14-006130 Linda Cattanach vs. Florida Department Of Elder Affairs Status: Closed Recommended Order on Monday, October 5, 2015.

Summary: Petitioner proved a prima facie case of retaliation in violation of the Florida Civil Rights Act of 1992.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA CATTANACH ,

Petitioner ,

vs. Case No . 1 4 - 6130

FLORIDA DEPARTMENT OF ELDER

AFFAIRS ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this c ase was heard on March 31 and

May 11 , 2015 , via video tele conference in Tallahassee and

Gainesville , 1 / Florida, before Suzanne Van Wyk , a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: M. Linvi lle Atkins, Esquire

Fl ury & Atkins, LLC

725 East Park Avenue

Tallahassee , Florida 3 2301

For Respondent: Glenn Allen Bassett, Esquire

Jamie Marie Ito, Esquire

Office of the Attorney General

The Capital, Plaza Level 01

Tallahassee , Florida 32399

STATEMENT OF THE ISSUE

Whether the Petitioner , Linda Cattanach, was subject to an

unlawful employment practice by Respondent, Florida Department

of Elder Affairs , based on her sex or in retaliation for her

opposition to an unlawful employment practice in violation of

s ection 760.10, Florida Statutes (2013) . 2/

PRELIMINARY STATEMENT

On April 28 , 2014 , Petitioner filed a complaint of

discrimination w ith the Florida Commission on Human Relations

(FCHR) which alleged that Respon dent violated s ection 760.10, by

discriminating against h er on the basis of h er sex and in

retaliation .

On October 14 , 2014 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On November 1 4 ,

2014 , Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was originally s cheduled for March 4

and 5 , 2015 , live in Tallahassee, but was subsequentl y

rescheduled for March 31, 2015 , via video teleconference in

Tallahassee and Gainesville, Florida . The final hearing

commenced as scheduled , bu t was not concluded on March 31, 2015 .

The final hearing was continued to, and concluded on, May 11,

2015. 3/

At the final hearing, Petitioner testified on her own

behalf and offered the testimony of Freadda Zeigler,

RespondentÓs former CARES Regional Pro gram Supervisor; and

Taroub King, RespondentÓ s Inspector General. PetitionerÓs

E xhibits P1, P3, P5, and P7 were admitted in evidence. The

undersigned also granted PetitionerÓs request for official

recognition of section 110.1091, Florida Statutes, and Fl orida

Administrative Code Rule 60L - 3 5 .004 .

Respondent presented the testimony of Petitioner and Paula

James, RespondentÓs CARES Program Bureau Chief . R espondentÓs

Exhibits R1, R2, R4 through R7, and R9 through R11 were admitted

in evidence.

A one - volume Transcript of the proceedings on May 11, 2015,

was filed on June 11, 201 5 . The one - volume Transcript of the

proceedings on March 31, 2015, was not filed until August 31,

2015.

On both June 19 and 30, 2015, the undersigned granted

extensions of time for the parties to file proposed recommended

orders, which were due on or before July 13, 2015. Respondent

timely filed a Proposed Recommended Order on July 13, 2015.

Petitioner filed a Proposed Recommended Order on July 14, 2015,

which was not opposed by R espondent. Both partiesÓ Proposed

Recommended Orders have been considered in preparation of this

Recommended Order.

FINDINGS OF FACT

1 . Petitioner, Linda Cattanach, was at all times relevant

hereto an employee of the Florida Department of Elder Affairs.

2 . Respondent, Florida Department of Elder Affairs

( Respondent or Department), is the state agency responsible for

administering human services programs for the elderly and for

developing policy recommendations for long - term care. See

§ 430.03, Fla. Stat . (2015) .

3 . Respondent operates a Comprehensive Assessment and

Review for Long - Term Care (CARES) program to assess individuals

for Medicaid long - term care services, whether in a nursing

facility, in a private home, or in another community setting.

4 . Th e CARES program operates 19 offices statewide and one

central office in Tallahassee. Medical assessments are

conducted by CARES Assessors (CAs) , and Senior CAs. CAs and

Senior CAs are supervised by a Program Operations Administrator

(POA) in each office , who reports to a Regional Program

Supervisor (RPS ) .

5 . The RPS report s to the Deputy Bureau Chief in

Tallahassee, who reports to the Bureau Chief; who, in turn,

reports to the Division Director for Statewide and Community -

Based Services .

6 . In January 201 3 , Petitioner began employment as a CA in

RespondentÓs Gainesville office. Petitioner began in a one - year

probationary employment status .

7 . The record did not clearly establish how many

individuals were employed in the Gainesville office with

Petiti oner . There was an office assistant , Rose Gonzalez ; at

least four other CAs, including Justin Keels ; a registered

nurse; and the ir supervisor, POA Sam Rutledge.

8 . Freadda Zeigler was the RPS for the region , which

included the Gainesville , Ta llahassee, Pensacola, Jacksonville,

and Daytona Beach offices . Ms. Zeigler commuted from her home

in Broward County .

9 . In Tallahassee, Jay Hud son was the Deputy Bureau Chief ,

Paula James was the Bureau Chief , Carol Carr was the Deputy

Division Director , and Marcy Hajdukiewicz was the Division

Director.

10 . The Gainesville territory cover ed from Marion County

north to the Florida/Georgia line, west to the Leon County line ,

and east to the Duval County line .

11 . CAs were assigned to particular locations within th e

officeÓs jurisdiction . CAs traveled to both health care

facilities (e.g., nursing homes, assisted living facilities) and

private homes to meet with and personally evaluate the needs of

the client.

12 . Petitioner was primarily assigned to cover facili ties

in Jasper, Live Oak, Dowling Park, Mayo, and Lake City.

13 . Petitioner was in the field conducting evaluations two

to three times per week. Her assignments required some long

commutes, up to one and one - half hours to Jasper (just south of

the Geor gia line) and over an hour to Dowling Park and Live Oak.

14 . In February 2013, a senior CA position became open in

Gainesville . Both P etitioner and Mr. Keels applied and were

interviewed for the position. Mr. Keels was selected for the

position in March . As senior CA, Mr. Keels did not supervise

other CAs in the Gainesville office, but was Ðput in chargeÑ

when Mr. Rutledge was out of the office.

15 . When Petitioner began her employment in Gainesville ,

she was told that a desk was being ordered for her. She was

given a folding table to use in her workspace.

16 . PetitionerÓs workspace was in an open area of the

office . Other employees would pass through and occasionally

gather in her workspace on breaks or on their way to lunch.

17 . Petitioner tes tified that Mr. Rutledge often came into

the open area to interact with other employees around lunchtime

to see if anyone wanted to Ðget food.Ñ

Sexual Harassment Claim 4 /

18 . One day in late March 2013, Mr. Rutledge and Mr. Keels

were in PetitionerÓs works pace and began discussing a restaurant

with the word ÐcooterÑ in its name. During this conversation,

the two men stood on opposite sides of PetitionerÓs worktable ,

where Petitioner was seated.

19 . One of the men asked Petitioner if she knew what the

word ÐcooterÑ meant, and she responded that she did not. One of

the men stated that it meant Ðvagina.Ñ

20 . Petitioner testified that she was embarrassed,

uncomfortable, and felt trapped at her worktable where the men

stood on either side of her .

