04-001847 Millie Carlisle vs. Sallie Mae, Inc. Status: Closed Recommended Order on Friday, January 28, 2005.

Summary: Respondent did not discriminate against Petitoner based on her race by engaging in disparate treatment, unlawful discharge, a hostile work environment, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILLIE CARLISLE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1847

)

SALLIE MAE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was co nducted in this case on December 2,

2004, in Panama City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Millie Carlisle, pro se

105 Detroit Avenue

Panama City, Florida 32401

For Respondent: Luisette Gierbolini, Esquire

Zinober & McCrea, P.A.

Post Office Box 1378

201 East Kennedy Boulevard, Suite 800

Tampa, Florida 33601 - 1378

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice in violation of Section 760.10, Florida

Statutes, by discriminating against Petitioner based on her

race.

PRELIMIN ARY STATEMENT

On June 3, 2003, Petitioner Millie Carlisle (Petitioner)

filed an Employment Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). Specifically, Petitioner

alleged that Respondent Sallie Mae, Inc. (Respondent) had

discriminated against her by subjecting her to a hostile work

environment, disparate treatment, unlawful discharge, and

retaliation based on her race.

On April 12, 2004, FCHR issued a Determination: No Cause.

On May 19, 2004, Petitioner filed a Petiti on for Relief with

FCHR. On May 24, 2004, FCHR referred the case to the Division

of Administrative Hearings.

On June 4, 2004, Respondent's counsel filed a Notice of

Appearance and Motion for an Extension of Time to Respond to the

Initial Order. The moti on was granted in an Order dated June 8,

2004.

On June 9, 2004, Respondent filed a Response to Initial

Order. A Notice of Hearing dated June 15, 2004, scheduled the

hearing for August 10 - 11, 2004.

On July 20, 2004, Respondent filed a Motion to Compel

Discovery and Unopposed Motion for Continuance of Administrative

Hearing. An Order dated July 22, 2004, granted the Motion to

Compel. Another Order dated July 22, 2004, granted a

continuance and rescheduled the hearing for October 14 - 15, 2004.

On Septem ber 23, 2004, Respondent filed a Motion for

Continuance of Administrative Hearing. An Order dated

September 27, 2004, granted a continuance and rescheduled the

hearing for December 2 - 3, 2004.

On November 15, 2004, Respondent filed a Motion for Summary

Final Order. On November 23, 2004, Respondent filed a Motion to

Stay Final Hearing Until Ruling on Currently - pending Motion for

Summary Order and Motion in Limine. On November 30, 2004, the

undersigned issued an Order denying the Motion for Summary Final

Order and the Motion to Stay and reserving ruling on the Motion

in Limine.

During the hearing, Petitioner testified on her own behalf

but did not present the testimony of any additional witnesses.

Petitioner's Exhibit Nos. P1 - P3 and P5 - P14 were accept ed as

evidence. Petitioner's Exhibit No. P4 was not accepted as

evidence because she failed to disclose the document to

Respondent as directed in the Order of Pre - hearing Instructions

and the Order granting Respondent's Motion to Compel Discovery.

Resp ondent presented the testimony of three witnesses.

Respondent's Exhibit Nos. R7, R12 - R16, R19 - R23, and R29 - R33 were

accepted as evidence.

The undersigned reserved ruling on the admissibility of

Respondent's Exhibit No. R34, a transcript of Petitioner's

October 6, 2004, deposition, pending verification that

Petitioner had an opportunity to review the deposition and

return the errata sheet to the court reporter. After the

hearing, Respondent filed Notice of Petitioner Millie Carlisle's

Failure to Review h er Deposition Transcript and Failure to

Return Signed Errata Sheet to Court Reporter. Petitioner did

not file a response to the notice. Accordingly, Respondent's

Exhibit No. R34 is hereby admitted into evidence. Respondent's

request for an order requiri ng Petitioner to reimburse

Respondent for the cost incurred in hand - delivering a deposition

transcript and errata sheet via a process server is hereby

denied.

A transcript of the proceeding was filed on January 7,

2005. Respondent filed its Proposed Rec ommended Order on

January 18, 2005. As of the date that this Recommended Order

was issued, Petitioner had not filed proposed findings of fact

and conclusions of law.

All citations hereinafter shall be to Florida Statutes

(2002), except as otherwise specif ied.

FINDINGS OF FACT

1. Respondent is a financial company that owns and

services student loans.

2. Petitioner is a black female. She was employed in

Respondent’s Florida Loan Servicing Center (Service Center) on

two separate occasions. The first t ime she worked for

Respondent from September 1989 until September 1990. During

that time, Petitioner did not experience anything that she felt

was racial discrimination at the Service Center. Petitioner

left her initial period of employment with Responde nt by

resigning and moving to South Florida.

3. Petitioner subsequently returned to Panama City,

Florida. Initially, she worked for the Bay County School Board.

Thereafter, from July 2001 to November 2001, she returned to

work as a Loan Origination Re presentative (LOR) for Respondent

through a temporary agency, Kelly Services. In August 2001,

Petitioner received a training evaluation, which indicated that

Petitioner was meeting all expectations. In November 2001,

Petitioner converted to a regular emp loyee position with

Respondent.

4. Petitioner received her 90 - day initial review in

February 2002. According to her written evaluation, Petitioner

needed to improve in two areas: (a) successfully meeting the

goals established during the 90 - day initial review period; and

(b) demonstrating initiative and resourcefulness in work

performance. The evaluation states as follows in relevant part:

A discussion was held with Millie

regarding her productivity for application

and phone call processing during th e review

period. At that time, Millie was placed on

a verbal warning for her performance. She

currently averages 3.65 applications per

hour. The department standard is 5

applications per hour. Millie also

currently averages 6.66 calls per hour for

the review period. The department standard

is 8 calls per hour.

