vs.
Respondent.
Case No. 19-6021
A formal hearing was conducted in this case on January 17, 2020, in Gainesville, Florida, before W. David Watkins, a duly-designated Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”).
For Respondent: Brian T. Moore, Esquire
School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601
The issue is whether Respondent, School Board of Alachua County, Florida, discriminated against Linda Smith, Petitioner, on the basis of her race or gender, or retaliated against her for engaging in protected activities in
violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
On December 18, 2018, Petitioner filed an Employment Complaint of Discrimination (“Complaint”) with the Florida Commission on Human Relations (“FCHR”). In that complaint she alleged that Respondent
discriminated against her based on her race and gender when two white male employees believed a different black female employee’s allegation that Petitioner threatened to bring a gun to work to use against that other black female employee. She also alleged that Respondent retaliated against her for engaging in protected activity because this happened after she had contacted the police to complain about the other employee.
Upon receipt of the Complaint, FCHR conducted an investigation of the allegations, and on October 22, 2019, issued its determination that no reasonable cause exists to believe that an unlawful practice occurred.
Disappointed with the FCHR determination, on November 12, 2019, Petitioner filed the Petition for Relief, which is the subject of this proceeding.
FCHR referred the matter to DOAH on November 13, 2019, where it was assigned to the undersigned for the conduct of a formal administrative hearing and issuance of a recommended order.
By Notice of Hearing dated November 25, 2019, the matter was scheduled for final hearing in Gainesville on January 17, 2020, on which date it was
1 Citations shall be to Florida Statutes (2019) 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.
convened and completed. Petitioner testified on her own behalf and called two additional witnesses. Petitioner also offered Petitioner’s Exhibits 1 and 2 into evidence. Respondent called one witness and offered Respondent’s Exhibits 1 through 5 into evidence.
At the conclusion of the final hearing, the parties were apprised of their right to order the transcript of the final hearing (at their own expense) and to file proposed recommended orders. A Transcript of the proceeding was ordered and filed with DOAH on February 18, 2020. Thereafter the parties timely filed their Proposed Recommended Orders, both of which have been carefully considered in the preparation of this Recommended Order.
Petitioner worked as a bus attendant for Respondent for several years. During the course of that employment, Petitioner has had a lengthy history of conflict with another black female bus driver, Cynthia Dunmore. The problems first began when the two worked on the same bus route together in 2009, and the animosity continued both at and away from work.
While at work on June 20, 2018, Petitioner called the police to ask them to get Ms. Dunmore to leave her alone. Officer Owen Osborne arrived at the transportation facility and spoke with Petitioner and then to Ms. Dunmore. Officer Osborne instructed them both to stay away from each other.
Not long after Officer Osborne left the transportation facility, Petitioner spoke with Arlene Ewell, the wife of a school board employee. Following this conversation, Ms. Ewell reported to Ms. Dunmore that Petitioner had just told her that she planned to get a gun and bring it to work after the police did nothing but talk to Ms. Dunmore. Ms. Dunmore then reported this information to David Deas, the operations manager of the transportation department.
School Board Policy 4217 requires all staff members to report “knowledge of firearms, weapons and/or threats of violence” to the site administrator.
Mr. Deas relayed the conversation he had had with Ms. Dunmore to the Assistant Superintendent, who in turn sent Bart Brooks, a human resources supervisor, and Casey Hamilton, the school district’s security chief, out to the transportation department to assess the situation.
Mr. Brooks followed standard operating procedure and placed Petitioner on paid administrative leave so that Respondent could conduct an investigation into the allegation that Petitioner threatened to bring a gun to work to harm Ms. Dunmore.
Mr. Brooks and Respondent’s new investigator, Alisha Williams, promptly began an investigation of the alleged threat. In the course of the investigation, they spoke with Petitioner, who denied making a threat to bring a gun or otherwise harm Ms. Dunmore.
Consistent with Respondent’s standard investigation procedures, Petitioner remained on paid administrative leave during the pendency of the investigation.
On July 31, 2018, before Mr. Brooks and Ms. Williams had completed their investigation, Petitioner elected to retire. As a result of Petitioner’s retirement, the District terminated its investigation of the alleged threat. Accordingly, the District did not make a determination as to whether Petitioner did or did not threaten to bring a gun to work to harm
Ms. Dunmore.
No one told Petitioner that she would be fired if she did not retire. According to Petitioner, “I resigned to keep from losing my pension. If my pension was not at stake I would have let them terminate me falsely.”
Petitioner offered as a comparator Paul Phillips, a white male who was hired as a bus driver for Respondent on January 20, 2015. He was terminated from that position on January 2, 2017, for driver safety violations
which would not allow him to drive a bus for three years from the date of termination. Mr. Phillips was rehired as a bus attendant on October 15, 2018, and resigned on February 7, 2019, for personal reasons.
Mr. Phillip’s situation is not comparable to Petitioner’s situation. Petitioner was never terminated for safety violations, but rather voluntarily retired from service on July 31, 2018, and there was no disciplinary action taken against her.
Petitioner failed to persuasively prove any incidents of race or gender discrimination, or of retaliation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or the "Act"), chapter 760, prohibits employer discrimination based on race or gender, and retaliation for engaging in protected activity.
Section 760.10 provides, in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such
individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
Section 760.10 states 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.
Respondent is an "employer" as defined in section 760.02(7), which provides the following:
(7) "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Florida courts have determined that federal case law applies to claims arising under the Florida Civil Rights Act, 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 or retaliation.2 See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Paraohao v. Bankers Club, Inc.,
2 “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)). “Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of a protected
classification, constitute direct evidence.” Kilpatrick v. Tyson Foods, Inc., 268 Fed. Appx. 860, 862 (11th Cir. 2008)(citation omitted). Direct testimony that a defendant acted with a retaliatory motive, if credited by the finder of fact, would change the legal standard
“dramatically” from the McDonnell test. Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1557 (11th Cir. 1983). Petitioner offered no evidence that would satisfy the stringent standard of direct evidence of retaliation.