21 . Petit ioner did not report this incident to anyone at

first. Petitioner testified that she was afraid that if she

said anything, she would be fired. PetitionerÓs ambivalence was

due in no small part to the fact that Mr. Rutledge was her

supervisor.

22 . Petiti oner described another incident that occurred

shortly before the ÐcooterÑ incident . Mr. Rutledge called

Petitioner into his office and asked her to look at a picture on

his computer screen. The picture was of a woman in a bikini.

Mr. Rutledge said somet hing to the effect of Ðthat is what my

ex - wife used to look like.Ñ Petitioner was embarrassed and left

Mr. RutledgeÓs office.

23 . Respondent maintains a sexual harassment policy of

which Petitioner was aware. The policy provides, in part, that

Ð[a]ny em ployee who believes that he or she is the victim of

sexual harassment . . . may make an oral or written complaint to

the General Counsel or Director of Internal & External Affairs

within 365 days of the alleged discriminatory action.Ñ

24 . In April 2013, a pproximately a week after the ÐcooterÑ

incident , RespondentÓs Inspector General Taroub King began an

investigation of Mr. Rutledge , prompted by an anonymous

complaint . Among the allegat ions investigated were that

Mr. Rutledge borrowed money from employees , encouraged employees

to participate in a n investment scheme (or schemes) , and

utilized employees to witness signatures and notarize documents

of a personal nature. The complaint described Mr. Rutledge as

maintaining no management structure, lacking basi c

documentation, and essentially performing no work of any kind.

25 . Petitioner was interviewed in connection with the

investigation by Ms. King and another investigator from the

Inspector GeneralÓs office on April 4, 2013.

26 . Petitioner was placed und er oat h and her interview was

audio - recorded. Petitioner was questioned about the allegations

in the complaint against Mr. Rutledge , and she fully cooperated

with the investigators .

27 . At the end of the interview, Ms. King asked Petitioner

if she had any other information to relay. At that point,

Petitioner reported that inappropriate comments and banter of a

sexual nature occurred in the office. Petitioner did not report

any other details. Ms. King asked Petitioner for particular

examples. In res ponse, Petitioner shared the ÐcooterÑ incident

and the ÐbikiniÑ incident.

28 . All of the employees in the Gainesville office were

interviewed by Ms. King. Mr. Keels was interviewed after

Petitioner and was questioned about the ÐcooterÑ incident and

of fice banter of a sexual nature.

29 . At the final hearing, Petitioner maintained that there

was both frequent sexual banter a nd inappropriate conversations

in the Gainesville office. She testified that the staff nurse

once referred to a patient as having Ðballs the size of a bull . Ñ

She also reported that Mr. Rutledge made hand gestures

indicating that Ms. Gonzalez was large - breasted.

30 . Petitioner did not share these details with Ms. King

during her interview.

31 . As with the ÐbikiniÑ incident, Pet itioner was able to

walk away from, or otherwise ignore, the comments and gestures

of a sexual nature in the workplace.

32 . Upon her return to Tallahassee, Ms. King reporte d her

investigative findings to members of RespondentÓs Human

Resources Department , the Deputy Secretary, and the Director of

Internal and External Affairs.

33 . Petitioner testified that she sent Ms. King an email

sometime after her interview asking whether more information w as

needed from Petitioner regarding her complaints of inappr opriate

sexual comments in the workplace. Ms. King denied that

Petitioner sent any follow - up email of that nature. Ms. King

did recall an email from Petitioner requesting public records.

34 . Respondent terminated Mr. Rutledge on April 8, 2013 ,

four day s after Petitioner was interviewed by Ms. King .

35 . The decision to terminate Mr. Rutledge was made by

management in the Tallahassee office. Both Mr. Hudson, the

Deputy Bureau Chief, and Ms. James, the Bureau Chief, traveled

from Tallahassee to Gainesv ille to terminate Mr. Rutledge .

36 . Ms. Zeigler was likewise present at the Gainesville

office fo r the termination of Mr. Rutledge. However,

Ms. Zeigler claimed not to have been informed ahead of time

about the termination. She said the a ppearance of M r. Hudson

and Ms. James at the Gainesville office on April 8, 2013, was a

surprise to her.

37 . In early May 2013, a significant remodel of the

Gainesville office was initiated. The remodel created confusion

in the Gainesville office, with furniture bein g moved around,

office files and equipment being boxed up, and the general mess

associated with construction in the workplace. At some point,

Petitioner lost trac k of an entire box of her files and later

found them on the floor under a pile of chairs she assumed the

painters had moved. 5 /

Alleged Acts of Retaliation

38 . Respondent named Mr. Keels as Acting POA , effective

April 8, 2013. Ms. James testified, credibly, that Mr. Keels

was named Acting POA because he was the s enior CA in the office.

39 . Mr. Keels was questioned about the ÐcooterÑ incident

during his interview by the Inspector General. Thus, t here is

sufficient evidence from which the undersigned can infer that

Mr. Keels was aware Petitioner had reported the ÐcooterÑ

incident to the Inspector General during the investigation of

Mr. Rutledge.

40 . Petitioner complained that she was ostracized by other

employees in Gainesville after Mr. Rutledge was terminated.

41 . Petitioner also compla ined that Mr. Keels treated h er

unfairly in his capaci ty as a cting POA.

42 . First, Petitioner maintain ed that Mr. Keels increased

her caseload, from about 27 to about 44 cases, which made her

job very difficult given the lengthy commutes to her assigned

facilities.

43 . Petitioner introduced no evidence, oth er than her

testimony, that her caseload su bstantially increased after

Mr. Keels became acting POA .

44 . Petitioner complained to the Inspector General on

April 4, 2013, that her caseload under Mr. RutledgeÓs

supervision was inordinately heavy . Petition er also shared with

the Inspector General that Mr. Keels, in his capacity as s enior

CA, was unfair in case distribution.

45 . Further, Petitioner testified that although her

caseload was heavy in early May, it later declined.

46 . The evidence does not s upport a finding that Mr. Keels

assigned Petitioner an inordinately heavy caseload following her

complaints to the Inspector General and Mr. Keel s Ó temporary

promotion to a cting POA.

47 . S ometime after Mr. Keels became a cting POA, he took

away PetitionerÓ s worktable . According to Petitioner, Mr. Keels

said he took the table for use in the conference room for

Ð staff ings , Ñ a term that was not explained by any witness .

Petitioner testified there were other tables available in the

meeting room which could ha ve been used for that purpose.

48 . For the next two months, Petitioner completed her in -

office work at a window ledge. She placed he r laptop and files

on the ledge and utilized extra chairs for additional workspace .

49 . In June 2013 , Petitioner was pres ented with a new

desk .

PetitionerÓs Termination

50 . During Mr. RutledgeÓs tenure as POA, the Bureau had

rolled out significant changes to the CARES program. Those

changes had not been implemented by Mr. Rutledge, much less

communicated to the Gainesville staff.

51 . After Mr. RutledgeÓs termination, CARES management

began monitoring the G ainesville office very closely.

