GREGORY R. LULKOSKI,
vs.
Case No. 17-2385
Respondent.
St. Augustine, Florida, on October 30 and 31, 2017; November 1,
2017; December 6, 2017; and January 23, 2018, before W. David Watkins, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.
St. Augustine Florida 32095
For Respondent: Robert J. Sniffen
Jeffrey Douglas Slanker Sniffen & Spellman, P.A.
Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of
1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Petitioner filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (FCHR) on June 27, 2016, claiming that the First Coast Technical College (FCTC) retaliated against him for engaging in activity protected by the FCRA. Following its investigation, the FCHR rendered a “No Cause” determination on March 17, 2017.
On April 12, 2017, Petitioner filed a Petition for Relief requesting an administrative hearing regarding the FCHR’s No Cause determination pursuant to section 760.11(7).
The matter was referred to the Division of Administrative Hearings on April 19, 2017, and the undersigned subsequently issued a Notice of Hearing, setting the final hearing for October 30 and 31, 2017.
On May 10, 2017, the School Board filed a motion to dismiss, asserting that as a sponsor of a charter technical school it was immune from liability pursuant to section 1002.33(5)(b)1.h., Florida Statutes, that successor liability or other theories of liability did not attach to the actions of
FCTC and on the substance of Petitioner’s allegations. By Order dated September 21, 2017, the undersigned denied the Motion based upon disputed issues of fact that required the conduct of an evidentiary hearing.
The hearing went forward as scheduled over several consecutive and non-consecutive days beginning on October 30, 2017, and concluding on January 23, 2018.
At hearing, Petitioner testified on his own behalf and called two other witnesses: Cathy Mittelstadt, the School Board’s Deputy Superintendent of Operations; and Cathy Weber, the School Board’s Director of Salary and Benefits. Petitioner moved in evidence his Exhibits numbered 2, 3, 4, 6 through 9, 11
through 19, 21, 22.5, 23 through 31, 35, 36, 37, and 39, many of which were received over the objections of Respondent.
The School Board offered the testimony of Frank D. Upchurch, III, the School Board Attorney. It offered in evidence its Exhibits numbered 3, 4, 6 through 10, 12, 13, 15,
85, 86, 90, 94, and 100, many of which were received over objection by Petitioner.2/
The five-volume Transcript of the final hearing was filed on May 16, 2018. Thereafter, both parties filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order.
Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made:
Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school.
FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter.
The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own
articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart.
FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment.
FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service.
The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This
process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC.
Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address.
The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC.
During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the
sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school.
On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective
July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an
agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board.
Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint:
I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation.
Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class.
Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring
her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office.
In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board.
Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways
Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board.
Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law.
During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or
retaliation for complaining about discrimination based on a protected class.
Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner.
While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter of, and parties to, this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See § 120.57(1)(j), Fla. Stat.
The Florida Civil Rights Act, at section 760.10(7), prohibits retaliation in employment as follows:
(7) It is an unlawful employment practice for an employer . . . 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. (emphasis added).
Florida courts have held that because the Act is patterned after Title VII of the Civil Rights Act, as amended, federal case law dealing with Title VII is applicable. See
e.g., Fla. Dept. of Cmty. Aff. v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991).
The burden of proving retaliation follows the general rules enunciated for proving discrimination. Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
There is no direct evidence Respondent’s performance evaluation, some of which he disagreed with, or the change in assigned position, was in retaliation for Petitioner’s Complaint or the grievances he had filed.
To establish a prima facie case of discrimination in retaliation by indirect evidence, Petitioner must show:
(1) that he was engaged in statutorily protected expression or conduct; (2) that he suffered an adverse employment action; and
(3) that there is a causal relationship between the two events.
See Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997).
To be sure, the FCRA prohibits an employer from retaliating against an employee for engaging in protected activity; in the instant case, Petitioner did not establish that he engaged in activity protected by the statute.
The FCRA does not prohibit all misconduct in the workplace, but only discrimination that is motivated by a protected class, defined as a person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. § 760.10(1), Fla. Stat.
The FCRA provides that “[i]t is an unlawful employment practice for an employer . . . 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.” § 760.10(7), Fla. Stat. (emphasis added).3/ While Petitioner attempts to claim that his reporting of alleged workplace abuses at FCTC should serve as the protected conduct
in his retaliation claim, the applicable statutory provision references complaints made “under this section.” See
§ 760.10(7), Fla. Stat. Petitioner’s grievances alleging nepotism and a less than completely favorable performance evaluation were not complaints made “under this section.”
