10-004818 Vernell King vs. Department Of Corrections Status: Closed Recommended Order on Friday, July 22, 2011.

Summary: Petitioner failed to prove that she was subjected to a hostile work environment or any other act of unlawful discrimination or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARIN GS

VERNELL KING , )

)

Petitioner, )

)

vs. ) Case No. 10 - 4818

)

DEPARTMENT OF CORRECTIONS , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was cond ucted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes,

before Edward T. Bauer, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

April 11, 13, and 19, 2011, by video teleconferen ce at sites in

West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Vernell King , pro se

Post Office Box 705

West Palm Beach , Florida 33 402

For Respondent: Jill Bennett , Esquire

Department of Corrections

501 South Calhoun Street

Tallahassee , F lorida 32399 - 2500

STATEMENT OF THE ISSUE S

W hether Respondent committed the unlawful employment

practices alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations ("FCHR") and, if so, what

relie f should Petitioner be granted.

PRELIMINARY STATEMENT

On January 4, 2010, Petitioner filed a Charge of

Discrimination ( "complaint" ) with the FCHR, which alleged that

Respondent had discriminated and/or retaliated against her on

the basis of her race, co lor, gender, religion, age, and marit al

status. In particular, the c omplaint reads:

The Florida Department of Corrections has

unfairly disciplined me, denied me training

and promotional opportunities which it has

afforded to others outside my protected

cl ass, and has subjected me to harassment

due to my race (black), color (dark -

skinned), sex (female), age (over 40),

religion, marital status (single) and in

retaliation for complaining of

discrimination and harassment. My

discrimination and harassment comp laints

have been ignored.

I have been denied the opportunity to bring

my medication while allowing other white

male staff under the age of 40 to bring

their medication.

I was denied my religious right of reading

and brin g ing the Bible during my lunch and

other breaks.

I have been subjected to explicit sexist and

offense racial comments as well as language

and gestures of a sexual nature by Warden

Shannon, and by Supervisors McPherson[,]

Brinson[,] and Carrigan, such as "all blacks

from the city of Pahoke e look like monkeys

and tribesmen with their braids in their

hair from Africa," stated by Carrigan.

During a Christmas party in 2008, Carrigan

made sexual gestures to female Sergeant

Thornton using his tongue and said he wanted

to "crack and eat a young g irl's nut" in the

present of Officers Wellington, and Parker.

Such language is prevalent in my work

environment.

I was subjected to harassing comments

relating to my marital status (single).

On June 15, 2010, following the completion of its

investiga t ion of the c omplaint, the FCHR issued a Notice of

Determination: Cause. Petitioner elected to pursue

administrative remedies, timely fil ing a Petition for R elief

with the FCHR on July 2, 2010. Subsequently, on July 6, 2010,

the FCHR referred the matter to DOAH for further proceedings.

As noted above, the final hearing in this matter was held

before the undersigned on April 11, 13, and 19, 2011. During

the final hearing, Petitioner testified on her own behalf and

presented the testimony of Tiffa ny Fields , a personnel services

specialist with the Florida Department of Corrections; Everett

McPherson, a classification supervisor employed at Glades

Correctional Institution ("Glades C.I."); and Robert Shannon ,

warden of Glades C.I. Petitioner's exhib its 1 - 12 were offered

and rec eived into evidence. Respondent introduced 31 exhibits

into evidence, numbered 1 - 31, and presented the testimony of

Everett McPherson and Robert Shannon. Following the final

hearing and with the undersigned's consent, Petitio ner filed an

additional exhibit, which has been accepted as Petitioner's

Exhibit 13.

The Transcript of the first two days of the final hearing

was filed with DOAH on May 5, 2011, and the remainder of the

Transcript w as filed on May 31, 2011.

On Jun e 10, 2011, Respondent filed a "Motion for Extension

of Time to File Proposed Recommended Order," which the

unde rsigned granted and extended the deadline to June 24, 2011 .

Thereafter, Respondent timely submitted a Proposed Recommended

Order, which has be en considered in the preparation of this

Recommended Order . Petitioner did not file a proposed

recommended order.

Unless otherwise indicated, citations to the Fl orida

S tatutes refer to the 2010 Florida Statutes.

FINDINGS OF FACT

A. Background

1. From 2006 through May 3, 2010, Petitioner was employed

by Respondent as a c lassification officer at Glades C.I. 1

2. At all times material to this proceeding, Robert

Shannon served as the warden at Glades C.I. and was responsible

for the daily operation of the facility.