52 . During t he next few months, Ms. Zeigler was more

frequently pr esent in the Gainesville office and was in almost

c onstant contact with Mr. Hudson regarding the activities of the

Gainesville office. However, Ms. Zeigler was unaware of any

discussions Mr. Hudson may have had with the Bureau Chief or the

Division Director.

53 . Shortly after Mr. RutledgeÓs departure, Ms. Zeigler

met with t he Gainesville staff to explain new procedures. Among

the procedures was a requirement to include on employeesÓ

GroupWise calendars , an entry of every planned field visit.

54 . The CAsÓ GroupWise calendars were accessible not only

to their immediate sup ervising POA, but also to the RPS and

higher - level managers. The calendar was an important management

tool used by Respondent both to perform quality assurance checks

and to mo nitor employee performance.

55 . On May 9, 2013, Ms. Zeigler sent the following email

to the CAs in Gainesville :

Good afternoon all,

As mentioned in the past meeting in your

office, it was requested that I be given

access to your GroupWise calendars to help

monitor accountability for field visits with

Specialization.

I would like to thank each of you for

adhering to the request, and would like to

ask each of you to add the following

information to your calendars:

First and Las t name of client visiting

Facility name where client will be visited

Home address if visiting client in the home

Purpose of visit

Time of visit (include estimated travel

time)

* * *

This information is needed for

accountability purposes, and also used to

check that assessments are being entered in

CIRTS, per the attached CARES policy #PPH

Update No2011_2, that is still currently in

place.

Effective immediately, I would like for each

worker to add this information to their

calendars prior to making a visit. You

should also add any approved leave time that

you will be taking as well. If you r visit

schedule cha nges, it needs to be noted on

the calendar with the appropriate change.

Please revisit this memo for a thorough

understanding.

5 6 . On May 14, 2013, Ms. Zeigler sent an email to

Petitioner informing Petitioner that information on her calendar

was incorre ct.

5 7 . On May 31, 2013, Ms. Zeigler issued a formal

counseling memorandum to Petitioner for failure to list her

client visits on her GroupWise calendar as directed. The

following excerpt is especially relevant:

You were instructed to submit your plans f or

field visits [sic] travel at least one day

in advance of the actual travel. A review

of your calendar clearly showed that you

either did not put any information on your

calendar as required and/or you entered

incorrect data, for the following dates:

A pril 16, 2013, May 6, 2013, May 7, 2013,

May 9, 2013, May 10, 2013, and again on

May 14, 2013.

58 . At the final hearing, Petitioner did not deny that she

failed to enter required information on her calendar . Instead,

Petitioner offered a series of excus es , including system

connectivity issues, her travel schedule, and confusion

regarding a transition from GroupWise to the Outlook calendar

system.

59 . With regard to connectivity, Petitioner explained that

there were problems connecting to the DepartmentÓ s computer

syst em from remote locations and , occasionally , in the

Gainesville office.

60 . Petitioner likewise testified that she would not

return home until 6:00 p.m. or later on days she traveled to

Jasper and other remote field locations . Petitioner co mplained

that connectivity issues prevented her access to GroupWise from

home, and thus, was unable to enter the visits scheduled for the

following day.

61 . Petitioner testified that she complained to the

information technology department in Tallahassee a bout

connectivity issues and diligently tried to address these

concerns.

62 . Petitioner introduced in evidence an email exchange

between herself and Ms. Zeigler in which she compl ained about ,

and Ms. Zeigler resolved , an issue with PetitionerÓs access to

CIRTS Î the DepartmentÓs online case input system.

63 . The email string is dated July 17, 2013, well after

the date of PetitionerÓs documented missing calendar entries.

Further, the email relates to access to the case input system

and is irrelevant to Pe titionerÓs claim of issues with

connectivity to the computer system in general.

64 . Finally, Petitioner explained that the Department

changed from GroupWise to the Outlook system , and she was

confused about whether to continue adding entries on her

GroupW ise calendar during that transition.

65 . In the May 31, 2013 , counseling memorandum,

Ms. Zeigler referred to the programÓs transition from the

GroupWise to the Outlook calendaring system, as follows:

The Microsoft Outlook Email and Calendar

program was installed on all computers in

DOEA, migrating exis ting GroupWise

information to t he new Outlook program on

May 28, 2013. Instruction video s and online

documentation were made available to all

DOEA employees to learn how to utilize the

new program. You we re instructed to give

proxy access to the RPS via email from the

acting Supervisor. It is evident that you

were successful in accessing the Outlook

Calendar, as you sent the RPS a request to

share your calendar on May 30, 2013. On the

same date, you left the office to go to the

field at 12:55 p.m., and failed to

update/place any information on your

calendar before departing. The sign in

sheet indicated that you were going to a

nursing facility. This repeated failure to

comply with procedures is unaccept able. As

a result of this failure, your supervisor

was unaware of what facility and/or client

you were seeing and how long it would take

time wise for the field visit. You

effectively prohibited your supervisor from

knowing your whereabouts and/or the

cl ient(s) to be seen.

66 . In light of the facts, PetitionerÓs alleged confusion

about whether to continue adding information to her GroupWise

calenda r is not credible . Petitioner did not send an Outlook

calendar - sharing invite to Ms. Zeigler until May 30, 2013, well

after her missing GroupWise calen dar entries of April 16 and

May 6, 7, 9, 10, and 14 , 2013 .

67 . Further, Petitioner failed to calendar her

appointments the same day she sent Ms. Zeigler the calendar -

sharing invitation, thus belying any excuse that she had

connectivity issues , at least on that particular date .

68 . In an effort to minimize the significance of her

failure to document her field visits on her calendar, Petitioner

testified that she noted her field visits on a daily sign - in log

phys ically maintained in the Gainesville office. Petitioner

introduced a composite exhibit purporting to be copies of the

daily sign - in logs from April, May, June, and July 2013.

69 . Even if the exhibit was reliable evidence of

PetitionerÓs whereabouts, the logs are irrelevant to the issue

of whether Petitioner complied with the electronic calendaring

requirement.

70 . No evidence was introduced to support a finding that

the daily sign - in log was a n acceptable alternative to

Ms. ZeiglerÓs specific, clear, a nd repeated direction to all

Gainesville employees to use their GroupWise , and later Outlook ,

calendars to note their planned field visits with required

details.

71 . The evidence conflicted as to whether Ms. ZeiglerÓs

May 31, 2013 , counseling memorandum c onstituted discipline.

Petitioner testified that the memorandum was a training tool.

72 . Ms. Zeigler testified alternately, and with hesitancy,

that the memorandum was Ð almost like a verbal warning type of

thing ,Ñ and Ðunofficially formal.Ñ On cross - exa mination,

Ms. Zeigler testified, Ð I donÓt think that that would be a

reason to fire somebody after one counseling memo. I mean that

would be absurd.Ñ

73 . Ms. James testified that the memorandum constituted a

first - step disciplinary action. Ms. James exp lained that a

counseling memorandum is preceded by a verbal warning from the

supervisor.

74 . The DepartmentÓs disciplinary policy was not

introduced in evidence.

