10-002803 Germaine Rogers vs. Calder Race Course, Inc. Status: Closed Recommended Order on Thursday, December 23, 2010.

Summary: Petitioner was demoted for unwillingness to assume responsibility of supervisor, not in retaliation for his claim of racial discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERMAINE ROGERS, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2803

)

CALDER RACE COURSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on July 28, 2010 , by

video teleconference at sites in Tallahassee and Miami, Florida,

and was concluded by telephone on September 13, 2010, before

Administrative Law Judge Eleanor M. Hunter of the Division of

Administr ative Hearings.

APPEARANCES

For Petitioner: Andrew Obeidy , Esquire

Daymon Brody, Esquire

Brody & Obeidy, P.A

11098 Biscayne Bulovard, Suite 300

Miami, Florida 33161

For Respondent: Eric Isicoff , Esquire

Teresa Ragatz, Esquire

Isicoff, Ragatz & Koenigsberg, P.A.

1200 Brickell Avenue, Suite 1900

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by discriminating against Petitioner and

retaliating against him because he complained of racial

discrimination.

PRELIMINARY STATEMENT

Petitioner, Germaine R ogers (Rogers) , filed a Charge of

Discrimination with the Equal Employment Opportunity Commission

(EEOC) on a form dated December 18, 2009. The EEOC transferred

the matter to the Florida Commission on Human Relations ( FCHR ) .

Rogers claimed discrimination based on his race (black), and

alleged retaliation ( demotion and change to the night shift) for

his complaint s of inequities in overtime work assignments and

pay based on race. He alleged that the discrimination occurred

from March 1, 2009, through December 15, 2009, but did not

indicate that it was continuing.

The FCHR investigated the complaint and , on May 10, 2010,

issued its "Notice of Determination: No Cause." Rogers filed a

Petition for Relief with the FCHR on May 15, 2010 . In the

Petition, R ogers requested that the FCHR re - open his case

alleging that, in fact, he had been fired from his job on

December 15, 2009. The FCHR forwarded the Petition with a

narrative attach ed to the Division of Administrative Hearings

(DOAH) on May 24, 2010.

As req uested in a Joint Response to Initial Order, the case

was set for hearing on July 28, 2010. When the hearing was not

completed on July 28, 2010 , it was scheduled to continue and was

completed on September 13, 2010 .

At the final hearing, Petitioner testified on his own

behalf. Petitioner's Exhibits 1 (Respondent's Exhibit 13), 2

(Respondent's Exhibit 18), and 3 (Respondent's E xhibit 20) were

received in evidence. Respondent presented the testimony of

Peggy Kaminski, Richard Sukhu, and Anthony ( Tony ) Otero.

Respondent's remaining Exhibits 1 through 62 were received in

evidence. The Transcript of the hearing was filed September 15,

2010. Proposed Recommended Orders were filed on October 28,

2010.

FINDINGS OF FACT

1. Petitioner Germaine Rogers (Petitioner or Rogers) is

African - American man .

2. Rogers w as hired as a security guard for Respondent

Calder Race Course, Inc. (Respondent or Calder) in 1998 , He was

hired by the Director of Security , Tony Otero, on the

recommendation of Assistant Director of S ecurity , Barbara

Leurtzing , who interviewed him.

3. At first, Rogers was a seasonal employee who only

worked during the part of the year when Calder was open for

racing.

Rogers' Complaint

4 . By 2009, Rogers was one of five Calder employees with

the title of security shift manager. The other four, who are

not African Americans, wer e Leurtzing, Chase Randolph, Uri

Ammari, and Tom Cargile.

5 . Rogers complained to Otero in person and in emails

written in July 2009 and September 2009, as will be explained

later in more detail, that he was receiving lower pay and

working more than the other four shift managers.

6. In December 2009, Rogers was first moved to more night

shift work, then demoted to security guard. After that, his

employment was terminated. Circumstances surrounding these

events and the exact dates will be discussed in greater detail

below, but this is , in essence , the chronology that serves as

the basis for Rogers' complaint of discrimination.

Bac kground

7 . Rogers began employment at Calder , on April 25, 1998 .

A s a seasonal security guard , he was paid by the hour and earn ed

higher overtime pay when he exceeded forty hours of work.

