MARIE L. HENRY,
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
vs.
Petitioner,
Case No. 16-4412
THE FLORIDA BAR,
Respondent.
/
RECOMMENDED ORDER
The final hearing in this matter was conducted before
J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016),1/ on March 28 and 29, 2017, in
Orlando, Florida.
APPEARANCES
For Petitioner: Marie Louise Henry, pro se
Post Office Box 953521 Lake Mary, Florida 32795
For Respondent: Kevin D. Johnson, Esquire
Bridget E. McNamee, Esquire Johnson Jackson LLC
Suite 2310
100 North Tampa Street Tampa, Florida 33602
STATEMENT OF THE ISSUES
Whether Petitioner, Marie L. Henry, was subject to an unlawful discriminatory act by Respondent, The Florida Bar, based
on her race and disability and through retaliation in violation of the Florida Civil Rights Act.
PRELIMINARY STATEMENT
This matter comes before the undersigned on remand from the Florida Commission on Human Relations (the “Commission”).2/ Petitioner filed a Charge of Discrimination with the Commission alleging that Respondent, The Florida Bar, violated the Florida Civil Rights Act of 1992 (the “FCRA”), by discriminating against her; and, in retaliation for her participation in activity protected by the FCRA.
On July 18, 2016, the Commission issued a Determination: No Reasonable Cause letter to Petitioner notifying her that no reasonable cause existed to believe that The Florida Bar had committed an unlawful practice.3/
On July 29, 2016, Petitioner filed a Petition for Relief with the Commission alleging discrimination by The Florida Bar.4/ That same day, the Commission transmitted the Petition to the Division of Administrative Hearings (“DOAH”) to conduct a chapter 120 evidentiary hearing.
The final hearing was initially set for October 11, 2016.
Following Petitioner’s motion for continuance, the final hearing was rescheduled for January 25, 2017. Following a second motion from Petitioner, the final hearing was continued to March 28 and 29, 2017.
The final hearing was held on March 28 and 29, 2017. At the final hearing, Petitioner testified on her own behalf.
Petitioner also presented the testimony of Lee Mercado, Barry Rigby, Kenneth Lawrence Marvin, Clayton Simmons, and Deborah Clark. Petitioner’s Exhibits 1 through 4 were admitted into evidence. The Florida Bar presented the testimony of
Jan Wichrowski. The Florida Bar’s Exhibits 4, 5, 7, 8, 10 through 18, and 31 through 35 were admitted into evidence. Following the final hearing, Petitioner filed Supplemental Exhibits 5 through 34, which were admitted into the underlying record.
A four-volume Transcript of the final hearing was filed with DOAH on May 30, 2017. At the close of the hearing, the parties were advised of a ten-day timeframe following receipt of the hearing transcript at DOAH to file post-hearing submittals.
Following The Florida Bar’s request, the deadline for filing post-hearing submissions was extended beyond ten days after the filing of the hearing Transcript; thus waiving the 30-day time period for filing the recommended order.5/ Both parties filed proposed recommended orders which were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
Petitioner, an African American woman, was admitted to practice law in Florida in 2009.
On March 31, 2015, the Florida Supreme Court (the “Supreme Court”) issued an Order suspending Petitioner from the practice of law for six months (the “Suspension Order”). As of the date of the final hearing, Petitioner had not taken steps to reinstate her license.
Petitioner asserts that the Supreme Court’s Suspension Order is illegal. Petitioner alleges that the Suspension Order directly resulted from discrimination against her by The Florida
Bar.
Under Article V, section 15 of the Florida Constitution,
the Supreme Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law [in Florida] and the discipline of persons admitted.”
The Supreme Court’s power to regulate the discipline of persons admitted to practice law is exercised through The Florida Bar’s lawyer regulation function.
As an official arm of the Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct on the more than 100,000 lawyers admitted to practice law in Florida. The Florida Bar is charged with assuring that admitted lawyers comply with the Rules Regulating The Florida Bar (the “Bar Rules”), which are adopted by the Supreme Court.
In furtherance of its responsibilities, The Florida Bar accepts complaints against attorneys licensed to practice law in Florida. The Florida Bar then investigates these complaints and prosecutes attorneys who engage in misconduct. The Bar Rules describe the process by which The Florida Bar processes complaints and initiates disciplinary action. See R. Regulating Fla. Bar 3-7.
All investigations and disciplinary recommendations of The Florida Bar are subject to full and independent review by the Supreme Court. If the Supreme Court suspends a lawyer for over
91 days, the lawyer must petition the Supreme Court for reinstatement. The Supreme Court, not The Florida Bar, determines whether the lawyer is reinstated to practice law in Florida. See R. Regulating Fla. Bar 3-7.10.
The facts that led to this dispute began in 2009. On October 31, 2009, Petitioner’s daughter, who was 13 years old at the time, was arrested in Lake County, Florida. She was charged with resisting a police officer without violence and taken to jail.6/ After learning of the allegations that led to the arrest, Petitioner determined that the charges against her daughter were unfounded. (Petitioner represented that her daughter allegedly “resisted” because she did not give her name to the arresting officer when asked.) Petitioner also believed that her daughter was racially profiled. As a parent, Petitioner became extremely
distressed and upset at what she perceived to be a grave injustice.
The State of Florida filed a Petition for Delinquency against Petitioner’s daughter on January 26, 2010. The case was presided over by Judge Michael G. Takac of the Fifth Judicial Circuit Court of Florida. (The Fifth Judicial Circuit includes Citrus, Hernando, Lake, Marion, and Sumter Counties.)
Assistant State Attorney John Carnahan represented the State of Florida during the prosecution of Petitioner’s daughter.
Petitioner represented her daughter during the trial.
As part of her daughter’s defense, Petitioner filed a Motion for Discharge for Lack of Speedy Trial. In support of her motion, Petitioner filed a memorandum of law in which she cited the case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), asserting
that law enforcement’s “stop and frisk” and detention of her daughter was improper.
In May 2010, following several days of trial, Judge Takac found Petitioner’s daughter guilty, but withheld adjudication of the charge. Judge Takac’s sentence imposed
several conditions including probation. (Petitioner appealed her daughter’s criminal proceeding to the Fifth District Court of Appeal. On May 5, 2011, the Fifth District Court of Appeal affirmed the trial court’s determination that Petitioner’s daughter was guilty of resisting a law enforcement officer
without violence.7/ The court specifically remarked that an individual may be required to provide her name to a law enforcement officer where the officer has initiated a valid Terry stop.)8/
At some point during the appeal, Petitioner’s daughter was arrested again; this time for petit theft. The petit theft charge was prosecuted in Seminole County. As a result of this new arrest, Petitioner’s daughter was also charged with violating the probation imposed in her first case before Judge Takac.
Petitioner retained a private attorney, Lee Mercado, to represent her daughter in the petit theft case. Ms. Mercado entered an appearance in both the Seminole County case (for the petit theft charge) and the Lake County case (for the violation of probation).
Based on her violation of probation, Petitioner’s daughter was detained in a juvenile detention facility.
Ms. Mercado filed an emergency motion for release based on jurisdictional grounds. Judge Takac heard the motion.
At some point after the conclusion of the juvenile proceeding involving Petitioner’s daughter, Judge Takac was reassigned to the civil division of the Fifth Judicial Circuit in Lake County. As a result of this transfer, Judge Takac became the presiding judge in a pending civil matter in which Petitioner was a party. This civil matter (which appears to have been filed
in August 2009, before Petitioner’s daughter’s arrest) involved an alleged predatory lending lawsuit that Petitioner brought against her mortgage loan servicer.
