which provides the following:
(7) “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.
The language in section 760.10(1) parallels language in Title I of the ADA, 42 U.S.C. § 12112(a), which prohibits discrimination in employment based on disabilities,5 as follows:
General rule. No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Noting differences in the federal analysis of discrimination claims based on handicap from analyses applied to other discrimination claims, in an opinion rendered not long after enactment of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (ADA), the Florida First District Court of Appeal in Brand v. Florida Power Corporation, 633 So. 2d 504, 510 n.8 (Fla. 1st DCA 1994), observed:
Due to its recent enactment, we do not comment on what effect the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 12101-12213) may have
on handicap discrimination claims prosecuted pursuant to Florida’s Human Rights Act, but it appears from our examination of certain key provisions in the ADA paralleling section 504 that
5 “The ADA has three separate titles: Title I covers employment discrimination, 42 U.S.C.
§§ 12111-12117; Title II covers discrimination by government entities, Id. §§ 12131-12165; and Title III covers discrimination by places of public accommodation, Id. §§ 12181-12189.” Colorado Cross Disab. Coal. v. Hermanson Fam. Ltd. P’ship I, 264 F.3d 999, 1006 (10th Cir. 2001).
Congress intended to extend protections against handicap discrimination equal to or greater than that provided by section 504 to qualified individuals with handicaps. Hence, we are of the view that case law interpreting section 504 is highly persuasive authority in actions brought under the ADA to the extent that the provisions in the two acts coincide.
Subsequently, Florida courts have construed the FCRA in conformity with the federal Rehabilitation Act, 29 U.S.C. § 701 et seq., as well as the ADA and related regulations. See, e.g., McCaw Cellular Commc’ns of Fla., Inc. v. Kwiatek, 763 So. 2d 1063, 1065 (Fla. 4th DCA 1999); Greene v. Seminole Elec. Coop., Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997); cf. Chanda v. Engelhart/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000)(“[A]ctions under the Florida Civil Rights Act are analyzed under the same framework as the ADA.”).
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, 1358-59 (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, Petitioner first 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
has the opportunity to 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.
Considering applicable federal case law analyses under both Title VII and the ADA, in order to establish a prima facie case of discrimination based on handicap under the FCRA, Petitioner must prove: (1) that she is a handicapped person within the meaning of section 760.10(1)(a); (2) that she is a qualified individual; and (3) that Respondent discriminated against her based on her disability. See, e.g., Byrd v. BT Foods, Inc., 948 So. 2d 921, 925- 26 (Fla. 4th DCA 2007)(citing Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000)); Pritchard v. So. Co. Servs., 92 F.3d 1130 (11th Cir. 1996).
As explained by the Fourth District Court of Appeal in Byrd:
Regarding the first element of a prima facie case, the FCRA does not define the term “handicap.” We therefore look to the ADA’s definition of a “disability.” See Ross v. Jim Adams Ford, Inc., 871 So. 2d 312 (Fla. 2d DCA 2004). The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment; or being regarded as having such an impairment.” 42 U.S.C. § 12102(2). “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Bragdon v. Abbott, 524 U.S. 624, 118
S.Ct. 2196, 141 L.Ed.2d 540 (1998); see 45 C.F.R.
§ 84.3(j)(2)(ii); 28 C.F.R. § 41.31(b)(2)(1997).
948 So. 2d at 926.
As to the first element, Ms. Lancaster failed to establish that she had a handicap or disability. The School District was obviously aware that she had been traumatized and hospitalized under the Baker Act, but was
unaware of Ms. Lancaster’s claim that she had an underlying disability that
was triggered and exacerbated by her trauma. Ms. Lancaster never provided
information or evidence that she had an impairment that substantially limited one or more of her major life activities. In fact, her medical provider cleared her to work “with no restrictions” on September 9, 2019, after her hospitalization. Ms. Lancaster did not provide a specific diagnosis or description of her mental disability that would have been available to the School District while she worked there.
Regarding the second element, Ms. Lancaster failed to show she was a qualified individual.
The ADA provides that a “qualified individual” is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. 42 U.S.C.A.