3. Petitioner's immediate superior, Everett McPherson,

supervised Petitioner, several other classification officers,

and three senior classification officers.

4. Petitioner contends that during her term of employment

with Respo ndent, one of the senior classification officers

(Barry Carrigan) and another co - worker (Janet Smith) subjected

her to a hostile work environme nt . In addition, Petitioner

alleges that she was subjected to a variety of discrete acts of

discrimination, whic h include: a search of her person in May

2009; a written reprimand in June 2009; a delayed transfer to

the work camp facility located at Glades C.I.; a belated

performance evaluation from her supervisor; delayed training

opportunities; and a prohibition a gainst brin g ing her bible into

the facility. Beginning with Petitioner's hostile environment

claim, each allegation is discussed separately below.

B. Improper Comments / E - Mails

5 . On December 23, 2008, various Glades C.I. employees ÏÏ

including Petitioner and Mr. Carrigan ÏÏ attended a Christmas

luncheon on the grounds of the facility. During the event,

Mr. Carrigan remarked to the other attendees (but not to

Petitioner in particular) that all African - Americans from the

city of Pahokee look lik e "monkeys" and African "tribesmen." In

addition, Mr. Carrigan opined, in essence, that women are

inferior to men. 2

6 . Unde rstandably offended, Petitioner reported the

remarks the next day by filing an anonymous complaint with

Warden Shannon. An in vestigation ensued, at the conclusion of

which Warden Sha nnon suspended Mr. Carrigan for ten days . 3

7 . Subsequently, in May 2009, Petitioner discovered copies

of two e - mails on the floor of her office, which were sent by a

co - worker, Janet Smith (on Ms . Smith's work e - mail account), to

another employee, Tricinia Washington. In the e - mails, Ms.

Smith called Ms. Jackson "Blackee," and referred to Petitioner

as a "monkey and idiot."

8 . Upset by the contents of the e - mai ls, Petitioner timely

reported t he contents of the e - mails to Warden Shannon. At the

conclusion of an investigation into the matter, Ms. Smith was

suspended for five days.

C. Search of Petitioner

9 . On or about May 15, 2009, Mr. McPherson observed

Petitioner exiting the prison fa cility carrying a bulky package

that he thought was suspicious. In compliance with Respondent's

entry and exit procedure, Mr. McPherson notified the prison

control room with the expectation that a search of Petitioner's

person would occur. A search of Pe titioner was subsequently

conducted, which yielded no contraband or other improper items. 4

10 . During the final hearing, Warden Shannon credibly

testified that because of unique problems regarding contraband

at Glades C.I., facility employees are su bject to search upon

exit from the facility. As such, Mr. McPherson committed no

violation of policy by reporting what he observed Petitioner

carrying as she left the facility.

D. Reprimand

11 . On June 24, 2009, Warden Shan non disciplined

Respondent by issuing a written reprimand. Warden Shannon

credibly testified ÏÏ and there is no evidence to t he contrary ÏÏ

that the reprimand was prompted by an incident in May 2009 in

which Petitioner, in a loud and aggressive voice, called a co -

worker "low down and dirty" in the presence of other employees.

12 . As a result of the written reprimand, Department of

Corrections Procedure 605.011 rendered Petitioner ine ligible for

promotion for a six - month period. Accordingly, Petitioner co uld

not apply for an assistant warden position during the summer of

2009 that she was interested in pursuing.

13. However, Petitioner failed to prove that the reprimand

was unwarranted or issued with the intent to deprive Petitioner

of a promotional op portunity. In addition, there is no evidence

that Warden Shannon issued t he reprimand based upon a protected

characteristic of Petitioner or in retaliation for five

discrimination complaints Petitio ner filed through Respondent's

internal complaint procedu re approximately one month before the

reprimand. 5

E. Late Performance Evaluation

1 4 . As indicated previously, Everett McPherson served as

Petitioner's immediate supervisor during her term of employment.

As a classification officer supervisor, Mr. M cPherson was

responsible for preparing annual performance evaluations of his

subordinates, including Petitioner, by the end of each April.