After Petitioner learned that Judge Takac was presiding over her civil case, she filed two motions to disqualify him. Petitioner filed a Motion to Disqualify Trial Judge for Cause on March 8, 2012. Petitioner based her motion on Judge’s Takac’s “perceived bias” against her in her daughter’s juvenile proceeding. Petitioner alleged that, “When her mother, the plaintiff in this case, raised the issue of prosecutorial misconduct and racial bias to this Court . . . [Judge Takac] repeatedly sought to embarrass her and thwart her attempts to seek justice for her child.” Petitioner further wrote that, “The prejudice of the trial court was so patently unfair, overt and in violation of the laws of the United States of America and Florida that it rises to the level of abuse.” On May 9, 2012, Petitioner filed a second, nearly identical, Motion to Disqualify Trial Judge for Cause asserting similar statements (the motions are collectively referred to as “Motions to Disqualify”).
Just prior to challenging Judge Takac in her civil matter, Petitioner decided to report to The Florida Bar her displeasure with the inappropriate manner in which she believed Mr. Carnahan prosecuted her daughter in the juvenile proceeding. On February 23, 2012, Petitioner submitted a complaint against
Mr. Carnahan to The Florida Bar for “ethical violations and possible criminal conduct.” In her ten-page verified complaint, Petitioner expressed that Mr. Carnahan prosecuted her daughter “for purely racial and political motives.” Petitioner complained of “overt and direct racial bias.” Petitioner further contended that when prosecuting her daughter, Mr. Carnahan, a white male, acted with “malice” and “racial animus” and “blatantly misrepresented the case law to the Court.”
On March 16, 2012, Mr. Carnahan responded to Petitioner’s Bar complaint. In his written response, however, Mr. Carnahan went beyond simply denying Petitioner’s allegations. He pronounced his own complaints about Petitioner’s behavior during the juvenile proceeding and urged The Florida Bar to examine her conduct. Mr. Carnahan declared that Petitioner misquoted the speedy-trial rule and misrepresented its meaning to Judge Takac. In addition, Mr. Carnahan reported that when Petitioner quoted the Terry case in her memorandum of law,
Petitioner failed to disclose that the portion of the case from which she recited was a concurring opinion. Mr. Carnahan further recounted that Petitioner lied under oath to Judge Takac during her daughter’s probation violation hearing when she represented that she told the probation officer that she did not know her daughter’s location. Finally, Mr. Carnahan declared that Petitioner called him a “racist” in open court.
On July 16, 2012, Mr. Carnahan submitted additional information to The Florida Bar supplementing his statement against Petitioner. Mr. Carnahan elaborated on two instances of unethical and/or dishonest conduct by Petitioner. Mr. Carnahan expanded on his allegations that Petitioner: 1) intentionally misrepresented the speedy trial rule “in a calculated way to mislead the reader (Court) on the law,” and 2) made “a clearly false statement under oath to presiding Judge Michael B. Takac concerning the nature of her daughter’s first absconding from supervision.”
On June 19, 2012, Judge Takac issued his ruling on Petitioner’s Motions to Disqualify in the civil matter in an Order entitled:
Order Finding “Motion(s) to Disqualify Trial Judge for Cause” Legal Insufficient; Striking Said Motions (Filed 3/8/12 & 5/22/12); Requiring Clerk to Forward Copy of Order to the Florida Bar, and Requesting Assignment to Appropriate Circuit Judge for Further Prosecution.”
Judge Takac denied both Petitioners’ Motions to Disqualify as “sham pleadings of scurrilous content.” Judge Takac found Petitioner’s motion filed on March 8, 2012, to be legally insufficient. Judge Takac commented that Petitioner’s second motion filed on May 22, 2012, “mimics the previous motion in all respects except for its lack of candor for contradiction, or omitting, the essential date upon which [Petitioner] claims to
have first learned of this case’s reassignment to the undersigned Judge.”
In his Order, Judge Takac also commented that Petitioner’s first motion accused him of “depart[ing] from the essential requirements of justice purely based on perceived racial animus, profiling and political motives in prosecuting this [child’s juvenile] case.”9/ Judge Takac further remarked that:
The content of the rambling, illogical, inconsistent “motions” are rife with adjective, invective and accusations, but short on fact(s), and constitute either a display of ineptitude, or calculated violation of professional conduct rules, that require submission to the Florida Bar for consideration of appropriate sanction(s) against [Petitioner].
On June 25, 2012, Judge Takac submitted a copy of his Order to The Florida Bar. In his cover letter, Judge Takac stated that his Order included his charges against Petitioner “for unethical and unprofessional conduct that violated the Rules of Professional Conduct of the Rules Regulating the Florida Bar.”
Upon receiving the complaints by and against Petitioner, The Florida Bar assigned the matter to Bar Counsel JoAnn Stalcup (now deceased), who worked in The Florida Bar’s Orlando Branch. As Bar Counsel, Ms. Stalcup investigated each complaint that was assigned to her. Her responsibilities included gathering evidence to determine whether the attorneys’ alleged misconduct violated
Bar Rules. If Ms. Stalcup concluded that the evidence substantiated the allegations, she would forward the complaint to a grievance committee. If evidence did not verify the veracity of the complaint, or if the complained-of conduct did not constitute a violation of Bar Rules, Ms. Stalcup was authorized to dismiss the complaint without further inquiry.
After an investigation, Ms. Stalcup dismissed Petitioner’s complaint against Mr. Carnahan. As she explained in a letter to Petitioner dated November 19, 2012, Ms. Stalcup found the “objective evidence is insufficient to support a finding of attorney misconduct on the part of Mr. Carnahan.” Ms. Stalcup wrote that “upon careful review of all the objective evidence,
. . . there is nothing in the objective evidence which would support a determination that Mr. Carnahan, as the prosecutor in the case, violated the law in pursuing the prosecution of [Petitioner’s] daughter.” Ms. Stalcup further found that no evidence in the record supported Petitioner’s claim that
Mr. Carnahan’s actions were “based on racial animus or prosecutorial misconduct,” or that “the ruling of the trial court was based upon [Petitioner’s] daughter’s race.” Ms. Stalcup concluded that:
[T]he objective evidence simply does not support a finding that there was racial animus involved in this prosecution, that Mr. Carnahan engaged in any type of profiling or prosecutorial misconduct, that he
disparaged either you or your daughter during this matter, or that he used the law improperly or for an improper purpose.
On the other hand, following her investigation of Mr. Carnahan’s complaint against Petitioner, Ms. Stalcup
determined that the objective evidence sufficiently substantiated the allegations of misconduct on the part of Petitioner.
Therefore, Ms. Stalcup forwarded Mr. Carnahan’s complaint to a Florida Bar grievance committee.
A grievance committee is composed of individuals nominated from The Florida Bar’s Board of Governors. Each Board of Governors member is assigned to sit on a grievance committee. Grievance committees are comprised of both lawyers and non- lawyers. At least one-third of the committee members must be non- lawyers. Once Bar Counsel sends a complaint to a grievance committee, the Bar Counsel works with the committee to investigate the complaint.
The purpose of a grievance committee is to determine whether probable cause exists to believe that the alleged misconduct, if true, would support a violation of Bar Rules. Thus, a grievance committee, not Ms. Stalcup, decides whether The Florida Bar pursues formal charges against a lawyer for alleged violations of Bar Rules.
The complaints against Petitioner from both Mr. Carnahan and Judge Takac were referred to the Eighteenth Judicial Circuit Grievance Committee “A” (the “Grievance Committee”).