8 . After about two years, Otero promoted Rogers to

lieutenant . In 2003, Otero a gain promoted Rogers , this time to

captain.

9. Rogers was an hourly employee until 2005, when both he ,

L eurtzing , and all supervisors in the security department became

salaried employee s. As a salaried employee , Rogers was eligible

for annual raises and bonuses but not overtime. Effective

April 25, 2005, Rogers' rate of pay, $12.36 an hour , became a

weekly rate of $605, and was intended to compensate him as if he

were working six days a week because he would no longer earn

overtime . Rogers began complaining, nevertheless, about not

getting paid overtime.

10 . Sometime d uring 2006 , Rogers was required to cover for

a vacationing security guard without getting extra pay. Yet,

when he miss ed a day of work , his pay was docked by Leurtzing .

She considered him a "no show, no call" for missing the day

during the Thanksgiving holiday. Rogers co mplained to Ken Dunn

who was then p resident of Calder , and he ultimately, received

pay for the day he had missed. That year, Rogers also did not

receive a bonus. He regularly complained to Otero about

perceived pay inequities and unfair treatment .

11. In 2007, Rogers became a security captain/detective

and began receiving health insurance . His duties included

man aging 35 security officers, supervising six officers in the

poker surveillance room , and responding to calls from the

stables.

12 . As security captain/detective, Rogers continued to

report directly to Leurtzing who supervised six detectives.

Rogers belie ved, based on the number of people they each

supervised, that he had significantly greater responsibilities

than L eurtzing . But she also prepared the payroll for the

entire security department. In addition, Leurtzing was Calder 's

liaison who reported any incidents to their insurance companies.

That year, Leurtzing made approximately $40,774, and Rogers made

approximately $32,570.

13 . In 2008, Leurtzing continued to be the assistant

director of security, rank ing higher on the organizational chart

than Ro gers , who was still a security captain . Chase Randolph

began work as a security guard, a lower rank than Rogers ' with

no supervisory responsibilities. Randolph started at $15.70 an

hour and, after a raise, ended the year making $16.25 an hour .

Because h e earned overtime, Randolph made more take - home pay

than Rogers approximately ten weeks during the year in 2008.

Rogers' total compensation for the year was $34,903 , and

Randolph's was $ 33,203.09.

14. Randolph earned overtime until h e too became a

salaried employee o n May 11, 2009. From January t hrough April

2009, Rogers continued to question the fairness of having

Randolph receive overtime p ay when he did not . Rogers estimates

he put in overtime from 13 to 16 hours each week during that

same period of time. Randolph made more than Rogers two weeks

during 2009, and was paid less for the entire year, in part,

because he resigned from employment with Calder before the end

of the year .

15. In addition to issues concerning his pay, Rogers also

did not receive the recognition that he thought he deserved . He

expected to be recognized more as the employee of the week,

especially after he foiled an attempted break - in.

16. On the evening of July 21, 2009, Rogers sent the

following e - mail (repr oduced as written) to Otero:

Dear Tony

I would like to bring to your attention some

C oncerns of mine. Within the last couple of

months I've receive more responsibility but

i never ask for a pay raise nor did i

receive one. Chase R makes more money than

I g ary.s receive the same salary as i .

With all the new responsibi lity i did not

received or ask for a pay raise. I've

advised you over two years ago to put me on

a six day salary. It's not faire that i

work six days or over fourth hour s every

week and never getting compensated for it.

When you advise me to change my shift to 3

the 11 i thought was no longer responsible

for the employee that work the 11 to 7

shift. This e - mail is not in regard to me

receiving anymore compensation than i do now

it in pr eference to respect and

responsibility as a supervisor and a friend.

I'am aware of many security employees that

makes equal or grater salaries that does not

have the responsibility that I do. Without

being out place and out of line I just

wanted to infor med you of those concerns of

mine.

Sincerely

Germaine Rogers

17. The next day, in response, Otero wrote the following

email:

Germaine,

Thank you for expressing your concerns. I

was just discussing this very matter with

[President of Calder race Course] Tom

[O'Donnell] on Monday. Please stop in to

see me when you come to work today and we'll

talk further.

Tony

18. When they met , Otero told Rogers that he would have to

wait u ntil October to get a pay raise . Otero had already

discussed the need for rai ses for the security staff with

O'Donnell in anticipation of their having greater

responsibilities when Calder opened a casino in January 2010.