15. The evidence is undispu ted that Mr. McPherson failed

to timely complete Petitioner's evaluation, a copy of wh ich was

not p rovided to her until Jun e 2009. While Mr. McPherson

attempted during his final hearing testimony to attribute the

delay to Petitioner, he was unable to recall on cross -

examination if he had even completed a draft of Petitioner's

evaluation by April 30, 2009. Accordingly, it is determined

Mr. McPherson was responsible, a t least in part, for the late

completion of Petitioner's evaluation. 6

16. Although Petitioner asserts that the belated

performance evaluation deprived her of the opport unity to apply

for an assista nt warden position, the evidence refutes this

contention. First, as discussed above, Petitioner's June 24,

2009, reprimand rendered her ineligible for promotion for six

months. Further, even if Petitioner's reprimand did not

temporarily disqualify her from seeking a promotion, Warden

Shannon credibly testifie d that pursuan t to Department of

Corrections P rocedure 605.011, Petitioner could have timely

submitted a promotional packet once her evaluation was

complete d .

F. Trainin g Opportunities

17. During the final hearing, Petitioner testified that

she was unable to obtain re - training to conduct criminal

background checks because Mr. McPherson refused to provide her

with a computer "code" necessary to complete an on - line course .

Petitioner further testified that she filed a grievance

regarding the matter that resulted in the training being

conducted within one month.

18. Although the undersigned credits Petitioner's

testimony as to particular claim , she adduced no evidence

c oncerning when this event occurred, nor did she prove that the

delay adversely affected her ability to complete her duties or

impeded her ability to seek promotion . In addition, Petitioner

failed to demonstrate that Mr. McPherson was motivated by any

unla wful animus.

G. Transfer to Work Camp

19. At some point during June 2008 or earlier, Petitioner

req uested a lateral transfer from the main unit at G lades C.I .

to the facility's work camp. Petitioner was ultimately

transferred to the work camp sho rtly before her termination in

May 2009.

20 . Although Petitioner complains that she was not

transferred to the work camp at an earlier date because of her

gender, she adduced no evidence to support such an allegation.

Further, Petitioner made no sho wing that the transfer to the

work camp result ed in increased pay, benefits, or materially

different responsibilities.

H. Allegations of Religious Discrimination

21 . During all relevant times to this proceeding ,

Department of Corrections Procedure 602.016(4)(j)17 prohibited

prison employees from bringing "recreational reading material

(non - work related) such as books, magazines, newspapers, etc"

into secure areas of corrections facilities.

22. T here is no dispute that "recreational reading

mater i al" encompasses religious text s and that the policy

therefore barred Petitioner from brining her Gideon Bible into

the facility. However, Petitioner has wholly failed to

demonstrate that the policy is improper on its face or was

applied differently to an y other prison employee.

CONCLUSIONS OF LAW

A. Jurisdiction

23 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569, and 120.57(1),

Florida Statutes.

B. Introduction

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

codified in s ections 760.01 through 760.11, Florida Statutes,

and s ection 509.092, Florida Statutes .

25 . "The [FCRA] , as amended, was patterned after Title VII

of the Civil Rights Acts of 1964 and 1991 . . . as well as the

Age Discr imination in Employme nt Act . . . . Federal case law

interpreting [provisions of] Title VII and the ADEA is

[therefore] applicable to cases arising under [the FCRA] ." Fla.

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Joshua v. City of Gainesville , 768 So. 2d 432, 435 (Fla.

2000)("The [FCRA's ] stated purpose and statutory construction

directive are modeled after Title VII of the Civil Rights Act of

1964 "); Valenzu ela v. GlobeGround N. Am. , LLC , 18 So. 3d 17, 21

(Fla. 3d DCA 2009)("Bec ause the FCRA is patterned after Title

VII o f the Civil Rights Act of 1964 . . . we look to federal

case law ") .

26 . Among other things, the FCRA makes certain acts

unlawful employment practices and gives the FC HR the authority ÏÏ

if it finds following an administrative hearing conducted

pursuant to s ections 120.5 69 and 120.57, that such an unlawful

emp loyment practice has occurred ÏÏ to issue an order "prohibiting

the practice and providing affirmative relief from the effects

of the practice, including back pay." §§ 760.10 & 760.11(6),

Fla. Stat.

27 . To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlaw ful employment

practice" must, within 365 days of the alleged violation, file a

complaint con taining a short and pla in statement of the facts

describing the v iolation and the relief sought with the FCHR,

the EEOC , or " any unit of government of the state which is a

fair - employment - practice agency under 29 C.F.R. ss. 1601.70 -

1601.80." § 760.11(1), Fla. Stat. "[T] o preve nt circumvent ion

of [ FCHR's ] investigatory and conciliatory role, only those

claims that are fairly encompassed within a [timely - filed

complaint] can be the subject of [an administrative hearing

conducted pursuant to Sections 120.569 and 120.57 ] " and any

s ubsequent FCHR award of relief to the complainant. Chambers v.

