STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAMILA MURIEL,
vs.
Petitioner,
Case No. 19-3864
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, Lynne A. Quimby-Pennock, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the administrative hearing in Orlando, Florida, on October 16, 2019.
APPEARANCES
For Petitioner: Camila Muriel, pro se
4803 Eastwind Street
Orlando, Florida 32812
For Respondent: Patrick D. Coleman, Esquire
Ford Harrison
225 Water Street Jacksonville, Florida 32202
STATEMENT OF THE ISSUES
Whether Respondent, Blue Cross and Blue Shield of Florida, Inc. (BCBS or Respondent) discriminated against Ms. Muriel based upon her age, national origin, and/or terminated her employment in retaliation for engaging in a protected activity, in
violation of section 760.10, Florida Statutes; and, if so, what remedy should be imposed.
PRELIMINARY STATEMENT
On or about March 8, 2018, Petitioner, Camila Muriel (Ms. Muriel) filed an Employment Complaint of Discrimination (Complaint)1/ with the Florida Commission on Human Relations
(FCHR) alleging discrimination based on her national origin, age or in retaliation for engaging in some protected activity.
Specifically, Ms. Muriel alleged the following acts were discriminatory:
I am over the age of 40 and of Colombian descent. I was discriminated against because of my age and national origin. I began my employment with Respondent on April 9, 2012 as a Customer Service Advocate. I was never given the opportunity to advance in the company. I applied for
several positions but I was never chosen for any of them. I asked to be transferred to the sales department and I was told I could not because I was too slow. I was told I needed to apply for a position in Jacksonville at the corporate level because I was good at problem solving. I met with Jose Roces to go over the 2016 Performance Report. When I wrote my input on this Report, I had made note of the aggressive behavior and continuous verbal harassment I received from Jose Roces in 2016, [t]hat [sic] input was supposed to go directly to HR; however, Jose Roces had the opportunity to review it and added his comments prior to send it to HR. On April 4, 2017, I went to meeting at the Lake Mary Office. It was an invitation that I received to join Conversations of Trust Team – The Values Council. I was made to believe that I was going to be part of the Team that created
the Company’s policies regarding respect, value and appreciation of employees, with a group that would “address trust and fear, practice and model courage, share best ways to speak up and provide feedback to senior leaders to improve the employee experience.” I was wrong. The take off session started by asking each one of us about bad experiences we had within the company and I was open to bring up my situation of discriminatory harassment, aggressive behavior and bullying I was subject to, which in no way received any support because I was fired 3 days later. On April 7, 2017, I was served with a Step III – Termination of Employment – Performance and Conduct by Jose Roces, Sr. Manager Retail Center. I did send a response to HR via email on 04/11/2017. If HR had done appropriated [sic] investigation, including my input on the facts, this Step III would had [sic] not taken place because this report was full of lies and fabricated information. Even if the accusations were valid, they would had [sic] not been valid enough to support the Manager’s decision to fire me.
FCHR conducted an investigation of Ms. Muriel’s allegations. On May 15, 2019, FCHR issued a written determination that there was no reasonable cause to believe an unlawful employment practice occurred. FCHR’s determination provided, in relevant part:
Complainant worked for Respondent as a Customer Service Advocate. Complainant alleged that Respondent discriminated against her due to her age and national origin; and that Respondent retaliated against her for engaging in a protected activity. However, the investigation did not support her allegations. Most of Complainant's specific allegations regarding age and national origin discrimination were both untimely and unsupported by the
evidence. Additionally, Respondent provided documentation supporting that Complainant had continuous problems with her performance, which led to disciplinary actions and ultimately to her termination.
Although Complainant did report harassment to Respondent, the investigation did not reveal any evidence that Respondent retaliated against Complainant for making that report. Respondent also investigated her allegations of harassment and found them to be unsubstantiated. Therefore, it is not reasonable to believe that Respondent discriminated against Complainant.