19. In anticipation of the casino opening, Calder hired

Tom Cargile and Uri Ammari, both of whom had worked at another

casino . They also held the required casino license s , as did

Leurtzing. They were given the same title as Rogers and, as a

part of the restructuring, Leurtzing now also held the title of

security shift manager , rather than assistant director of

se curity .

20. T he four security shift managers now appeared on the

organization chart as if they were equal and below Otero's new

number two person , Chuck Lang , who was hired in September 2009,

because of his casino experience and whose title was security

m anager. Technically, it appeared that the shift managers

reported to Lang, although , in reality, Rogers apparently

continued to report to Otero with whom he had worked for eleven

years.

21 . I n support of his charge of discrimination, Rogers

showed that, in 2009 , Ammari made approximately $42,500,

Leurtzing made $43,000 , and Cargile made $55,000 , while he

(Rogers) made $33,700 .

22 . Leurtzing had approximately four years ' seniority over

Rogers at Calder and continued to handle payroll for the

security department , and insurance issues . Although relatively

new hires with the same title, Ammari and Cargile were

establishing procedures for casino , and hiring and training

additional security staff for signif icantly different casino

security duties . Rogers had applied for a casino license but

had not yet received it . He had no prior casino experience ,

having only supervised poker room surveillance at Calder . The

four security shift managers were not similar ly situated based

on the different levels of experience and responsibilities.

23. In addition to the desire to earn overtime, Rogers

gave other indication s that he did not want management

responsibilities . O n September 1, 2009, Rogers notified Otero

and others on the staff that he was "downsizing" his cell phone

service and that, as of September 3, 2009, he should be

contacted only b y Calder e - mail.

24. Otero wrote back, asking "Germaine, How are we

supposed to contact you when you're not at the track? Thanks,

Tony." Considering it essential to be able to contact

supervisor s in the security department, Otero helped Rogers to

synchronize his phone so that he could use it to receive Calder

e - mails.

2 5 . Otero criticized Rogers and Randolph when doors were

found unlocked, but Rogers testified that was not his

responsibility. Following another occasion when Otero required

him to cover for a vacationing security guard, Rogers go t upset

when Otero offered to have him make up the day by taking off a

Wednesday rather than a day of his choice. O n September 24,

2009, he sent an e - mail to Otero and Richard Sukhu , the director

of surveillance at Calder , who is an African - American. The

subject line of the email read "welcome to my world" and the

e - mail (reproduced as written) continued as follows:

Life is so unfair when you're black

I work more hours than chase [Randolph], but

no one in my department have put me up for

employee of the week, I ask for a raise I

was told wait until October for a raise on a

job I have been doing for months, now I am

being told wait for a makeup day on a 8

shift I work on 9 - 22 - 2009, I am a hard

worker And I know my job, it is so sad when

you do everything right you get pass over

due to race, I am a team player my hours

show it, do not reply back, the last time I

got stuck working I had to call out sick to

get my hours back, if I was paid for the 6

day like I ask 4 years ago I would not feel

race play apart in this department it is all

we ll in good to ask to work more hours but

w[h]ere is the money, most White employee

work only 40 hours I have been doing 45 plus

for years.

26 . Otero forwarded the e - mail to Calder President, Tom

O'Donnell, Peggy Kaminski in h uman r esources , and to his de puty,

the new security manager, Lang. Kaminski advised Otero not to

respond and that she would meet with Rogers . Lang emailed Otero

as follows:

This potential issue will have to be

addressed immediately. Not only Peggy, but

Tom should be made aware of t his letter. I

have never seen this type of attitude from a

salaried, management employee. This type of

attitude could quickly poison a department.

It is the exact opposite of what type of

culture and experience we are trying to grow

here. An option may be to return G ermaine

back to his hourly status as he suggests. I

strongly believe we can not move forward

with him as a shift manager in the casino.

27. Lang's e - mail to Otero was also forwarded to O'Donnell

and Kaminski. T he next day , Kaminski met with Rogers , wit h

Sukhu present. They reviewed Rogers' complaints and offered to

move him back to an hourly position , but Rogers declined to

agree because it would have been a base pay reduction .

According to Kaminski , Rogers said it was about "fairness" not

race, so sh e then addressed performance issues with Rogers.