Pursuant to this evaluation, Respondent extended Petitioner's

90 - day initial review period for a 30 - day period in which

Petitioner was required to perform according to Respondent's

standards. T he evaluation advised Petitioner that failure to

meet standards might result in further disciplinary action, up

to and including termination of employment.

5. In March 2002, Respondent selected Petitioner to

represent the National Team for Private Credi t Originations.

This designation required Petitioner to undergo two days of

additional training.

6. Respondent has well - disseminated policies prohibiting

discrimination and harassment on the basis of race. These

policies are available to employees thr ough Respondent’s

Employee Reference Manual and Code of Business Conduct.

Respondent’s internal website also contains employee - related

information such as policies, notices and the company’s equal

employment opportunity and anti - harassment policies. Furt her,

Respondent distributes an annual affirmation of its anti -

discrimination and anti - harassment/anti - retaliation policies via

e - mail.

7. Petitioner knew of Respondent’s commitment to

diversity. Petitioner became aware of Respondent’s equal

employment opportunity and anti - harassment/anti - retaliation

policies immediately upon being employed with Respondent. In

November 2001, Petitioner received Respondent’s Employee

Reference Manual, Respondent's Code of Business Conduct, and a

copy of Respondent’s annu al reaffirmation of its anti -

harassment/anti - retaliation policies. The annual reaffirmation

outlined the procedure an employee should follow to report

discrimination or harassment, and provided several avenues for

reporting such conduct. Petitioner was a lso aware that

Respondent had an internal website with employee information.

8. Respondent’s anti - harassment policy prohibits

retaliation against employees who report harassment. The policy

also protects employees who participate in an investigation of a

claim of harassment.

9. Petitioner knew individuals in Respondent’s Human

Resources Department. For example, when Petitioner first

interviewed for a job with Respondent, she met Joni Reich,

Respondent’s vice president of human resources.

10. From July 2002 to November 2002, Petitioner’s

immediate supervisor was Paul Wunstell. Mr. Wunstell was

Respondent's supervisor of Private Credit Originations.

11. In early July 2002, Bobby Wiley, Respondent’s human

resources director for the Service Center was counseling an

employee for performance issues when the employee made an

internal discrimination complaint. The employee stated that a

supervisor had made a racially discriminatory comment about the

Martin Luther King, Jr. holiday. The employee told Mr. Wiley

that Petitioner could confirm the racially derogatory comment.

12. On July 19, 2002, Petitioner was asked to go to the

human resources department. Upon her arrival, Petitioner met

Mr. Wiley for the first time. Mr. Wiley directed Petitioner to

a conference room.

13. Mr. Wiley explained that he had asked Petitioner to

meet with him because he was investigating a discrimination

complaint made by another employee about a supervisor who might

have said something derogatory about the Martin Lut her King,

Jr., holiday. He explained that he had been told that

Petitioner might have some knowledge about these events.

14. Several times, Mr. Wiley asked Petitioner whether she

knew of any racial discrimination at the Service Center and

whether she h ad heard a supervisor make a racially derogatory

comment. Petitioner denied being aware of any race

discrimination at Respondent's facility. Petitioner stated that

she did not want to talk to Mr. Wiley. Although Petitioner

understood that she was requir ed to report discrimination, she

did not provide Mr. Wiley any information supporting or

corroborating the complaint that he was investigating.

15. During the meeting, Petitioner appeared nervous. She

told Mr. Wiley that she was uncomfortable meeting w ith him.

Mr. Wiley replied that their conversation would be confidential,

“between the two of them,” or words to that effect. Petitioner

mistakenly interpreted Mr. Wiley’s comment to mean that he would

do nothing with any information provided by Petition er and that

he simply wanted to “contain” or cover up the issue of possible

discrimination. Petitioner did not ask Mr. Wiley to clarify

what he meant by his statement that their conversation would be

“between the two of them.”

16. During his meeting wi th Petitioner, Mr. Wiley

conducted himself in a professional manner. However, because he

was eating ice cream when he met with Petitioner and did not

have a note pad, Petitioner mistakenly thought he did not take

allegations of discrimination seriously. Mr. Wiley was eating

an ice cream bar that had been distributed around the human

resources department immediately before Petitioner came to see

him.

17. The conversation between Mr. Wiley and Petitioner

lasted approximately ten minutes. Mr. Wiley thank ed Petitioner

for meeting with him. Mr. Wiley stated that he was glad to hear

there was no discrimination at Respondent’s facility because

Respondent would not tolerate discrimination. Petitioner then

left the conference room.

18. After the July 19, 2 002, meeting, Petitioner never

contacted Mr. Wiley to complain of discrimination or

retaliation. Additionally, Petitioner’s supervisor,

Mr. Wunstall, never knew about Mr. Wiley’s meeting with

Petitioner.

19. On or about July 1, 2002, Respondent advised all

employees serving as LORs that they would be required to attend

a training class on July 13, 2002. The purpose of the class was

to ensure the proper handling of Laureate School Accounts for

Private Credit Originations. Each employee needed an active

Laureate computer ID and password in order to participate in the

hands - on training.

20. As instructed, Petitioner immediately advised

Respondent that she did not have access to the Laureate software

on her computer. On July 8, 2002, Respondent sent Pe titioner an

e - mail regarding her Laureate computer password. After

receiving the password, Petitioner still could not gain the

appropriate computer access.

