10-001797 Peta-Gaye Morris vs. Airtran Airways, Inc. Status: Closed Recommended Order on Wednesday, August 18, 2010.

Summary: Petitioner failed to demonstrate that Respondent discriminated against her on the basis of race, nor did Petitioner prove that Respondent retaliated against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETA-GAYE MORRIS, )

)

Petitioner, )

)

vs. ) Case No. 10-1797

)

AIRTRAN AIRWAYS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on July 9, 2010,

at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Peta-Gaye Morris, pro se

8530 Northwest 54th Court

Lauderhill, Florida 33351

For Respondent: Patricia J. Hill, Esquire

Colin A. Thakkar, Esquire

Smith, Gambrell & Russell, LLP

50 N. Laura Street, Suite 2600

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent committed an unfair labor practice by

discriminating against Petitioner on the basis of race and

retaliating against Petitioner, in violation of the Florida

Civil Rights Act, of 1992, as amended, Section 760.10 et seq .,

Florida Statutes (2008).

PRELIMINARY STATEMENT

In February 2009, Petitioner Peta-Gaye Morris filed a

Charge of Discrimination with the Florida Commission on Human

Relations ("FCHR"). On July 31, 2009, after conducting an

investigation into Petitioner's allegations, the FCHR issued a

"no cause" determination, finding the accusations of racial

discrimination and retaliation to be without merit. Petitioner

elected to pursue administrative remedies, timely filing a

Petition for Relief with the FCHR on or about August 28, 2009.

The FCHR transmitted the Petition for Relief to the Division of

Administrative Hearings ("DOAH") on September 2, 2009, and the

matter was assigned DOAH Case No. 09-4764.

On December 22, 2010, an Order Closing File was entered in

DOAH Case No. 09-4764 after Petitioner failed to respond to an

Order to Show Cause that required her to explain her failure to

comply with an Order Compelling Responses to Interrogatories.

Subsequently, on April 5, 2010, Administrative Law Judge

Patricia Hart entered an Order Re-Opening File and Requesting

Response, which re-opened the instant cause as DOAH Case No.

10-1797. This matter was later transferred to the undersigned,

who scheduled a final hearing for July 9, 2010.

At the hearing, Petitioner testified on her own behalf.

During its case, Respondent called five witnesses: Kellye

Terrell, Jerome Ferrell, Dan Mellgren, Everton Harris, and

Eduardo Baez. Respondent's Exhibits 2, 3, 4, 5, 7, 8, 9, 10,

11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28,

29, 30, 31, 32, 33, and 37 were received into evidence. Exhibit

6 was also introduced, with the exception of page 163.

The final hearing transcript was filed with the DOAH on

July 29, 2010. 1 Each party filed Proposed Recommended Orders,

which were considered in the preparation of this Recommended

Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. On September 28, 2005, Respondent AirTran Airways hired

Petitioner, who is Black, as a customer service agent. During

her entire term of employment, Petitioner was assigned to

Respondent's station in Fort Lauderdale, Florida.

2. Between January and June of 2006, Petitioner was issued

five attendance warnings. During the same period, Petitioner

was issued two written warnings that related to other violations

of company policy. 2 Nevertheless, on August 6, 2007, Petitioner

was promoted to the position of station supervisor.

3. Several months after her promotion, Petitioner was

issued a "final warning" and suspended for three days. This

occurred after an internal fraud investigation revealed that on

several occasions, Petitioner received insufficient funds from

customers in connection with round-trip and business class

upgrades.

4. Following the "final warning," Petitioner's employment

was uneventful until February or March of 2008. At that point,

Dan Mellgren, who had been employed with Respondent for

approximately eight years, transferred to Fort Lauderdale from

Chicago and assumed the position of station manager.

Petitioner's claims of racial discrimination and retaliation

relate solely to Mr. Mellgren.

