MARY R. SETZER,
Petitioner,
vs.
RESIDENTIAL ACCEPTANCE CORPORATION,
Respondent.
/
Case No. 20-3566
RECOMMENDED ORDER
On November 2, 2020, Administrative Law Judge Yolonda Y. Green of the Division of Administrative Hearings (“Division”), conducted a hearing, pursuant to section 120.57(1), Florida Statutes (2020), by Zoom conference.
APPEARANCES
For Petitioner: Mary R. Setzer, pro se
813 Chickamauga Avenue
Knoxville, Tennessee 37917
For Respondent: Phillip Harris, Esquire
Constangy, Brooks, Smith & Prophete, LLP Suite 3350
100 North Tampa Street Tampa, Florida 33602-5832
STATEMENT OF THE ISSUE
Whether Respondent, Residential Acceptance Corporation, subjected Petitioner, Mary R. Setzer, to unlawful employment practices on the basis of her sex or marital status, in violation of section 760.10, Florida Statutes.
PRELIMINARY STATEMENT
On August 28, 2019, Petitioner, Mary R. Setzer (“Ms. Setzer” or “Petitioner”), filed a complaint of discrimination (“Complaint”) with the Florida Commission on Human Relations (“FCHR”) alleging that Residential Acceptance Corporation (“RAC” or “Respondent”) unlawfully discriminated against her on the basis of her sex and marital status. On July 22, 2020, FCHR issued a Notice of Determination to Ms. Setzer notifying her that FCHR found “no reasonable cause” to demonstrate that unlawful
discrimination occurred. Dissatisfied with FCHR’s finding, Ms. Setzer filed a Petition for Relief seeking an administrative hearing. FCHR referred the Petition to the Division on August 11, 2020, and the undersigned was assigned to conduct the final hearing in this case.
This matter was scheduled for a final hearing on November 2, 2020. The hearing proceeded as scheduled. Petitioner testified on her own behalf and offered no other witnesses. Petitioner’s Exhibits A through E were admitted into evidence over objection.1 Respondent presented the testimony of April Burkett, Chief Financial Officer for RAC. Respondent’s Exhibits 1 through 11 were admitted into evidence.
The two-volume Transcript was filed on December 7, 2020. Thus, the deadline for filing proposed recommended orders (“PROs”) was December 17, 2020. On December 17, 2020, Respondent filed a Motion for Enlargement of Time. The undersigned granted the motion and extended the date to submit PROs to December 28, 2020. Both parties filed post hearing submittals, which have been considered in preparation of this Recommended Order.
1 Exhibit E contained several LinkedIn notifications received by Petitioner, which she attempted to offer as evidence of alleged discrimination and/or retaliation. However, because several of the LinkedIn notifications were dated beyond February 2019, the most recent act of discrimination, only those dated prior to February 2019 were admitted.
Unless otherwise indicated, all references to Florida Statutes will be to the 2019 codification, which was the version in effect at the time of the last event of the alleged discrimination.
FINDINGS OF FACT
Based on the testimony and exhibits offered at the final hearing, the following Findings of Fact are made.
At all times material this matter, Petitioner was an unmarried woman. Petitioner, a resident of the state of Tennessee, was licensed to originate loans in Tennessee and Kentucky. She has been employed with RAC as a retail mortgage loan officer since December 22, 2014, without any gaps in employment. At all times material to this matter, Petitioner has not been terminated, nor has she voluntarily resigned from her employment with RAC.
Respondent is a lender that operates a business engaging in underwriting, processing, and funding loans submitted by third-party loan originators. Respondent works with mortgage brokers, originators, and processors to approve and close loans. Respondent, a full-service mortgage company, operates in 25 states throughout the United States. Respondent is based in Tampa, Florida.
The RAC procedure for processing loans requires the mortgage loan officer to submit a loan package to a designated loan processor. The loan processor then assigns the loan package to an underwriter for processing. Once the loan officer has submitted the loan package to the loan processor, the loan officer is responsible for “supervising” the transaction by providing additional information necessary for completion. Mortgage loan officers are then paid commission on each loan that closes, which they receive by submitting the corresponding pay sheet and credit invoices through payroll.