21. On July 9, 2002, Petitioner informed Respondent that

she did not have the Laureate software installed on her personal

computer. Respondent then made arrangements for Petitioner to

test her password on another computer. Respondent also arranged

to have the Laureate icon placed on Petitioner's computer.

22. On July 23, 2002, Petitioner wrote a letter to

Ms. Reich complaining about her meeting with Mr. Wiley. The

letter stated that, although she had not told Mr. Wiley about

it, Petitioner thought there was racial discrimination at the

Service Center. Petitioner’s letter indicated that she want ed

to make a statement concerning discrimination against blacks.

In the letter, Petitioner requested information on Respondent’s

policies and procedures to report such discrimination.

Mr. Wunstell never knew that Petitioner had sent a letter to

Ms. Reich complaining about racial discrimination.

23. On July 29, 2002, Petitioner allegedly fainted at work

due to panic attacks. Respondent's staff called an ambulance

that took Petitioner to the hospital. Petitioner claims she was

absent from work for thre e consecutive days without calling her

supervisor and without being terminated for abandoning her job.

24. On August 2, 2002, Petitioner received a letter from

Ms. Reich. In the letter, Ms. Reich apologized for Mr. Wiley's

failure to handle the meeting with Petitioner in a manner that

Petitioner felt was appropriate. Ms. Reich told Petitioner that

Respondent viewed discrimination complaints seriously and she

included a copy of the anti - harassment policy, which outlined

procedures for reporting harassme nt or discrimination.

Ms. Reich explained several avenues to report discrimination.

25. Ms. Reich’s letter also indicated that she and senior

director of human resources, Joyce Shaw, would be in Florida

within the next two weeks. In the letter, Ms. Re ich asked

Petitioner to meet with them to discuss her concerns and to

promptly address any alleged discrimination.

26. On August 12, 2002, Petitioner received an e - mail from

Ms. Shaw to schedule a meeting on August 19, 2002. The text of

the e - mail did not state the reason why Ms. Shaw and Ms. Reich

wanted to meet with Petitioner, but Petitioner knew the reason

for the meeting. The e - mail asked Petitioner to contact

Ms. Shaw either on her cellular telephone or by e - mail to

schedule the meeting. Mr. Wun stell did not have the capability

to access Petitioner’s e - mail messages and there is no evidence

that he saw Ms. Shaw’s e - mail.

27. On August 19, 2002, Petitioner met with Ms. Shaw and

Ms. Reich for approximately one hour. Ms. Shaw and Ms. Reich

liste ned to Petitioner’s concerns. They were pleasant to

Petitioner during the meeting.

28. During the August 19, 2002, meeting, Petitioner first

complained that Mr. Wiley had been disrespectful or inattentive

during their July 19, 2002, meeting. Petitione r also told

Ms. Shaw and Ms. Reich about her feelings that black employees

were treated differently in the workplace. This was the first

time that Petitioner discussed her race discrimination concerns

with anyone who worked for Respondent. When pressed f or more

specific information, Petitioner stated that: (a) she felt

black employees received different training than non - black

employees; and (b) black employees’ questions were not answered

as promptly or as thoroughly as the questions of non - black

employ ees. Petitioner did not provide Ms. Shaw and Ms. Reich

with specific examples of racially discriminatory behavior or

the names of any minority employees who Petitioner felt

experienced discrimination.

29. That same day, after the meeting with Ms. Shaw and

Ms. Reich, Petitioner provided Ms. Shaw with several e - mails

about the Laureate computer training. The e - mails did not

illustrate any mistreatment of Petitioner.

30. During the August 19, 2002, meeting, Petitioner told

Ms. Shaw and Ms. Reich that s he was experiencing panic attacks.

Ms. Reich suggested that Petitioner take advantage of

Respondent’s employee assistance program for the alleged panic

attacks.

31. Ms. Reich and Ms. Shaw told Petitioner that they would

look into her concerns. They di d not tell her they would

contact her again in the future. Instead, Ms. Reich gave her

business card to Petitioner in case she needed to contact

Ms. Reich in the future. After the August 19, 2002 meeting,

Petitioner did not contact Ms. Reich or Ms. Shaw again during

her employment with Respondent.

32. During the hearing, Petitioner testified that she

complained to Ms. Shaw and Ms. Reich about the following:

(a) supervisor Melanie Childree's reference to the Martin Luther

King, Jr. holiday as "spook day "; (b) three employees telling an

African American manager not to go to the "master cube," which

Petitioner felt was a racial reference to "slave talk"; (c) a

hearsay statement from a student's mother who called another

employee at the Service Center to ac cuse a white customer

service representative of calling her daughter "stupid nigger";

and (d) where a black supervisor was married to a white woman,

one employee allegedly said he was "going to string [the black

supervisor] up for messing with our women." Apparently all of

these alleged incidents occurred before Petitioner's July 19,

2002, meeting with Mr. Wiley.

33. The most persuasive evidence regarding these

allegations is that Petitioner did not report them to Ms. Shaw

or Ms. Reich or anyone else in Respondent's chain of command.

Instead, the complaints that Petitioner shared with Ms. Shaw and

Ms. Reich on August 19, 2002, were non - specific generalizations.

Moreover, Mr. Wunstell was never aware of Petitioner’s meeting

with Ms. Reich and Ms. Shaw t o complain about discrimination.

34. Petitioner does not know what steps, if any, Ms. Shaw

and Ms. Reich took after their meeting to look into her

concerns. At the hearing, Ms. Shaw testified that she

investigated Petitioner’s concerns and found them t o be

unfounded. First, Ms. Shaw reviewed the e - mails provided by

Petitioner but did not find anything inappropriate in their

contents.