5. As explained during the final hearing, a station

supervisor, the position held by Petitioner, is subordinate to

one or more duty managers. In turn, duty managers report to the

station manager, and the station manager reports to the director

of the southern region.

6. Mr. Mellgren admits that upon taking over as the Fort

Lauderdale station manager, he made the decision that "swipe

cards," which were limited in number (four or five) and

permitted parking in a preferred lot closer to the terminal,

would be distributed based on seniority. In addition, one swipe

card was reserved for a supervisor who frequently ran work-

related errands.

7. As a result of Mr. Mellgren's change in policy,

Petitioner lost her swipe card and was thereafter required to

park in the regular employee lot. Although Petitioner claims

that the reassignment of swipe cards was racially motivated,

there is no credible evidence supporting the allegation.

8. According to Petitioner, Mr. Mellgren committed other

discriminatory acts. For example, Petitioner claims that she

was not permitted to bring her children to the weekly staff

meetings (which took place on her day off), while at least one

white employee was permitted to do so. In contrast,

Mr. Mellgren testified that all employees, including Petitioner,

were authorized to bring well-behaved children to a staff

meeting if said meeting occurred on the employee's day off.

Mr. Mellgren further testified that at no time did he prevent

Petitioner from bringing her children to a staff meeting. The

undersigned accepts Mr. Mellgren's testimony as credible with

respect to this issue.

9. As an additional allegation of discriminatory conduct,

Petitioner claims that Mr. Mellgren required her, on one

occasion, to work eight hours without a lunch break. While

Mr. Mellgren did not deny that this occurred, he explained that

in the airline industry, customer service agents and supervisors

will occasionally miss lunch breaks during peak hours. Any such

missed lunch break is recorded in an "exception log," which

enables the employee to obtain additional compensation. The

undersigned accepts Mr. Mellgren's explanation concerning the

incident and concludes that any deprivation of a lunch break was

due solely to busy conditions at the airport.

10. Petitioner further alleges that shortly after

Mr. Mellgren's transfer to Fort Lauderdale, Mr. Mellgren forged

her name on a security badge sign-out form. Mr. Mellgren

testified, credibly, that this did not occur.

11. Pursuant to AirTran Airways policy, which is outlined

in the "AirTran Crew Member Handbook," an employee who is

experiencing harassment based upon race or other protected

classification is directed to handle the situation by first

confronting the harasser politely. If the harassment continues,

or if the aggrieved employee believes that a confrontation could

result in harm, the employee should contact a supervisor or

manager. If the complaint involves the employee's supervisor or

manager, the employee is directed to take the complaint to the

next level of management or to the human resources department.

12. Petitioner admits that she did not report her issues

with Mr. Mellgren to AirTran's human resources department or to

a level of management superior to Mr. Mellgren. Petitioner did,

however, report at least some of her problems with Mr. Mellgren

to Everton Harris, a duty manager whom Petitioner trusted. 3

There is no evidence that Mr. Harris communicated Petitioner's

concerns to the human resources department, a superior, or

anyone else.

13. It is undisputed that on March 27, 2008, Petitioner

arrived at the Fort Lauderdale station after attending training

in Atlanta. Petitioner noticed that one of the gates was busy,

so she decided to assist two AirTran customer service agents

(Eduardo Baez and Donna Heghinian) who were working the counter.

Shortly thereafter, in violation of AirTran policy, a revenue

passenger (i.e., a paying customer) was bumped from a flight to

accommodate a non-revenue flight attendant employed with Spirit

Airlines.

14. In the following days, AirTran's Internal Audit and

Fraud Department investigated the incident to determine the

identity of the employee responsible for replacing the revenue

customer with the non-revenue flight attendant. During the

investigation, statements were obtained from Mr. Baez and

Ms. Heghinian, both of whom implicated Petitioner as the

responsible party. Petitioner also provided a statement in

which she vehemently denied responsibility.