Clayton Simmons served as the investigating member of the Grievance Committee. As the investigating member, Mr. Simmons was tasked with investigating the allegations in the complaints and presenting the results of his investigation to the Grievance Committee. Thereafter, he would remove himself from the Grievance Committee while the members deliberated on the evidence and voted on a finding of probable cause. Mr. Simmons explained that a “probable cause” finding means that, based on the evidence, the attorney “more likely, than not,” committed the alleged misconduct.
In his investigation, Mr. Simmons reviewed the complaints submitted against Petitioner. He also interviewed seven witnesses. These witnesses included Petitioner,
Mr. Carnahan, and Judge Takac, as well as the juvenile parole officer who had been assigned to Petitioner’s daughter’s case.
At the conclusion of Mr. Simmons’ investigation,
Ms. Stalcup prepared a Notice of Grievance Committee Review (the “Notice”), dated March 27, 2013. Ms. Stalcup sent the Notice to Barry Rigby, Petitioner’s attorney who represented her during The Florida Bar investigation. The Notice advised Petitioner of the potential Bar Rule violations, as well as the documents and
evidence before the Grievance Committee. The Notice further advised Petitioner of her opportunity to make a written statement admitting, explaining, or refuting the alleged misconduct.
Petitioner elected not to appear before the Grievance Committee.
The Grievance Committee reviewed the documents and information Mr. Simmons gathered. Thereafter, following a vote of its members, the Grievance Committee found probable cause existed that Petitioner violated Bar Rules. At the final hearing,
Mr. Simmons testified that the race of Petitioner, Judge Takac, or Mr. Carnahan had no bearing on his investigation or the Grievance Committee’s finding of probable cause.
Once the Grievance Committee found probable cause, Ms. Stalcup’s role shifted from “investigator” to “prosecutor.” In her new role, Ms. Stalcup drafted a formal complaint (the “Complaint”) against Petitioner.
Ms. Stalcup’s draft Complaint was reviewed at two supervisory levels at The Florida Bar. First, Jan Wichrowski, Ms. Stalcup’s direct supervisor and the Orlando office’s Chief Branch Discipline Counsel, reviewed the Complaint. At the final hearing, Ms. Wichrowski relayed that she carefully examined the draft Complaint and compared it to the Notice to ensure that the Complaint included only those alleged rule violations for which the Grievance Committee found probable cause.
Next, Ms. Stalcup’s draft Complaint was forwarded for approval by Kenneth Marvin, then Director of Lawyer Regulation and Staff Counsel for The Florida Bar. Mr. Marvin testified that after receiving the Complaint, he personally discussed the allegations with Ms. Stalcup. He, too, felt that the allegations accurately reflected the Grievance Committee findings.
Both Ms. Wichrowski and Mr. Marvin found the Complaint was based only on the allegations considered by the Grievance Committee. Both individuals testified that the Complaint against Petitioner was not drafted to retaliate against her for filing a complaint against Mr. Carnahan.
Once the Grievance Committee found probable cause, the complaint process moved to The Florida Bar Board of Governors’ Disciplinary Review Committee (the “Review Committee”). The Review Committee is comprised of over half the Board of Governors. This committee is authorized to either overrule or stand by the Grievance Committee’s probable cause finding.
The Review Committee examined the Grievance Committee’s findings. The Review Committee agreed that probable cause existed to believe that Petitioner violated Bar Rules.
At that point, the Complaint against Petitioner was forwarded to the entire Florida Bar Board of Governors to consider the probable cause recommendation. The Board of Governors also
accepted the Grievance Committee’s recommendation that probable cause existed that Petitioner violated Bar Rules.
On June 26, 2013, The Florida Bar formally filed the Complaint with the Supreme Court charging Petitioner with violating Bar Rules. The Complaint specifically alleged that Petitioner violated Rule 4-3.1 (based on Petitioner’s misstatement of Florida Rule of Criminal Procedure 3.191(p) related to speedy trial); Rule 4-3.3(a) (based on her false statements to her daughter’s probation officer, as well as to Judge Takac); Rule 4-3.5(c) (for engaging in disruptive conduct); Rule 4-8.4(c) (for conduct involving dishonesty, deceit, or misrepresentation); and Rule 4-8.4(d) (for conduct that is prejudicial to the administration of justice including disparaging court personnel or other lawyers).
The Supreme Court appointed Judge Thomas Jaworski of the Eighth Judicial Circuit as the Referee to conduct a disciplinary proceeding to consider The Florida Bar’s Complaint against Petitioner. As Referee, Judge Jaworski was tasked to make findings of fact and a recommendation to the Supreme Court regarding the charges brought against Petitioner. The standard
of proof in a disciplinary hearing is clear and convincing evidence. Judge Jaworski was not an employee of The Florida Bar.
A hearing was held before Judge Jaworski on November 12 and 13, 2013. Ms. Stalcup represented The Florida Bar.
Mr. Rigby represented Petitioner. Petitioner, Mr. Carnahan, and Judge Takac all testified at the hearing.
On February 4, 2014, Judge Jaworski notified Petitioner and The Florida Bar that he found Petitioner guilty of violating Bar Rules.
On March 17, 2014, Judge Jaworski conducted a separate hearing to consider the appropriate sanctions for Petitioner based on his findings. Petitioner testified at the sanctions hearing.
On April 30, 2014, Judge Jaworski issued a Report of Referee (the “Report”). As stated in the Report, Judge Jaworski found that The Florida Bar proved, by clear and convincing evidence, that Petitioner violated Rules 4-3.3(a)(1), 4-8.4(c), and 4-8.4(d).10/ (Judge Jaworski did not find that Petitioner violated Rules 4-3.1 and 4-3.5(c).) Judge Jaworski specifically ruled that Petitioner “made knowing and deliberate misrepresentations during the juvenile proceeding and civil proceedings.” Judge Jaworski remarked that:
The evidence clearly and convincingly establishes that the manner in which [Petitioner] chose to change the words of the [speedy trial] rule was in an unethical attempt to alter not only the meaning of the rule but also the manner in which the trial court would be required to rule.
Judge Jaworski further concluded that Petitioner “knowingly or with callous indifference disparaged the prosecutor, the trial judge, and the appellate court.” Regarding the
appellate court, Judge Jaworski found that Petitioner’s statement in a Petition for Habeas Corpus she filed with the Supreme Court “was a misrepresentation of the actions of the Fifth District Court of Appeal.” Judge Jaworski explained that Petitioner’s “assertions that the appellate court failed to perform its duty, without providing any objective factual basis for such assertions, was disparaging to the court. Respondent’s actions in this regard were prejudicial not only to the individuals involved, but were also highly prejudicial to the legal system.”
Judge Jaworski determined that Petitioner should be suspended for 91 days. Judge Jaworski further concluded that, prior to reinstatement, Petitioner should: 1) be required to be evaluated by a mental health professional approved by Florida Lawyers Assistance, Inc., to determine that she is fit to practice law with reasonable skill and safety; and 2) pay The Florida Bar’s costs of $5,595.45 for the proceedings.11/
Judge Jaworski filed his Report with the Supreme Court.
His Report, as well as the recommended factual findings and discipline contained therein, was not final until approved by the Supreme Court.
As expressed in Article V, section 15 of the Florida Constitution, the Supreme Court is the ultimate arbiter of attorney discipline. As such, the Supreme Court reviews every Report of Referee from an attorney disciplinary hearing. The
Supreme Court has absolute discretion to accept, modify, or reject a Report of Referee. See R. Regulating Fla. Bar 3-7.10.
