04-002287 Walter F. Gibson vs. Orlando Hma, Inc., D/B/A University Behavioral Center Status: Closed Recommended Order on Wednesday, March 2, 2005.

Summary: The evidence fails to establish that termination of employment was race-related or in retaliation for previous complaints.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER F. GIBSON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2287

)

ORLANDO HMA, INC., d/b/a )

UNIVERSITY BEHAVIORAL CENTER, )

)

Respondent. )

)

RECOMME NDED ORDER

On December 1 and 2, 2004, an administrative hearing in

this case was held in Orlando, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stephen M. Smith, Esq uire

Jennifer Smith, Esquire

2311 Republic Street

New Orleans, Louisiana 70129

For Respondent: Mark L. Van Valkenburgh, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue in the case is whether Respondent discriminated

against Petitioner in disciplinary matters and in termination of

Petitioner' s employment because of race or in retaliation for

complaints filed against Respondent.

PRELIMINARY STATEMENT

By a complaint filed January 13, 2003, with the Florida

Commission on Human Relations (FCHR), Walter F. Gibson

(Petitioner) alleged that he was th e subject of discrimination

based on race and in retaliation for complaints he made related

to operation of Orlando HMA, Inc., d/b/a University Behavioral

Center (Respondent).

By Determination of No Cause dated May 25, 2004, FCHR

advised Petitioner that a "no cause" determination had been made

and advised him of his right to file a Petition for Relief.

Petitioner filed a Petition for Relief, which FCHR forwarded to

the Division of Administrative Hearings for further proceedings.

At the hearing, Petitio ner testified on his own behalf,

presented the testimony of one other witness and had Exhibits

numbered 1 through 16, 19 through 22, and 24 through 29 admitted

into evidence. Respondent presented the testimony of nine

witnesses (including Petitioner) and had Exhibits numbered 1

through 23 admitted into evidence.

The three - volume Transcript of the hearing was filed on

January 12, 2005. By separate Motions for Extension of Time,

both parties stipulated to a deadline of January 31, 2005, for

filing propo sed recommended orders, and both parties filed

Proposed Recommended Orders on the stipulated date.

On February 11, 2005, Respondent filed a Motion to Strike

Petitioner's Proposed Findings of Fact and Conclusions of Law.

On February 16, 2005, Petitioner filed a response in opposition

of the motion.

As stated in the Motion to Strike, Petitioner's Proposed

Recommended Order included an attached document that has no

relevance to the instant case. The exhibit is rejected.

Paragraph eight of Petitioner's Proposed Recommended Order

contains an inaccurate recitation of Petitioner's testimony. In

response, Petitioner suggests that the inaccurate recitation of

testimony was harmless and that the citation to the transcript

was correct, so the error was "meanin gless." The inaccurate

recitation of testimony, while consisting of only a few words,

altered the content of Petitioner's statement from a question to

a complaint, and is not without meaning in this case. The

Motion to Strike is granted as to paragraph e ight of

Petitioner's Proposed Recommended Order.

As to the remainder of the Motion to Strike, upon review of

the motion and the response, it is hereby ordered that the

Motion to Strike is otherwise denied.

FINDINGS OF FACT

1. Health Management Associa tes, Inc. (HMA), is the parent

company for Respondent Orlando HMA, Inc., d/b/a University

Behavioral Center (UBC). UBC provides residential care and

treatment to juveniles.

2. At all times material to this case, Respondent employed

Walter F. Gibson (Pe titioner) as a mental health technician.

Petitioner is black.

3. Petitioner's job evaluations were acceptable, and there

is no evidence that he did not meet the requirements of the job

at the time Respondent hired him.

4. On November 24, 2004, the p arties filed a Statement of

Agreed Facts that provides as follows:

1. UBC is a residential treatment

center that offers a variety of programs

including a program to which patients are

committed by the courts under the direction

of the Florida Department o f Juvenile

Justice. Petitioner was a staff member at

Respondent's UBC facility.

2. In late November 2002, a UBC

patient accused Petitioner of abuse.

Pursuant to UBC policy, Petitioner was

placed on one week administrative leave

pending an investigation .

3. Petitioner was ultimately

exonerated by Florida's Department of

Children and Families and returned to work.

4. Petitioner was paid for the full

term of his administrative leave.

5. Petitioner's initial complaint was

made to the Florida Public Em ployees

Relations Committee ("PERC") on or about

January 6, 2003. PERC forwarded the

complaint to the Florida Commission on Human

Relations ("FCHR").