75 . In light of PetitionerÓs probationary employment

status, the issue of whether the counse ling memorandum

constituted discipline is largely irrelevant. The counseling

memorandum is evidence of poor job performance during

PetitionerÓs probationary employment period .

76 . At some point after Mr. RutledgeÓs termination, the

Department advertised for the open POA position. Both

Petitioner and Mr. Keels applied for the position.

77 . Mr. Hudson and Ms. Zeigler conducted interviews for

the position. Petitioner was not responsive to Ms. ZeiglerÓs

efforts to schedule PetitionerÓs interview for the position.

78 . Eventually, Ms. Zeigler did interview P etitioner for

the position. Ms. Zeigler also interviewed Mr. Keels.

79 . In June 2013, Ms. Zeigler prepared performance

evaluations of the Gainesville staff. Ms. Zeigler had little

knowledge of staff performance prior to Mr. RutledgeÓs

termination, as Ms. Zeigler was new to the region. Ms. Zeigler

gave all the Gainesville employees ratings of Ð3,Ñ satisfactory

performance , across the board.

80 . In late July 2013 , Ms. Carr and Ms. Hajdukiewicz from

the Tallahassee office came to the Gainesville office and

personally terminated Mr. Keels .

81 . Ms. James did not directly make the decision to

terminate Mr. Keels, but she agreed with the decision.

Ms. James stated that Mr. Keels was terminated based on his

actions after he became acting POA in Gainesville. Ms. James

did not elaborate and neither counsel asked any follow - up

question.

82 . On July 31, 2013 , Ms. Carr and Ms. James came to the

Gainesville office from Tallahassee, met with Petitioner, and

of fered her a choice of resignation or termination. Petitioner

chose termination.

83 . That same day, after leaving the office , Petitioner

called the Department of Human Resources and requested to change

her termination to resignation. The request was gran ted.

84 . Petitioner did not ask why she was being terminated or

asked to resign. Petitioner testified that neither Ms. Carr nor

Ms. James gave her a reason.

85 . Ms. Zeigler resigned from the Department in October

2013. The circumstances of Ms. Zeigl erÓs resignation were not

introduced in evidence. In that regard, Ms. Zeigler testified

as follows:

I had a lot of questions with the State that

probably should not come up here, but there

are a lot of questionable things that were

going on with the State at the time which

led to my resignation. So I did not

question it. I did not question

[PetitionerÓs] termination based off of my

ability to run the office, because I almost

felt like it was being run above me. [ 6 / ]

86 . Ms. ZeiglerÓs testimony was intr oduced in support of

PetitionerÓs claims. However, Ms. Zeigler had difficulty

recalling events , including t he timing of relevant events . Of

note, Ms. Zeigler testified that she was the RPS for Gainesville

about a year, meaning she would have begun in the position in

October 2012. Later , she testified that Mr. Rutledge was

terminated Ðnot long after I was there [as RPS].Ñ Her testimony

was hesitant, hedging, and sometimes conflicting. Ms. Zeigler

testified that she was in daily contact with Mr. Hudson a bout

issues in the Gainesville office after Mr. Rutledge was

terminated, but claimed to have had no advance notice of either

Mr. Keels Ó or Petitioner Ós termination .

87 . As such, the undersigned finds Ms. ZeiglerÓs testimony

to be both unreliable and unpe rsuasive. Ms. ZeiglerÓs

counseling memorandum to Petitioner regarding calendaring is

credible evidence of PetitionerÓs job performance which cannot

be discounted by Ms. ZeiglerÓs after - the - fact, and apparently

biased, testimony.

CONCLUSIONS OF LAW

88 . Se ctions 120.569 and 120.57(1), Flo rida Statutes

(2015) , grant the Division of Administrative Hearings

jurisdiction over the subject matter of thi s proceeding and of

the parties hereto .

89 . The Florida Civil Rights Act of 1992 provides the

substantive state law governing this matter. §§ 760.01 - 760.l1,

Fla. Stat .

90 . Section 760.10(1 ) provides , in pertinent part :

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discr iminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

I. Sexual Harassment Claim

91 . Ð The FCR A [Florida Civil Rights Act] is patterned

after Title VII; federal case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision IntÓl , 942 So. 2d 986, 989 (Fla.

5th DCA 2006) (citing Guess v. City of Miramar , 889 So. 2d 840,

846 n.2 (Fla. 4th DCA 2005)) .

92 . Ð I t is well settled that when Florida statutes are

adopted from an act of Congress, the Florida Legislature also

adopts the construction placed on that statute by the federal

courts , insofar as that construction is not inharmonious with

the spirit and policy of Florida's gene ral legislation of the

subject.Ñ Id.

93 . To state a Title VII claim of a hostile work

environment based on sex , a plain tiff must demonstrate that her

Ð workplace [was] permeated with discriminatory int imidation,

ridi cule, and insultÑ that was ÐÒ sufficiently severe or

pervasive to alter the conditions of [her] employment and create

an abusive working environment. ÓÑ Budik v. Howard Univ. Hosp. ,

986 F. Supp. 2d 1 , 7 ( D.C. Cir. 2013) ( citing Harris v. Forklift

Sys. , 510 U.S. 17 (1993) ) .

94 . To satisfy this requirement, P etitioner must show

that : ( 1) she is a member of a protected class; (2) she was

subject to unwelcome sexual harassment; (3 ) the harassment was

based on her protected status; (4) the harassment affected a

term, condition , or privilege of her employment; and ( 5) the

employer knew or should have known of the harassment, but failed

to take any action to prevent the harassment. Jones v.

Billington , 12 F. Supp. 2d 1, 11 (D.D.C. 1997), affÓd , No. 98 -

5014, 1998 U.S. App. LEXIS 15459 (D.C. Cir. June 30, 1998) .

95 . Petitioner is a female, thus , a member of a protected

class.

96 . In evaluating PetitionerÓs allegation that she was

subject to sexual harassment , Ð the court looks to the totality

of the circumstan ces, including the frequency of the

discriminatory conduct, its severity, its offensiveness, and

whether it interferes with an employee's work p erformance.Ñ

Baloch v. Kempthorne , 550 F.3d 1191, 1201 (D.C. Cir. 2008)

(citing Faragher v. Boca Raton , 524 U.S . 775, 787 - 88 (1998)) .

Ð Except in extreme circumstances, courts have refused to hold

that one incident is so severe to constitute a hostile work

environment. Even a few isolated incidents of offensive conduct

do not amount to actionable h arassment.Ñ Ste wart v. Evans , 275

F.3d 1126, 1134 (D.C. Cir. 2002) (citations omitted).

97 . Petitioner testified about four instances of comments

or conversations of a sexual nature in her workplace during the

first four months she was em ployed there. The behavior was

relatively infrequent.

98 . Petitioner was not amused by, but nevertheless able to

ignore and walk away from, Mr. RutledgeÓs hand gestures

regarding Ms. Gonzalez Ós breasts, and Ms. GonzalezÓs comment

about the relative size of a clientÓs Ðballs.Ñ T hese c omments

were not directed at Petitioner, nor were they frequent enough

for the undersigned to find that they permeated the workplace ,

creating a hostile work environment.

99 . Similarly, the isolated ÐbikiniÑ incident was mild, at

best. Mr. Rutledge did n ot comment specifically about any part

of the female body and did not use vulgar or obscene language.