On June 27, 2014, Petitioner filed a Notice with the Supreme Court of her intent to seek review of Judge Jaworski’s Report. On September 26, 2014, Petitioner filed her Initial Brief with the Supreme Court. The Supreme Court declined to allow oral argument.
On March 31, 2015, the Supreme Court issued the Suspension Order approving the findings and recommendations of Judge Jaworski. Regarding the discipline to be imposed, however, the Supreme Court elected to increase the length of Petitioner’s suspension to six months “in light of the serious rule violations.” The suspension was effective 30 days from the date of the Suspension Order. The Supreme Court agreed with
Judge Jaworski that, prior to applying for reinstatement, Petitioner must undergo a mental health evaluation by a mental health professional approved by Florida Lawyers Assistance, Inc., as well as pay costs to The Florida Bar in the amount of
$5,595.45. All Supreme Court Justices concurred with the opinion. See Fla. Bar v. Henry, 168 So. 3d 230 (Fla. 2015).
Petitioner asserts that The Florida Bar discriminated against her by applying the Bar Rules differently to black members, as opposed to white members. Specifically, Petitioner, a black woman, was treated differently than a white member of The
Florida Bar (Mr. Carnahan) who she accused of violating Bar Rules.
Petitioner contends that The Florida Bar (Ms. Stalcup) did not investigate her complaint against the white prosecutor. Conversely, The Florida Bar did investigate the white lawyer and the white judge’s complaints against her. In consequence, Petitioner asserts that The Florida Bar discriminated against her because The Florida Bar “did not discipline a white licensee against whom [Petitioner] filed an ethics complaint but instead disciplined [Petitioner] who is black.” As Petitioner described it, a black lawyer files an ethics complaint against a white lawyer, and the only person punished is the black lawyer. It appeared to Petitioner that the black lawyer was disciplined simply for making a complaint about a white lawyer relating to racial animus. Consequently, Petitioner asserts that The Florida Bar promotes a culture that a lawyer cannot complain of racial discrimination without facing punitive action and being accused of incompetency.
Petitioner testified that, as a member of The Florida Bar, she had a responsibility to bring her complaint against Mr. Carnahan. Petitioner explained that a lawyer who becomes aware that a fellow lawyer or a judge has committed an act in
violation of the rules of ethical conduct is obligated to report
that violation to The Florida Bar. For support, Petitioner cited Rules Regulating the Florida Bar 4-8.3.
Regarding her motions against Judge Takac, Petitioner asserts that she exercised her right to disqualify a circuit court judge for perceived prejudice in accordance with Florida law. See § 38.10, Fla. Stat. However, despite writing that “the Court departed from the essential requirements of Justice purely based on perceived racial animus” in her Motions to Disqualify, Petitioner denies that she “expressly or indirectly called Judge Takac a racist.” Petitioner insisted that if The Florida Bar believed that she accused Judge Takac of racial prejudice, it misinterpreted her motivation for filing her motions.
Petitioner alleges that she experienced numerous references to her race and her child’s race during The Florida Bar’s investigation. Petitioner also asserts that she suffered verbal censure of a racial nature. Petitioner specifically recounted that a member of the Grievance Committee informed her that during the Grievance Committee’s consideration of her alleged violations, it concluded that she (Petitioner) “played the race card.” This comment established in Petitioner’s mind that The Florida Bar based its decision to prosecute her on her race.
Petitioner alleges retaliation because after she complained about racial harassment and discrimination, The
Florida Bar “carried out a long campaign of discrimination and retaliation after [she], a black woman, dared to question the ethics of a white male Assistant State Attorney and a white male Judge.” Petitioner maintains that The Florida Bar, by and through its employees and agents, threatened her, harassed and intimidated her, and retaliated against her for raising ethics complaints alleging racial animus and exercising her right to seek an impartial judge.
Petitioner asserts that she was placed on trial because of her race. Petitioner expressed that The Florida Bar disciplined her for personal vindication and retribution because she complained of racial discrimination and an unjust criminal justice system.
Petitioner testified that The Florida Bar’s discriminatory acts led to the loss of her job. At the time of the Supreme Court’s Suspension Order, Petitioner was employed by a private employer. (Petitioner has never been employed by The Florida Bar.) Petitioner’s employer terminated her shortly after the Supreme Court suspended her license. Furthermore, the Supreme Court’s Suspension Order, as well as the Referee’s Report, were posted online. By doing so, Petitioner alleges that The Florida Bar defamed her character and soiled her reputation.12/
Petitioner asserts a claim of disability discrimination because one of the Supreme Court’s conditions for reinstatement requires her to receive a mental health evaluation.
Consequently, the Suspension Order “stigmatized [her] as someone with a mental disability.” Petitioner interprets this condition as the Supreme Court’s declaration that she is mentally unfit.
Petitioner denies that she suffers from a mental disability or any other handicap.
As of the date of the final hearing, Petitioner has not petitioned the Supreme Court for reinstatement of her license to practice law. Neither has Petitioner submitted to a mental health evaluation or paid costs to The Florida Bar. At the final hearing, Petitioner testified that she has no intention of complying with either requirement. Petitioner expressed that the suspension the Supreme Court imposed was not fair and an “injustice.” She staunchly maintained that she has done nothing wrong. Therefore, she was not going to apologize or show remorse for exercising her constitutional rights.
Following the conclusion of the final hearing, Petitioner maintained (as she did throughout the proceedings) that Mr. Carnahan discriminated against her, retaliated against her, and interfered with her constitutional rights; Judge Takac’s Order on her Motions to Disqualify was unlawful, violated Florida statutes and case law, and violated her constitutional rights;
and the Supreme Court Suspension Order was a “cursory, conclusory, unelaborated” order that conflicts with the law and Bar Rules. At the final hearing, Petitioner pronounced that she is the victim in this proceeding.
Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that The Florida Bar discriminated against Petitioner based on race or disability. Neither did The Florida Bar retaliate against Petitioner based on her exercise of a protected action. Accordingly, Petitioner failed to meet her burden of proving that The Florida Bar discriminated against her in violation of the FCRA.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y-4.016.
Petitioner brings this matter alleging that The Florida Bar discriminated against her in violation of the FCRA. Section 760.10(5) states:
Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, . . . or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, . . . or seeking to take or pass
such examination, because of such other person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
Initially, The Florida Bar asserts that the Commission lacks jurisdiction to consider Petitioner’s cause of action under the FCRA under the separation of powers doctrine. See Art. II,
§ 3, Fla. Const. The Florida Bar argues that any action by the Commission on Petitioner’s claim would violate the Florida Constitution’s grant of exclusive authority to the Supreme Court to regulate matters involving attorney discipline. The undersigned concludes that, to the extent Petitioner is attempting to use the Commission’s statutory powers to reverse the Supreme Court’s decision to suspend her license to practice law, The Florida Bar’s position is well made.
Article V, section 15, of the Florida Constitution states that “[t]he Supreme Court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” In cases of attorney discipline, the Supreme Court “bears the ultimate responsibility of ordering the appropriate sanction.” Fla. Bar
v. Buckle, 771 So. 2d 1131, 1134 (Fla. 2000). See also Abdool v.
Bondi, 141 So. 3d 529, 548 (Fla. 2014)(The Supreme Court “retains exclusive constitutional authority to regulate the admission and discipline of individuals who are admitted to the Bar.”); and Fla.
Bar v. Massfeller, 170 So. 2d 834, 838 (Fla. 1964)(“The
independence of the Courts of the other two coordinate and equal branches of our state government does not permit of any interference by either of said branches in the exercise by the Courts of this state of their inherent and constitutional power to discipline members of the Bar.”).