15. The findings of the investigation were subsequently

provided to Ms. Kellye Terrell, an Employee Relations Manager

with AirTran. Ms. Terrell is African-American.

16. After reviewing the findings, Ms. Terrell determined

that Petitioner should be separated from her employment with

AirTran due to two violations of company policy. 4 Ms. Terrell

drafted a termination letter, which was provided to Petitioner

on April 7, 2008.

17. Although the termination letter was actually signed by

Mr. Mellgren, it should be noted that Mr. Mellgren did not

participate in the decision to terminate Petitioner. In

addition, Mr. Harris, the only person to whom Petitioner

communicated any of her complaints regarding Mr. Mellgren, did

not participate in Petitioner's termination.

18. At the time of Petitioner's termination, neither

Ms. Terrell, nor any other decision-maker was aware of any

complaints made by Petitioner to Mr. Harris concerning

Mr. Mellgren.

19. The undersigned finds that Respondent's decision to

terminate Petitioner was based upon a good faith belief that

Petitioner violated company policy by bumping a revenue

passenger, as well as Petitioner's previous disciplinary

history.

20. Petitioner offered unrebutted testimony that her

position was filled by a Caucasian female. 5

21. The undersigned determines, as a matter of ultimate

fact, that the evidence in this case is insufficient to

establish that Respondent discriminated against Petitioner on

the basis of her race.

22. The undersigned also finds, as a matter of ultimate

fact, that the evidence is insufficient to establish that

Respondent retaliated against Petitioner.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

24. The Florida Civil Rights Act of 1992 ("FCRA") is

codified in Sections 760.01 through 760.11, Florida Statutes.

When "a Florida statute [such as the FCRA] is modeled after a

federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype."

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994). Therefore, t he FCRA should be interpreted, where

possible, to conform to Title VII of the Civil Rights Act of

1964, which contains the principal federal anti-discrimination

laws.

Employment Discrimination Claim

25. Section 760.10, Florida Statutes, provides, in

relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

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.

26. Complainants alleging unlawful discrimination may

prove their case using direct evidence of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11th

Cir. 1997). Courts have held that "only the most blatant

remarks, whose intent could be nothing other than to

discriminate," satisfy this definition. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358-59 (11th Cir.

1999)(internal quotations omitted) , cert. denied , 529 U.S. 1109

(2000). Often, such evidence is unavailable, and in this case,

Petitioner presented none.

27. A s an alternative to relying exclusively upon direct

evidence, the law permits complainants to profit from an

inference of discriminatory intent, if they can adduce

sufficient circumstantial evidence of discriminatory animus,

such as proof that the charged party treated persons outside of

the protected class (who were otherwise similarly situated) more

favorably than the complainant was treated. Such circumstantial

evidence, when presented, constitutes a prima facie case.

28. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff'd , 679 So. 2d 1183

(Fla. 1996). If, however, the complainant succeeds in making a

prima facie case, then the burden shifts to the accused employer

to articulate a legitimate, non-discriminatory reason for its

complained-of conduct. This intermediate burden of production,

not persuasion, is "exceedingly light." Turnes v. Amsouth Bank,

N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994). If the employer

carries this burden, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Center v. Hicks ,

509 U.S. 502, 516-518 (1993). At all times, the "ultimate

burden of persuading the trier of fact that the [charged party]

intentionally discriminated against" him remains with the

complainant. Silvera v. Orange County Sch. Bd. , 244 F.3d 1253,

1258 (11th Cir. 2001).

29. To establish a prima facie case of employment

discrimination, Petitioner is required to show that she "(1) is

a member of a protected class; (2) was qualified for the

position; (3) was subject to an adverse employment action; and

(4) was replaced by someone outside the protected class, or, in

the case of disparate treatment, shows that other similarly

situated employees were treated more favorably." Taylor v. On

Tap Unlimited, Inc. , 282 Fed. Appx. 801, 803 (11th Cir. 2008)

("Taylor established a prima facie case for racial

discrimination. She was a qualified member of a protected

class; she was terminated; and she was replaced by an individual

outside of her protected class"); Bryan v. McKinsey & Co., Inc. ,

375 F.3d 358, 360 (5th Cir. 2004).

30. It is undisputed that Petitioner belongs to a

protected class. As such, Petitioner satisfied the first prong

of a prima facie case of employment discrimination.