Petitioner found nothing particularly objectionable about the

photograph itself, other th an it being shown in the office .

Petitioner did not feel threat ened or coerced. Petitioner

promptly left Mr. RutledgeÓs office and returned to her work.

100 . The ÐcooterÑ i ncident is slightly more problematic

under the analysis. The language used was, undoubtedly, based

on PetitionerÓs protected status as a woman. Petitioner was

seated w hile the two men stood on either side of her worktable

in close proximity . Petitioner felt ÐtrappedÑ and could not

simply walk away from the objectionable behavior.

101 . However, the incident did not alter the terms or

condition s of her employment. The single incident, although

unpleasant, unprofessional, and in poor taste, was isolated.

Petitioner was not required to endure rep eated instances of the

same or similar behaviors. Petit ioner was out of the office

two - to - three days a week conducting field evaluat ions of clients

and frequently did not return to the office in the evenings.

102 . Finally, the record is clear that the Department took

action to end the behaviors a s soon as it was reported.

Mr. Rutledge was terminated a mere four days after Petitioner

disclosed these incidents to the Inspector General .

103 . Petitioner did not carry her burden to prove she was

subject to unlawful sexual harassment in the workplace. Based

on the totality of the circumstances , comments of a sexual

nature were infrequent (to the extent Petitioner was present in

the office to observe them), were not generally directed at

Petitioner based on her sex, were not severe in nature, and did

not alter the terms or conditions of her employment.

II. Reta liation Claim

104 . Section 760.10(7), Florida Statutes, provides as

follows:

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 becaus e 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.

105 . In construing 42 U.S.C. § 2000e - 3(a) (2012) , the

Eleventh Circuit has held that:

T he statute's participation clause Ò protects

proceedings and activities which occur in

conjunction with or after the filing of a

formal charge with the EEOC .Ó . . . 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

supervis or.

Muhammad v. Audio Visual Servs. Group , 380 F. AppÓx 864, 872

(11th Cir. 2010) (citations omitted) . The division of section

760.10(7) into the Ðopposition clauseÑ and the Ðparticipation

clauseÑ 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 Ð opposition clause [protects]

employees who have opposed unlawful

[employmen t practices]. Ñ However,

opposition claims usually involve

Ð activities such as Ò making complaints to

management, writing critical letters to

customers, protesting against discrimination

by industry or by society in general, and

expressing support of cowork ers who have

filed formal charges. ÓÑ 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, 12 63 (Fla. 2d

DCA 2008) (citations omitted) .

106 . In order to establish a prima facie c l aim of

retaliation under the participation clause , Petitioner , Ðin

addition to filing formal charges with the Equal Employment

Opportunity Commission (EEOC) or its desig nated representative,

[] 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.Ñ Hinton , 942 So. 2d at 990.

107 . RespondentÓs alleged acts of retaliation occurred

prior to Petitioner filing her Employment Claim of

Discrimination with the FCHR . ÐThe participation clause

includes activity done in connection with proceedings conducted

by the federal gove rnment and its agencies: an employee has

invoked the jurisdiction of the federal government through its

agency, the EEOC. And we have held that expansive protection is

available for these adjudicative kinds of proceedings run by the

government.Ñ EEOC v. Total Sys. Servs. , 221 F.3d 1171, 1175 - 76

(11th Cir. 2000) . Therefore, PetitionerÓs claim does not fall

under the participation clause.

108 . Claims under the opposition clause are not subject to

the same degree of Ðexpansive protectionÑ that comes about 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 environmen t

and involve employers and employees as

employers and employees.

Total Sys. Servs. , 221 F.3d at 1176 ( citing Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1361 (11th Cir.

1999 ) . ÐC omplaining about allegedly unlawful conduct to company

ma nagement is classic opposition activity.Ñ Wasek v. Arrow

Energy Servs. , 682 F.3d 463 , 469 (6th Cir. 2012) .

109 . It is irrelevant in this case that Petitioner did not

report Mr. RutledgeÓs actions on her own initiative, but waited

until asked by the Ins pector General for any other information

regarding Mr. RutledgeÓs workplace behavior.

[A] person can oppose [ for purposes of

42 U.S.C.S. § 2000e - 3(a) ] by responding to

someone elseÓs question just as surely as by

provoking discussion, and nothing in the

statute requires a freakish rule protecting

an employee who reports discrimination on

her own initiative but not one who reports

the same discrimination in the same words

when her boss asks a question.

Crawford v. Metro. GovÓt of Nashville & Davidson Ct y. , 555 U.S.

271, 277 - 78, 284 (2009) .

110 . Further, Ð t here is no qualification on who the

individual doing the complaining may be or on the party to whom

the complaint is made known -- i.e., the complaint may be made by

anyone and it may be made to a co - wor ker, newspaper reporter, or

anyone else about alleged discrimination against oneself or

others[.]Ñ Johnson v. Univ. of Cincinatti , 215 F.3d 561 , 580

( 6th Cir. 2000) (citing the EEOC Compliance Manual , p. 8006).

111 . No credible direct or statistical evid ence of

unlawful retaliation exists in this case. Therefore, a finding

of discrimination, if any, must be based on circumstantial

evidence.

112 . The burden and order of proof in discrimination cases

involving circumstantial evidence is set forth in McDon nell

Douglas Corp. v. Green , 411 U.S. 792 (1973) . The McDonnell

Douglas framework has been used in retaliation cases in which

the Petitioner relies on circumstantial evidence. See Laincy v.

Chatham C n ty. Bd. of Assessors , 520 F. AppÓx 780 (11th Cir.

2013 ) ; Bryant v. Jones , 575 F.3d 1281 (11th Cir. 2009) .

113 . To demonstrate retaliation under McDonnell Douglas ,

Petitioner must first establish a prima facie case of

retaliation. Thereafter, the employer may offer legitimate,

nondiscriminatory reasons for i ts employment action. If the

employer does that, in order to prevail, Petitioner must

establish that the employer's articulated legitimate,

nondiscriminatory reasons were a pretext to mask unlawful

discrimination. Smith v. J. Smith Lanier & Co. , 352 F.3d 1342

(11th Cir. 2003) .

A. Prima Facie Retaliation

114 . In order to establish a prima facie case of

retaliation under McDonnell Douglas , Petitioner must demonstrate

by a preponderance of the evidence : Ð (1) that [she] engaged in

s tatutorily protected exp ression; (2) that [she] suffered an

adverse employment action; and (3) that there is some causal

relationship between the two events.Ñ Holifield v. Reno , 115

F.3d 1555, 1566 (11th Cir. 1997) (citations omitted) ; see also

Pennington v. City of Huntsville , 261 F.3d 1262 (11th Cir.

2001) ; Muhammad , 380 F. AppÓx at 872 ; Tipton v. Canadian

Imperial Bank of Com . , 872 F.2d 1491 (11th Cir. 1989) .