The separation of powers doctrine prevents any agency of the executive branch, including the Commission, from infringing upon the powers of the Supreme Court. Similarly, the Commission cannot regulate The Florida Bar, as an official arm of the Supreme Court, in its implementation of the discipline the Supreme Court imposes on a member of the Florida Bar. Consequently, the Commission lacks jurisdiction to determine the merits of Petitioner’s challenge to the Supreme Court’s decision to suspend her license.
Accordingly, because the Supreme Court has the exclusive constitutional authority to regulate the discipline of individuals who are admitted to practice law in Florida, the FCRA does not bestow upon the Commission (or DOAH) jurisdiction to review the correctness of the Supreme Court’s Suspension Order, or grant Petitioner the relief from the sanction imposed.13/ Any attempt to do so would violate the Florida Constitution’s separation of powers clause.
Furthermore, the undersigned finds that based on the facts found in this matter, Petitioner cannot assert a cause of action against The Florida Bar under section 760.10(5).
Despite Judge Bogan’s Order finding that Petitioner did not state a cause of action for an unlawful employment practice under section 760.10, the Commission assumed jurisdiction to investigate Petitioner’s allegations of discrimination. (See
Marie Louise Henry v. The Florida Bar, DOAH Case No. 16-0981,
Order Closing File and Relinquishing Jurisdiction (April 1, 2016), endnote 2, for the procedural history of this matter). The Commission’s decision appears to have rested on Petitioner’s representation that the Supreme Court’s Suspension Order “placed the Bar in [the] capacity of deciding if I regain my license.”
Based on the evidence and testimony gathered in the final hearing, this statement is not correct.
As indicated above, the Supreme Court, not The Florida Bar, determines whether a lawyer may be reinstated to membership in good standing in The Florida Bar. See R. Regulating Fla. Bar 3-7.10(a). A petition for reinstatement must be filed with the Supreme Court. R. Regulating Fla. Bar 3-7.10(a)(1) and
3-7.10(l)(2). Upon receiving a petition, the Chief Justice of the Supreme Court will refer the petition to a referee to conduct a hearing. R. Regulating Fla. Bar 3-7.10(d).
The referee, not The Florida Bar, “must decide the fitness of the petitioner to resume the practice of law.”
R. Regulating Fla. Bar 3-7.10(f). Following a hearing, if the referee finds that the petitioner is fit to resume the practice of law:
the referee will enter a report recommending, and the [Supreme] court may enter an order of, reinstatement of the petitioner in The Florida Bar; provided, however, that the reinstatement may be conditioned on the payment of all or part of the costs of the proceeding . . . and, if suspension or incapacity of the petitioner has continued for more than 3 years, the reinstatement may be conditioned on proof of competency as may be required by the judgment in the discretion of the Supreme Court of Florida.
R. Regulating Fla. Bar 3-7.10(j).
The role of The Florida Bar in a reinstatement proceeding is limited to appointing Bar Counsel to represent The Florida Bar at the referee hearing. See R. Regulating Fla. Bar 3-7.10(d). Nowhere in the Florida Constitution or the Bar Rules is The Florida Bar given the authority to decide whether a lawyer who has been disciplined by the Supreme Court should “regain” their license.
Further, a reading of the plain and unambiguous language of section 760.10(5) establishes that this section was not intended to apply to Petitioner. The facts found in the evidentiary hearing confirm what the Commission aptly stated in
its Determination: No Jurisdiction letter dated January 13, 2016 (as also confirmed by Judge Bogan in DOAH Case No. 16-0981), when it observed that:
before receiving the discipline in question, [Petitioner] already held a license to practice law and was already a practicing attorney. She was not seeking such a license, she was not seeking to become a member of the Florida Bar, and she was not seeking to take the bar examination when the alleged discriminatory act occurred.
Section 760.10(5) focuses on a person’s efforts to receive a license to engage in a profession or become a member of an organization. By its language, section 760.10(5) does not create a cause of action for a person who already possesses a license. In filing her discrimination claim against The Florida Bar, Petitioner is not “seeking to become a member” of The Florida Bar-–she already is one.14/ Therefore, based on the evidence in the record, section 760.10(5) does not provide the Commission (or DOAH) jurisdiction to consider Petitioner’s claim of discrimination against The Florida Bar based on the Supreme Court’s decision to sanction her (existing) Bar license. See Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008)(“To discern
legislative intent, a court must look first and foremost at the actual language used in the statute”; and Dep’t of High. Saf. & Motor Veh. v. Peacock, 185 So. 3d 632, 633 (Fla. 1st DCA
2016)(“The Legislature is assumed to know the meaning of the words
used in a statute and to have expressed its intent through the use of the words.”).
Because, as discussed above, the Commission cannot overrule the Supreme Court’s Suspension Order, the only viable claim Petitioner may possibly pursue under the FCRA is her allegation that The Florida Bar discriminated against her in the manner and method it investigated, then charged her, for violating Bar Rules. However, even if Petitioner could assert a valid cause of action against The Florida Bar, Petitioner did not prove that The Florida Bar discriminated against her.
The burden of proof in this administrative proceeding, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue. Dep’t of Transp. v.
J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); and also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &
Co., 670 So. 2d 932, 935 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”). See also Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009)(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)(The ultimate burden of proving discrimination rests at all times with the plaintiff.).
The preponderance of the evidence standard is applicable to this matter. See § 120.57(1)(j), Fla. Stat. 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. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
The FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended. Accordingly, Florida courts hold that federal decisions construing Title VII are applicable when considering claims under the FCRA. Harper v. Blockbuster Entm’t
Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela, 18 So.
3d at 21; and Fla. State Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996). See also Howard v. Walgreen Co., 605 F.3d
1239, 1244 n.4 (11th Cir. 2010)(“Because retaliation claims under the FCRA are substantively similar to Title VII retaliation claims, we use the same analysis for both claims.”); and Holly v.
Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007)(FCRA
claims are analyzed under the same standards as the ADA.).
Discrimination may be proven by direct, statistical, or circumstantial evidence. Valenzuela, 18 So. 3d at 22. Direct
evidence is evidence that, if believed, would prove the existence of discriminatory intent behind the employment decision without any inference or presumption. Denney v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001); and Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that “‘only the most blatant remarks, whose intent could be nothing other than to discriminate . . .’ will constitute direct evidence of
discrimination.” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted).
The facts found in this matter do not establish direct evidence of discrimination on the part of The Florida Bar. Petitioner argues that “direct evidence” is apparent in the comment communicated to her by a Grievance Committee member that she “played the race card.” Petitioner further asserts that “direct evidence” materialized in the underlying proceedings in which she heard “terms such as, “diabolical, pugnacious, scurrilous, and ‘proclivity’ to file complaints.” Petitioner asserts that these terms “coupled with the words (Race or Black) were used to describe Petitioner throughout orders issued by [Judge Jowarski], within the trial transcripts before [Judge Jowarski], and [Ms. Stalcup’s] 29 Page Report of Referee.” (The underlying record is unclear as to who actually spoke these terms.) Petitioner argues that, by using these words, “[e]mployees/agents of [The Florida Bar] painted an image of the stereotypical ‘angry black women’ and took adverse action.”15/
Even if these words were spoken by an “employee/agent” of The Florida Bar, these terms, without more, do not establish “direct evidence” that The Florida Bar discriminated against Petitioner in the manner in which it investigated and charged her with misconduct. See e.g., Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 809 (11th Cir. 2010)(it is a “bedrock
principle that not all objectionable conduct or language amounts to discrimination under Title VII.”); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000)(Title VII is not a
“general civility code.”); and Mitcham v. Univ. of S. Fla. Bd. of Trs., 71 F. Supp. 3d 1306, 1317 (M.D. Fla. 2014)(Offhand comments
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.).