35. Second, Ms. Shaw interviewed the director in charge of

Petitioner’s department, Ann Nelson. Ms. Nelson explained that

the process by which employee questions were answered made it

unlikely that employees could be singled out due to their race.

According to Ms. Nelson, all employee questions were directed to

a central telephone helpline staffed by supervisors or sen ior

employees who randomly responded to calls. Ms. Shaw correctly

concluded that it would be difficult for racially discriminatory

behavior to occur in such context.

36. Third, Ms. Nelson assured Ms. Shaw that training was

the same for all employees. Student loans are heavily regulated

by federal law and thus, the manner in which employees handle

borrowers is regulated, making Petitioner’s concerns about

unequal employee training unfounded.

37. Finally, Ms. Shaw spoke to the person in charge at the

Service Center, Renee Mang, to determine if Ms. Mang was aware

of any racial discrimination concerns at the facility.

Ms. Mang, whose office was in close proximity to Petitioner’s

cubicle, indicated that she was not aware of any racially

discriminatory be havior in the workplace and that no one had

complained to her about discrimination. After the

investigation, Ms. Shaw was unable to corroborate Petitioner’s

racial discrimination allegations.

38. On or about September 30, 2002, Respondent gave

Petition er a verbal warning regarding her phone quality control

average. The department's expected call productivity average

was 8 calls per hour at the minimum level of customer service.

From July 1, 2002, to September 25, 2002, Petitioner's average

was 7.5 cal ls per hour. Once again, Petitioner was given 30

days to meet the department's performance goal of at least 9

calls per hour at Petitioner's level of customer service.

39. On October 8, 2002, while employed with Respondent,

Petitioner applied for full - time employment with the Bay County

School Board. Petitioner applied for employment in the school

system because she felt a lot was going on at Respondent’s

facility and her mental health counselor suggested she look for

employment elsewhere.

40. Petit ioner had followed Ms. Reich’s suggestion and

enrolled in mental health counseling through Respondent’s

employee assistance program. Respondent accommodated Petitioner

by adjusting her work schedule and allowing her to report for

work late on the days she had appointments with her mental

health counselor.

41. For example, on or about October 24, 2002, Respondent

requested an adjustment in her work schedule so she could attend

a mental health counseling session. Respondent accommodated

Petitioner's request.

42. During the hearing, Petitioner testified that

Respondent adjusted the work schedule of a white female LOR to

match the work schedule of her husband who also worked for

Respondent. The husband's work schedule required him to work

until 7:30 p .m. every day. According to Petitioner, the

schedule adjustment resulted in the white female employee having

no work to perform for 30 minutes per day after the phones shut

down at 7:00 p.m. However, there is no evidence that Petitioner

or any other empl oyee ever made a similar request for a work

schedule accommodation under similar circumstances.

43. On October 29, 2002, Petitioner suffered a workers’

compensation accident. A telephone headpiece flicked off and

hit Petitioner across the face, resulti ng in an uncomfortable

feeling and a small chip on her tooth.

44. On October 30, 2002, Petitioner reported the accident

to Respondent’s Benefits Specialist, Kristi Scott and requested

to see a dentist. From that time on, Petitioner and Ms. Scott

commun icated directly with each other regarding treatment for

Petitioner’s injury. Ms. Scott kept Petitioner updated on her

progress locating a dentist that would accept Petitioner as a

patient for a workers' compensation claim.

45. Mr. Wunstell was not invo lved in arranging for

treatment for Petitioner’s injury. Petitioner was not required

to channel her communications with Ms. Scott through

Mr. Wunstell.

46. On October 31, 2002, Ms. Scott sent Petitioner an

e - mail stating that Ms. Scott had been unable to locate a

dentist who would see Petitioner as a workers' compensation

patient. Ms. Scott's e - mail directed Petitioner to see any

dentist of her choice to treat her injury. Ms. Scott told

Petitioner that Respondent would reimburse her for any out - of -

poc ket expenses that resulted from her dental visit.

47. Petitioner did not suffer immobilization as a result

of the injury to her mouth and she did not have to undergo

treatment as a result of her injury. Petitioner did not feel

her condition was an emer gency. In fact, she did not see a

dentist immediately because neither her regular dentist nor

other dentists considered her mouth injury an emergency.

48. Following the October 29, 2002, mouth injury,

Petitioner continued working. She worked full days the rest of

the week: October 30, 2002, through November 1, 2002.

49. On Monday, November 4, 2002, Petitioner did not show

up for work. Instead, that morning Petitioner drove herself to

her mental health counseling session. After her counseling

sess ion, around noon, Petitioner called Mr. Wunstell from home.

50. During this telephone conversation Petitioner told

Mr. Wunstell that she had seen a doctor in the morning. She

also told Mr. Wunstell that her mouth was in severe pain, and

she was trying to find a dentist who would see her. At the time

of Petitioner's conversation with Ms. Wunstell, Petitioner had

made appointments with two dentists.

51. Petitioner typically worked until 7 p.m. During their

noon telephone conversation, Mr. Wunstell sp ecifically asked

Petitioner whether she was planning to return to work that day.

Petitioner responded that she would be returning to work later

that day. Petitioner did not tell him that she was unable to

work, nor did she request time off work.

52. P etitioner alleges that she told Mr. Wunstell during

their November 4, 2002, telephone conversation that her neck was

bothering her, that she needed to see a doctor, in addition to a

dentist , that she was unable to work and that she asked

Mr. Wunstell to ha ve Ms. Scott call her at home. The greater

weight of the evidence indicates that Petitioner did not mention

any of these things during her telephone conversation with

Mr. Wunstell.