Respondent employs six mortgage loan officers. Three of these loan officers are female, and three are male. Petitioner was one of the three female loan officers. As a loan officer employed by RAC, Petitioner agreed to submit
her loans exclusively to RAC for origination, processing, underwriting, and funding.
Petitioner maintained a Kentucky mortgage license sponsorship with Respondent until February 2018. However, as of the date of the hearing, she continued to maintain her company-sponsored license in Tennessee.
Throughout her employment with Respondent, Petitioner was supervised by Nick Ball, and she submitted loans for processing to Carol Estrada, a loan processor.
Between 2015 and 2016, Petitioner submitted and received commissions on 12 loans. Although Petitioner remains employed, and is able to submit loans to Respondent for processing, she has not submitted a loan since 2016.
Petitioner alleged Respondent discriminated against her based on her sex and marital status. The first allegation relates to Petitioner’s claim that Respondent colluded with her former employer regarding an unrelated discrimination complaint.
By way of background, Petitioner was employed by First Choice Lending (“FCL”), a loan service company with offices in Tennessee and Kentucky. Petitioner filed a charge of discrimination against FCL in
Tennessee alleging she had been wrongfully terminated based on her sex and marital status.
Petitioner testified that she did not disclose the FCL discrimination complaint to Respondent. However, one month after she began working with Respondent, James Mannion, an account executive for Respondent, contacted Petitioner regarding her former employment with FCL. Petitioner testified that she disclosed to Mr. Mannion that she had been wrongfully terminated by FCL due to her sex and marital status.
Petitioner testified that Mr. Mannion shared this information with Ms. Estrada. Petitioner alleged, without more than her own belief, that after learning about the FCL complaint, Ms. Estrada caused intentional and
prolonged turnaround times for loan processing which delayed her closings. Petitioner claimed that Ms. Estrada would not process her loans as quickly as she did for male loan officers. Petitioner alleged that the delays in loan processing resulted in loss when borrowers withdrew their loans. Petitioner testified that she reported the issues she had with Ms. Estrada to Mr. Ball.
According to Petitioner, Mr. Ball did nothing to resolve the issues.
However, on March 18, 2015, Mr. Ball sent an email to Petitioner and other RAC employees scheduling a meeting to discuss loan submissions.
Ms. Estrada was one of the employees instructed to attend the meeting. Regarding any subsequent concerns about Ms. Estrada’s processing performance, Mr. Ball suggested that Petitioner call Ms. Estrada to follow up on requests. In an email dated March 25, 2015, Mr. Ball stated, “glad you two could clear the air … let me know if you have any more issues.” Finally, when Ms. Estrada was out sick, he suggested that Petitioner could assist with processing to move the loan packages along in the process. The evidence did not establish that Ms. Estrada’s processing of Petitioner’s loans was related to discrimination based on her sex or marital status.
The alleged comparator Petitioner offered as someone who was treated better than her was a married, male mortgage loan officer. Petitioner testified that at some point after the telephonic meeting with Mr. Ball, she was contacted by one of the male loan officers who had also been on the call. Petitioner testified that the loan officer shared with her that Ms. Estrada had done a good job processing his loans and that his loans had been closing quickly. However, Petitioner was unable to identify the name or any personal identifying information about the male loan officer. Petitioner did not offer any evidence to demonstrate the marital status of the alleged comparator.
The greater weight of the evidence establishes that neither the FCL complaint nor the allegations alleged regarding RACs collusion with FCL involved any claim of discrimination recognized under the Florida Civil
Rights Act (“FCRA”). More importantly, the claim involved a different employer.
In her Complaint, Petitioner also alleged that Respondent caused the devaluation of her reputation and customer base. One of her past clients, Ms. Moore, is one of the clients she alleges had an issue with the delayed processing of her loan.
Ms. Moore filed a complaint in July 2015. Respondent received the complaint filed with the Consumer Resources Division of the Tennessee Department of Financial Institutions regarding Respondent’s services (“Moore Complaint”). In the Moore Complaint, Ms. Moore claimed Respondent unprofessionally handled her loan application, which caused delays and expenses to complete the transaction. Upon receipt of the complaint, Respondent investigated the loan transaction history, and correspondence between Respondent and the complainant. After
investigating the Moore Complaint, Respondent determined that Ms. Moore’s complaints related to issues that could commonly arise during loan processing. Respondent then sent a letter to Ms. Moore, notifying her that they found no irregular activity associated with the loan transaction.