Am. Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994) .

28 . As noted above, Petitioner alleges that Respondent has

violated the FCRA by : (1) permitting a hostile environment to

subsi st at Gl ades C.I. ; (2) committing a variety of discrete

acts of discrimination, such as searching her person in May 2009

as she left the facility, providing her with an untimely

performance evaluation, and reprimanding her in June of 2009;

(3) retaliating against her on the basis of her race, gender, or

age, in response to various discrimination complaints she filed ;

and (4) engaging in religious discrimination by prohibiting her

from brin ging a B ible inside the walls of the correctional

facility. Each category of claims is discussed separately

below.

C. Hostile Environment

29 . The undersigned will begin by addressing Petitioner's

hostile work environment claim, which can only be established

upon proof that the "workplace [was] permeated with

discriminatory intimidation, ridicule, and insult, that [was]

sufficiently severe or pervasive to alter the conditions of

[Petitioner's] employment and create an abusive working

environment." Harris v. Forklift Sys. , Inc. , 510 U.S. 17, 21

(1 993). S pecifically, Petitio ner must show: (1) that she

belongs t o a protected group; (2) has been subject to unw elcome

harassment; (3) that the harassment must have been based on a

protected ch aracteristic of the employee; (4) that the

harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and create a discriminatorily

abusive wo rking environment; and (5) that the employer is

responsible for such environment under either a theory of

vicarious or of direct liability. McCann v. Tillman , 526 F.3 d

1370, 1378 (11th Cir. 2008); Miller v. Kenworth of Dothan, Inc. ,

277 F.3d 1269, 1276 (11th Cir. 2002) ; Williams v. W.G. Johnson &

Son, Inc. , 2010 U.S. Dist. LEXIS 139747, *7 - 8 (N.D. Fla. 2010).

30 . It is undisputed that Petitioner is black and of

Afric an origin. Accordingly, Petitioner has established the

first element of her hostile environment claim.

31 . Petitioner has also satisfied the second and th ird

prongs of the test outlined above , as the evidence demonstrates

that on December 23, 2008, Mr. C arrigan made racially offensive

statements ÏÏ i.e., " all blacks from the city of Pahokee look like

monkeys and tribesmen with their braids in their hair from

Africa" ÏÏ d uring a holiday gathering at Glades C.I. As discussed

previously, Petitioner overheard th ese unwelcome remarks and was

understandably offended. In addition, in May 2009, Petitioner

discovered copies of two e - mails on the floor of her office,

which were sent by her co - worker, Janet Smith (on her work e -

mail account), to another employee, Trici nia Washington. In the

e - mails, Ms. Smith called Ms. Jackson "Blackee," and referred to

Petitioner as a " monkey and idiot." A ggrieved by the contents

of the e - mails, Petitioner promptly reported the conduct to

Warden Shannon.

32 . In evaluating the proof sufficient to establish the

fourth prong of a hostile work environment claim, the

undersigned must examine both the subjective and objective

severity of the harassment. Harris v. Forklift Sys. , Inc. , 510

U.S. 17, 21 - 22 (1993). In assessing the objective severity of

the harassment, it is necessary to consider, among other

factors, "(1) the frequency of the conduct; (2) the severity of

the conduct; (3) whether the conduct is physically threatening

or humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee's job

performance ." Miller , 277 F.3d at 1275.

33 . Petitioner's case falters at this jun cture, as

Mr. Carrigan's remark and Ms. Smith's e - mails , while no doubt

insensitive and highly inappropriate , were isolated incidents

and insufficiently severe from an objective viewpoint to

establish an actionable claim. 7 See Herrera v. Lufkin Indus. ,

Inc. , 474 F.3d 675, 680 (10th Cir. 2007)("A plaintiff does not

make a showing of a pervasive host ile work environment by

demonstrating a few isolated incidents of racial enmity or

sporadic racial slurs. Instead, there must be a steady barrage

of opprobrious racial comments")(internal citations and

quotations omitted); Edwards v. Wallace Cmty. Coll. , 49 F.3d

1517, 1521 (11th Cir. 1995)("Racial slurs . . . spoken by co -

workers ha[ve] to be so commonplace, overt and denigrating that

they create[] an atmosphere charged with racial hostility")