Kaminski told Rogers that his job was in jeopardy and that

writing the email did not help his situation. At a follow - up

1 1

meeting between Kaminski, Otero, and O'Donnell, the decision was

made to have Rogers begin reporting directly to Lang , because he

seemed most upset with Otero .

28. Kaminski had a second meeting with Rogers on

September 30, 2009 , with Otero and Lang present. At that time,

Rogers signed a document drafted by Kaminski that provided, in

relevant part, he "admitted [at the Septem ber 25th meeting] that

I was angry with my manager and did not feel that I had been

discriminated against for racial reasons. However, I stated

that I felt that I have been treated unfairly in t he areas of

pay and recognition." Rogers further acknowledged that he would

be reporting directly to Lang , apparently without knowing the

views Lang had expressed about his complaint.

29 . Rogers went on vacation from November 24, 2009, until

December 1, 2009. After that, he was assigned to five night

shifts, which Otero believed he preferred, although Rogers said

he had previously been assigned to only three or four night

shifts. A guard on his shift was accused of sleeping, but

rather than reprimand th e guard as directed by Lang, Rogers

decided that the guard was not asleep. Rogers worked the night

shift , until December 15, 2009, when he claimed Lang terminated

his employment.

30 . Calder's staff's version of events is supported by the

EEOC form Rogers filed and by a document dated December 15,

2009, and signed by Rogers, Lang and Suhku, as a witness

entitled a "corrective counseling form . " I t gave Roger's notice

that his position as a security shift manager was being

rescinded and that he was being demoted to security officer ,

consist e nt with what Lang had previously indicated should be an

option. The reasons given were lack of supervision during your

shifts, officers not being held accountable on your shift, poor

report writing, and inability to co unsel team members on your

shift.

31 . Rogers said he was handed the corrective counseling

form at a meeting in Otero's office . Despite what the form said

and what he put on his EEOC complaint form, Rogers said Lang

told him he was terminated not demoted, and that he was not to

return to Calder property without permission from someone at

Calder . According to Rogers, Lang also said he should call

Kaminski or Otero the following day if he was interested in

future employment at Calder .

32. Calder's payroll records tend to support Rogers ' claim

that he was fired on Decemb e r 15, 2009, but the explanation that

payroll records would only show the last day worked is more

reasonable. It is also reasonable that Rogers w ould have been

required to surrender keys and badges that gave him access as a

supervisor on December 15, 2009 , but that would not necessarily

indicate that he was fired rather than demoted .

33. The next day, Rogers called and left a voice - mail

message for Kaminski, but Lang returned his call. Lang told him

to come for a security officer uniform fitting on December 17,

2009. It is not credible to believe that Lang fired Rogers one

day and the next day rehired him .

34. While he was in the uniform room, on December 17,

2009, Rogers saw Sukhu and Ote ro , who both testified that , when

Otero spoke to him, Rogers gave them "the [extended middle]

finger." Otero , who had been most supportive of Rogers for

eleven years despite his frequent complaints about work pay

inequities , kept walking . Sukhu tried to talk to Rogers who

indicated that the gesture was aimed at Otero with whom he was

extremely angry because Otero did not tell him he was being

demoted . On hearing about the obscene gesture, Kaminski called

and demanded that Rogers meet with her.

35 . According to Rogers, he did not make an obscene

gesture . He agreed that, if he had, it would constitute

insubordination and is disrespectful behavior that is prohibited

in the Calder employee handbook . He acknowledges that Kaminski

call ed him. Beca use he was already home , Rogers said he

"refused to come back to the property" and "advised her I would

see her Monday morning when I start my new shift." After that,

Otero called Rogers and terminated his employment .

36. Otero's account of the events is the most credible

because he had hired Rogers , promoted him over the eleven years

they worked together, and is no longer employed by Calder.

ULTIMATE FINDING S OF FACT

3 7 . Rogers ' claim of racial discrimination in treatment is

not supported by the evidence. His claim of a disparity in pay

is supported by the fact that the three other shift managers who

are not African - Americans earned more than he. In response,

however, Calder sh owed legitimate difference s in the

qualifications and responsibilities of the shift managers , and

that higher compensation for the other three was justified.