Petitioner only alleges that he engaged in “opposition clause” protected activity and this requires that he establish a subjective good faith belief that his employer engaged in an unlawful employment practice under employment discrimination law and that his belief was objectively reasonable in light of the facts. Little v. United Tech., Carrier Transicold Div.,
103 F.3d 956, 960 (11th Cir. 1997). The objective reasonableness must be measured against existing substantive law. Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1351
(11th Cir. 1999). A petitioner’s belief that a certain practice is discriminatory cannot be objectively reasonable "[w]here binding precedent squarely holds that particular conduct is not
. . . unlawful . . . and no decision of this [Circuit] or of the Supreme Court has called that precedent into question or undermined its reasoning." Butler v. Alabama Dep't of Transp.,
536 F.3d 1209, 1214 (11th Cir. 2008). Furthermore, a belief that there is a violation of anti-discrimination laws must be sufficiently clear from the complaint to put the employer on notice of that belief. See Murphy v. City of Aventura,
383 Fed.Appx. 915, 918 (11th Cir. 2010)(“A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.” (quoting EEOC Compl. Man. (CCH) §§ 8–II–B(2) (2006)) (internal quotation marks omitted)).
None of Petitioner’s alleged protected activity is objectively reasonable in light of existing law. Initially, while the Petitioner alleged at the hearing he was retaliated against due to filing numerous different grievances while employed at FCTC (eleven in total spanning May 2015 to
June 2016) he only pled in his Complaint that he was retaliated against due to his first two grievances. Petitioner is not permitted to enlarge the scope of this proceeding with allegations that were not made or within the scope of his complaint filed with FCHR. E.g. Viritti Jackson v. Dep’t of
Child. and Fam. Servs., Case No. 05-1243 (Fla. DOAH Sept. 16,
2005, FCHR Nov. 7, 2005)(holding that petitioner could not expand proceeding before Division of Administrative Hearings to include allegations of discrimination not previously contained in a charge of discrimination as those instances could not be a part of the administrative finding subject to review under Chapter 120).
Petitioner’s first grievance was filed on May 21, 2015. That grievance, fairly summarized, alleges that Petitioner was subjected to a hostile work environment by co- worker Will Waterman, who was not pleasant to him at times, and that the president of FCTC at the time, Sandra Raburn-Fortner, was engaging in nepotism by favoring friends and family for positions and special treatment. Nowhere in this grievance does Petitioner complain that he was being subjected to a hostile work environment because of a protected class. Nowhere in this grievance does Petitioner mention a protected class at all.
Petitioner filed his second grievance on June 30, 2015. This grievance, fairly summarized, alleges Renee Stauffacher included incorrect information in his evaluation because he named her in his first grievance. Nowhere in the second grievance does Petitioner mention any protected class or indicate he believed he or anyone else was being discriminated against on the basis of a class protected by the FCRA.
Ultimately, at the hearing, Petitioner admitted that he did not link any of the treatment that he personally suffered to any protected class. He did, however, contend that his complaints about Ms. Raburn-Fortner engaging in nepotism in hiring, and favoritism in the workplace, was a violation of equal employment opportunity laws because, as Petitioner put it, Ms. Raburn-Fortner’s favoritism towards her family and friends
deprived minority and other well qualified applicants access to employment opportunities. However, Petitioner identified no particular person in a protected class who was denied an employment opportunity, and he acknowledged that all protected classes were affected equally by Ms. Raburn-Fortner’s nepotism regardless of their protected class.
Petitioner’s complaints are not objectively reasonable because he did not allege that he was discriminated against on the basis of any protected class or otherwise complain or oppose any action that was a violation of employment discrimination law as measured against existing substantive law. Petitioner’s complaints that Ms. Raburn-Fortner engaged in nepotism in hiring that may have had the effect of excluding a minority applicant from a position is not objectively reasonable for the simple fact that Petitioner readily concedes that such employment decisions were not motivated by an animus towards any particular protected class, but rather were motivated by favoritism towards family and friends. While such favoritism may be an unfair practice, it is not illegal under the FCRA which only prohibits employment decisions that are motivated by animus towards a protected class. It is readily clear that the purported decisions motivated by nepotism were not motivated by animus towards a protected class here, as Petitioner himself conceded that the decisions affected all members of different protected
classes equally and that, essentially, the protected class was those that were not family or friends of Ms. Raburn-Fortner.