53. Petitioner made no effort to obtain Ms. Scott’s

telephone number. After her November 4, 2002, call to

Mr. Wunstell, Petitioner made no effort to contact Ms. Scott

directly regarding her workers' compensation injury, despite the

fact that Petitioner and Ms. Scott had been communicating

directly about the injury until that time.

54. Petitioner did not show up for work the rest of the

week of November 4, 2002. She did not call Mr. Wunstell or

anyone else at Respondent’s office during the week of

November 4, 2002, to inform them of her condition or her

expected return to work date.

55. Respondent has a job abandonment policy. An employee

who is absent from work for three consecutive days without

notifying his/her immediate supervisor will be considered to

have voluntarily resigned or abandoned his/her job.

Respondent’ s job abandonment policy applies to all employees,

including those who are injured on the job.

56. When an employee is a no call/no show for three

consecutive days, the job abandonment policy is applied in a

fairly automatic manner. The employee’s imme diate supervisor

does not call the employee at home. Instead, the supervisor

contacts Teresa Jones in the human resources department,

indicates that the employee has been a “no call/no show” for

three consecutive days, and directs the human resources

depa rtment to send a termination letter. This type of

transaction is handled by lower - ranking human resources

department employees at the Service Center, and neither

Mr. Wiley nor Ms. Shaw participated in the process of sending

out termination letters.

57. When Petitioner did not come to work and failed to

contact Mr. Wunstell after their November 4, 2002, conversation,

Mr. Wunstell instructed Ms. Jones to send Petitioner a letter

informing of her termination for job abandonment. There is no

evidence that Ms. Shaw, Ms. Reich or Mr. Wiley influenced

Mr. Wunstell’s decision to request that Respondent send

Petitioner a termination letter pursuant to the job abandonment

policy.

58. By letter dated November 8, 2002, Respondent informed

Petitioner that, pursua nt to the company’s job abandonment

policy, she was deemed to have voluntarily abandoned her job by

being absent for three consecutive days without contacting her

supervisor after November 4, 2002.

59. Respondent’s letter encouraged Petitioner to contac t

Ms. Jones if she had any questions regarding Respondent’s

letter. Also attached to the termination letter was an Exit

Interview questionnaire and postage pre - paid envelope. The

questionnaire asked Petitioner to explain why she had resigned

her employme nt. Petitioner did not return the questionnaire and

made no effort to contact Respondent to protest, contest, or

clarify her employment status.

60. After receiving the November 8, 2002, letter,

Petitioner did not file a petition for unemployment compen sation

benefits. Instead, on November 17, 2002, exactly two weeks

after the last day She came to work for Respondent, Petitioner

began working with the Bay County School District.

61. Mr. Wunstell did not apply Respondent’s job

abandonment policy to Pe titioner for retaliatory reasons because

he did not know of her alleged protected activity. Mr. Wunstell

may not have terminated Petitioner in July 2002 when she was

absent for three days. However, Mr. Wunstell has otherwise

consistently and non - discrimi natorily enforced the job

abandonment policy and has terminated numerous employees

pursuant to the job abandonment policy.

62. There is no evidence that Respondent applied its job

abandonment policy differently to Petitioner than it did to

other employe es. During the year 2002 and the first few months

of 2003, Respondent terminated 28 employees pursuant to its job

abandonment policy. Of these 28 employees, 25 were white, and

none had complained about discrimination or participated in a

discrimination i nvestigation. Except for Petitioner's three - day

absence in July 2002, there is no evidence of any other employee

who violated Respondent’s job abandonment policy by being absent

from work for three consecutive days without calling and who was

not terminat ed.

63. In January 2003, almost two months after her

separation from Respondent, Petitioner wrote a letter to Al

Lord, Respondent’s CEO. The letter incorrectly alleged that

Respondent had not provided assistance in obtaining dental

treatment for Petiti oner’s on - the - job tooth injury. The letter

for the first time informed Respondent that Petitioner felt she

was involuntarily terminated. Unlike Petitioner’s testimony at

the final hearing, the letter to Mr. Lord did not allege that

Petitioner had told Mr . Wunstell on November 4, 2002, that she

needed to see both a dentist and a doctor for her injury.

Likewise, the letter did not allege that Petitioner asked

Mr. Wunstell to have Ms. Scott call her at home.

64. On February 11, 2003, Petitioner received a letter

from Ms. Shaw. The letter informed Petitioner that she had

looked into the allegations contained in the letter to Mr. Lord

and had found them to be unsupported and inaccurate.

Ms. Shaw's letter concluded as follows: (a) Respondent

non - discrimina torily and consistently enforced its job

abandonment policy; and (b) Respondent had assisted Petitioner

in obtaining treatment for her dental injury. Finally, the

letter questioned why, if she had not intended to voluntarily

quit her job, Petitioner had m ade no effort to contact

Respondent upon receipt of her November 8, 2002, termination

letter.

65. On March 15, 2003, Petitioner wrote a letter to

Ms. Shaw. In the letter, Petitioner did not allege that she had

told Mr. Wunstell on November 4, 2002, tha t she needed to see a

doctor, in addition to a dentist, as a result of her mouth

injury. Petitioner’s letter also did not state that she had

asked Mr. Wunstell to tell Ms. Scott to call her at home

regarding an appointment with a doctor.