Similarly, the record in this proceeding contains no statistical evidence of discrimination by The Florida Bar in its decision affecting Petitioner.
In the absence of direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial evidence of discrimination to prove her case. For discrimination claims involving circumstantial evidence, Florida courts follow the three-part, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973), and its progeny. See also Valenzuela, 18 So. 3d
at 21-22; and St. Louis v. Fla. Int’l Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011).
In a race discrimination action, a petitioner bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. To establish a prima facie case, Petitioner must show that: (1) she belongs to
a protected class (race); (2) she was qualified for her position;
(3) she was subjected to an adverse employment action; and (4) her employer (The Florida Bar) treated similarly-situated employees outside of her protected class more favorably than she was treated. See McDonnell Douglas, 411 U.S. at 802-04; Burke-Fowler
v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006).
Demonstrating a prima facie case is not difficult, but rather only requires Petitioner “to establish facts adequate to permit an inference of discrimination.” Holifield, 115 F.3d at 1562.
If Petitioner establishes a prima facie case, she creates a presumption of discrimination. At that point, the burden shifts to The Florida Bar to articulate a legitimate, non- discriminatory reason for taking the adverse action. See Valenzuela, supra, at 22. The reason for The Florida Bar’s
decision should be clear, reasonably specific, and worthy of credence. See Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186
(Fla. 1st DCA 1991). The Florida Bar has the burden of production, not the burden of persuasion, to demonstrate to the finder of fact that the decision was non-discriminatory. See
Flowers v. Troup Cnty. 803 F.3d 1327, 1336 (11th Cir. 2015).
This burden of production is “exceedingly light.” Holifield, 115
F.3d at 1564.
If The Florida Bar meets its burden, the presumption of discrimination disappears. The burden then shifts back to Petitioner to prove that The Florida Bar’s proffered reason was not the true reason but merely a “pretext” for discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997); Valenzuela, 18 So. 3d at 25.
In order to satisfy this final step of the process, Petitioner must show “directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the . . . decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 252-256 (1981)). The
proffered explanation is unworthy of belief if Petitioner demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538;
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Petitioner must prove that the reasons articulated were false and that the discrimination was the real reason for the action. City of Miami
v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary's Honor Ctr., 509 U.S. at 515)(“[A] reason cannot be
proved to be ‘a pretext for discrimination’ unless it is shown
both that the reason was false, and that discrimination was the
real reason.”).
Despite the shifting burdens of proof, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1089, 67 L. Ed. 2d 207; Valenzuela, 18 So. 3d at 22.
Applying the burden-shifting analysis to the facts found in this matter, Petitioner did not meet her burden of proving that The Florida Bar discriminated against her based on her race. Petitioner presented sufficient evidence to establish the first three prongs of the prima facie case. Petitioner belongs to a protected class (minority race). Further, although Petitioner is suspended from practicing law, she still possesses a license. Therefore, should the suspension be lifted, Petitioner has the ability to return to work as a lawyer.
Regarding the third prong, the Supreme Court, not The Florida Bar, suspended Petitioner’s license. However, The Florida Bar did investigate Petitioner and ultimately found probable cause to charge Petitioner with violating Bar Rules.
The Florida Bar’s decision to prosecute Petitioner for misconduct is an “adverse” action.
However, Petitioner failed to establish that The Florida Bar treated similarly situated lawyers outside of her
protected class more favorably. For purposes of establishing a prima facie case, “[w]hen comparing similarly situated individuals to raise an inference of discriminatory motivation, these individuals must be similarly situated in all relevant respects.” Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1273
(l1th Cir. 2004). The standard is a “fairly rigorous one.” Rioux v. City of Atlanta, 520 F.3d 1269, 1281 (11th Cir. 2008);
Holifield, 115 F.3d at 1562. In determining whether a comparator
is similarly situated, courts inquire “whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006); See also Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984)(“[T]he
misconduct for which [the petitioner] was discharged [must be] nearly identical to that engaged in by an employee outside the protected class whom the employer retained.”).
Petitioner offers Mr. Carnahan as the “similarly- situated” individual who The Florida Bar treated more favorably than her. Petitioner argues that since The Florida Bar did not prosecute Mr. Carnahan (a white male) based on her allegations, it unlawfully discriminated against her.
However, Petitioner’s argument is not persuasive.
First, the evidence in the record does not establish that The Florida Bar treated Mr. Carnahan differently. The Florida Bar
did not ignore Petitioner’s complaint against Mr. Carnahan. The Florida Bar addressed Petitioner’s complaint alleging racial animus in the same manner that it does all Bar complaints. The Florida Bar dutifully assigned the matter to Bar Counsel
(Ms. Stalcup) to investigate.
The evidence in the record also demonstrates that Ms. Stalcup investigated the complaints against Mr. Carnahan, as well as his complaint against Petitioner, with equal diligence and thoroughness. Petitioner did not show that Ms. Stalcup investigated Mr. Carnahan in a different manner or employed a lighter standard than that used to investigate Petitioner. Petitioner did not produce any documents or evidence that
Ms. Stalcup intentionally ignored. Neither did Petitioner identify any witnesses that Ms. Stalcup purposefully overlooked in reaching her conclusion that the “objective evidence” did not support a finding of racial animus on the part of Mr. Carnahan. Just because Ms. Stalcup did not find that the evidence substantiated unethical conduct against Mr. Carnahan does not automatically mean that she investigated him differently, or that his race factored into how she performed her responsibilities.
Second, Mr. Carnahan was not “similarly situated in all relevant respects” to Petitioner. Mr. Carnahan was not charged with the same misconduct (racial animus) as Petitioner (misrepresentation to the court and disparaging a prosecutor and
trial judge). Therefore, Petitioner cannot fairly compare Ms. Stalcup’s conclusion that the objective evidence did not support charges against Mr. Carnahan, while Ms. Stalcup
determined that separate, independent evidence supported charges against Petitioner. Consequently, Petitioner did not identify a similarly situated, non-minority attorney who The Florida Bar treated more favorably than she was treated.
Accordingly, based on the competent substantial evidence in the record, Petitioner failed to prove a prima facie case of discrimination by circumstantial evidence.
Notwithstanding the above, assuming, arguendo, that Petitioner did establish a prima facie case of discrimination, The Florida Bar articulated a legitimate, non-discriminatory reason for charging Petitioner with misconduct. The Florida Bar’s burden to refute Petitioner’s prima facie case is light. The Florida Bar met its burden by establishing that it prosecuted Petitioner based on its determination that the objective evidence established probable cause to believe that Petitioner violated the Bar Rules.
Before The Florida Bar filed the formal Complaint against Petitioner with the Supreme Court, the allegations against Petitioner were independently reviewed by:
1) Ms. Stalcup, 2) the members of the Grievance Committee,
3) Ms. Wichrowski and Mr. Marvin, and 4) the Discipline Review
Committee. At the end of this process, The Florida Bar Board of Governors approved the recommendation to charge Petitioner with misconduct. The Florida Bar “employees/agents” determined that based on the underlying facts, probable cause existed that Petitioner misrepresented the law and made false statements to a trial judge, as well as unjustifiably accused a prosecutor of racial animus. Accordingly, The Florida Bar presented a nondiscriminatory and nonretaliatory reason why it investigated, then filed a formal Complaint against, Petitioner for alleged misconduct.