6. Petitioner's initial Charge of

Discrimination claiming retaliation, FCHR

Number 23 - 01298 was dismiss ed with a "No

Cause" determination on May 7, 2003.

7. On January 13, 2003, Petitioner

filed a second Charge of Discrimination.

8. On May 23, 2003, Petitioner

received a paid suspension after an alleged

conflict with co - workers.

9. On May 27, 2003, Pe titioner asked

to amend his Second Charge of Discrimination

to allege retaliation.

10. On October 7, 2003, Petitioner was

found allegedly asleep and his employment

was terminated later that day.

11. On October 9, 2003, Petitioner

amended his Charge of Discrimination

alleging that his termination was due to his

race and in retaliation of his complaining

of discrimination.

5. Respondent has a policy against discrimination.

According to the employee handbook, Respondent "acknowledges the

commitment to Equal Employment Opportunity Employment regardless

of race" and other protected classifications.

6. The handbook sets forth a procedure for resolving

issues related to harassment. The handbook also sets forth a

"problem - solving procedure" to utilize in resolving issues

related to working relationships.

7. Petitioner received a copy of the UBC employee handbook

upon beginning his employment with Respondent.

8. The problem - solving procedure sets forth a series of

steps, including verbal discussio ns with an immediate supervisor

and then, if necessary, a department manager. If the problem

cannot be resolved at that level, an employee is to contact the

Human Resources Director who may ask the complainant to submit

the complaint in writing. The writ ten complaint is subsequently

forwarded to the Facility Administrator for review and

resolution.

9. Although Petitioner questioned the practice of late -

signed group therapy session notes (discussed herein) there is

no credible evidence that Petitioner f ollowed the appropriate

reporting process prior to filing the complaint at issue in this

case.

10. There is no evidence that Petitioner's concerns of

discrimination based on race or in retaliation for complaints

filed were the subject of any dispute res olution procedures

identified in the employee handbook.

11. During the time Petitioner was employed as a mental

health technician at UBC, group therapy sessions were conducted

twice daily for UBC residents. The therapist or mental health

technician in charge of the session was responsible for making

notes about the session.

12. Petitioner believed that session notes were to be

signed by the therapist or mental health technician in charge of

the session when the notes were written. Nonetheless, on

occa sion, Petitioner was asked to sign his notes some time after

the sessions were completed, because he had not signed them when

he drafted the notes.

13. For reasons unclear, Petitioner apparently believed

that late - signed session notes constituted Medica id fraud.

14. Petitioner testified that at some point during the

spring of 2002, he questioned his supervisor about the legality

of late - signed session notes and was told to sign them.

15. There is no evidence that any employee of Respondent

asked Pe titioner to sign notes for therapy sessions Petitioner

did not conduct.

16. There is no evidence of any legal requirement

requiring that session notes be signed at the time they are

drafted.

17. On August 2, 2002, Petitioner received a verbal

reprima nd for numerous instances of tardiness to work.

18. Petitioner asserts that the reprimand was

discriminatory; however, the evidence establishes that other

employees tardy to work, including white, black, and Hispanic

employees, received verbal reprimand s. Some tardy employees of

various races were excused for reasons that were determined to

be legitimate by Respondent. There is no evidence that any

employee's race was a factor in whether or not tardiness was

excused.

19. There is no evidence that Peti tioner's race was a

factor in the reprimand. The verbal reprimand was not in

retaliation for any pending complaints filed by Petitioner

because he had not yet filed any complaints.

20. Petitioner testified that in August 2002, he

anonymously called Res pondent's corporate compliance telephone

number to inquire as to whether the practice of late - signed

session notes was illegal. Respondent's records do not indicate

that such a call was received, and there is no evidence that

Respondent took any related a ction.

21. In November 2002, one or more patients at UBC

apparently called the abuse hotline operated by the Department

of Children and Family Services (DCFS) and reported Petitioner

for alleged abusive behavior.

22. Petitioner suggests that the abus e allegation came,

not from patients, but from administration sources in the

facility. There is no evidence supporting the assertion, which

is also contrary to the Statement of Agreed Facts.

23. Standard UBC practice when an employee is reported to

th e abuse hotline is to move the employee to another unit

pending resolution of the matter. An employee may be prohibited

from interacting with children while the report is pending.