66. Petitioner filed a charge of discrimination with the

FCHR on June 2, 2003. During the processing of her charge of

discrimination, Petitioner complained that Respondent had

improperly withheld from her last payroll check a portion of her

pay for 66 hours of accrued, unused vacation time. This was the

first time Respondent learned of this allegation. Although

Petitioner believed that Mr. Wunstell had given instructions for

Respondent to withhold a portion of her vacation pay, she never

contacted Mr. Wunstell or Resp ondent’s human resources

department to report or challenge this incorrect deduction.

When, after the filing of the charge, Respondent received

information about the incorrect deduction, it immediately

investigated and reimbursed Petitioner for the incorre ct

deduction.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.11, Fla. Stat.

(2004).

68. It is unlawful for an employer t o discriminate against

an employee based on race. See § 760.10(1), Fla. Stat.

69. It is an unlawful employment practice for an employer

to discriminate against any individual because that person

opposes an unlawful employment practice (the “opposition

cl ause’). See § 760.10(7), Fla. Stat . It is also an unlawful

employment practice to discriminate because that person has made

a charge, testified, assisted or participated in any manner in

an investigation regarding unlawful discrimination (the

“participat ion clause”). Id .

70. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Section 2000e, et seq . Cases interpreting Title VII

are therefore applicable to Chapter 760, Florida St atutes.

School Board of Leon Co. v. Hargis , 400 So. 2d 103 (Fla. 1st DCA

1981).

71. A petitioner in a discrimination case has the initial

burden of proving a prima facie case of discrimination. See

McDonnell Douglass Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973).

72. If the petitioner proves a prima facie case, the

burden shifts to the respondent to proffer a legitimate non -

discriminatory reason for the actions it took. See Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 101

S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The respondent's burden

is one of production, not persuasion, as it always remains the

petitioner's burden to persuade the fact - finder that the

proffered reason is a pretext and that the respondent

intentionally discriminated against the petitioner. See

Burdine , 450 U.S. at 252 - 256.

DISPARATE TREATMENT/UNLAWFUL DISCHARGE

73. To prove a prima facie case of disparate treatment or

unlawful discharge, Petitioner must show the following: (a) she

is a member of a protected group; (b) she is qualified for the

position; (c) she was subject to adverse employment practices

related to hiring, work schedules, job evaluations, job duties

and/or termination; and (d) she was treated less favorably than

similarl y - situated persons outside the protected class and/or,

after she was discharged, the position was filled by a person of

another race. See Anderson v. WBMF - 4 , 253 F.3d 561 (11th Cir.

2001); Crapp v. City of Miami Beach , 242 F.3d 1017 (11th Cir.

2001).

74. In this case, Petitioner is a member of a protected

group. She is qualified for the position. However, there is no

persuasive evidence that she was subject to adverse employment

practices relative to her hiring or her work schedule and

duties. Petition er was subject to adverse job evaluations and

eventually terminated.

75. The greater weight of the evidence indicates that

Petitioner's evaluations accurately reflected her need to

improve her performance. Respondent did not treat any other

employees m ore favorably in regard to training and/or access to

the helpline for answers to questions.

76. Respondent terminated Petitioner because she abandoned

her job for three days without calling Mr. Wunstell.

Respondent's reason for terminating Petitioner w as not a pretext

for racial discrimination.

HARASSMENT/HOSTILE WORK ENVIRONMENT

77. To show hostile work environment, Petitioner must

prove that: (a) she belongs to a protected group; (b) she had

been subject to unwelcome harassment; (c) the harassment w as

based on a protected characteristic; (d) the workplace is

permeated with discriminatory intimidation, ridicule, and insult

sufficiently severe or pervasive to alter the terms or

conditions of employment and to create an abusive working

environment; and (e) the employer is liable either directly or

vicariously for the abusive environment.

78. To satisfy the fourth element, an employee must prove

that: (a) he or she subjectively perceived the conduct to be

abusive; and (b) a reasonable person objective ly would find the

conduct at issue hostile and abusive. Harris v. Forklift

Systems, Inc. 510 U.S. 17, 21 - 22 (1993).

79. To determine whether an employee felt harassed

subjectively, a court may look to see if the employee reported

the incident, quit, av oided the workplace, reacted angrily or

exhibited some physical or psychological reaction to the

environment. Daniels v. Essex Group, Inc. , 937 F.2d 1264,

1272 - 73 (7th Cir. 1991).

80. To determine whether the conduct at issue objectively

is hostile or abusive, a court should look at the totality of

the circumstances using several factors including: (a) the

frequency of the conduct; (b) its severity; (c) whether it was

physically threatening or humiliating or whether it was merely

offensive; and (d) wh ether it unreasonably interfered with the

employee's job performance. Harris , 510 U.S. at 23. These

factors taken together must reveal conduct extreme enough to

"amount to a change in terms and conditions of employment."

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998).

81. Regarding an employer's liability for hostile

environments, the Court in Faragher , 524 U.S. at 807, stated as

follows:

An employer is subject to vicarious

liability to a victimized employee for an

actionable hostile environment created by a

supervisor with immediate (or successively

higher) authority over the employee. When

no tangible employment action is taken, a

defending employer may raise an affirmative

defense to liability or damages, subject to

proof by a prep onderance of the evidence,

see Fed. Rule Civ. Proc. 8(c). The defense

comprises two necessary elements: (a) that

the employer exercised reasonable care to

prevent and correct promptly any sexually

harassing behavior, and (b) that the

plaintiff employee u nreasonably failed to

take advantage of any preventative or

corrective opportunities provided by the

employer or to avoid harm otherwise.