38. Circumstantial evidence from which one could draw an

inference of retaliat ory intent consists of Lang's email and

Kaminski's statement that his job was in jeopardy and the email

did not help. But Lang's email also addressed legitimate

business concerns. In the end, it was his unwillingness to act

as a supervisor that caused Rogers to be demoted. ( He was fired

for insubordination on December 17, 2009, by Otero, the same

person who had hired and promoted him . )

CONCLUSIONS OF LAW

3 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to thi s

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009) . 1

40 . Petitioner ha s the burden of proving, at the

administrative hearing held in this case, that he was the victim

of the unlawful discrimination and retaliation alleged in his

Complaint. 2 See Department of Banking and Finance Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 934 (Fla. 1996)("The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.Ñ)

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

co dified in s ections 760.01 through 760.11, Florida Statutes.

The Act, as amended, was patterned after Title VII of the Civil

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq .

T he refore, Florida Courts follow federal law when examining

discrimination and retaliation claims. Carter v. Health

Management Associates , 989 So. 2d 1258 (Fla. 2d DCA 2008).

Section 760.10(1)(a) is as follows:

It is an unlawful employment practice for an

e mployer:

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

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

42. To establish a prima facie case of racial

discrimination based on disparate treatment, Petitioner must

show the following: (a) he belongs to a racial minority; (b) he

was subjected to an adverse emp loyment action; (c) he was

qualified for h is position; and (d) the employer treated

similarly situated employees outside the protected class more

favorably. See Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

43. In this case, Petitioner clearly met the first two

prongs of the test. He is an African - American and he was

demoted. Petitioner showed that, at least temporarily, it

appeared that Respondent found him qualified for promotion to

shift manager and paid him less than other employees with the

same title who were outside his protected min ority group.

However, Respondent showed , in rebutting that evidence , that the

other managers were, in fact, more qualified. Petitioner was

neither qualified nor willing to accept the responsibilities of

the position. In that regard, any presumption of d iscrimination

was overcome. See Ford v. Minteq Shapes and Services, Inc. , 587

F.3d 845, 878 (7th Cir. 2009); and Knight v. Baptist Hospital of

Miami, Inc. , 330 F.3d 1313, 1316 (11th Cir. 2003).

44. The "anti - retaliatory provi sions" of the Act are found

in s ubsection 760.10(7), Florida Statutes, which provides that:

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 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.

4 5 . To establish a prima facie case of retaliation, the

Petitioner must show the following: (a) he engaged or

participated in a protected activity; (b) he suffered an adverse

employment action; and (c) there is some causal link between his

protected activity and the adverse employment action. See

Brochu v. City of Riviera Beach , 304 F.3d 1144, 1155 (11th Cir.

2002).

46. Petiti o ner engaged in a protected activity when he

claimed racial discrimination. He suffered an adverse

employment action when he was demo ted, and the threat of a

demotion and of his job being "in jeopardy" immediately followed

his claim of racial discrimination . T he issue s are, therefore,

wh e ther Petitioner's charge of racial discrimination was made

with sufficient detail to invoke the protection of the FCRA , and

whether a causal link between the charge and his demotion is

established.

47. "Courts have commonly referred to [these anti -

retaliatory] provisions [of Section 760.10(7), Florida Statutes]

as the participation and oppositi on clauses." Guess v. City of

Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004).

48. In this case , the opposition clause applies because

Petitioner is an employee who " ' has opposed any practice made an

unlawful employment practice by [Title VII or the FCR A]. ' " EEOC

v. Total Sys. Servs., Inc. , 221 F.3d 1171, 1174 (11th Cir.

2000) . The nature of his grievance is the very specific

allegation that he has worked more for less pay and less

recognition than most white employees for four years. See

Guess , supra at 847.

49 . "Discriminatory [or retaliatory] intent may be

established through direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001 );

see also United States Postal Service Board of Governors v.

Aikens , 460 U.S. 71 1, 714 (1983) .

50 . " Direct evidence is evidence that, if believed, would

prove the existence of discriminatory [or retaliatory] intent

without resort to inference or presumption." King v. La Playa

De Varadero Restaurant , Case No. 02 - 2502 , 2003 Fla. Div. Adm.

Hear. LEXIS 244 (Recommended Order February 19, 2003 ; see also

Wilson v. B/E Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004).