Depending on the circumstances, an employee may be suspended. A

legitimat e report of abuse is cause for termination of

employment.

24. Petitioner received a three - day suspension after the

abuse allegation reported to DCFS was relayed to UBC. Upon

returning to UBC, Petitioner was assigned to work in a different

unit.

25. The suspension was intended to be a paid suspension,

but through clerical error, Petitioner was not paid for the

three days at the end of the regular pay cycle. Petitioner did

not notify anyone in a position to correct the non - payment at

the time the erro r occurred.

26. There is no evidence that the failure to pay

Petitioner for the three - day suspension period was because of

his race. The suspension was not in retaliation for any pending

complaints filed by Petitioner because he had not yet filed any

c omplaints.

27. The abuse report was subsequently determined to be

unfounded. Because the report was unfounded, UBC did not

consider the paid suspension to constitute disciplinary action.

28. On December 23, 2002, Petitioner sent what he believed

was an anonymous email from a personal Yahoo.com email account

to Respondent's corporate headquarters.

29. The email does not specifically mention the issue of

late - signed session notes or alleged Medicaid fraud. The email

seeks "support to help eradicate ongoing abuse towards employees

and helpless youth at one of your hospitals." The email alleges

unidentified illegal and unethical behaviors and unspecified

violations of corporate policy. The only factual assertion set

forth in the email relates to an allegation that the "hospital

director" speaking at a meeting said, "he would not support any

staff member that file charges against any youth who violently

attacks them."

30. Unbeknownst to Petitioner, the email he sent to

Respondent's corporate headquar ters contained Petitioner's name.

31. On December 24, 2002, the corporate headquarters

forwarded Petitioner's email to David Beardsley, the UBC

Administrator and Chief Executive Officer. Petitioner's email

was also forwarded for investigation to Wayne Neiswender, the

Director of Human Resources for HMA, who was based in Naples,

Florida.

32. On January 6, 2003, Petitioner submitted a complaint

to PERC seeking protection under the "Whistleblower Act."

Petitioner testified that he filed a complaint wit h PERC after

being verbally instructed to do so by someone in the Office of

the Governor.

33. On January 13, 2003, Petitioner filed a charge of

discrimination with FCHR (FCHR Case No. 23 - 00981) alleging that

Petitioner had been discriminated against on the basis of race

by being verbally reprimanded for tardiness in August 2002 and

for being suspended based on the abuse allegation in November

2002. Petitioner asserted that non - black employees who

committed similar infractions did not receive the same

di scipline.

34. In mid - January 2003, Mr. Neiswender traveled to

Orlando and met with David Beardsley to discuss the letter.

Mr. Neiswender's investigation focused on gathering information

to identify specific instances of the alleged unethical or

illegal activities that Petitioner claimed in his email were

taking place at the facility.

35. Mr. Neiswender met with Petitioner at a time and

location chosen by Petitioner. Petitioner refused to cooperate

with Mr. Neiswender's investigation and refused to pro vide any

specific information related to alleged Medicaid fraud or any

other unethical or illegal activities he claimed in his email

were occurring at UBC.

36. Mr. Neiswender learned from Petitioner that Petitioner

had not received payment for the three - d ay suspension during the

appropriate payment cycle. Mr. Neiswender informed the

appropriate UBC personnel and a check was issued to Petitioner

to cover the unpaid time. There is no evidence that

Respondent's failure to compensate Petitioner for the suspe nsion

period was based on race or in retaliation for any complaint.

There is no evidence that prior to Petitioner's telling

Mr. Neiswender about the non - payment, anyone at UBC other than

Petitioner was aware that he had not been paid for the

suspension pe riod.

37. Mr. Neiswender met with other UBC employees during his

investigation, but was unable to identify any specific instances

of unethical or illegal behavior. Mr. Neiswender concluded that

Petitioner's allegations were unsupported by fact.

38. Because the allegations involved improper use of

public Medicaid funds, the allegations were also investigated

and ultimately dismissed by the Office of the Inspector General

for the State of Florida.

39. On February 28, 2003, Petitioner filed a

Whistle blower's complaint with FCHR (FCHR Case No. 23 - 01298)

alleging that since August 4, 2002, he had been suspended in

November 2002, and "harassed as recently as January 25, 2003,"

in retaliation for reporting allegations of Medicaid fraud to

the HMA corporat e compliance telephone line and to PERC.