82. Here, Petitioner, as an African - American, is a member

of a protected group. She has shown that she heard supe rvisors

and co - workers make race - related comments at work on several

occasions: (a) a reference to Martin Luther King, Jr. holiday

as "spook day"; (b) mocking references to an area in the office

known as the "master cube"; and (c) a discussion in which a

white employee stated that he was "going to string up" a black

manager married to white women.

83. To the extent that Petitioner was exposed to unwelcome

race - related comments, Petitioner has not proved that she

subjectively and objectively viewed the c omments as abusive and

hostile. She did not report the comments to anyone in authority

or show any obvious physical or emotional reaction. There is no

competent evidence that Petitioner's alleged panic attacks were

the result of a hostile work environmen t. There is no

persuasive evidence that Petitioner's job performance was

materially altered after she heard the comments.

84. Finally, Petitioner has not shown a basis for

Respondent's liability. The comments were not made by

Petitioner's immediate su pervisor and the making of the comments

did not result in a tangible employment action. Respondent had

an anti - discrimination/anti - harassment policy that was

periodically/annually reviewed with all employees. Petitioner

was aware that she could have repo rted the unwelcome comments to

anyone in the human resources department. She did not complain

to Mr. Wiley, Ms. Reich, Ms. Shaw, or anyone else in the office

about the comments. Consequently, Respondent has proved its

affirmative defense and cannot be he ld liable here.

RETALIATION

85. Petitioner has alleged two different theories of

retaliation: (a) she experienced retaliation because she

participated in Mr. Wiley’s internal investigation of another

employee’s discrimination complaint on July 19, 2002 (the

“participation claim”); and (b) she experienced retaliation

because she opposed/complained about discrimination herself by

writing to Ms. Reich on July 29, 2002, and by meeting with

Ms. Reich and Ms. Shaw on August 19, 2002 (“the opposition

claim”).

86. Petitioner cannot establish a retaliation claim under

the “participation clause” because such claim requires

participation in an investigation or proceeding which occurred

in conjunction with, or after the filing of, a formal charge of

discrimination with the Equal Employment Opportunity Commission

or comparable administrative agency. See EEOC v. Total System

Svc., Inc. , 221 F.3d 1171 (11th Cir. 2000), r’hg . denied , 240

F.3d 899 (11th Cir. 2001). Here, Petitioner’s meeting with

Mr. Wiley was part of an internal investigation conducted by

Mr. Wiley as a result of an internal discrimination complaint by

another employee. Mr. Wiley’s investigation did not occur in

conjunction with, or after the filing of, a formal charge of

discrimination by an employe e with a fair employment practices

agency. More importantly, Petitioner refused to participate in

Mr. Wiley's investigation. Therefore, the undersigned analyzes

Petitioner’s claim under the “opposition clause.”

87. To establish a prima facie case of r etaliation,

Petitioner must prove the following: (a) she engaged in an

activity protected under law; and (b) she suffered an adverse

employment action. Gupta v. Florida Board of Regents , 212 F.3d

751, 587 (11th Cir. 2000).

88. To the extent Petitioner claims that her meeting with

Mr. Wiley in July 2002 was covered by the opposition clause, she

cannot establish a claim. To be protected by the opposition

clause’s anti - retaliation provision, an employee’s opposition to

discrimination must be based on a r easonable belief that

discrimination existed. See , e.g ., Wu v. Thomas , 863 F.2d 1543,

1549 (11th Cir. 1989). Here, regardless of what Petitioner may

have believed about the existence of discrimination at the

Service Center, she did not oppose discriminat ion at her meeting

with Mr. Wiley. She did not lodge a complaint or confirm

another employee's complaint during that meeting. Therefore,

her meeting with Mr. Wiley in July 2002 was not “protected

activity.”

89. To establish the second prong of a prima f acie case of

retaliation, there must be an adverse employment action taken

against the employee. Courts have held that an employee who

abandons her job has not been subjected to an adverse employment

action. See Mihalik v. Illinois Trade Association , 199 5 U.S.

Dist. LEXIS 789 (N.D. Ill. 1995) (employee did not experience

adverse employment action where she stopped showing up for

work).

90. Here, the most persuasive evidence indicated that

Petitioner simply stopped showing up for work after November 1,

20 02. On November 4, 2002, Petitioner told Mr. Wunstell she

would be returning to work later that day. She made no effort

to contact her employer after November 4, 2002. Therefore,

Petitioner abandoned her job and cannot establish the second

prong of a pr ima facie case of retaliation.

91. To establish the third prong of a prima facie case of

retaliation, Petitioner must show that the individual who took

the adverse action against her was actually aware of her

protected expression when he decided to take a dverse action.

See Raney v. Vinson Guard Svc. , 120 F.3d 1192, 1197 - 98 (11th

Cir. 1997) (plaintiff failed to present concrete evidence that

the individual who made the decision to terminate his employment

was aware of his protected activity prior to termin ating

plaintiff); St. Hilaire v. The Pep Boys , 73 F. Supp. 2d 1350,

1363 (S.D. Fla. 1999) (plaintiff must establish that supervisor

was actually aware of protected expression when he took adverse

employment action); Sullivan v. Nat’l R.R. Passenger Corp. , 170

F.3d 1056, 1060 (11th Cir. 1999) (retaliation charge without

merit where plaintiff failed to produce any evidence that

decision - maker was aware of the protected activity).

92. The most persuasive evidence here indicates that the

person who decided to enforce the job abandonment policy against

Petitioner, Mr. Wunstell, was not aware of any protected

activity in the three prior months. Mr. Wunstell had no

knowledge of Petitioner’s involvement in the investigation

conducted by Mr. Wiley in July 2002. Mr . Wunstell did not know

that Petitioner had complained to Ms. Reich about discrimination

on July 23, 2002, or that she had met with Ms. Reich and

Ms. Shaw in August 2002.