The Eleventh Circuit has repeatedly held that employment decisions motivated by nepotism are not violative of employment discrimination laws. Powell v. Am. Remediation &
Envtl., Inc., 618 F. App'x 974, 979 (11th Cir. 2015)(affirming trial court order dismissing case and holding that nepotism is not actionable under Title VII); Platner v. Cash & Thomas
Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990) (holding that taking employment action on the basis of nepotism was not discriminatory in violation of Title VII); Thompson v. Baptist Hosp. of Miami, Inc., 279 F. App'x 884, 888 (11th Cir.
2008)(holding that nepotism not to the detriment of a particular class was not discriminatory); Howard v. BP Oil Co., 32 F.3d
520, 527 (11th Cir. 1994)(reasoning nepotism that has an equal adverse impact on all protected classes is unlikely to conceal a discriminatory motive); Brown v. Am. Honda Motor Co., 939 F.2d
946, 952 (11th Cir. 1991)(holding that discrimination claim lacked merit because nepotism practice affected all protected classes equally).
Even if Petitioner’s other grievances that he filed while employed by FCTC and prior to the filing of the Complaint were considered, this determination would be the same. Petitioner only offered into evidence two additional grievances
which he labeled as his ninth and tenth grievances. He labeled each with a heading denoting that it purported to concern violations of equal employment opportunity laws. Both grievances were filed on June 13, 2016, and both allege that
Ms. Raburn-Fortner denied applicants a fair shot at positions at FCTC because she favored hiring friends and family whom he refers to as associates. For the same reasons previously set forth, these complaints are not objectively reasonable, and therefore they do not constitute protected activity.
Because Petitioner has not engaged in protected activity, he has not established a prima facie case of retaliation under the FCRA. Because he has not done so, the burden never shifts to Respondent to articulate its reasons for taking the challenged action. Pace v. S. Ry. Sys., 701 F.2d
1383, 1391 (11th Cir. 1983). Furthermore, to the extent Petitioner alleges he was subjected to a hostile work environment in retaliation for engaging in protected activity, this claim also fails because he did not engage in protected activity. Kelly v. Dun & Bradstreet, Inc., 641 F. App'x 922,
923 (11th Cir. 2016), cert. denied, 137 S. Ct. 2132, 198 L. Ed.
2d 199 (2017).
Respondent argues that, by statute, the School Board is immune from Petitioner’s alleged FCRA violations. Specifically, Respondent asserts that pursuant to section
1002.33(5)(b)1.h., the sponsor of a charter school shall not be liable for civil damages under state law for any employment actions taken by an officer, employee, agent, or governing body of the charter school. A charter technical center is a type of charter school that can be created pursuant to section 1002.34, Florida Statutes.
According to Respondent, during the entire time the alleged violations of the FCRA occurred, the School Board was the sponsoring entity of FCTC which operated independently from the School Board in accord with a charter contract between FCTI and the School Board. Therefore, all actions taken against the Petitioner were taken by employees or agents of FCTI, namely Sandra Raburn-Fortner, William Waterman, Stephanie Thomas, and Renee Stauffacher, rendering the School Board immune from liability for the alleged violations of the FCRA that these employees and agents of FCTI allegedly committed.
Finally, Respondent argues that even if the immunity prescribed by the Florida Legislature in section 1002.33(5)(b)1.h. did not bar Petitioner’s claims, the School Board cannot otherwise be held liable under a joint or integrated employer theory of liability.
Because Petitioner failed to establish a prima facie case of discrimination in retaliation, by either direct or
indirect evidence, it is unnecessary to address the latter two issues raised by Respondent.4/
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case.
DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida.
W. DAVID WATKINS Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
1/ Unless otherwise noted, all statutory references are to the 2018 version of the Florida Statutes.
2/ Although FCTC is the nominal Respondent to this proceeding, as discussed herein, the School Board has assumed the operation of FCTC and its programs and, as such, assumed the defense of Petitioner’s complaint.
3/ Similarly, Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
4/ The undersigned is not unmindful that Petitioner has also filed a Complaint relating to his employment at FCTC during a later period of time than that at issue herein, specifically, July 1 through November 18, 2016. That matter, DOAH Case No. 17- 5192, is also assigned to the undersigned. However, during a telephonic motion hearing held in that case on July 11, 2018, counsel for Respondent acknowledged that Petitioner was an employee of the School Board during that period.
Tammy S. Barton, Agency Clerk
St. Augustine, Florida 32095 (eServed)
Michael P. Spellman, Esquire Sniffen & Spellman, P.A.
Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A.
Robert J. Sniffen, Esquire Sniffen & Spellman, P.A.
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