(internal quotation omitted). Indeed, conduct far more

egregio us than what occurred in the instant case has been held

to be insufficiently severe or pervasive to establish a prima

facie case. See Godoy v. Habersham Cnty. , 211 Fed. Appx. 850,

853 - 54 (11th Cir. 2006) (summary judgment for defendant affirmed

where South - American plaintiff claimed he was subject to racial

slurs "almost every shift," and that his supervisor battered him

and told him "to go back to his boat and sail to So uth America

where he belongs"); Barrow v. Georgia Pacific Corp. , 144 Fed.

Appx. 54, 57 - 58 ( 11th Cir. 2005)(affirming order granting

defendant's motion for summary judgment in connection with

hostile environment claim due to absence of severe or pervasive

conduct , notwithstanding plaintiff 's testimony : that he saw

displays of the rebel flag o n tool boxes and hard hats, the

letters "KKK" on a bathroom wall and on a block - saw console, and

a noos e in another employee's locker; that a superintendent

called him "nigger" three times in one year, repeatedly called

him "boy," and told him two or three times t hat he was going to

kick his "black ass"; and that his supervisor called him a

"nigger" and told him if he looked at "that white girl" he would

"cut" him); Buckhanon v. Huff & Assocs. Constr. Co., Inc. , 506

F. Supp. 2d 958, 965 - 68 (M.D. Ala. 2007)( granting motion for

summary judgment for defendant where alleged wrongdoing failed

to establish that the harassment was sufficiently severe or

pervasive; on two separate occasions, supervisor stated to

plaintiffs, "niggers like him donÓt know anything," an d "[I'm]

not going to put up with a bunch of niggers on [my] job site") ;

Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. 2d 1314, 1318 -

19, 1325 (M.D. Fla. 2002) (summary judgment for defendant

granted , notwithstanding evidence that manager made threats to

a n African - Ame rican plaintiff such as "I have that gun at home

along with several more at home just like it to shoot blacks,"

while patting him on the back, and explaining during another

occasion after plaintiff received positive feedback from upper

managem ent , "we don't like heroes . . . remember how we did

blacks back in the thirties when they got out of hand . . . we

would take them out back and lynch them"; plaintiff was also

told he was a "Jesse Jackson type black guy" and referred to as

"h omeboy" and " boy" on several occasions); Daso v. The Grafton

Sch., Inc. , 181 F. S upp. 2d 485 , 493 - 94 (D. Md. 2002)( holding

plaintiff failed to establish a prima facie case of a hostile

work environment, notwithstanding allegation that supervisor

angrily yelled at plain tiff, "next time you all niggers lock the

door, I'm going to write you up") .

34 . Assuming, arguendo, that the conduct at issue was

su fficiently severe or pervasive, Petitioner's claim still fails

because there is no basis for holding Resp ondent liable for the

behavior of Mr. Carrigan and Ms. Smith in light of appropriate

remedial action ÏÏ a ten - day suspension for Mr. Carrigan and a

five day suspension for Ms. Smith ÏÏ taken by Respondent . See

Breda v. Wolf Camera & Video , 222 F.3d 886, 889 (11th Cir.

2000)(" Employer liability in a case involving . . . harassment

by a co - worker exists when the employer knew (actual notice) or

should have known (constructive notice) of the harassment and

failed to take remedial action " )(emphasis added).

35 . For these reasons , Petitioner has failed to establish

that she was subjected to a hostile work environment.

D. Discrete Acts of Alleged Discrimination

36 . The undersigned will now turn to Petitioner's

contention that Respondent committed various , discrete acts of

unl awful discrimination , such as the search of Petitioner's

person in May 2009, Petitioner's untimely evaluation by

Mr. McPhers on, Petitioner's June 2009 reprimand, P etitioner's

belated transfer to the Glades Work Camp, and the delay in

providing Petiti oner with training to conduct background checks. 8

37 . 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 otherw ise 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.

38 . C omplainant s allegin g 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. See Damon v. Fleming

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

1999) (internal quotations omitted) . Often, such evidence is

una vailable, and i n this case, Petitioner presented none.