Ms. Muriel timely filed a Petition for Relief (Petition) with FCHR citing a “Discriminatory Employment Practice.” In this Petition, Ms. Muriel first indicates her “Disability harassment and discrimination”2/ allegation. On July 18, 2019, FCHR referred the Petition to DOAH, and the undersigned was assigned to conduct the requested hearing. The final hearing was scheduled for and completed on October 16, 2019.
At the hearing, Ms. Muriel testified on her own behalf and presented the testimony of her children, Natacha Overchuck and Andre Gaviria. Ms. Muriel’s composite Exhibit 13/ was admitted into evidence over objection. Respondent presented the testimony of three employees: Jose Roces, Melissa Kincaid, and Marco Gaspar. Respondent’s Exhibits 3 through 9 were admitted into evidence without objection. Respondent’s Exhibits 1 and 24/ were admitted over objection.
At the conclusion of the hearing, two discussions ensued.
Ms. Muriel requested time to discuss with the court reporter the
possibility of purchasing a transcript of the hearing. The undersigned granted Ms. Muriel until the close of business on Monday, October 21, 2019, to confer with the court reporter and provide her written decision to DOAH. The second discussion centered on Respondent’s request that each party’s proposed recommended order (PRO) be submitted 20 days after either the conclusion of the hearing or 20 days after the transcript was filed with DOAH. This request was granted. On October 21, 2019, Ms. Muriel submitted a letter to DOAH providing she would not purchase a transcript of the hearing.5/
On October 22, 2019, the undersigned issued an Order establishing the time for the submission of the PROs: close of business (5:00 p.m.) on November 5, 2019.
Each party timely filed their PRO, and each has been considered in the preparation of this Recommended Order. On November 5 & 6, 2019, Ms. Muriel unilaterally filed six additional exhibits6/ 1(A), 2(B), 11(A), 11(b), 16, and 17. On November 12, 2019, Ms. Muriel filed an addendum to Petitioners PRO, and three additional exhibits 5(B), 8(B) and 13(A). These nine exhibits were not introduced at the hearing and were not admitted during the hearing. The undersigned has not reviewed these exhibits. To the extent that either PRO has information that was not subjected to cross-examination during the hearing,
that information has not been considered in the preparation of this Recommended Order.
Unless otherwise indicated, all statutory and administrative rule citations are to the 2017 version of the Florida Statutes7/ and Florida Administrative Code.
FINDINGS OF FACT
Parties
BCBS is a large insurance company with multiple offices in Florida and employs more than 15 persons. BCBS has subsidiaries under its umbrella corporate structure including Guidewell and Florida Blue. The parties stipulated that the correct corporate structure was present in this action.
Ms. Muriel is of Colombian descent.
Ms. Muriel lives in Orlando, Florida. BCBS hired Ms. Muriel in April 2012 as a Retail Center Customer Service Advocate (CSA).
Ms. Overchuck is Ms. Muriel’s daughter. Ms. Overchuck is not a BCBS employee. Ms. Overchuck testified that she went into Ms. Muriel’s work location on several occasions, but did not observe Ms. Muriel working and did not witness any of the alleged discriminatory acts.
Mr. Gaviria is Ms. Muriel’s son. Mr. Gaviria is not a BCBS employee. Mr. Gaviria testified that he would car pool
with his mother, but did not witness any of the alleged discriminatory acts.
Mr. Roces is of Cuban descent, and is now a BCBS senior director of accounts. In 2015, Mr. Roces transferred to the Winter Park (WP) regional office as its senior manager. In 2017, Mr. Roces was promoted to senior retail manager over the state of Florida before assuming his current position.
Ms. Kincaid is now the senior manager of the WP regional center, having been promoted to the position when
Mr. Roces was promoted and transferred. At all relevant times, Ms. Kincaid was located at the WP regional office. She worked as Mr. Roces’ assistant manager.
Mr. Gaspar is a BCBS/Guidewell human resources business partner. He is responsible for providing BCBS employees with information about their benefits, compensation and disciplinary action. Additionally, he is available to assist BCBS management personnel with on-going personnel issues, including disciplinary actions and employment terminations.