Regarding the allegation that RAC caused Petitioner’s reputation to be devalued in her profession, and that RAC made her less valuable to clients, Petitioner failed to meet the burden of proof.
Petitioner also testified that in July 2016, Mr. Ball shared her contact information with a recruiter in an attempt to get Petitioner to leave the company. While Petitioner testified that the recruiter reached out to her numerous times beginning in September 2016, Petitioner admitted that she never actually spoke to the recruiter and, therefore, could not confirm whether her beliefs were correct.
On or about February 1, 2018, Respondent received notice from the Nationwide Multistate Licensing System & Registry (NMLS) that Petitioner had ended her Kentucky mortgage license sponsorship with the company.
Mr. Ball emailed Petitioner and asked whether she was leaving RAC. Petitioner responded that she was not leaving the company.
In January 2019, Respondent received a Cease and Desist Letter from Petitioner alleging RAC shared Petitioner’s personal information with FCL; participated in retaliation initiated by FCL; violated her constitutional rights; and caused harm to her business and professional reputation. In a letter dated February 13, 2019, RAC denied the allegations.
Petitioner also alleged that Respondent hacked into her LinkedIn account to harass her. However, the evidence demonstrates that Petitioner’s anniversary post was automatically generated by LinkedIn. Based on the LinkedIn programming, the system automatically shares the employment anniversary with an employer and other significant dates (entered by the
user upon creation of their account) on the user’s network account. In addition, the platform generates reminders or notices based on the user’s connections and background.
Overall, the evidence offered at hearing was insufficient to demonstrate any adverse action has been taken against Respondent due to her sex or marital status. There are also no similarly situated employees outside of Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing that she lost any commission or income due to the alleged discrimination. Rather, the evidence demonstrates she has not submitted a loan for processing, which is necessary for her to be paid commission, since 2016. The evidence was insufficient to demonstrate that RAC subjected Petitioner to discriminatory action.
CONCLUSIONS OF LAW
The Division 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.
Petitioner filed this action alleging RAC discriminated against her in violation of the FCRA. Specifically, Petitioner’s Complaint centers on her allegation that RAC discriminated against her based on her sex and marital status. The FCRA protects employees from age and disability discrimination in the workplace. See § 760.10-.11, Fla. Stat. Section 760.10 states, in pertinent part:
It is an unlawful employment practice for an employer:
(a) 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.
Section 760.11(7) permits a party, for whom FCHR determines that there is not reasonable cause to believe that a violation of the FCRA has occurred, to request an administrative hearing before the Division. Following an administrative hearing, if the Administrative Law Judge (“ALJ”) finds that a discriminatory act has occurred, the ALJ “shall issue an appropriate recommended order to FCHR prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay.”
§ 760.11(7), Fla. Stat.
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice.
See St. Louis v. Fla. Int’l Univ., 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. Dep’t
of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
There is no dispute that RAC is an “employer” as that term is defined in section 760.02(7), which defines an employer as “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
person.”
Establishing Discrimination
Discrimination may be proven by direct, statistical, or circumstantial evidence. See Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22
(Fla. 3d DCA 2009). 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); see also Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997), abrogated on other grounds by, Lewis v. City of Union City, Ga., 918 F. 3d 1213, 1218 (11th Cir. 2019)(en banc). “Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [sex or marital status] constitute direct evidence of
discrimination.”. . .“For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision.” Bass v. Bd. of Cty. Comm'rs, Orange Cty., Fla.,
256 F.3d 1095, 1105 (11th Cir. 2001)(citations omitted).
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 (1973), and its progeny, Valenzuela, 18 So. 3d at 21-2; see also St. Louis v. Fla. Int’l Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011). Under this well-established framework, a petitioner bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination.
When the charging party is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non- discriminatory explanation for the employment action. See Dep’t of Corr. v.
Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991)(court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not one of persuasion, and as a result, it is not required to persuade the finder of fact that the decision was non-discriminatory. Id.; Alexander v. Fulton Cty., Ga., 207 F.3d 1303, 1335 (11th Cir. 2000).
The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999). The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. Chandler, 582 So. 2d at 1186; Alexander v. Fulton Cty., Ga., 207 F.3d at 1336.
“Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the [Petitioner] remains at all times with the [Petitioner].” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265 (11th Cir. 2002); see also Byrd v. RT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007)(“The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times.”).
Petitioner presented no direct evidence of discrimination based on sex or marital status on the part of RAC. Similarly, the record in this proceeding contains no statistical evidence of discrimination by RAC in its personnel decisions related to Petitioner.
In the absence of direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial evidence of discrimination based on sex or marital status 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
(1973), and its progeny. See also Valenzuela, 18 So. 3d at 21-2; and St. Louis v. Fla. Int'l Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011).
Under the McDonnell Douglas framework, 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 demonstrate that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) her employer 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 Cty., 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a prima facie case is not difficult, but rather only requires the “plaintiff to establish facts adequate to permit an
inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
If Petitioner establishes a prima facie case, she creates a presumption of discrimination. At that point, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the adverse employment action. Valenzuela, 18 So. 3d at 22. The reason for the employer’s decision should be clear, reasonably specific, and worthy of credence. Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991), abrogated on other grounds by, Lewis v. City of Union City, Ga.,
918 F. 3d 1213, 1218 (11th Cir. 2019)(en banc). The employer has the burden of production, not the burden of persuasion to demonstrate to the finder of fact that the decision was non-discriminatory. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). This burden of production is “exceedingly light.” Holifield, 115 F.3d at 1564. The employer only needs to produce evidence of a reason for its decision. It is not required to persuade the trier of fact that its decision was actually motivated by the reason given. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993).
If the employer meets its burden, the presumption of discrimination disappears. The burden then shifts back to the employee to prove that the employer’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, the employee must “show[] directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (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 (2000). Petitioner must prove that the reasons articulated were false and that the discrimination was the real reason for the defendant's actions. 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 17 times with the plaintiff.” Burdine, 450 U.S. at 253; Valenzuela, 18 So. 3d at 22.
In the instant case, Petitioner did not present sufficient evidence of direct evidence of discrimination based on sex or marital status. Similarly, the record in this proceeding contains no statistical evidence of discrimination.
In the absence of direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial evidence of discrimination to prove her case.
Petitioner established the first two elements: (1) she is a member of a protected class as she is an unmarried woman; and (2) it is undisputed that she was qualified for the position as she possessed the requisite licensure and experience as a mortgage loan officer.
Regarding the third element, the evidence offered at hearing does not demonstrate that Petitioner suffered an adverse employment action. Petitioner alleged she received reduced commissions as a result of the loan processing. To receive a commission, Petitioner would need to submit a loan for processing. The evidence established that she received a commission for each loan she submitted. The record also established that, despite continuing to be employed with RAC, she has not submitted any loans to RAC for processing since 2016.
Even if Petitioner had suffered an adverse employment decision, she could not identify a similarly situated married man to meet the fourth “comparator” element of her claim. Petitioner must show she is similarly situated in all material respects to the married male loan officer, the employee she claims RAC extended preferential treatment. See Woods v. Cent. Fellowship Christian Acad., 545 F. App'x 939, 945 (11th Cir. 2013).
As recently explained in Mac Papers, Inc. v. Boyd, 304 So. 3d 406, 409 (Fla. 1st DCA 2020):
Picking a single comparator with inadequate, irrelevant, or superficial similarities falls short of what the law requires. Courts require that comparators be meaningful, which explains why the Eleventh Circuit—which reviewed the oftentimes discordant caselaw on the topic— recently decided en banc that comparators must be "similarly situated in all material respects." Lewis
v. City of Union City, Georgia, 918 F.3d 1213, 1218 (11th Cir. 2019) (rejecting "nearly-identical
standard" as too rigid and rejecting "not useless" as too lax).