40. The investigation by FCHR of Case No. 23 - 01298 was

terminated by notice issued on May 7, 2003. The Notice of

Termination sets forth Petitioner's right to appeal the

termination of the investigation. Petiti oner did not appeal the

termination of the investigation.

41. During May 2003, Petitioner was working in a UBC

program unit identified as "Solutions." The Solutions unit is

physically divided into two units ("Solutions I" and "Solutions

II") separated b y the nurses' station and doorway. Calvin Ross,

a black man, was Petitioner's supervisor.

42. On May 13, 2003, Mr. Ross directed Petitioner to stay

out of the Solutions I unit, because a female patient in

Solutions I alleged that Petitioner acted impro perly towards

her. Mr. Ross told Petitioner to remain in the Solutions II

unit until the matter was resolved.

43. Although Mr. Ross did not identify the female patient

to Petitioner, Petitioner believed he knew who the complainant

was. Later during th e week, Petitioner had several encounters

with the complainant, including two incidents at the nurses'

station during which Petitioner twice directed the complainant

(who was unaccompanied by staff) to return to her unit and to

her room.

44. On May 13, 2003, a third encounter between Petitioner

and the complainant occurred when Petitioner was called

temporarily into the Solutions I unit to assist in returning an

unruly male patient to his room. After the situation with the

male patient was resolved, Pet itioner did not leave the

Solutions I unit, but instead saw and began to talk to the

complainant.

45. At the time of the encounter, the complainant was

outside her room. Petitioner directed her to return to her

room.

46. The complainant had permissi on from the Solutions I

staff to be out of her room, a fact of which Petitioner was

unaware. The complainant reacted negatively to Petitioner's

direction and became very emotional, crying and screaming at

Petitioner. Prior to her interaction with Petitio ner on that

day, the complainant's behavior had been appropriate and

controlled.

47. Petitioner then became involved in a confrontation

with a Solutions I unit staff member (a white female) in front

of unit patients when the staff member explained to Peti tioner

that the complainant indeed had permission to be outside the

room. Petitioner was unhappy that other staff had not supported

his instructions to the complainant and told the staff member

that she was "unprofessional" and "inappropriate" in such a

h ostile manner as to cause the staff member to become

emotionally upset and to leave the facility before the end of

her shift.

48. Petitioner then had yet another confrontation with a

different staff member (a white female) on the same day during

which Petitioner in front of unit patients told the staff member

that she was incompetent, and accused the staff member of

joining with patients to "get him."

49. Mr. Ross investigated Petitioner's conduct towards the

co - workers on the day in question, and d etermined that

Petitioner's behavior warranted a paid suspension.

50. Mr. Ross was not aware that Petitioner had any pending

complaints against the facility at the time he imposed the

suspension. Mr. Ross' supervisor and the facility's Human

Resource C oordinator approved the suspension. The evidence

fails to establish that the suspension was based on race or in

retaliation for any pending complaints filed by Petitioner.

51. The employee who left her shift early had a letter

placed in her personnel f ile cautioning that another incident of

early departure would result in termination of her employment.

52. Petitioner was also required to complete a Performance

Improvement Plan, which he did successfully in June 2003.

53. In September 2003, Respond ent became aware that a

night employee was discovered sleeping during working hours in

the lobby of the facility. The employee supposedly began

sleeping during a work - break and did not awaken to return to his

shift.

54. Because of previous problems with patients leaving

assigned rooms and wandering freely into each other's rooms when

unsupervised, Respondent regards sleeping by employees during

work hours to be a serious issue. Employees on break are

permitted to nap in their cars, but the UBC employee h andbook

specifically states that "sleeping on the job" will not be

tolerated.

55. While investigating the September sleeping incident,

Respondent learned that a unit night supervisor was in the

practice of allowing employees to combine multiple break time

and to sleep "off unit" for the period of the combined break

time. Respondent initially intended to terminate the sleeping

employee, but because the unit supervisor permitted the

practice, the offending employee was reprimanded and warned that

another in cident of sleeping would result in termination.

56. The night supervisor's practice was not acceptable to

administrators of the facility, and a memo dated September 25,

2003, was issued to all employees, including Petitioner,

prohibiting the practice of c ombining break time. The memo

further stated as follows:

Sleeping: No staff member is to sleep while

on duty at UBC. This includes all 3 shifts.

Staff on the evening and night shifts are

paid an extra differential based on the fact

that these hours are perhaps more difficult

to work. No sleeping at any time while in

the building.