Overview
BCBS has Policies and Procedures (P & P) which govern the conduct of all its employees. BCBS’s Exhibit 8 covers the standard of conduct P & P, which provides the expected behavior of employees while at work or working on behalf of BCBS. Exhibit 9 covers the corrective action P & P, and provides the
framework for the corrective action process if an employee fails to meet performance or conduct requirements.
Mr. Gaspar testified that the substance of both Exhibits 8 and 9 is the same as when Ms. Muriel was employed, but there are different formats and logos.
Ms. Muriel began her BCBS CSA work in April 2012 at the Winter Haven (WH) office. The WH office was approximately one and one-half hours drive-time from Ms. Muriel’s home. While working at the WH office, Ms. Muriel injured her hands and shoulder in some fashion.8/ At some point Ms. Muriel obtained a medical directive that she was not to drive for extended periods of time. Ms. Muriel requested a transfer to the WP office which was much closer to her home, and would not require as much driving.
In early May 2016, Ms. Muriel was transferred to the BCBS WP office. Mr. Roces supervised the WP CSAs, including Ms. Muriel. Ms. Kincaid supervised the WP sales agents and covered for Mr. Roces when he was away from the office.
Mr. Roces testified that Ms. Muriel was verbally coached on numerous occasions on the WP office operations and her CSA performance. The WP office was a larger office than the WH office, and there were more customers to serve. Mr. Roces observed Ms. Muriel’s performance at various times and was
troubled by her failure to greet and assist customers in a timely manner.
On August 29, 2016, Ms. Muriel was issued a “Step I Corrective Action – Written Warning - Conduct & Performance” memorandum (Step I memo). On January 30, 2017, Ms. Muriel was issued a “Step II Corrective Action – Final Written Warning - Conduct & Performance” memorandum (Step II memo). On April 7, 2017, Ms. Muriel was issued a “Step III – Termination of Employment - Conduct & Performance” memorandum (Step III memo).
The Step I memo placed Ms. Muriel on a corrective action plan (CAP), based on her poor performance as a CSA. Several specific incidents documented Ms. Muriel’s poor CSA performance: failing to answer the telephone promptly; failing to greet customers as they entered the office; failing to assist customers with specific issues; and taking lunch breaks while there were multiple customers waiting to be served.
The Step I memo provided multiple directives to
Ms. Muriel on how to address, correct, and perform her specific CSA duties. Additionally, the Step I memo provided that while she was on the CAP, Ms. Muriel was not eligible to apply for any posted (advertised) BCBS positions. The CAP was effective for
90 days and provided that any further violations of BCBS policies either during or after the 90-day period could warrant additional discipline, including termination.
Ms. Muriel did not timely appeal the Step I memo.
The Step II memo served as a final written notice to Ms. Muriel. Ms. Muriel was put on notice that she had not met the expectations of her CSA position or the Step I directives, and her conduct, at times, had been inappropriate.
The Step II memo included four specific incidents in which Ms. Muriel’s performance or conduct was inappropriate.
On January 4, 2017, Mr. Roces emailed all the WP service representatives (CSAs and sales agents) directing them to check with management before they left work each day to ensure there was adequate staff coverage. The WP office was experiencing an exceptionally large volume of customers, and Mr. Roces wanted to provide excellent service to each customer. On January 5, 2017, Ms. Muriel left work without checking with management, as directed.
On January 5, 2017, it was discovered that Ms. Muriel was closing out service requests incorrectly, causing additional work for her co-workers.
In late January 2017, Ms. Muriel was told not to participate in a BCBS voluntary monthly retail service call, because of the continuing large volume of customers. Ms. Muriel participated in the call, and when prompted, delayed or refused to get off the call.
The following day, Mr. Roces observed nine customers waiting for service and Ms. Muriel was on the telephone. Mr. Roces spoke with Ms. Muriel about the customers waiting. Ms. Muriel ended the telephone call and went to lunch, instead of assisting any customers.
Ms. Muriel was provided multiple instructions on how to address and perform her CSA duties. The Step II memo included the same directives as found in the Step I memo.