Completing the McDonnell Douglas burden-shifting analysis (again, assuming that Petitioner made a prima facie showing of discrimination), Petitioner did not prove, by a preponderance of the evidence, that The Florida Bar’s stated reasons for investigating and prosecuting her were not its true reasons, but were a “pretext” for discrimination.
The evidentiary record in this proceeding does not support a finding or conclusion that The Florida Bar’s proffered explanation for prosecuting Petitioner was false or not worthy of credence. The Florida Bar received two separate complaints against Petitioner alleging that she: 1) misrepresented facts and the law to a trial judge and 2) unjustifiably accused a state prosecutor and a judge of racial bias and motives. The Florida Bar (through Ms. Stalcup) investigated the complaints and found
probable cause that Petitioner violated Bar Rules. The evidence in the record establishes that The Florida Bar’s decision to file a formal Complaint against Petitioner was credibly based on objective evidence.
Petitioner posits that the fact that The Florida Bar did not charge the white attorney with misconduct establishes “pretext” for discrimination. However, just because Ms. Stalcup did not find that the evidence substantiated Petitioner’s complaint that a white attorney engaged in racial animus does not axiomatically mean that discrimination was the real reason The Florida Bar pursued charges against her. Further, just because The Florida Bar’s “employees/agents” did not reject
Mr. Carnahan’s statements as untruths (as Petitioner repeatedly insists they are) does not mean that “the entire process was biased against” her. As Mr. Simmons aptly expressed to Petitioner at the final hearing, the Grievance Committee “didn’t find probable cause because you had made race part of your daughter’s trial. We found probable cause because Mr. Carnahan alleged that you misrepresented the law to Judge Takac. . . .
The probable cause finding had nothing to do with race.”
As further evidence that The Florida Bar’s proffered explanation for filing a Complaint against Petitioner was not “unworthy of credence,” the charges against Petitioner were independently reviewed and substantiated by Judge Jaworski and
the Supreme Court. Both entities separately concluded that Petitioner’s conduct during the juvenile proceedings and her civil matter violated Bar Rules.
The facts found in this matter do not support Petitioner’s position that The Florida Bar’s proffered reason for investigating, then prosecuting, Petitioner was a “pretext” for discriminating against her on the basis of her race. Consequently, Petitioner has not met her burden of producing circumstantial evidence of discrimination by The Florida Bar.
Further, Petitioner’s claim that The Florida Bar discriminated against her based on her (perceived) disability and in retaliation for her Bar complaint fail for the same reasons expressed above. To state a prima facie claim for disability discrimination, Petitioner must show that: 1) she is disabled,
2) she was a “qualified individual,” and 3) she was discriminated against because of her disability. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); and Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016).16/
Petitioner argues that The Florida Bar (and the Supreme Court) discriminated against her because it perceived her as having a mental disability. Petitioner bases this claim on the fact that the Supreme Court required Petitioner to receive a mental health evaluation prior to reinstatement of her license. However, Petitioner presented no evidence that the Florida Bar
(or the Supreme Court) investigated, prosecuted, or disciplined Petitioner because it actually perceived or regarded her as having a mental disability.
Neither did Petitioner meet her burden of proving that The Florida Bar retaliated against her based on her complaint of racial animus.17/ The Florida Bar’s investigation of Petitioner stemmed from the two separate complaints brought by Mr. Carnahan and Judge Takac. Neither person was an agent or employee of The Florida Bar. The Florida Bar did not formally charge Petitioner with misconduct until after the Grievance Committee reviewed the evidence and determined that probable cause existed that Petitioner violated Bar Rules. The evidence in the record does not establish that The Florida Bar prosecuted Petitioner just because she filed a Bar complaint against Mr. Carnahan (a white male). Accordingly, Petitioner did not meet her ultimate burden of proving that The Florida Bar’s investigation and prosecution of her were motivated by unlawful discriminatory reasons.
In sum, the evidence on record does not support Petitioner’s claim that The Florida Bar discriminated against her based on her race, (perceived) disability, or in retaliation for a protected activity. Further, no credible evidence shows that The Florida Bar treated similarly situated, non-minority members differently, or that The Florida Bar’s stated reason for charging Petitioner with violating Bar Rules was a “pretext” for
discrimination. Because Petitioner failed to put forth sufficient evidence that The Florida Bar had some discriminatory animus motivating its investigation and/or prosecution, her Petition for Relief must be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s petition for lack of jurisdiction due to the Supreme Court’s exclusive constitutional jurisdiction over attorney discipline.
Alternatively, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order concluding that Respondent, The Florida Bar, did not commit discrimination or retaliation against Petitioner, and dismissing her Petition for Relief.
DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida.
S
J. BRUCE CULPEPPER Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.
ENDNOTES
1/ All statutory references are to Florida Statutes (2016), unless otherwise noted.
2/ This case is the second time Petitioner’s claim has come before DOAH. This matter has an extensive procedural history.
On March 31, 2015, the Florida Supreme Court issued an Order suspending Petitioner’s license to practice law for six months.
Petitioner reacted to the Supreme Court’s Order by filing a Charge of Discrimination with the Commission alleging that The Florida Bar discriminated against her.
On January 13, 2016, the Commission issued a Determination: No Jurisdiction stating that it had no jurisdiction under the FCRA to consider Petitioner’s claim. The Commission stated:
[Petitioner] argues that [the Commission] has jurisdiction under Section 760.10(5), Florida Statutes, but, before receiving the discipline in question, [Petitioner] already held a license to practice law and was already a practicing attorney. She was not seeking such a license, she was not seeking to become a member of the Florida Bar, and she was not seeking to take the bar examination when the alleged discriminatory act occurred.
On February 16, 2016, Petitioner filed a Petition for Relief with the Commission. That same day, the Commission forwarded the petition to DOAH.
Petitioner’s matter was designated as Case No. 16-0981 and assigned to Administrative Law Judge Linzie Bogan.
On April 1, 2016, Judge Bogan issued an Order Closing File and Relinquishing Jurisdiction. Reaching the same conclusion as the Commission, Judge Bogan determined that Petitioner did not have jurisdiction under the FCRA to pursue a discrimination claim against The Florida Bar. Judge Bogan found that:
In the [Commission’s] determination notice, the only reference made by [the Commission] to any factual issue is the statement that “[i]t is undisputed that [The Florida Bar] disciplined [Petitioner], in her capacity as a licensed attorney, by suspending her license . . . [and that there is no] apparent basis for jurisdiction to rest within [the Commission].”
Petitioner makes myriad legal arguments in her Petition for Relief. None of the arguments, however, suggest the existence of a dispute of material fact as to matters related to whether [the Commission] has jurisdiction to consider Petitioner’s claims of unlawful discrimination.
See Marie Louise Henry v. The Florida Bar, Case No. 16-0981 (Fla. DOAH Apr. 1, 2016).
In response to Judge Bogan’s Order, Petitioner submitted a letter to the Commission on April 7, 2016, arguing that she asserted a valid cause of action under the FCRA. Although Petitioner did not serve her letter on The Florida Bar, the Commission accepted Petitioner’s letter and treated it as an “exception” to Judge Bogan’s Order.
The Commission designated a panel to consider the action it should take on Judge Bogan’s Order. On June 23, 2016, the panel issued an Order Remanding Complaint of Discrimination to Commission’s Office of Employment Investigations for Investigation. The panel reversed the Commission’s determination on January 13, 2016, that it had no jurisdiction and reexamined Petitioner’s charge of discrimination.
The panel also directly rejected Judge Bogan’s Order.