57. In October 2003, Petitioner was found asleep while

sitting in a chair in a unit hallway. Two employees, a nurse -

manager and an orderly, observed Petitioner sleeping. The

orderly called Petitioner's name once to awaken him, but was

unsuccessful. After she called his name again, he woke up.

58. The evidence further establishes that Petitioner

failed to complete two sets of the "quarterly rounds" (which are

done ever y fifteen minutes) intended to assure that patients are

safely in their assigned rooms.

59. Petitioner testified that he was not asleep, but had

merely "dozed off" for at most 20 seconds before awaking.

Petitioner's testimony on this point is discredit ed due to the

fact that the orderly had to twice call his name before he

awoke, and to his failure to complete two sets of quarterly

rounds (covering a period of 30 minutes).

60. As a result of being found sleeping while on duty,

Petitioner's employment was terminated.

61. Since the September 2003 memo was issued, employees

found sleeping on duty have been terminated. Such terminations

have included white and Hispanic employees. There is no

credible evidence that any employee found asleep on duty since

the memo has continued to be employed at UBC.

62. There is no evidence that Respondent's termination of

Petitioner's employment was based on or related to his race, or

in retaliation for any complaint filed by Petitioner.

CONCLUSIONS OF LAW

63. Th e Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004). 1

64. Petitioner asserts that he has been discriminated

against because of race and in retaliat ion for filing complaints

alleging such discrimination.

65. Respondent asserts that matters related to a claim of

retaliation are immaterial to this case because FCHR addressed

the retaliation claim in the Notice of Termination dated May 7,

2003, in FCHR Case No. 23 - 01298, to which no appeal was taken.

However, the Statement of Agreed Facts filed by the parties on

November 24, 2004, states that on May 27 and October 9, 2003,

Petitioner amended charges of discrimination to allege

retaliation. Accordingly, this Recommended Order has considered

the claim of retaliation as set forth herein.

66. Section 760.10, Florida Statutes, provides as follows:

(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

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful emplo yment

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.

67. Florida courts interpreting the provisions of

Section 760 .10, Florida Statutes, have held that federal

discrimination laws should be used as guidance when construing

provisions of the Florida law. See Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

68. Petitioner has the ultimate burden to establish

discrimination either by direct or indirect evidence. The

burden of proving retaliation follows the general rules

enunciated for proving discrimination. Reed v. A.W. Lawrence &

Co. , 95 F.3d 1170 (2d Cir. 1996). Direct evidence is evidence

that, if believed, would prove the existence of discrimination

without inference or presumption. Carter v. City of Miami , 870

F.2d 578, 581 - 582 (11th Cir. 1989). Bla tant remarks, whose

intent could be nothing other than to discriminate, constitute

direct evidence of discrimination. See Earley v. Champion

International Corporation , 907 F.2d 1077, 1081 (11th Cir. 1990).

There is no evidence of direct discrimination on Respondent's

part in this case.

69. Absent direct evidence of discrimination, Petitioner

has the burden of establishing a prima facie case of racial

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993); Texas Department of Community A ffairs v. Burdine , 450

U.S. 248 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973). In order to establish a prima facie case of

discrimination, Petitioner must show that: he is a member of a

protected group; he is qualified for the position; h e was

subject to an adverse employment decision; and he was treated

less favorably than similarly - situated persons outside the

protected class. McDonnell Douglas , 411 U.S. at 802.

70. If Petitioner establishes the facts necessary to

demonstrate a prima f acie case, the employer must then

articulate some legitimate, nondiscriminatory reason for the

challenged employment decision. The employer is required only

to "produce admissible evidence which would allow the trier of

fact rationally to conclude that th e employment decision had not

been motivated by discriminatory animus." Burdine , 450 U.S. at

257. The employer "need not persuade the court that it was

actually motivated by the proffered reasons . . ." Burdine , 450

U.S. at 254. This burden has been ch aracterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138,

1142 (11th Cir. 1983).

71. Assuming the employer articulates a legitimate,

nondiscriminatory reason for the employment decision, the burden

shifts back to Petition er who then must establish that the

reason offered by the employer is not the true reason, but is

mere pretext for the decision.

72. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by Respondent remains

with Petitioner. Burdine , 450 U.S. at 253.

73. In this case, the evidence establishes that Petitioner

is a member of a protected class, that he was qualified for his

position, and that he was subject to an adverse employment

decision by disciplinary action s and finally the termination of

his employment. The evidence fails to establish that Petitioner

was treated less favorably than similarly situated non - black

employees.

