08-000839 Edna M. Rubin vs. Department Of Health Status: Closed Recommended Order on Wednesday, August 6, 2008.

Summary: Petitioner failed to establish prima facie case for discrimination by retaliation. She failed to show she participated in statutorily protected activity and failed to show Respondent knew that the alleged discrimination occurred or she had complained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDNA M. RUBIN, )

)

Petitioner, )

)

vs. ) Case No. 08-0839

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal hearing was held in this proceeding before P.

Michael Ruff, duly-designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Pensacola, Florida, on May 12, 2008. The appearances were as

follows:

APPEARANCES

For Petitioner: Edna M. Rubin, pro se

1140 East Baars Street

Pensacola, Florida 32503

For Respondent: Rodney M. Johnson, Esquire

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

STATEMENT OF THE ISSUES :

The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination

from employment for purportedly making complaints concerning

alleged discriminatory practices toward Hispanic employees.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Edna M. Rubin, filed

a Charge with the Florida Commission on Human Relations

(Commission) against the Respondent Agency alleging that she had

been retaliated against for opposing an alleged unlawful

discrimination practice directed toward Hispanic employees. She

maintains she was dismissed from her employment by the

Respondent for this reason. The Charge of Discrimination was

filed with the Commission on August 15, 2007, and the matter

proceeded to investigation by the Commission. A Determination

that no reasonable cause existed for believing that an unlawful

employment practice occurred was issued by the Commission on

January 17, 2008.

On or about February 13, 2008, the Petitioner filed a

Petition for Relief with the Commission requesting an

Administrative Hearing and the cause was duly transmitted to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge.

The cause came on for hearing as noticed. At the hearing

the Petitioner presented Exhibit "A" which was admitted into

evidence and 12 witnesses. The Respondent presented Exhibits

"A" and "B" which were admitted into evidence and relied on its

cross-examination of the Petitioner's witnesses otherwise.

After the hearing was concluded the parties requested an

extended period to submit proposed recommended orders. The

Proposed Recommended Orders have been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was hired by the Escambia County Health

Department (Department) the Respondent herein, as a Community

Health Nursing Supervisor.

2. It was the Petitioner's duty to supervise nursing staff

under her direction and to perform their employee evaluations.

She, in turn, was responsible to her supervisor, Jennifer

Carter.

3. The Petitioner maintains that she was retaliated

against by the Respondent, in the employment action taken,

because she complained to her supervisors concerning what she

claimed was discriminatory conduct toward Hispanic employees by

other employees of the Respondent. The Petitioner, for

instance, made reference to an employee, Annette Thrasher, who

purportedly made reference to "those people" in a meeting when

referring to Hispanic people or employees. The Petitioner,

however, did not make a formal complaint about that matter when

offered the opportunity to do so.

4. Maribel Reyes is a Hispanic employee. She testified

that another employee, possibly employee Thrasher, criticized

her as well as Esperanza Rietz, also a Hispanic employee, for

speaking the Spanish language at work.

5. Ms. Reyes and/or Ms. Rietz took a complaint about this

matter to the Petitioner. The Petitioner did not act to resolve

it, however, and therefore Ms. Reitz took her concerns about

criticism of her speaking in Spanish to the Petitioner's

supervisor, Ms. Carter. The issue was then resolved quickly by

Ms. Carter, who assured Ms. Rietz that she could speak any

language she wished; that there was no prohibition against that.

6. The Respondent had contended that this was one of the

instances of purported discrimination against Hispanic employees

which she purportedly defended against and made complaint about

to the Respondent's management. In fact, the complaint had been

made to her by the Hispanic employee referenced above and she

had done nothing about it. In any event, the fact that the

Petitioner's supervisor, Ms. Carter, acted quickly to assure

Ms. Reyes and indeed Ms. Rietz, that the Respondent's management

did not tolerate employment conduct indicative of such

discrimination, tends to belie the Petitioner's contention that

the Respondent retaliated against her for making a complaint

about discrimination against Hispanic employees. Rather, it was

her supervisor, and the Respondent's management who acted to

ensure that such potentially discriminatory conduct was not

condoned. This belies any likelihood that the Respondent would

have retaliated against the Petitioner for following the same

policy, had she done so.

7. When she was hired the Petitioner's supervisor,

Ms. Carter, instructed her to include Ms. Carter in any meetings

and/or discussions with employees concerning those employees'

performance evaluations, especially if the evaluations were

contemplated to be negative ones. The Petitioner was still a

probationary employee herself, and Ms. Carter, as her supervisor

wanted to ascertain that she had followed instructions and was

doing the employee performance evaluations in accordance with

the Respondent's relevant personnel rules and policies. In

fact, however, the Petitioner failed to follow Ms. Carter's

instructions and completed a number of performance evaluations

and meetings with the affected employees without informing

Ms. Carter or securing her presence at those discussions.