§ 12111(8). If a qualified individual with a disability can perform the essential functions of the job with reasonable accommodation, then the employer is required to provide the accommodation unless doing so would constitute an undue hardship for the employer. 42 U.S.C.A.
§ 12112(b)(5)(A). Reasonable accommodations to the employee may include, but are not limited to, additional unpaid leave, job restructuring, a modified work schedule, or reassignment. 42
U.S.C.A. § 12112(9)(B).
Byrd, 948 So. 2d at 925 (quoting McCaw, 763 So. 2d at 1065).
For the reasons stated in the discussion of the first element,
Ms. Lancaster failed to demonstrate that she was an individual with a handicap or disability. Even if it were accepted that she was an individual with a disability, Ms. Lancaster failed to demonstrate that she required an accommodation to perform the essential functions of her job or that her employer had denied her any such accommodation. Her employer was more than satisfied with her job performance. Based on the available knowledge, the School District did what it could to support her ability to perform her job in a safe environment.
Ms. Lancaster provided no objective evidence that she was discriminated against because of her disability. The School District was
unaware that she claimed to have a disability. The School District’s response to her complaint about Mr. Viera left much to be desired, but was unrelated to any disability. Ms. Lancaster’s subjective feelings of persecution do not prove intentional discrimination.
Discriminatory intent may be proved by inference, but a trier of fact “cannot infer discrimination from thin air.” Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001)(citing Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998)). 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, 270 F.3d at 104. (“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.”). See also Norton, 145 F.3d at 120 (anti-discrimination law “does not make employers liable for doing stupid or even wicked things; it makes them liable for discriminating….”).
In conclusion, Ms. Lancaster failed to present a prima facie case of discrimination based on handicap or disability. “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).
Ms. Lancaster also failed to demonstrate a prima facie case of unlawful retaliation in violation of the ADA 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.
The court in Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the elements of a retaliation claim as follows:
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.
Ms. Lancaster established that she engaged in a statutorily protected activity, in that she made a complaint to the School District’s HR department about bullying by fellow employees and the sexual harassment by Mr. Viera. However, neither the statutorily protected activity nor the School District’s response thereto was related to Ms. Lancaster’s claimed disability.
Ms. Lancaster did not establish that she suffered an adverse employment action. The move to the Matanzas satellite office was agreed to by Ms. Lancaster and her union representative and was made in order to protect her from the bullying by coworkers and the disturbing presence of Mr. Viera. The School District never stated that the move was permanent. Ms. Lancaster’s perception that the School District was punishing her for speaking out was not supported by objective evidence.
Constructive discharge qualifies as an adverse employment decision. Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 n.2 (11th Cir. 1997). Constructive discharge occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces the employee to quit his/her job. Bryant v. CEO DeKalb Co., 575 F.3d 1281, 1298 (11th Cir. 2009). The bar to establish a case for constructive discharge is quite high: “[a] claim for constructive discharge requires the employee to demonstrate that
the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.” Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1363 (11th Cir. 1994). “The standard for proving constructive discharge is higher than the standard for proving a hostile work environment.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001).
Ms. Lancaster offered no credible evidence to establish that her working conditions met the legal standard necessary to establish constructive discharge. She voluntarily resigned her position on November 7, 2019. The School District was satisfied with her job performance. At the time of
Ms. Lancaster’s resignation, the School District was taking further steps to make her job easier at the satellite location and to facilitate her attendance at counseling sessions. As noted above, Ms. Lancaster's subjective perceptions of persecution and enforced isolation were not supported by objective evidence.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Flagler County School District did not commit an unlawful employment practice related to the Charge of Discrimination filed in this case, and dismissing the March 28, 2021, Petition for Relief.
DONE AND ENTERED this 21st day of July, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
LAWRENCE P. STEVENSON
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 21st day of July, 2021.
Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Laura Beth Lancaster 3207 Victory Palm Drive Edgewater, Florida 32141 | Dylan J. Hall, Esquire Bush & Augspurger, P.A. 411 East Jackson Street Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 |
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. 30, 2021 | Agency Final Order | |
| Jul. 21, 2021 | Recommended Order | Petitioner failed to demonstrate that the employer discriminated against her on the basis of a handicap or disability. |