Instead, the panel relied upon Petitioner’s (unsupported) claim that “the suspension of my license placed the Bar in [the] capacity of deciding if I regain my license” and theorized that section 760.10(5), Florida Statutes, prohibited The Florida Bar “from disciplining the license of an attorney in a discriminatory manner.” The panel remanded the matter to the Commission’s Office of Employment Investigations for further investigation into Petitioner’s complaints of discrimination.
3/ In this letter, the Commission (erroneously) stated that The Florida Bar “is the licensing authority for attorneys in the State of Florida. It is undisputed that [The Florida Bar] disciplined [Petitioner], in her capacity as a licensed attorney, by suspending her license.” As explained above, this assumption by the Commission is incorrect. The Florida Constitution grants the Supreme Court the exclusive authority to license and discipline attorneys in Florida.
4/ On July 27, 2016, despite issuing the Determination: No Reasonable Cause letter nine days earlier, the Commission also issued an Election of Rights form to Petitioner which indicated that the Commission had failed to determine whether there was reasonable cause for Petitioner’s complaint within 180 days of the filing of the complaint in accordance with section 760.11(8). Petitioner’s Petition for Relief filed with the Commission on July 29, 2016, establishes that Petitioner elected to proceed with a chapter 120 administrative hearing under section 760.11(4).
5/ See Fla. Admin. Code R. 28-106.216.
6/ At the final hearing, Petitioner vehemently argued that her daughter did not commit a crime. However, the validity of the criminal charge and prosecution is not germane to the issues in this discrimination matter. What is relevant is that the arrest occurred, and the wheels were set in motion which ultimately led to the Supreme Court’s decision to suspend Petitioner’s license.
7/ The Fifth District Court of Appeal reversed in part and remanded the case back to the trial court to address inconsistencies in the sentence regarding the length of curfew and probationary periods. See M.H.-R. v. State, 61 So. 3d 483 (Fla. 5th DCA 2011).
8/ Petitioner also filed a federal lawsuit, on behalf of her daughter, against the City of Mt. Dora and the police officers who arrested her daughter. Petitioner asserted a claim under
42 U.S.C. § 1983 alleging deprivation of her daughter’s civil rights, as well as state law claims for false arrest, false imprisonment, and assault and battery. This federal lawsuit was ultimately dismissed on the City of Mt. Dora’s motion to dismiss. See Henry v. City of Mt. Dora, No. 5:13-cv-528-Oc-30PRL, 2015
Dist. LEXIS 1930 (M.D. Fla. Jan. 8, 2015).
9/ The specific phrase Petitioner wrote in her first motion for disqualification reads:
It is deeply troubling that the Court departed from the essential requirements of Justice purely based on perceived racial animus, profiling and political motives in prosecuting this case.
10/ The completed text of the Bar Rules Petitioner was found to have violated are:
4-3.3(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
4-8.4 MISCONDUCT
A lawyer shall not:
* * *
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited by law or rule;
engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national
origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic; . . . .
11/ As part of Judge Jaworski’s determination of the appropriate recommended sanction, he identified an “aggravating factor” based on Petitioner’s refusal to acknowledge the wrongful nature of her conduct. Judge Jaworski specifically referenced a letter that Petitioner addressed to both the President and the Executive Director of The Florida Bar on December 30, 2013, following the disciplinary hearing. In his Report, Judge Jaworski remarked that Petitioner:
continued to assert during the final hearing, as well as during the sanction hearing, that the court and the prosecutor violated well established law and that their conduct was based upon racial animus and/or because of political motivations without providing any objective facts in support of her continued allegations. . . . Respondent fully failed to acknowledge and/or show any appreciation for the seriousness of the unethical conduct she engaged throughout the juvenile proceeding, the civil proceeding, and/or the bar proceeding.
In Petitioner’s letter, she interjected a number of comments encapsulating her experiences during the underlying proceedings including, “My daughter and I are the only victims”; “Mr. Carnahan prosecuted my thirteen year old daughter in violation of clearly established law”; “Mr. Carnahan provided false testimony to the tribunal”; Judge Takac “demonstrates an impermissible violation of my due process rights”; and “Judge Takac was not justified in his actions of issuing an Order.”
12/ Under Florida Rule of Judicial Administration 2.420(a), the public shall have access to all records of the judicial branch of government except as provided by rule. Pursuant to Florida Rule of Judicial Administration 2.420(c)(3)(B), complaints alleging misconduct against individuals licensed by the courts shall be confidential only until a finding of probable cause is established.
13/ The Florida Bar raises a cogent point regarding whether the Commission may provide Petitioner the relief she seeks, even if
she presents a meritorious claim. Section 760.11(7) states that, “If the administrative law judge finds that a violation of the [FCRA] has occurred, he or she shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay.”
If Petitioner’s objective in filing her FCRA claim is to spur the Commission into directing the Supreme Court to withdraw or void its Suspension Order, then Petitioner’s claim must fail based on the separation of powers doctrine discussed above. The Supreme Court was and is the ultimate decision-maker with respect to Petitioner’s license suspension.
Consequently, the undersigned is unaware of any “affirmative relief” he could recommend the Commission impose on The Florida Bar. Neither the Commission, nor The Florida Bar, have the authority to order the Supreme Court to rescind its Suspension Order or to reinstate Petitioner’s license to practice law in the state of Florida.
14/ The facts also do not establish that Petitioner is seeking to “regain” her license. Petitioner’s suspension ended on October 1, 2015. As of the date of the final hearing, however, Petitioner has taken no steps to petition the Supreme Court to reinstate her license. She adamantly testified that she has no interest in doing so.
15/ Petitioner also singles out, at length, Mr. Carnahan’s actions during her daughter’s juvenile proceedings as direct evidence of discrimination and retaliation. However,
Mr. Carnahan is not, nor has he ever been, an agent or employee of The Florida Bar or the Supreme Court. Neither does the evidence show that Mr. Carnahan participated in any decision by The Florida Bar or the Supreme Court to investigate, prosecute, or discipline Petitioner.
16/ Petitioner has not put forth any evidence demonstrating she has a “disability” as defined by the Americans with Disabilities Act (“ADA”). However, the ADA allows a plaintiff to proceed under a theory that she is “perceived as” being disabled if she is regarded as having a substantially limiting impairment that does not exist, or that there is a substantially limiting impairment when, in fact, the impairment is not so limiting.
See St. Johns Cnty. Sch. Dist. v. O’Brien, 973 So. 2d 535, 541 (Fla. 5th DCA 2007); 42 U.S.C. § 12101(a)(1); 29 C.F.R.
§ 1614.203(a)(5); and 29 C.F.R. § 1630.2(l)(1).
17/ To establish a prima facie case of retaliation, Petitioner must demonstrate that: (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013); Webb- Edwards v. Orange Cnty. Sheriff’s Off., 525 F.3d 1013, 1028 (11th Cir. 2008). See also § 760.10(7), Fla. Stat. The failure to satisfy any of these elements is fatal to a complaint of retaliation. Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir.
2004).
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399 (eServed)
Kevin D. Johnson, Esquire Johnson Jackson LLC
Suite 2310
100 North Tampa Street Tampa, Florida 33602 (eServed)
Marie Louise Henry Post Office Box 953521
Lake Mary, Florida 32795 (eServed)
Bridget E. McNamee, Esquire Johnson Jackson LLC
Suite 2310
100 North Tampa Street Tampa, Florida 33602 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 02, 2017 | Agency Final Order | |
| Aug. 11, 2017 | Recommended Order | Petitioner failed to establish jurisdiction to file a discrimination claim under the Florida Civil Rights Act. Furthermore, Petitioner failed to prove that she was subject to unlawful discrimination by Respondent. |