1. Statutorily - P rotected A ctivity

115 . N ot every act an employee takes in opposition to

discrimination is a pro tected activity . Laincy , 520 Fed. App Ó x.

at 782 (citing Butler v. Ala. Dep't of Transp. , 536 F.3d 1209,

1214 (11 th Cir. 2008)). The employee must show: Ð (1) that she

had a subjective good - faith belief Ò that [her] employer was

engaged i n unlawful employm ent practicesÓ ; and (2) that her

belief, even if mistaken, was objectively reasonable in light of

the record. Ñ Id. (emphasis added). Ð On a claim for

retaliation, the standard is not whether there is a valid

hostile work environment claim, but whether [Pe titioner] had a

good - faith reasonable belief that she was the victim of such

harassment. Ñ Lipphardt v. Durango Steakhouse of Brandon, Inc. ,

267 F.3d 1183, 1188 (11th Cir. 2001) .

116 . The standard require s an intensely fact - specific

analysis . In Laincy , the court found that p laintiff did not

engage in a protected activity because his belief that his co -

workersÓ allegedly harassing comments constituted an unlawful

employment practice was objectively unreasonable , where it was

limited to three innocuous com ments asking him if he was dating

someone . Laincy , 520 Fed. App Ó x. at 783. See also MacKenzie v.

Denver , 414 F.3d 1266, 1281 (10th Cir. 2005) (plaintiffÓs claim

of age harassment was both subjectively and objectively

unreasonable where she likewise lobbe d age - related comments at

her supervisor, thus participating in a form of Ðmutual

bantering Ñ) ; Atkinson v. StavroÓs Pizza, Inc. , Case No. 13 - 2880

(Fla. DOAH Jan. 29, 2015) (petitionerÓs complaint of sexual

harassment based on a single Ðweird conversationÑ between

petitioner and another employee , in which the other employee

stated he Ðknew everything about her, including where she lived,

and that her favorite color was blue , Ñ was objectively

unreasonable).

117 . PetitionerÓs claim is distinguishable from the cited

examples. Petitioner had been subject to at least one instance

in which she felt ÐtrappedÑ by her supervisorÓs conversation

with another male employee that involved derogatory language in

reference to a female body part, and which was specifically

directed at her based on her sex. Petitioner credibly testified

that she was at least concerned about, if not frightened , to

report her supervisorÓs conduct. Petitioner established a

subjective good faith belief for her report of sexual

harassment.

118 . As to the objective reasonableness of PetitionerÓs

claim, the particular circumstance of the Inspector GeneralÓs

investigation cannot be overlooked. Petitioner was placed under

oath in a recorded interview as part of an investigation into

her supervisorÓ s conduct. An objective person could reasonably

believe that her supervisorÓs conduct was relevant to a claim of

hostile work environment or other harassment under

investigation. Petiti o ner established an objectively reasonable

belief for her claim.

119 . Thus, Petitioner establish ed that she engaged in a

statutorily - protected activity when she reported the ÐcooterÑ

incident and the ÐbikiniÑ incident to the Inspector General .

2. Adverse Employment Action

120 . The Supreme Court has rejected law that limits

Ðadverse employment actionÑ to only Ðultimate employment

decisions , Ñ such as hiring, failure to hire, discharge, and

compensation. Burlington N. & Santa Fe Ry. v. White , 548 U.S.

53 , 60 (2006) . The protection is broader and includes any

conduc t wh ich is Ðmaterially adverseÑ -- any action which Ðwell

might have Òdissuaded a reasonable worker from making or

supporting a charge of discrimination.ÓÑ Id. at 68 (citations

omitted) . Whether an employerÓs action could dissuade a

reasonable employee, situat ed similarly to the plaintiff, from

making a charge of discrimination , is an objective

determination. See Tepperwien v. Entergy Nuclear Operations,

Inc. , 663 F.3d 556, 567 (2d Cir. 2011) .

121 . Petitioner claim s that Respondent engaged in a series

of retaliatory actions against Petitioner after her report of

sexual harassment to the Inspector General on April 4, 2013 ,

culminating in her dismissal on July 31, 2013. The alleged

retaliatory acts include: RespondentÓs promotion of Mr. Keels

as acting POA , thus as PetitionerÓs supervisor, even if only

temporarily; Mr. Keel s Ó significant increase to PetitionerÓs

workload; Mr. Keel s Ó re moval of her worktable ; PetitionerÓs

ostracism by co - workers; and PetitionerÓs termination by

Respondent on July 31, 2013.

1 22 . Temporary promotion of Mr. Keels to acting POA was

not materially adverse to Petitioner. While Mr. Keels had the

temporary title of acting POA, the evidence is clear that

Ms. Zeigler was in charge of reforming the wayward Gainesville

office, gatherin g the employees to communicate neglected

information about a new program, reviewing employee calendars to

keep an eye on their whereabouts, preparing and issuing

counseling memoranda, and conducting overdue performance

evaluations.

123 . Further, it is not likely that Petitioner could be

dissuaded from opposing unlawful employment actions by the

temporary promotion of Mr. Keels. Respondent had just

terminated the supervisor about whom Petitioner had complained

and Mr. Keels was a logical choice for the act ing position while

management struggled to reign in an office which had apparently

Ðgone rogue.Ñ Mr. Keels was not the wisest choice, but that

fact alone does not render the action of appointing Mr. Keels

Ðmaterially adverseÑ to Petitioner.

124 . Petition erÓs claim that her workload was

significantly increase d by Mr. Keels was unfounded, as explained

in the Findings of Fact herein.

125 . Mr. KeelÓs removal of PetitionerÓs worktable was an

adverse employment action. There can be no doubt that taking an

emp loyeeÓs desk away and forcing them to work from a window

ledge for two months, even if they are only in the office two -

to - three days a week, materially alters the employeeÓs working

conditions. This act was taken by Mr. Keels, with knowledge

that Petition er had complained about the ÐcooterÑ incident, and

only very shortly after he was temporarily promoted to the

position of acting POA.

126 . PetitionerÓs claim that she was ostracized by her co -

workers does not constitute an adverse employment action. Mere

avoidance or isolation of any employee has consistently been

held not to qualify as materially adverse pursuant to Burlington

N. & Santa Fe Ry. , 548 U.S. at 68 , that the Ðdecision to report

discriminatory behavior cannot immunize that employee from those

petty slights or minor annoyances that often take place at

work.Ñ See also MacKenzie , 414 F.3d at 1266 (supervisorÓs

Ðsilent treatmentÑ of employee following employeeÓs grievance

against him was insufficient to constitute an adverse employment

action) ; Fl annery v. TWA , 160 F.3d 425, 428 (8th Cir. 1998)

(shunning is not an adverse employment action where the

plaintiff did not allege that the ostracism resulted in a

reduced salary, benefits, seniority, or responsibilities) ; Smart

v. Ball State Univ. , 89 F.3d 437, 441 (7th Cir. 1996) (Ð[w]hile

adverse employment actions extend beyond readily quantifiable

losses, not everything that makes an employee unhappy is an

actionable adverse action. Otherwise, minor and even trivial

employment actions that Òan irritabl e, chip - on - the - shoulder

employee did not like would form the basis of a discrimination

suit.ÓÑ (citation omitted)) .