8. The testimony of witnesses Jessie Wilson and Jennifer

Carter, established that the Petitioner gave Jessie Wilson an

unfair and inaccurate employee performance evaluation. She

excessively criticized and was rude toward Jessie Wilson. The

Petitioner apparently made a comment somewhat to the effect that

Ms. Wilson, who is white, had a "Jim Crow" attitude or an

"overseer" mentality.

9. The Petitioner was overly critical, demeaning, and rude

toward employees at various times. She embarrassed and

criticized Esperanza Rietz, an employee she supervised, in front

of the employee's co-workers and disclosed her personal medical

information improperly to Ms. Rietz's co-workers.

10. Velda Gardner is a Health Technician in the health

unit. Ms. Gardner took a long lunch period one day, taking an

extra hour. She took the extra hour from administrative leave

she was entitled to as "compensation time." The Petitioner

wrongfully docked her the hour of administrative leave time.

Ms. Gardner demonstrated to the Petitioner, with a witness, that

she was entitled to the hour of administrative leave time or

compensation time but the Petitioner refused to accept her

truthful explanation. She effectively and wrongfully accused

Ms. Gardner of lying.

11. In addition to prompting employee Jessie Wilson to

file a grievance against the Petitioner because of the untrue,

inaccurate, and overly disparaging evaluation concerning

Ms. Wilson's performance, the Petitioner yelled at and

criticized Ms. Wilson in front of her peers. She also treated

other employees in front of peers in a similar fashion at

various times.

12. Ms. Rietz worked as a Spanish language interpreter for

the Respondent. The Petitioner disparaged her in front of other

employees. Ms. Rietz felt demeaned by this.

13. On another occasion the Petitioner approached a

physician, Dr. Tamalo, in the hallway outside her office and

commenced yelling at him and berating him in a loud, rude

manner. This was overheard by witnesses Virginia Howard and

Gracie Stovall, employed, respectively, in the nearby Family

Planning Clinic and Family Health Clinic. According to these

two witnesses, "everyone in adjoining rooms could hear it." The

Petitioner behaved in a very loud, rude disparaging way to

Dr. Tamalo and another physician.

14. Jennifer Carter, as referenced above, is employed by

the Family Health Clinic and is the Petitioner's supervisor.

She corroborated the testimony of witness Jessie Wilson

concerning the Petitioner's "Jim Crow" reference and described

the above-named witnesses' and employees' complaints concerning

the Petitioner's conduct towards them, corroborating the nature

of their complaints. Witness Carter described Respondent's

Exhibit A, which is Jessie Wilson's performance evaluation, as

being in some respect harsh and demeaning, with the same sort of

criticisms directed at the Respondent's Exhibit B, the

performance evaluation of Tammy Buckney. These evaluations were

not done in accordance with Ms. Carter's instruction.

Ms. Carter, in fact, had to re-formulate and re-draft three of

the six employee evaluations she received from the Petitioner

because they were inaccurate, overly disparaging, and not done

according to her instructions. Ms. Carter is the Assistant

Community Health Nurse of the Escambia County Health Department.

15. Ms. Carter thus corroborated the testimony of other

employees that the Petitioner's treatment of staff members under

her supervision was frequently rude and demeaning. Ms. Carter

also corroborated the testimony of Ms. Reyes in establishing

that no discrimination against Hispanic people was tolerated by

the Respondent, nor to the knowledge of Ms. Carter had occurred.

16. Dr. John Lanza is director of the Escambia County

Health Department. He is the ultimate supervisor of the

Petitioner as well as all other employees of the Department,

including Jennifer Carter. Dr. Lanza has been with the

Department of Health for 15 years. He has never heard any

reports of discrimination against Hispanics or as to Ms. Rubin

herself. Ms. Rubin is Black.

17. Dr. Lanza became aware through reports of his

management team, such as Dr. Susan Turner, Barbara McCullough,

and Jennifer Carter of the Petitioner's disparaging, and rude

treatment of employees under her supervision. He also learned

that she failed to participate in her clinic duties. Dr. Lanza,

as director of the health department, is authorized to dismiss

Department personnel. He dismissed the Petitioner because she

failed to follow her supervisor's instructions, was unacceptably

rude and overly critical of employees under her supervision.

She was demeaning at times toward employees and even was rude to

two physicians at the Department whom she had no authority to

supervise. These criticisms, which have been established as

true by the preponderant evidence in this record, and the fact

that all this deficient conduct occurred while the Petitioner

was still in her probationary period after her hiring, motivated

Dr. Lanza to dismiss the Petitioner from employment. When

Dr. Lanza made this decision he was unaware of any allegation of

any discrimination directed toward Hispanic employees anywhere

in the Escambia County Health Department. Because he was

unaware of such allegations of discrimination, akin to that

complained of in the Petition for Relief, he could not have

retaliated against the Petitioner for taking a stand or making

complaints about alleged discriminatory conduct directed toward

Hispanic employees.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

19. There is no dispute that the Respondent is an

"employer" as that status is defined in Section 760.02, Florida

Statutes (2007). Likewise there is no dispute that the

Petitioner is an "employee" as that status is thus defined.