31. With respect to the second prong, Respondent argues

that Petitioner was not qualified for the position she held at

the time of her termination by virtue of her March 27, 2008,

misconduct. The undersigned disagrees, as Petitioner "need only

make the minimal showing that she possesses the basic skills

necessary for performance of [the] job." Gregory v. Daly , 243

F.3d 687, 696 (2d Cir. 2001) (internal quotation marks and

citations omitted). As recently observed in Bowdish v. Federal

Express Corp. , 699 F. Supp. 2d 1306, 1317 (W.D. Okla. 2010):

Defendant's contention that Plaintiff cannot

establish satisfactory job performance

because he was terminated for misconduct

conflates the second element of Plaintiff's

prima facie case with the question of

pretext, and is contrary to binding

precedent . . . . [A]n employer cannot

defeat a plaintiff's prima facie case . . .

by articulating the reasons for the adverse

employment action because the plaintiff in

such a situation would be denied the

opportunity to show that the reasons

advanced by the defendant were pretextual.

(Internal quotation marks and citations omitted); see also

Guerrero v. Fire Department, City of New York , 2009 U.S. Dist.

LEXIS 52937, *23 (S.D.N.Y. June 2, 2009) (rejecting defendant's

contention that due to misconduct, plaintiff could not show that

he was qualified for his position); Hawn v. Executive Jet Mgmt.,

Inc. , 546 F. Supp. 2d 703, 717 (D. Ariz. 2008) ("Defendant

argues that the misconduct itself renders the Plaintiffs

unqualified for the positions. The Court does not however come

to the same conclusion . . . . [U]nder such a regime, the

remainder of the McDonnell Douglas framework, and the prima

facie case for that matter, would be rendered superfluous.").

As Petitioner possessed the basic skills necessary to perform

the position of station supervisor, she has established the

second prong of a prima facie case, notwithstanding the

allegations of misconduct.

32. Petitioner has also established the third element of a

prima facie case, as her termination constitutes an adverse

employment action. 6

33. Finally, with respect to the fourth prong of the test,

Petitioner's testimony that she was replaced by a white employee

was unrebutted by the Respondent. Accordingly, Petitioner

established a prima facie case of employment discrimination, and

a burden of production shifted to Respondent to articulate a

legitimate, non-discriminatory reason for the termination.

34. Relying on the "work rule" defense, Respondent

proffered a legitimate non-discriminatory reason for

Petitioner's termination: Respondent believed that on March 27,

2008, Petitioner violated company policy when she replaced a

revenue passenger with a non-revenue flight attendant, and that

Petitioner subsequently provided dishonest statements concerning

the incident.

35. As Respondent articulated a legitimate non-

discriminatory reason for the termination , Petitioner was

required to establish that the proffered reason was not the true

reason but merely a pretext for discrimination. St. Mary's

Honor Center v. Hicks , 509 U.S. 502, 516-518 (1993). To show

pretext, Petitioner must demonstrate "such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence." Combs v. Plantation Patterns , 106 F.3d

1519, 1538 (11th Cir. 1997) (citation omitted).

36. Throughout the proceedings, Petitioner attempted to

show that she was innocent of the alleged misconduct and that

the prohibited behavior was actually committed by another

employee. Significantly, however, whether Petitioner was

innocent of the March 27, 2008, misconduct is not the correct

inquiry. Instead, the relevant issue is whether Respondent

actually believed, at the time Petitioner was terminated, that

she had committed the misconduct. Schaffner v. Glencoe Park

District , 256 F.3d 616, 622 (7th Cir. 2001) ("The issue is not

whether Schaffner worked well with others, but whether the Park

District honestly believed that she did not. In order to rebut

the Park District's articulated reason, Schaffner must present

evidence that it did not believe its own assessment"); Elrod v.

Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991)

(inquiry is limited to whether employer believed employee was

guilty of misconduct, and if so, whether that was the reason

behind discharge; that employee did not actually engage in

misconduct is irrelevant); Nix v. WLCY Radio , 738 F.2d 1181,

1187 (11th Cir. 1984) (holding that "an employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a discriminatory reason"); Breunlin v. Village of Oak

Park , 2008 U.S. Dist. LEXIS 34924, *11-12 (N.D. Ill. 2008) ("The

only relevant inquiry is whether the employer . . . honestly

believed the reason it offers.").

37. The undersigned finds that Petitioner failed to

demonstrate that the proffered reason for her termination was a

pretext for discrimination. After carefully considering the

exhibits and testimony presented during the final hearing, the

undersigned has no doubt that at the time of Petitioner's

termination, Respondent believed in good faith that Petitioner

had committed two significant violations of company policy in

connection with the March 27, 2008, incident. Accordingly,

Petitioner did not satisfy her ultimate burden of persuading the

undersigned that Respondent intentionally discriminated against

her because of her race.

Retaliatory Discharge Claim

38. The undersigned now turns to Petitioner's retaliation

claim, in which she alleges that she was terminated as a result

of her complaints to Mr. Harris regarding Mr. Mellgren.

39. Subsection 760.10(7), Florida Statutes, provides, in

pertinent part:

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 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.

40. Petitioner's retaliation claim under the Florida Civil

Rights Act must also be appropriately analyzed with the same

framework as used in analyzing retaliation claims under Title

VII. Gant v. Kash N' Karry Food Stores , 2010 U.S. App. LEXIS

16504, *4 (11th Cir. August 4, 2010). Pursuant to this

framework, an employee must first establish a prima facie case

of retaliation. Bryant v. Jones , 575 F.3d 1281, 1307-08 (11th

Cir. 2009). If a prima facie case is shown, the burden shifts

to the employer to articulate a legitimate, non-discriminatory

reason for its actions. Id. at 1308. If the employer

articulates a legitimate, non-discriminatory reason, the burden

of production shifts to the employee to offer evidence that the

alleged reason of the employer is a pretext for illegal

discrimination. Id.

41. To establish a prima facie case of retaliation,

Petitioner must demonstrate that: (1) she participated in a

protected activity; (2) she suffered an adverse employment

action; and (3) there was a causal connection between the

participation in the protected activity and the adverse

employment action. Crawford v. Carroll , 529 F.3d 961, 970 (11th

Cir. 2008). To satisfy the third prong of the test, which

requires a causal connection between the protected activity and

the adverse decision, Petitioner "must show that the decision-

makers were aware of the protected conduct, and that the

protected activity and adverse actions were not wholly

unrelated." Shannon v. BellSouth Telecomms., Inc. , 292 F.3d

712, 716 (11th Cir. 2002). Close proximity in time between the

protected activity and the adverse employment action "is

insufficient to create a genuine issue of fact as to causal

connection when there is unrebutted evidence that the decision-

maker did not have knowledge that the employee engaged in

protected conduct." Brungart v. BellSouth Telecomms., Inc. , 231

F.3d 791, 799 (11th Cir. 2000); see also Sanchez v. Sungard

Availability Services LP , 362 Fed. Appx. 283, 288 (3d Cir. 2010)

("Moreover, because the individuals who were responsible for

deciding to discharge Sanchez were unaware of his complaints of

discrimination, Sanchez has failed to establish a causal

connection between his termination and his alleged reporting the

discrimination.").