127 . PetitionerÓs termination from employment on July 31,

2013, was an adverse employment action. Despite RespondentÓs

argument that Peti tionerÓs choice to resign constituted a

voluntary separation, 7 / PetitionerÓs resignation was a

constructive termination of employment . See Odom v. Citigroup

Glob. Mkts., Inc. , 62 F. Supp. 1330, 1339 (N.D. Fla. 2014) ;

Boland v. Div. of Emergency Mgmt . , Cas e No. 11 - 5198 n.3 (Fla.

DOAH Jan. 26, 2012) (Fla. FCHR Apr. 23, 2012) (citing Le Dew v.

Unemployment Appeals Com. , 456 So. 2d 1219, 1223 - 24 (Fla. 1st

DCA 1984) ) ; and Long v. Chipola Coll . , Case No. 08 - 4797 (Fla.

DOAH Nov. 29, 2009)(Fla. FCHR Feb. 16, 2010).

128 . Petitioner satisfied her burden to establish the

second prong of a prima facie case of unlawful retaliation Î - she

suffered an adverse employment action when Mr. Keels took away

her worktable and when she was terminated on July 31, 2015.

3. Causal C onnection

129 . Petitioner must next prove, by a preponderance of the

evidence, a causal connection betwee n her protected activity --

reporting alleged acts of sexual harassment discrimination on

April 4, 2013, -- and the adverse employment actions.

130 . In h er Proposed Recommended Order, Petitioner argued

that the proximity in time between PetitionerÓs protected

conduct and her termination Ðindicates a causal connection.Ñ 8 /

Respondent countered that the time frame of more than three and

one - half months is no t a short enough time frame from which t o

infer causation under 11th Circuit court precedent.

131 . The 11 th Circuit summarized the temporal proximity

ÐtestÑ in Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364

(11th Cir. 2007) :

The burden of causation can be met by

showing close temporal proximity between the

statutorily protected activity and the

adverse employment action. See Brungart v.

BellSouth Telecomms., Inc. , 231 F.3d 791,

798 - 99 (11th Cir. 2000) . But mere temporal

pr oximity, without more, mus t be Òvery

close.Ó Clark County Sch. Dist. v. Breeden ,

532 U.S. 268, 273, 121 S. Ct. 1508, 1511,

149 L. Ed. 2d 509 (2001) (internal citations

omitted). A three to four month disparity

between the statutorily protected expression

and the adverse employmen t action is not

enough. See id. (citing Richmond v. ONEOK ,

120 F.3d 205, 209 (10th Cir. 1997) (3 month

period insufficient) and Hughes v.

Derwinski , 967 F.2d 1168, 1174 - 75 (7th Cir.

1992) (4 month period insufficient)). Thus,

in the absence of other evid ence tending to

show causation, if there is a substantial

delay between the protected expression and

the adverse action, the complaint of

retaliation fails as a matter of law. See

Higdon v. Jackso n, 393 F.3d 1211, 1220 (11th

Cir. 2004) (citing Wascura v. City of S outh

Miami , 257 F.3d 1238, 1248 (11th Cir.

2001) ).

132 . In the case at hand, Petitioner proved, and

Respondent did not deny, that Mr. Keels took PetitionerÓs

worktable shortly after he became acting POA. The proximity in

time between Petitioner Ós protected activity and the adverse

action is sufficient for an inference of causation.

133 . The proximity in time between PetitionerÓs report of

sexual harassment on April 4, 2013, and her termination on

July 31, 2013, is not sufficient for the same in ference. Where

some time elapses between when employer learns of a protected

activity and subsequent adverse employment action, Title VII

plaintiff claiming retaliation must couple temporal proximity

with other evidence of retaliatory conduct to establish

causality. Van Buren v. Ohio DepÓt of Pub. Safety , 996 F. Supp.

2d 648 (S.D. Ohio 2014) .

134 . Petitioner introduced no direct evidence of

retaliatory animus against her by either Ms. Zeigler or

RespondentÓs upper - level management. The evidence did not

support a finding that Mr. Keels had any role in the decision to

terminate Petitioner.

135 . As to removal of PetitionerÓs desk, Petitioner proved

all three elements of a prima facie case of retaliation.

136 . As to her termination, Petitioner failed to prove the

element of causation. Thus , Petitioner did not prove a prima

facie case of retaliation with regard to her termination.

B. Legitimate Non - Discriminatory Reason

137 . Assuming , arguendo , that Petitioner had established a

prima facie case of retal iation in relation to her termination,

the burden would then shift to Respondent to proffer a

legitimate reason fo r the adverse employment action . Assuming

Respondent does proffer a legitimate reason for the adverse

employment action, the burden then shif ts back to Petitioner to

prove by a preponde rance of the evidence that the Ðlegitimate

reasonÑ is merely a pretext for the prohibited, retaliatory

conduct. Russell v. KSL Hotel Corp. , 887 So. 2d 372 (Fla. 3d

DCA 2004) (citing Sierminski vansouth Fin. Corp. , 216 F.3d

945, 950 (11th Cir. 2000)) .

138 . RespondentÓs proffered legitimate non - discriminatory

reason s for terminating Petitioner were PetitionerÓs failure to

comply with RespondentÓs policy to put all information regarding

field evaluations on he r GroupWise , and later, Outlook calendar ;

and PetitionerÓs lack of responsiveness to Ms. ZeiglerÓs emails

regarding her application for the permanent POA position .

139 . Respondent offered credible testimony regarding the

importance of the calendaring poli cy in the form of testimony

from both Ms. Zeigler, who was most sympathetic to Petitioner,

and Ms. James, who participated in PetitionerÓs termination. A

preponderance of the evidence supported a finding that

Petitioner did not comply with the calendaring policy, despite

both repeated reminders to do so and a written counseling

memorandum on the subject.

140 . Thus, Respondent met its burden to produce evidence

of a legitimate non - discriminatory reason for PetitionerÓs

termination.

141 . Petitioner produ ced no evidence of a legitimate non -

dis criminatory reason for Mr. Keel s Ó removal of PetitionerÓs

worktable . The statement that Mr. Keels took the table for

staffing , although admissible as an exception to the hearsay

rule, was not credible evidence on whi ch to base a finding that

a legitimate reason existed.

C. Pretext

142 . To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a reasonable

fact finder to conclude that the employer's legitimate, non -

discriminatory re as on was Ða pretext for discrimination.Ñ

Laincy , 520 F . App Ó x . a t 781 (citing Vessels v. Atlanta Indep.

Sch. Sys. , 408 F. 3d 763, 771 (11th Cir. 2005)). Ð Provided that

the proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with

the wisdom of that reason.Ñ Id. R ather, the plaintiff must

show Ð such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer's proffered

legitimate reasons . . . that a reasonable fact finder could find

them unworthy of credence.Ñ Id.

143 . Petitioner introduced a plethora of evidence to prove

that her termination was a mere pretext for retaliatory

discharge.

144 . Fir st, Petitioner argued that her most recent

performance evaluation, documenting her Ð satisfactory Ñ work

performance, belied RespondentÓs proffered reason for

terminating Petitioner based on her performance. That argument

is neither credible nor persuasive. Ms. Zeigler admitted that

she gave all the Gainesville employees a satisfactory rating by

default.