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).
Under the McDonnell analysis, in employment discrimination and retaliation cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of an unlawful employment practice. See, e.g., Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006). 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 or retaliatory 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).
To establish a prima facie case of discrimination, Petitioner must “establish facts adequate to permit an inference of discrimination.” Holifield
v. Reno, 115 F. 3d 1555, 1562 (11th Cir. 1997). This requires Petitioner to establish: 1) she belongs to a protected group, 2) she was subjected to an adverse employment action, 3) she was qualified to do her job, and 4) her employer treated similarly-situated employees outside her classification more favorably. See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1220-21 (11th Cir. 2019).
In order to prove a prima facie case of unlawful employment retaliation under chapter 760, Petitioner must establish that: (1) she engaged in 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).3 To establish this causal relationship, Petitioner 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. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (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).
“An employment action is considered ‘adverse’ only if it results in some tangible, negative effect on the plaintiff's employment.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001).
Petitioner has failed to establish a prima facie case of discrimination based on race or gender in that she has failed to offer any evidence that she was subject to an adverse employment action and that similarly-situated employees were treated more favorably.
Petitioner has failed to establish a prima facie case of retaliation in that she was not engaged in statutorily protected speech or subject to any adverse employment action. See Hopkins v. St. Lucie Cty. School Bd., 399 Fed. Appx. 563, 566-67 (11th Cir. 2010).
A non-employee reported to an employee that Petitioner made a threat about a gun. The employee who received the report followed Board policy and
3 Florida courts have articulated an identical standard:
To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir.), cert. denied 525 U.S. 1000, 119 S.Ct.
509, 142 L.Ed.2d 422 (1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant's asserted reasons for the adverse action are pretextual. Id.
Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009).
reported the threat to her supervisor. The supervisor contacted Respondent’s Human Resources department, which followed its standard protocol and placed Petitioner on paid administrative leave so that it could conduct an investigation.
Petitioner’s entire argument appears to be that Respondent should have rejected the allegation of Ms. Dunmore without investigating first, and that failing to do so constituted both discrimination and retaliation. However, employers cannot simply ignore threats of violence or pre-determine the truth of an allegation.
No decision was ever made as to whether Respondent believed Petitioner made a threat, and no adverse action was taken against Petitioner. Placing an employee on paid administrative leave to conduct a valid investigation unrelated to any protected category or protected activity is not an adverse action. See, e.g., Joseph v. Leavitt, 465 F.3d 87 (2nd Cir. 2006); Hornsby v. Watt, 217 F. Supp. 3d 58 (D.D.C. 2016); Jones v. Castro, 168 F.Supp. 3d 169 (D.D.C. 2016). Also, there was no suggestion that Petitioner was forced, or even encouraged, to retire. She made that decision on her own.
Following standard operating procedures while investigating a complaint cannot be considered retaliation, particularly when Petitioner claims that the retaliation was in response to her decision to call the police about prior problems she had with a colleague, rather than any engagement in protected activity. Petitioner offered no suggestion that any other employee, who was alleged to have made threats of violence, was treated differently than she was.
Both in her original complaint and at the hearing, Petitioner complained that the alleged retaliation was the same activity on which she based her race and gender discrimination claims–placing her on paid administrative leave after the alleged threat of gun violence was reported. As already established, placing Petitioner on paid administrative leave was not
an adverse action. Also, Respondent could not have retaliated against Petitioner for filing a complaint with FCHR, as the complaint was not filed until six months later, long after Petitioner had chosen to retire.
Petitioner failed to establish that any of the actions of which she complained was an adverse employment action.
Subsequent to her complaint being filed, Petitioner complained at hearing that she could not get re-hired by Respondent. This issue was outside the scope of her complaint and was not investigated by FCHR. However, even if it were properly before the undersigned for consideration, Petitioner failed to establish a prima facie case of retaliation on this issue as well. Petitioner testified that she went to a job fair hosted by Respondent less than a year after retiring, and she acknowledged that retirees cannot be rehired less than a year after their retirement.
Petitioner’s only evidence of other employees being treated differently was not a similarly-situated employee. Petitioner was a bus attendant who resigned in the middle of an investigation into an alleged threat of violence. She then later sought to obtain the same job, despite having prevented Respondent from conducting a full investigation by retiring before it could be concluded. The other “comparable” employee Petitioner referenced was a bus driver who lost his bus driving job, but was later rehired as a bus attendant– a different and lower job category. Other than the fact that they both worked in the same transportation department, there is nothing similar about their situations. In short, Petitioner offered no evidence that could lead to an inference that she has not yet been rehired based on race, gender, or retaliation.
Having failed to establish that any retaliation or adverse employment action of any kind occurred, Petitioner has clearly failed to establish the “but- for” causation element of a prima facie case of unlawful employment retaliation under chapter 760.
In summary, Petitioner failed to establish that Respondent took an adverse employment action against her, or that any employment action taken by Respondent was in retaliation for Petitioner’s having engaged in protected activities.
RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, School Board of Alachua County, Florida, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case.
DONE AND ENTERED this 11th day of March, 2020, in Tallahassee, Leon County, Florida.
W. DAVID WATKINS Administrative Law Judge
Division of Administrative Hearings this 11th day of March, 2020.
Tammy S. Barton, Agency Clerk
Brian T. Moore, Esquire
School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