Jurisdiction is established.

20. Section 760.10(7), Florida Statutes (2007), provides

that:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice . . .

21. The Florida Civil Rights Act, Chapter 760, Florida

Statutes, was patterned after Title VII of the Federal Civil

Rights Act of 1964. Florida Courts have therefore used the same

analysis when considering claims under the Florida Civil Rights

Act as is employed in resolving claims under the Federal Act.

See Harper v. Blockbuster Entertainment Corporation , 139 F.3d

1385, 1387 (11th Cir. 1998); Castleberry v. Chadbourne, Inc. ,

810 So. 2d 1028 (Fla. lst DCA 2002).

22. In order for a Petitioner to prove intentional

discrimination through circumstantial evidence, the burden

shifting analysis employed by the court in McDonnell-Douglas

Corporation v. Green , 411 U.S. 792, 802-805 (1973) is

appropriately employed. Under the rationale of that case, a

prima facie case of discrimination must be shown by the

Petitioner. If the Petitioner establishes a prima facie case of

discrimination (here based upon a retaliation), the burden then

shifts to the Respondent employer to demonstrate that the

employment decision was motivated by a legitimate, non-

discriminatory reason rather than reasons predicated upon

prohibited discrimination. See Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S.Ct. 1089, 1093 (1981).

If a legitimate, non-discriminatory reason for the employment

action taken is articulated by the employer, then the Petitioner

has the burden of going forward with evidence to show that the

reason offered by the employer is in fact pretextual, and not

true reason for the employment decision made and that the true

reason is based upon discriminatory animus . See Farley v.

Nationwide Mutual Insurance Company , 197 F.3d 1322, 1337 (11th

Cir. 1999). The Petitioner retains the ultimate burden of

persuasion in the proceeding, however, to show by preponderant

evidence that he or she was the victim of an adverse

discriminatory employment decision, here based upon retaliation,

and that the Petitioner suffered damages as a result. See St.

Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

23. The Petitioner has not claimed in her Petition for

Relief that she has been subjected to discrimination predicated

upon her race or otherwise. Rather, she has pled that she was

the subject of retaliation based upon her purported exercise of

a statutorily or otherwise protected expression or conduct

whereby she allegedly complained, and sought to redress alleged

discrimination against Hispanic employees. Thus, under the

burden of proof allocation analysis enunciated by the U.S.

Supreme Court in the McDonnell-Douglas and Burdine decisions

supra , the Petitioner must first establish a prima facie case of

retaliation. In order to demonstrate a prima facie case of

retaliation the Petitioner must show: (1) that she was engaged

in a statutorily protected expression or conduct; (2) that an

adverse employment action has occurred, directed at her; and (3)

that there is causal connection between the protected expression

or conduct that she engaged in and the adverse employment action

taken against her. See Farley v. Nationwide Mutual Insurance

Company , 197 F.3d 1322, 1336 (11th Cir. 1999).

24. The Petitioner must establish that her protected

activity or conduct and the adverse employment action were

related in some way. She must show that the decision-maker,

with regard to the adverse employment action alleged, was aware

of the protected conduct engaged in by the Petitioner before the

adverse employment action was taken.

25. Once a prima facie case of discrimination based on

retaliation has been established, the employer has the

opportunity to articulate a legitimate, non-discriminatory

reason for the adverse employment action. Stewart v. Happy

Herman's Cheshire Bridge, Inc. , 117 F.3d 1278 (11th Cir. 1997).

26. Thus, in order to prevail on a retaliation claim the

Petitioner must establish that the employer was actually aware

of the protected expression or conduct at the time the adverse

decision was made. Clover v. Total Systems Services, Inc. , 176

F.3d 1346, 1354-56 (11th Cir. 1999); see also Sullivan v.

National RR Railroad Passenger Corp. , 175 F.3d 1056, 1060 (11th

Cir. 1999). See also Brumgart v. Bell South Telecommunication,

Inc. , 231 F.3d 791, 799 (11th Cir. 2000).

27. In order to establish that there is a causal link

between the conduct engaged in by the Petitioner and the adverse

employment action, the evidence must show that the employer's

decision was motivated, in part at least, on knowledge of the

protected activity engaged in by the Petitioner. See Grizzle v.

Travelers Health Network, Inc. , 14 F.3d 261, 267 (5th Cir.