145 . Further on that issue, Petitioner argued that

Respondent acted inconsistently with Florida Administrative Code

Rule 60L - 35.004, which reads, in perti nent part:

(3) Career Service employees in

probationary status shall have a performance

evaluation completed on or before the end of

the probationary period . . . . Failure to

evaluate the probationary employee on or

before the end of the probationary pe riod

will result in the employee successfully

completing the probationary period.

(4) If an employee successfully completes

the probationary period within 60 calendar

days of the agency designated evaluation

date, the probationary period overall rating

s hall become the employeeÓs overall rating

for the annual evaluation period that

corresponds with that agency designated

evaluation date.

146 . The rule does not support PetitionerÓs pretext claim.

Respondent did not fail to evaluate Petitioner prior to t he end

of her probationary period, thus Ðsuccessful completionÑ of her

probationary period cannot be ÐdeemedÑ upon Petitioner pursuant

to the rule.

147 . Second, Petitioner pointed to Ms. ZeiglerÓs testimony

that it Ðwould be absurdÑ to have fired Petiti oner based on the

counseling memorandum she delivered to Petitioner regarding

failure to comply with the calendaring policy. As discussed

previously, Ms. ZeiglerÓs testimony in PetitionerÓs defense was

wholly unreliable. Her testimony did not eclipse the facts that

Ms. Zeigler had laid out specifically and clearly the

calendaring policy (and the reasons therefore), had followed up

with the employees in writing, had verbally addressed the issue

with Petitioner at least once prior to issuing the counseling

memorandum, and issued the counseling memorandum to document

specific instances of PetitionerÓs failure to comply , which

Ms. Zeigler concluded were unacceptable .

148 . PetitionerÓs evidence on this issue is likewise

unpersuasive because whether Respondent followed the exact steps

of its disciplinary policy is irrelevant. Petitioner was a

career service employee on probationary status who could be

terminated for poor work performance.

149 . Finally, Petitioner introduced evidence to prove that

the underlyin g reason Petitioner failed to comply with the

calendaring policy was connectivity issues beyond her con trol,

that Petitioner diligent ly addressed the issues with information

technology, and that management knew of these problems, failed

to address them, an d fired her anyway. Petitioner adds to that

argument that if management really wanted to know where

Petitioner was in the field, they could refer to the sign - in

sheet, which Petitioner diligently used.

150 . PetitionerÓs argument , while creative , wa s

unpe rsuasive. PetitionerÓs self - serving testimony regarding her

connectivity issues lacked credibility and was unsupported by

any credible evidence. Even if Petitioner had demonstrated

continued connectivity issues which prevented her compliance

with the cal endaring policy, Petitioner did not produce evidence

that Respondent was aware of the issue and failed to address it,

or terminated Petitioner despite those complaints.

Conclusion

151 . For the reasons set forth herein, Petitioner did not

meet her burden to establish a prima facie case of

discrimination by retaliation in her termination. Respondent

put forth persuasive evidence that Petitioner was terminated

from employment as a result of her job performance , and not in

retaliation for her participation in a protected activity .

RespondentÓs legitimate non - discriminatory reason was not

refuted by PetitionerÓs efforts to demonstrate pretext.

152 . Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers o f

discretion when making legitimate, necessary personnel

decisions . Ñ See Holland v. Wash. Homes, Inc. , 487 F.3d 208, 220

(11th Cir. 2007) .

153 . For the reasons set forth herein, Petitioner met her

burden to establish a prima facie case of discrimination by

retaliation in the removal of her worktable by Mr. Keels .

Respondent offered no legitimate non - discriminatory reason for

the adverse employment action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the Florida Commission on Human

Relations issue a final order finding that Respondent, Florida

Department of Elder Affairs , did commit an unlawful employment

practice as to Petitioner, Linda Cattanach , and prohibiting the

practice. However, under the specific facts of the case, the

undersigned recommends no affirmative relief from the effects of

the practice.

D ONE AND ENTERED this 5 t h day of October 2015, in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Admi nistrative 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 5 th day of October , 2015.

ENDNOTES

1 / The final day of hearing on May 11, 2015, was conducted live

in Tallahassee, Florida.

2 / Except as otherwise noted herein, all references to the

Florida Statutes are to the 2013 version in effect when the

alleged discriminatory actions agai nst Petitioner took place.

3 / The final hearing was originally continued to April 20, 2015;

however, due to the undersignedÓs family emergency, the final

hearing was continued again to May 11, 2015.

4 / In her Proposed Recommended Order, Petitioner only addressed

her claim of retaliation. However, the record is not clear that

Petitioner abandoned her sexual harassment claim. Thus, the

undersigned has included findings and recommendations relevant

to this claim .

5 / Both Petitioner and Respondent offer ed extensive testimony at

the final hearing related to whether Mr. Keels took these same

files, knowing that they had been missing and Petitioner had

been unable to update them for a random file review. There was

no evidence on which to base a finding tha t Petitioner was

terminated based on her record - keeping while employed in the

Gainesville office. Thus, the testimony on that issue is

irrelevant.

6 / T . 35:15 - 21.

7 / In its Proposed Recommended Order, Respondent argued, Ð [a] s

defined by Eleventh Circ uit precedent, even when an employee has

a HobsonÓs choice of Òresign or be fired,Ó a resignation can be

voluntary.Ñ However, Respondent cited no authority from the

11th Circuit, o r for that matter, from any court at all. The

undersigned has found 11th C ircuit cases which hold that an

employee Ós resignation is voluntary when faced with a choice

between resignation and termination for cause or criminal

charges. See Sa ntandreau v. Miami Dade C ty. , 513 F. App Ó x. 902

(11th Cir. 2013) (holding that employeeÓs resignation was

voluntary when made after he was given a choice to report back

to work (after an extended leave of absence), resign, or be

terminated, and the employer issued a proposed disciplinary

action and offered the employee a chance to respond ther eto

before final action) ; Hargray v. City of Hallandale , 57 F.3d

1560 (11th Cir. 1995) (holding employeeÓs resignation was

voluntary where the employer gave employee the choice between

resignation and submitting to a criminal investigation for grand

theft) . T he cases are inapposite. Here, Petitioner did not

have a choice to Ðstand pat and fight.Ñ Hargray at 1568.

PetitionerÓs situation is more akin to the plaintiff in the

recent case of Odom v. Citigroup Global Markets, Inc. , 62 F.

Supp. 1330, 1339 (N.D . Fla. 2014), wherein Odom was given an

immediate Òresign or be firedÓ ultimatum. The court reasoned

that where an employee is given a choice between an immediate

resignation and immediate termination, the employee does not

have a choice at all under Harg ray ; rather , the employee has

been terminated.

8 / Petitioner cited no case law in support thereof.

COPIES FURNISHED :

Jason Brent Nelson, Esquire

Florida Department of Elder Affairs

Suite 315

4040 Esplanade Way

Tallahassee, Florida 32399

(eS erved)

J amie Marie Ito, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eS erved)

Glen Allen Bassett, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eS erved)

Tammy Sc ott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 3 2399

(eServed)

M. Linville Atkins, Esquire

Flury & Atkins, LLC

725 East Park Avenue

Tallahassee, Florida 32301

(eS erved)

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.