* * *
With Lewis and its progeny as our guideposts, Swift fails as a valid comparator. Consistent with Lewis, a "comparator's misconduct must be similar in all material respects." McPhie v. Yeager, 819 Fed.Appx. 696, 698–99 (11th Cir. 2020)
(applying Lewis).
Here, the alleged comparator Petitioner offered as someone who was treated better than her was a married male mortgage loan officer. However, Petitioner was unable to identify the name or any personal identifying information about the loan officer that she offered as a comparator. Moreover, other than her uncorroborated statement, Petitioner also did not offer any evidence to demonstrate the marital status of the alleged comparator. As a result, Petitioner has failed to prove the fourth element necessary to demonstrate that a similarly situated married man was treated better than she was treated.
Legitimate, Non-discriminatory Reason
Assuming, arguendo, that Petitioner established a prima facie case, the burden would shift to Respondent to proffer a legitimate, non- discriminatory reason for its action.
Respondent met its burden by producing substantial credible evidence that Petitioner was not terminated and the lack of earned commission was based solely on Petitioner’s failure to submit loans for processing.
Pretext
If Petitioner established a prima facie case of discrimination, then
upon Respondent’s production of evidence of a legitimate non-discriminatory reason for its action, the burden would shift back to Petitioner to prove by a
preponderance of the evidence that Respondent’s stated reasons were not its
true reasons, but were a pretext for discrimination.
The record of this proceeding does not support a finding or a conclusion that Respondent’s proffered explanation for its decisions were false or not worthy of credence, nor does it support an inference that the explanation was pretextual.
For the reasons set forth herein, Petitioner failed to prove circumstantial evidence of discrimination based on sex or marital status under McDonnell Douglas and its progeny.
Retaliation
The FCRA’s retaliation provision comes in two forms--opposition-based or participation-based conduct. With regard to those forms of conduct, it is established that “[a]n employee is protected from discrimination if (1) ‘he has opposed any practice made an unlawful employment practice by this
subchapter’ (the opposition clause) or (2) ‘he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter’ (the participation clause).” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999).
“Section 760.10(7), Florida Statutes, is virtually identical to its Federal Title VII counterpart, 42 U.S.C. § 2000e-3(a). The FCRA is patterned after Title VII; federal case law on Title VII applies to FCRA claims.” Hinton
v. Supervision Int'l, Inc., 942 So. 2d 986, 989 (Fla. 5th DCA 2006)(quoting Guess v. City of Miramar, 889 So. 2d 840, 846 n.2 (Fla. 4th DCA 2005)).
In construing 42 U.S.C. § 2000e-3(a), the Eleventh Circuit has held that:
[t]he statute's participation clause “protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC.” . . . The opposition clause, on the other hand, protects activity that occurs before the filing of a formal charge with the EEOC,
such as submitting an internal complaint of discrimination to an employer, or informally complaining of discrimination to a supervisor. (citations omitted).
Muhammad v. Audio Visual Servs. Grp., 380 Fed. Appx. 864, 872 (11th Cir. 2010). The division of section 760.10(7) into the “opposition clause” and the “participation clause” is recognized by Florida state courts. See Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 925-26 (Fla. 5th DCA 2009). In explaining the difference between the two clauses, the Second District Court of Appeal has held that:
FCRA's “opposition clause [protects] employees who have opposed unlawful [employment practices].” . . . However, opposition claims usually involve “activities such as ‘making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of coworkers who have filed formal charges.’” . . . Cases involving retaliatory acts committed after the employee has filed a charge with the relevant administrative agency usually arise under the participation clause.
Carter v. Health Mgmt. Assoc., 989 So. 2d 1258, 1263 (Fla. 2d DCA 2008).
Regarding the broad coverage afforded under the participation clause, the Eleventh Circuit has explained:
Congress chose to protect employees who “participate[ ] in any manner” in an EEOC investigation. The words “participate in any manner” express Congress’ intent to confer “exceptionally broad protection” upon employees covered by Title VII . . . . “the adjective ‘any’ is not ambiguous . . . . [It] has an expansive meaning, that is, one or some indiscriminately of whatever kind . . . . [A]ny means all.” Because participation in an employer’s investigation conducted in response to a notice of charge of discrimination is a form of participation, indirect as it is, in an EEOC
investigation, such participation is sufficient to bring the employee within the protection of the participation clause.