"If the [complainant] offers direct evidence and the trier of

fact accepts that evidence, then the [complainant] has prove n

discrimination [or retaliation]." Maynard v. Board of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003). In this case, Petitioner

has not offered direct evidence of retaliation .

5 1 . Courts have recognized that "direct evidence of intent

is often unavailable." Shealy v. City of Albany, Ga. , 89 F.3d

804, 806 (11th Cir. 1996). For this reason, those who claim to

be victims of intentional discrimination "are permitted to

establish the ir cases through inferential and circumstantial

proof." Kline v. Tennessee Valley Authority , 128 F.3d 337, 348

(6th Cir. 1997).

5 2 . "To meet the causal link requirement, the plaintiff

merely has to prove that the protected activity and the negative

emplo yment action are not completely unrelated.'" See E.E.O.C.

v. Reichhold Chemicals, Inc. , 988 F.2d 1564, 1571 - 72 (11th Cir.

1993)). " [T]he causal link requirement . . . must be construed

broadly; a plaintiff merely has to prove that the protected

activity and the [adverse] employment are not completely

unrelated. " Carter , 989 at 1263. Cases that demonstrate

evidence of a causal link include Hyde v. Storelink Retail

Group, Inc. , 2007 U.S. Dist. LEXIS 45667, summary judgment

denied by Hyde v. StoreLink Retail Group, Inc. , 2008 U.S. Dist.

LEXIS 108429 (M.D. Fla., Dec. 4, 2008) ("Plaintiff alleges that

shortly after October of 2005, she told Human Resources and

Storelink owners that she opposed the discriminatory conduct of

[her immediate supervisor]. After complaining to Defendant

about [him], P laintiff began to receive disparaging write - ups

and by March 28, 2006, [her supervisor] had fired her. In light

of Plaintiff's ten years of favorable evaluations, these events

occurring after her complaints are sufficient to support a prima

facie claim fo r retaliation under Title VII."); Hinton v.

Supervision Int'l, Inc ., 942 So. 2d 986 (Fla 5th DCA 2006)

(" Hinton met all the requirements to demonstrate a prima facie

retaliation case. First, Hinton filed a claim with the Florida

Commission of Human Relati ons. Second, she was terminated from

her employment after she filed the claim. Third, Hinton was

terminated within one hour after the claim was faxed to [the

company], after being previously threatened by [a manager] that

she would be fired if she wasted any more of his time with her

claim that [a supervisor] had engaged in a pattern of sexual

harassment. " ); Mowery v. Escambia County Utilities Authority , 19

Fla. L. Weekly Fed. D 369 ("The third requirement of the prima

facie case of retaliation requires a causal connection between

the protected expression and the alleged retaliation. To

establish [a] causal connecti on, a plaintiff need only show that

the protected activity and the adverse action were not wholly

unrelated."); Clover v. Total Systems, Inc. , 176 F.3d 1346, 1354

(11th Cir. 1999) (quoting Simmons v. Camden County Bd. of Educ. ,

757 F.2d 1187, 1189 ( 11th Cir. 1985)) ("Temporal proximity

between the protected activity and the adverse employment action

may suffice to show a causal connection if there is any other

evidence suggesting that the employer - defendant was aware of the

protected expression. " ) Ashmore v. J. P. Thayer Co., 303 F.

Supp. 2d 135 9, 1373 (D. Ga. 2004) (citing Goldsmith v. City of

Atmore , 996 F.2d 1155, 1163 (11th Cir. 1993). " ); Wideman v Wal -

Mart , 141 F.3d 1453 (M.D. Fla. 1998)( " To establish the causal

relation element of her prima facie case of retaliation, Wideman

need only show ' that the protected activity and the adverse

action are not completely unrelated. ' Meeks v. Computer

Associates Intern. , 15 F.3d 1013, 1021 (11th Cir.1994) (quoting

EEOC v. Reichhold Chem., Inc. , 988 F.2d 1564 at 1571 - 72 (11th

Cir.1993)). She has done that by presenting evidence that Wal -

Mart knew of her EEOC charge -- she testified that she informed

her Wal - Mart managers on February 10, 1995, that she had filed

an EEOC charge of discrimination the day before -- and that the

series of adverse employment act ions commenced almost

immediately after management learned she had filed the charge. ")

See Donnellon v. Fruehauf Corp. , 794 F.2d 598, 601 (11th

filing of the discrimination complaint and the . . . [adverse

employment action] belies any assertion by the defendant that

the plaintiff failed to prove causation."); Farley v. Nationwide

Mut. Ins. Co ., (S.D.Fla. 1999) ( " Here, there is no dispute that

Farley's two supervisors, Tom Sutterfield and Hugh Glatts,

learned of Farley's EEOC charge shortly after its filing.