93. Temporal proximity between an employee’s protected

activity and her employer’s adverse employment action, standing

alone, is insufficient to establish the third prong of a prima

facie case of retaliation. See , e.g ., Higdon v. Jackson , No.

03 - 14894 (11th Cir. Dec. 16, 2004) (that adverse action occurred

three months after protected activity is insufficient, standing

alone, to satisfy the third element of an ADA retaliation

claim); Wascura v. City of South Miami , 257 F.3d 1238, 1245

(11th Cir. 2001) (three and one - half month period is

insufficient); Spence v. Panasonic Copier Co. , 46 F. Supp. 2d

1340 (N.D. Ga.), aff’d., 204 F.3d 11220 (11th Cir. 1999); Lewis

v. Holsum of Fort Wayne, Inc. , 278 F.3d 706 (7th Cir. 2002)

(four - month period is insufficient); Anderson v. Coors Brewing

Co. , 181 F.3d 1171 (10th Cir. 1999) (three - month period i s

insufficient); Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10th

Cir. 1997) (three - month period is insufficient). Thus, the mere

fact that Respondent enforced its job abandonment policy against

Petitioner almost four months after her conversation with

Mr. Wiley and three months after her July 2002 complaint and her

meeting with Ms. Reich and Ms. Shaw does not support her

retaliation allegation.

94. Further, an inference of a causal connection between a

protected activity and an adverse employment act ion does not

rise when intervening events are established. See Spence v.

Panasonic Copier Co. , 46 F. Supp. 2d 1340 (N.D. Ga. 1999);

Gleason v. Mesirow Financial , 118 F.3d 1134, 1147 (7th Cir.

1997) (plaintiff’s termination a few weeks after she complained

about certain conduct did not establish inference of retaliation

when the termination followed a significant and costly error by

plaintiff); Booth v. Birmingham News Co. , 704 F. Supp. 213, 215 -

16 (N.D. Ala. 1988) (short span of time created no inference o f

retaliation when intervening factors, i.e., other reasons for

the adverse employment action, arose after the employee’s

protected activity).

95. The most persuasive evidence here was that Petitioner

stopped showing up for work after Friday, November 1 , 2002. On

Monday, November 4, 2002, Petitioner told her supervisor she was

returning to work later in the day. However, she did not show

up for work and never contacted Mr. Wunstell again. Under these

circumstances, Mr. Wunstell was justified in decidi ng that

Petitioner had abandoned her job. This intervening event, which

occurred months after Petitioner’s protected activity, and which

was entirely Petitioner’s doing, broke any suggestion of a

causal connection between her protected activity and the

te rmination of her employment.

96. After Petitioner received Respondent’s termination

letter, she made no efforts to contact Respondent to protest,

contest or clarify her employment status. As a result,

Petitioner did not establish a prima facie case of retaliation.

97. Other persuasive evidence also shows no causal

connection between Petitioner’s protected activity and the

termination of her employment for job abandonment.

Specifically, Petitioner complained to Ms. Reich about race

discrimination on July 23, 2002. Petitioner claims that she

violated Respondent’s job abandonment policy a week later but

was not terminated. Thus, Respondent clearly did not retaliate

against Petitioner immediately after she complained about race

discrimination. Petitio ner’s allegation that Respondent

retaliated against her by enforcing the job abandonment policy

against her on November 4, 2002, over three months after she

complained to Respondent about discrimination, is not

persuasive.

98. To the extent that Petitione r has established a prima

facie case of retaliation, Petitioner has not demonstrated that

the proffered reason for her termination, job abandonment, is

merely a pretext for unlawful retaliation. See Humphrey v.

Sears, Roebuck & Co. , 192 F. Supp. 2d 1371, 1372 (S.D. Fla.

2002) (termination pursuant to job abandonment policy was

legitimate and nondiscriminatory reason where employee did not

return to work after on - the - job injury); Hussein v. Genuardi’s

Family Market , 2002 U.S. Dist. LEXIS 430 (E.D. Pa.

2002) (employer articulated legitimate, nondiscriminatory reason

for terminating plaintiff for job abandonment where plaintiff

did not keep in touch while out on leave); Munck v. New Haven

Sav. Bank , 251 F. Supp. 2d 1078, 1088 (D. Conn. 2003) (job

abandonment is legitimate, nondiscriminatory reason for

termination); Torres v. Cooperative Seguros de Vida de P.R. , 260

F. Supp. 2d 365, 372 (D. P.R. 2003) (same); Bell v. Store , 83 F.

Supp. 2d 951 (N.D. Ill. 2000) (employee’s absence from work for

five consecutive day s in violation of four - day no call/no show

policy was legitimate, non - retaliatory reason for termination);

Scott v. DMN , 2001 U.S. Dist. LEXIS 4929 (N.D. Texas 2001).

99. Petitioner failed to present persuasive evidence that

she was treated any differen tly than similarly - situated

employees who did not complain about discrimination or who did

not participate in an investigation of a discrimination

complaint. She failed to present persuasive evidence that

Respondent’s stated reason for her termination was pretextual.

Petitioner’s termination was not based on a retaliatory motive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND E NTERED this 28th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of January, 2005.

COPIES FURNISHED :

Millie Carlisle

105 Detroit Avenue

Panama City , Florida 32401

Luisette Gierbolini, Esquire

Zinober & McCrea, P.A.

Post Office Box 1378

201 East Kennedy Boulevard, Suite 800

Tampa, Florida 33601 - 1378

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.