Ms. Muriel appealed the Step II memo and requested that the review be through a BCBS panel. A BCBS panel was formed and it reviewed Ms. Muriel’s response to the Step II memo. After a thorough review, the panel denied her appeal.
The Step III memo terminated Ms. Muriel’s BCBS employment as of April 7, 2017. The Step III memo provided six additional instances where Ms. Muriel’s CSA performance did not meet BCBS’s stated expectations.
On February 17, 2017, Ms. Muriel escalated an issue to the management team without supplying all the necessary information. Ms. Muriel advised the customer the escalated issue would be resolved within 48 hours, which was contrary to BCBS directives issued three days earlier.
On February 20, 2017, Ms. Muriel initiated an escalated issue at 12:13 p.m., and the management team started to work on it. Ms. Muriel did not provide updated information
on the escalated issue until 2:04 p.m., which meant the management team’s original work was not necessary.
On March 1, 2017, Ms. Muriel failed to follow the correct escalation process, which caused unnecessary work to be done. Additionally, Ms. Muriel failed to effectively communicate on this escalated issued which caused more confusion as to how it could be resolved.
On March 8, 2017, Ms. Muriel created an unprofessional experience for a customer. Ms. Muriel failed to work effectively with a BCBS nurse, who was conducting an evaluation of the customer.
On March 30, 2017, a customer arrived at approximately 4:30 p.m. Ms. Muriel was to service the next customer, yet she did not. Ms. Muriel left work at 5:00 p.m. Another CSA, who was also scheduled to leave work at 5:00 p.m., assisted the customer who was there to make a payment.
On April 5, 2017, a customer with a billing issue complained that she was not greeted promptly by Ms. Muriel who was chewing gum and had her shoes off during the consultation. The customer was frustrated with her experience with Ms. Muriel and another CSA assisted the customer.
Ms. Muriel provided a letter to BCBS outlining her position with respect to her employment termination. Following a review of
her letter, Ms. Muriel’s employment termination was not reversed.
Age Claim
In her written FCHR Complaint, Ms. Muriel provided she was over 40 years old when she was hired by BCBS to work as a CSA. However, during the course of her extensive testimony, Ms. Muriel never testified as to her exact age, either at the time she was hired or when her employment was terminated.
Ms. Muriel alleged she applied for several BCBS positions, interviewed for some, did not interview for some, and was not hired for any. Ms. Muriel failed to provide specific information regarding those positions. Further, Ms. Muriel failed to provide the names or ages of the persons who were actually hired to any of those positions.
Ms. Overchuck testified she recommended her mother leave BCBS because she “did not want to bury [her] 60-year-old mother.” That comment was not sufficient to establish an age discrimination claim.
National Origin
As previously provided, Ms. Muriel is of Colombian descent. She is bi-lingual (Spanish and English) and speaks with a noticeable accent.
Ms. Muriel requested and was transferred to the WP office in early May 2016.
Ms. Muriel failed to provide specific information regarding any positions or the national origin of any BCBS employees who were treated differently than she. Retaliation
Ms. Muriel testified that her employment was terminated in retaliation for her participating in a protected activity, but the protected activity remains unclear.
Ms. Muriel speculated that it was her complaints about how Mr. Roces addressed her, yet Ms. Muriel failed to provide a nexus of her complaints to her termination.
Although Ms. Kincaid supervised the WP sales agents, she observed Ms. Muriel working. Ms. Kincaid testified she saw the interactions between Mr. Roces and Ms. Muriel. It was apparent that the two did not work well together, and Ms. Muriel did not collaborate well with her team members. There were multiple issues with Ms. Muriel’s interactions with customers. Ms. Kincaid testified that the disciplinary actions were not based on Ms. Muriel’s age, national origin, or in retaliation for her participation in some protected activity.
Mr. Gaspar testified that the disciplinary actions taken, were done in accordance with BCBS P & Ps. Mr. Gaspar attested that Ms. Muriel’s disciplinary actions were not based on her age, national origin, or in retaliation for her participation in some protected activity.