1994). If this were not the case, impermissible speculation

could support a finding that a decision to terminate was

causally connected to complaints a Petitioner employee had made.

See Foster v. Solvay Pharmaceuticals, Inc. , 160 F. Apps. 385,

389 (5th Cir. 2005).

28. The Clover decision supra illustrates that temporal

proximity between the protected conduct engaged in by the

Petitioner and the adverse employment decision, is insufficient

to create a genuine issue of fact as to causal connection, where

there is unrebutted evidence that the decision-maker did not

have knowledge that the employee had engaged in the protected

conduct. See Clover , 176 F.3d at 1355-56.

29. The Petitioner has failed to establish a prima facie

case based on retaliation with regard to the termination

decision. This is because she failed to establish that the

decision-maker, Dr. Lanza, had any knowledge of the purported

protected conduct engaged in by the Petitioner (complaining

about harassment or discrimination of Hispanic employees). The

Respondent produced credible, persuasive and unrefuted evidence

that Dr. Lanza had no such knowledge, thus the Petitioner cannot

establish a prima facie claim. One of the elements of a prima

facie claim based on retaliation is establishing a causal

connection between the alleged protected conduct engaged in by

the Petitioner and the retaliatory employment decision. The

causal connection can not be established if the decision-maker

taking the employment action at issue had no knowledge of the

Petitioner's conduct which the Petitioner alleged was protected

conduct or expression. Thus the Petitioner in this case has not

established her prima facie claim for this reason.

30. Moreover, obviously, a prima facie claim, as

referenced above, has as a requisite element the establishment

that the Petitioner engaged in statutorily protected conduct or

expression. The Petitioner has asserted that she complained of

and sought to alleviate what she deemed to be discriminatory

conduct directed at Hispanic employees. The evidence is not

clear that she did so, however. Rather, the testimony of

Ms. Reyes was to the effect that when she complained that

employees were, in affect, decrying the fact that she spoke in

Spanish, while on duty, complaining of this to the Petitioner,

she got no action from the Petitioner. It was only when she

went to the Petitioner's supervisor, Ms. Carter, that action was

taken to alleviate this perceived discriminatory conduct.

Therefore, it is not clear that the Petitioner actually engaged

in protected activity as a basis for her claim of retaliation

because of it.

31. However, even if the Petitioner had established a

prima facie case, the Respondent advanced legitimate, non-

discriminatory reasons for the termination of the Petitioner.

The Petitioner was dismissed by Dr. Lanza because she failed to

follow her supervisor's instructions, failed to participate in

clinic duties, was frequently unacceptably rude and unduly

critical of employees under her supervision and was cruel and

demeaning toward employees. These reasons are well supported by

the testimony of a number of witnesses, in addition to

Dr. Lanza.

32. Once an employer offers a legitimate, non-

discriminatory reason to explain the adverse employment action

and its timing, which Dr. Lanza and Ms. Carter did with their

testimony, corroborated by other witnesses, then temporal

relationship between the alleged protected conduct and the

employment decision is insufficient in itself to sustain the

case for a retaliation claim. See Swanson v. General Services

Administration , 110 F.3d 1180, 1188 (5th Cir. 1997). The

Swanson decision also provides a good synopsis concerning the

proposition that a petitioner's "opinions," standing alone do

not constitute competent evidence. 110 F.3d at 1186. In the

instant situation the only evidence or testimony concerning the

alleged discriminatory motives of the Respondent in terminating

the Petitioner is based on the Petitioner's unsupported opinion.

That cannot constitute competent proof, standing alone, of

discriminatory motives on the part of the Respondent.

33. In summary, the Respondent articulated legitimate,

non-discriminatory reasons for the termination of the

Petitioner. The Petitioner failed to offer any evidence to show

that there was any knowledge on the part of the decision-maker,

Dr. Lanza, of any protected conduct in the form of the

Petitioner's alleged complaining of harassment of Hispanic

employees. Because the Petitioner failed to establish any

knowledge on the part of the decision-maker of the alleged

protected conduct or expression, the Petitioner could not

establish any causal connection between the termination and the

purported protected conduct. Thus, a prima facie case was not

established. It was not established for the additional reason

that the Petitioner did not prove that she had actually engaged

in protected conduct by actually complaining of incidents of

harassment of Hispanic employees. Finally, after the

advancement of legitimate, non-discriminatory reasons for the

Petitioner's termination, the Petitioner came forward with no

evidence to show that the articulated legitimate reasons of the

Respondent for the termination were pretextual. Accordingly,

the Petition for Relief should be dismissed.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and the arguments

of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

in its entirety.

DONE AND ENTERED this 6th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 2008.

COPIES FURNISHED :

Edna M. Rubin

1140 East Baars Street

Pensacola, Florida 32503

Rodney M. Johnson, Esquire

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

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 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.