Clover v. Total Sys. Servs., Inc., 176 F.3d at 1353.
In order to establish a prima facie claim of retaliation under the participation clause, a petitioner must, “in addition to filing formal charges with the Equal Employment Opportunity Commission (EEOC) or its designated representative, [a petitioner] was required to demonstrate: (1) a statutorily protected expression; (2) an adverse employment action; and, (3) a causal connection between the participation in the protected expression and the adverse action.” Hinton v. Supervision Int’l, Inc., 942 So. 2d at 990.
Here neither of Petitioner’s complaints were predicated on, or
investigated as, incidents of discrimination. Respondent’s alleged acts of retaliation were solely based upon the FCL complaint, and the alleged retaliatory adverse action that resulted from the allegations that RAC based its actions upon the FCL complaint. However, FCL was Petitioner’s prior employer with no direct relationship with RAC. In addition, there was insufficient evidence of adverse employment action that occurred prior to Petitioner filing her Complaint of Discrimination. Assuming RAC’s internal investigation of the Moore complaint could be related to Petitioner’s allegations of discrimination, the resulting internal investigation was not the result of Petitioner having “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing … .” § 760.10(7), Fla. Stat. Moreover, Petitioner’s alleged basis for retaliation was based on the FCL complaint, which involved a different employer.
Claims under the opposition clause are not subject to the same degree of “expansive protection” that arises after a claim of discrimination is filed with the appropriate civil rights agency. Rather:
Opposition clause acts, however, are taken outside of the context of a government review and, instead, are taken in the context of the ordinary business
environment and involve employers and employees as employers and employees. As in this case, whether to fire an employee for lying to the employer in the course of the business's conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second- guess as a kind of super-personnel department.
EEOC v. Total Sys. Servs., 221 F.3d at 1176 (citing Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d at 1361).
The record of this proceeding contains no direct or statistical evidence of any retaliation on the part of Respondent as a result of Petitioner’s opposition to acts of discrimination directed against others as a result of their sex or marital status.
In order to establish a prima facie case of retaliation, Petitioner must demonstrate by a preponderance of the evidence: “(1) that [she] engaged in statutorily protected expression; (2) that [she] suffered an adverse employment action; and (3) there is some causal relationship between the two events.” (citations omitted). Holifield v. Reno, 115 F.3d at 1566; see also Muhammad v. Audio Visual Servs. Grp., 380 Fed. Appx. at 872; Tipton v. Canadian Imperial Bank, 872 F.2d 1491 (11th Cir. 1989).
Petitioner’s claim of retaliation is directed exclusively to her allegation that she was retaliated against as a result of her complaint filed against FCL and RAC’s alleged actions based on the FCL complaint. That is simply not a statutorily protected expression. Her allegations have nothing to do with whether the alleged wrongful conduct was the result of her sex, or as a result of her marital status.
For the reasons set forth herein, Petitioner did not meet her burden to establish a prima facie case of discrimination by retaliation.
The evidence offered at the final hearing was not sufficient to meet the burden of proof to establish, by a preponderance of evidence, that Respondent
subjected Petitioner to discrimination on the basis of her sex or marital status.
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 finding that Respondent, Residential Acceptance Corporation, did not commit any unlawful employment practice as to Petitioner, Mary Setzer, and dismissing the Petition for Relief filed in this matter.
DONE AND ENTERED this 28th day of January, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
YOLONDA Y. GREEN
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 28th day of January, 2021.
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020
Mary Setzer
813 Chickamauga Avenue
Knoxville, Tennessee 37917
Phillip Harris, Esquire
Constangy, Brooks, Smith & Prophete, LLP 100 North Tampa Street, Suite 3350
Tampa, Florida 33602-5832
Jordan Elizabeth Koziol, Esquire Constangy, Brooks, Smith & Prophete, LLP 100 North Tampa Street, Suite 3350
Tampa, Florida 33602-5830
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 28, 2021 | Recommended Order | Petitioner failed to prove she was subjected to discrimination based on her sex or marital status. |