74. In order to make a prima facie case, Petitioner must

demonstrate there were emp loyees outside of the protected class

who engaged in similar conduct, but were not terminated.

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999)(citing

Jones v. Bessemer Carraway Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), OPINION MODIFIED by 151 F. 3d 1321 (1998)(quoting

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997)) .

Petitioner has failed to do so. The evidence fails to establish

that non - minority employees were treated differently than was

Petitioner under similar circumstances. In fac t, the evidence

offered by Petitioner casts doubt upon his credibility.

Petitioner asserted that all of the employees who received

reprimands for tardiness were black or Hispanic, but the

evidence establishes otherwise. Petitioner also asserted that

the only employees disciplined or terminated for sleeping on

duty were minorities, but the evidence again establishes

otherwise.

75. The evidence establishes that the disciplinary actions

taken towards Petitioner were routine, and were standard

procedure fo r the facility under similar circumstances with

other employees, regardless of race. The evidence establishes

that Petitioner's termination for sleeping followed a direct

warning from Respondent that sleeping on duty was not

acceptable. The evidence esta blishes that other employees found

sleeping on duty were also terminated, without regard to race.

"Whatever the employer's decision - making process, a disparate

treatment claim cannot succeed unless the employee's protected

trait actually played a role in that process and had a

determinative influence on the outcome." Hazen Paper Co. v.

Biggins , 507 U.S. 604, 610 (1993). This standard requires

Petitioner to establish that "but for" his protected class and

Respondent's intent to discriminate, he would not have been

disciplined or terminated. The evidence fails to establish

sufficient facts to establish a prima facie case of

discrimination.

76. In order to establish a prima facie case of

retaliation, Petitioner must satisfy four requirements.

Petitioner must show that he engaged in a statutorily protected

activity, that Respondent was aware of the protected activity,

that Petitioner suffered adverse employment action, and that the

adverse action was causally related to the protected activity.

See Little v. United Technologies, Carrier Transicold Division ,

103 F.3d 956, 959 (11th Cir. 1997)(citing Coutu v. Martin County

Bd. of County Commissioners , 47 F.3d 1068, 1074 (11th Cir.

1995)).

77. Petitioner filed his first written complaints to FCHR

and PERC in January 2003. Disciplinary actions that preceded

the filing of the complaints are obviously not retaliatory.

Subsequent to the filing of the complaints, Petitioner received

a one - week suspension in May 2003 and was terminated in

October 2003.

78. As to the suspension, the evidence fails to establish

the second requirement for a prima facie case of retaliation

because, although the personnel who concurred with the

suspension had knowledge of the complaints, the supervisor who

actually made the suspe nsion decision was unaware that

Petitioner had filed complaints against Respondent.

79. As to the termination of his employment, Petitioner

has established three of the requirements for a prima facie case

of retaliation. Petitioner engaged in a protected activity by

filing his complaints against Respondent. Respondent was

clearly aware of the filing of the complaints. Petitioner

suffered an adverse action by being terminated from employment.

However, the evidence fails to establish the fourth requireme nt

for a prima facie case of retaliation: that the termination was

causally related to the filing of the complaints. Other

employees of various races or ethnicities who committed the same

offense as Petitioner were likewise terminated. There is no

evide nce , either direct or indirect, that the termination of

Petitioner's employment was related to, or in retaliation for,

the filing of the complaints. An employer may terminate an

employee fairly or unfairly and for any reason or no reason at

all without in curring Title VII liability unless its decision

was motivated by invidious discrimination. Kossow v. St. Thomas

University, Inc. , 42 F. Supp. 2d 1312, 1317 (S.D. Fla. 1999)

(citing Nix v. WLCY Radio/Rahall Communications , 738 F.2d 1181,

1187 (11th Cir. 19 84)).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief filed by

Walter F. Gibson in this case.

DONE A ND ENTERED this 2nd day of March, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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 2nd day of March, 2005.

ENDNOTE

1/ All citations are to Florida Statutes (2004) unl ess

otherwise indicated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Stree t

Tallahassee, Florida 32303

Stephen M. Smith, Esquire

Jennifer Smith, Esquire

2311 Republic Street

New Orleans, Louisiana 70129

Mark L. Van Valkenburgh, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue

Winter Park, Florida 32789

Cecil Howard, General Counsel

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 exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.