42. There is no question that Petitioner's termination

constitutes an adverse employment action. Even assuming,

however, that Petitioner's informal complaint to Mr. Harris

regarding Mr. Mellgren constituted protected conduct, the

evidence demonstrates that the decision-maker who terminated

Petitioner's employment had no knowledge of the complaint.

Accordingly, the third prong of the test was not satisfied, and

Petitioner failed to establish a prima facie case of

retaliation.

43. Furthermore, even if Petitioner could establish a

prima facie case of retaliation, Petitioner has failed to

present any evidence that Respondent's proffered reason for her

termination was mere pretext.

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 adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order.

Further, it is RECOMMENDED that the final order dismiss the

Petition for Relief.

DONE AND ENTERED this 18th day of August, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

Edward T. Bauer

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 18th day of August, 2010.

ENDNOTES

1 When the instant cause was referred to DOAH, an error occurred

that caused Ms. Morris' last name to be misspelled "Morros" in

the case style. As a result, the transcript of the final

hearing refers to the Petitioner as "Morros." Following the

final hearing, the Division of Administrative Hearings corrected

the misspelling.

2 In particular, Petitioner was reprimanded after she failed to

follow the chain of command while dealing with an unruly

passenger. Petitioner also received a written warning for

failing to ensure that minors flying by themselves had the

required paperwork at check-in.

3 Petitioner was aware of AirTran's procedures concerning the

handling of harassment complaints. In 2006, Petitioner filed a

sexual harassment complaint against a fellow employee that was

investigated by AirTran's human resources department. The

investigation was closed after the allegations could not be

substantiated.

4 In particular, Ms. Terrell concluded that Petitioner violated

rule number seven of the Airtran Rules of Conduct, which

prohibits dishonesty, and rule number twenty-eight, which

involves "unauthorized bookings, transactions, or other misuse

of the Company's reservations system." During the final

hearing, Ms. Terrell emphasized that pursuant to AirTran

disciplinary policy, supervisors are held to a higher standard

of accountability than non-managerial employees.

5 Respondent asserts in its Proposed Recommended Order that

there is no evidence that Petitioner was replaced by an

individual outside of her protected class. However, Petitioner

testified that she was replaced by a Caucasian female whom

Mr. Mellgren had promised the position. Petitioner's testimony

with respect to this issue is found on page 30 of the final

hearing transcript.

6 As detailed in the Findings of Fact, the undersigned found no

credible evidence that Mr. Mellgren forged Petitioner's

signature or that Petitioner was prohibited from bringing her

children to staff meetings, while white employees were permitted

to do so. Although the evidence demonstrated that Petitioner

was required to work without a lunch break on one occasion and

suffered the loss of a preferred parking spot, neither complaint

constitutes a legally cognizable adverse employment action in

this context. See Freire v. Keystone Title Settlement Services ,

2009 U.S. Dist. LEXIS 121190, *18-19 (D. Md. December 29, 2009)

(holding that deprivation of one lunch break did not rise to the

level of an adverse employment action), aff'd , 2010 U.S. App.

LEXIS 15817 (4th Cir. July 29, 2010); Byrne v. Alabama Alcoholic

Beverage Control , 635 F. Supp. 2d 1281, 1294 fn. 11 (N.D. Ala.

2009) ("[T]he other actions about which she complains -- to

include . . . the retraction of an assigned parking space --

also are the sorts of tribulations not so extraordinary as to

rise to the level of an adverse employment action"); see also

Piercy v. Maketa , 480 F.3d 1192, 1203 (10th Cir. 2007) (holding

that actions amounting to a "mere inconvenience" do not

constitute an adverse employment action).

COPIES FURNISHED :

Patricia J. Hill, Esquire

Colin A. Thakkar, Esquire

Smith, Gambrell & Russell, LLP

50 N. Laura Street, Suite 2600

Jacksonville, Florida 32202

Peta-Gaye Morris

8530 Northwest 54th Court

Lauderhill, Florida 33351

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.