Ms. Muriel did not provide any evidence except for her testimony that she was discriminated against.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida. Statutes. See Fla. Admin. Code R. 60Y-
4.016.
BCBS is an “employer” as that term is defined in section 760.02(7), which provides the following:
“Employer” means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
In the instant case, Ms. Muriel alleges that Respondent discriminated against her on the basis of her age, national origin, and in retaliation for her performing a protected activity.
The Florida Civil Rights Act of 1992 (the Act or FCRA) protects individuals from discrimination in the workplace. See
§§ 760.10 and 760.11, Fla. Stat. Section 760.10 states in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
Florida courts have determined that federal case law applies to claims arising under the FCRA, and, as such, the United States Supreme Court’s model for employment discrimination cases set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
applies to claims arising under section 760.10, absent direct evidence of discrimination. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Paraohao v. Bankers
Club, Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Fla.
State Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA
1996); Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla.
1st DCA 1991).
“Direct evidence is ‘evidence, which if believed, proves existence of fact in issue without inference or presumption.’” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528
n.6 (11th Cir. 1987) (quoting Black’s Law Dictionary 413 (5th ed.
1979)). In Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989), the court stated:
This Court has held that not every comment concerning a person's age presents direct evidence of discrimination. [Young v. Gen. Foods Corp. 840 F.2d 825, 829 (11th Cir.
1988)]. The Young Court made clear that remarks merely referring to characteristics associated with increasing age, or facially
neutral comments from which a plaintiff has inferred discriminatory intent, are not directly probative of discrimination. Id. Rather, courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of discrimination. [footnote omitted].
Ms. Muriel offered no evidence that would satisfy the stringent standard of direct evidence of discrimination.
Under the McDonnell analysis, in employment
discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the employer to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that the employer's offered reasons for its adverse employment decision were pretextual. See
Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 101 S. Ct.
1089, 67 L. Ed. 2d 207 (1981).
Age and/or National Origin
In order to prove a prima facie case of unlawful employment discrimination under chapter 760, Ms. Muriel must establish that: (1) she is a member of the protected group;
(2) she was subject to adverse employment action; (3) BCBS treated similarly situated employees outside of her protected
classifications more favorably; and (4) she was qualified to do the job and/or was performing her job at a level that met the employer’s legitimate expectations. See, e.g., Jiles v. United
Parcel Serv., Inc., 360 Fed. Appx. 61, 64 (11th Cir. 2010); Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir.
2006); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313,
1316 (11th Cir. 2003); Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp., 40 F.
Supp. 2d 1369, 1374-75 (S.D. Fla. 1999).
Arguably, Ms. Muriel established that she is a member of a protected group, in that she is over 40 years of age and is of Colombian heritage. Ms. Muriel established that she was subject to an adverse employment action, in that she was terminated from her position as a CSA. The disciplinary actions (Step I and Step II) cast a long shadow over whether Ms. Muriel was actually qualified to perform her job as a CSA. Regardless, Ms. Muriel failed to prove that BCBS treated similarly situated employees outside of her protected classifications more favorably than she.
There is no evidence that supports an inference that Ms. Muriel was discriminated against based upon her age or national origin. Ms. Muriel failed to prove a prima facie case of unlawful employment discrimination.
BCBS presented adequate evidence of legitimate, non- discriminatory reasons for Ms. Muriel's termination. Ms. Muriel failed to follow the clear directives in the Step I and Step II memoranda which established that she was not performing her job to the expectations of BCBS. Ms. Muriel was aware of the CAPs, but failed to heed the directives.
A court’s role is not to sit as a “super-personnel department that reexamines an entity’s business decisions.” Denney v. City of Albany, 247 F.3d 1172, 1188 (11th Cir. 2001) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991)). Ms. Muriel offered no evidence that her dismissal was because of her age or national origin or for any reason other than that asserted by BCBS.
Retaliation
Section 760.10 provides the following, in relevant part:
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Because the McDonnell analysis also applies in
employment retaliation cases, Ms. Muriel has the burden of
establishing by a preponderance of evidence a prima facie case of unlawful retaliation. See, e.g., Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53 (2006).