Sutterfield admitted in his deposition that Farley told him

about the charge and that he discussed the matter with Glatts.

Moreover, a close temporal proximity existed between Farley's

ter mination and his supervisors' knowledge of the complaint.

The charge was made May 19, 1995 and Farley was fired seven

weeks later on July 10, 1995. W e find this timeframe

sufficiently proximate to create a causal nexus for purposes of

establishing a prim a facie case. " )

5 3 . In this case, an inference could be drawn from Lang's

email and from Kaminiski's warning that, because of his

complaint of racial discrimination, they intended to demote him,

as Lang did less than two months later.

54 . Where a complai nant attempts to prove intentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dep't of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981)" is applied. "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the employer to 'articulate' a legitimate, non - discrimina tory

reason for its action. This burden of rebuttal ' is merely one

of production, not persuasion, and is exceedingly light. ' Verna

v. Public Health Trust , 539 F. Supp. 2d 1340, 1354 (S.D.Fla.

2008) , (citing Mont - Ros , 111 F. Supp. 2d at 1349 - 1350 (citing

Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (U.S. 1981) ; and Lee v. Russell County

Bd. of Educ , 684 F.2d 769, 773 (11th Cir. 1982)) .

55. In this case, Respondent demonstrate d a legitimate

business reason for demoting Petitioner, his inability and

unwillingness to perform the duties of the position. See Weaver

v. Leon County School Board , Case No. 02 - 2295, 2002 Fla. Div.

Adm. Hear. LEXIS 1440 (Recommended Order August 23, 2001.)

56. If the employer successfully articulates such a

reason, then the burden shifts back to the [complainant] to show

that the proffered reason is really pretext for unlawful

discrimination. Schoenfeld , 168 F.3d at 1267 (citations

omitted); see als o Ruby v. Springfield R - 12 Public School

District , 76 F.3d 909, 911 (8th Cir. 1996)("Ruby's retaliation

claims are also analyzed under this shifting burden

framework."); and Brewer v. AmSouth Bank , No. 1:04CV247 - P - D,

2006 U.S. Dist. LEXIS 35762 25 (N.D. Mi ss. May 25,

2006)("Analysis of a retaliation claim proceeds under the same

McDonnell Douglas - Burdine shifting burden framework as other

claims arising under Title VII.").

5 7 . Alt hough the intermediate burdens of production shift

back and forth, the ultima te burden of persuading the trier of

fact that the employer intentionally discriminated against the

[complainant] remains at all times with the [complainant]. EEOC

v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); see also Byrd v. BT Foods , Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007) ("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times."); Brand v. Florida Power Corp. , 633 So. 2d 504,

507 (Fla. 1st DCA 1994)("Whether or not the defendant satisfies

its burden of production showing legitimate, nondiscriminatory

reasons for the action taken is immaterial insofar as the

ultimate burden of persuasion is concerned, which remains with

the plaintiff.").

5 8 . Petitioner has failed to discredit Respondent's

explanation or to show that it was pretextual .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the charge of discrimination

filed by Petitioner in this case.

DONE AND ENTERED this 2 3rd day of December, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 3rd day of December, 2010.

ENDNOTES

1 / References to Florida Statutes are to the 2010 version,

unless otherwise indicated.

2 / Petitioner did not allege unlawful termination and all

findings regarding his termination are included solely to

address the claim that he was not demoted but was terminated on

December 15, 2009.

COPIES FURNISHED :

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 Aplachee Parkway, Suite 100

Tallahassee, Florida 32301

A. Andrew Obeidy, Esqurie

Brody & Obeidy, P.A.

11098 Biscayne Bulovard, Suite 300

Miami, Florida 33161

Teresa Ragatz, Esquire

Isicoff, Ragatz & Koenigsberg, P.A.

1200 Brickell Avenue, Suite 1900

Miami, Florida 33131

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.