In order to prove a prima facie case of unlawful employment retaliation under chapter 760, Ms. Muriel must establish that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal relationship between (1) and (2). See Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). To establish this causal relationship, Ms. Muriel must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. SW Med. Ctr. v. Nassar, 570 U.S. 338, 360, (2013). This
standard has also been called “but-for causation.” See, e.g., Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016).
Ms. Muriel established that she suffered an adverse employment action by having her employment terminated, but she failed to establish that she engaged in some protected activity or the element of causation. Ms. Muriel’s hypothesis is that her complaints to her supervisor, Mr. Roces, angered him and that led to her termination. The facts at hearing demonstrated that
Ms. Muriel’s termination was based on her inability to competently perform her job duties.
Ms. Muriel failed to establish that BCBS’s reason for terminating her employment was based on her age, national origin or in retaliation for her having engaged in protected
activities.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Florida Commission on Human Relations issue a final order that Blue Cross Blue Shield did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case.
DONE AND ENTERED this 22nd day of November, 2019, in Tallahassee, Leon County, Florida.
S
LYNNE A. QUIMBY-PENNOCK
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 22nd day of November, 2019.
ENDNOTES
1/ At hearing, Petitioner postulated that she alleged discrimination based on a disability, however that box was not checked on the FCHR Complaint form, and was not within her
written “Discrimination Statement.” Petitioner believed that her disability allegation was covered by the FCHR written statement which provided:
I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Right Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment act, and/or the Americans with Disabilities Act as applicable for the following reason(s):
2/ In full, Ms. Muriel wrote:
I do contend Warrant Reversal of the Commission’s Determination in that it failed to consider the charges regarding Disability harassment and discrimination and I feel that being [T]ony [sic] Jenkins, Chair to the Florida Commission on Human Rights and One of the parties charged with Discrimination and Retaliation conduct as he is also Employee of the Respondent, I did not have a fair and factual Resolution or Determination.
FCHR did not notify Respondent of the disability allegation, and Respondent did not respond to it during the Complaint investigation.
FCHR did not investigate nor render a decision based on the disability allegation. It is not appropriate to review that disability allegation at this time.
3/ Ms. Muriel’s composite Exhibit 1 contains multiple instances of hearsay and hearsay upon hearsay. At the hearing, the use of hearsay was explained, and as such the bulk of composite Exhibit 1 is non-corroborated hearsay which cannot be used to support a Finding of Fact.
4/ Ms. Muriel objected to the admission of these two exhibits on the basis that they were not in effect during the time she worked for BCBS. Ms. Muriel provided that in her composite exhibit 1, she had the Policies and Procedures in effect during her employment. The undersigned reviewed Petitioner’s composite Exhibit 1 and found a BCBS Standard of Conduct policy dated December 1, 2011, in section 4; a BCBS Harassment policy dated
December 1, 2011, in section 4a; and a BCBS Absence Management policy dated January 1, 2016, in section 14. The undersigned did not find a corrective action plan.
5/ A Notice of Ex Parte was issued on October 22, 2019, regarding Petitioner’s notification that she would not order a hearing transcript.
6/ A Notice of Ex Parte was issued on November 7, 2019, regarding Petitioner’s six additional exhibits.
7/ Citations shall be to Florida Statutes (2017) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
8/ There may be a Worker’s Compensation claim pending in some tribunal, but that is not the subject of this action.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
Camila Muriel
4803 Eastwind Street
Orlando, Florida 32812 (eServed)
Patrick D. Coleman, Esquire Ford Harrison
225 Water Street Jacksonville, Florida 32202 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
4075 Esplanade Way
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 |
|---|---|---|
| May 03, 2021 | Mandate | |
| Feb. 23, 2021 | Opinion | |
| Feb. 18, 2020 | Agency Final Order | |
| Nov. 22, 2019 | Recommended Order | Petitioner failed to establish that BCBS discriminated against her based on her age, national orgin, or in retaliation for engaging in a protected activity. Recommendation: Dismiss the Petition |