39 . A s an alternative to relying exclusively upon d irect

evidence , the law permits complainants to profit from an

inference of discriminatory intent, if they can adduce

sufficient circumstantial evi dence of discriminatory animus,

such as proof that the charged party treated persons outside of

the pro tected class ( who we re otherwise similarly situated) more

favorably than the complainant was treated . Such circumstantial

evidence, when presented, constitutes a prima facie case.

40 . 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 t o this analysis, Petitioner

has the initial burden of establishing by a preponderan ce of the

evidence a prima facie case of unlawful discrimination, which

requires proof 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

outsi de the protected class, or, in the case of disparate

treatment, shows that other similarly situated employe es were

treated more favorably. Alvarez v. Royal Atl. Developers , Inc.,

610 F.3d 1253, 1264 (11th Cir. 2010) ; Ramsey v. Henderson , 286

F.3d 264, 268 (5th Cir. 2002).

41 . Failure to establish a prima facie case of

discrimination ends the inquiry. Ratliff v. State , 666 So. 2d

1008, 1012 n.6 (Fla. 1st DCA 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. Alvarez , 610 F.3d at 1264. This intermediate burden

of production, not persuasion, is "exceedingly light." Turnes

v. Am s outh Bank, N.A. , 36 F.3 d 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 Ctr. v.

Hicks , 509 U.S. 502, 51 6 - 518 (1993 ); Alvarez , 610 F.3d at 1264.

Despite these shifts in the burden of production, "the ultimate

burden of persuasion remains on the plaintiff to show that the

defendant intentionally discriminated against her." Alvarez ,

610 F.3d at 1264; Wilson v. B/E Aero space, Inc. , 376 F.3d 1079,

1088 (11th Cir. 2004).

42 . It is undisputed that Petitioner , as an unmarried

African - American female over the a ge of 40, is a member of

multiple protected class es . As such, Petitioner satisfied the

first prong of a prima fa cie case of employment discrimination.

43 . The second prong of the test has also been satisfied,

as sufficient evidence was presented from which the undersigned

can conclude that Petitioner possessed the basic skills

necessary for the performance of the job. See Gregory v. Daly ,

243 F.3d 687, 696 (2d Cir. 2001 ) (holding that a plaintiff "need

only make the minimal showing that she possesses the basic

skills necessary for performance of [the] job" to satisfy the

requirement that the plaintiff was qualifie d for the

position)(internal citations and quotations omitted).

44 . Next, the undersigned must determine if any of

incidents about which Petitioner complains rise s to the level of

adverse employment actions. Although an adverse action need not

be an ultimate employment decision ÏÏ e.g., termination, failure

to hire, or demotion ÏÏ it must meet a threshold level of

substantiality. Grimsley v. Marshalls of MA, Inc. , 284 Fed.

Appx. 604, 608 (11th Cir. 2008); Byrne v. Ala. Alcoholic

Beverage Control Bd. , 635 F. Supp. 2d 1281, 1292 (M.D. Ala.

2009). Although evidence of direct economic consequences is not

always required, "to prove adverse employment action under Title

VII's anti - discrimination clause, an employee must show a

serious and material change in th e terms, conditions, or

privileges of employment." Grimsley , 284 Fed. Appx. a t 608.

Petitioner's "subjective perception of the seriousness of the

change is not controlling; rather this issue is viewed

objectively from the perspective of a reasonable perso n under

the circumstances." Id.

45 . With the foregoing authority in mind, nearly all of

Petitioner's complaints ÏÏ the delayed lateral transfer to the

Glades Work Camp, the May 2009 search, Mr. McPherson's belated

performance evaluation of Petitioner (w hich did not prevent

Petitioner from applying for the assistant warden position) , and

the delay in providing background check training (which

Petitioner failed to prove had any effect on her employment

conditions or status) ÏÏ do not meet the threshold level of

substantiality. See Pagan v. Gonzalez , 2011 U.S. App. LEXIS

11866 , *4 (3d Cir. 2011)("The District Court found that the

denial of the training was not an adverse employment action

because there was no evidence that the Appellant's work suffered

or tha t her advancement or earning potential was affected. We

agree with the District Court's conclusion " ); Douglas v.

Preston , 559 F.3d 549, 552 (D.C. Cir. 2009)(observing that a

performance evaluation only constitutes an adverse employment

action where it adv ersely affects the employee's salary or

chances for advancement); Clegg v. Ark. Dep't of Corr. , 496 F.3d

922, 928 (8th Cir. 2007)("An employer's denial of a training

request, without something more, is not itself an adverse

employment action"); Alvarado v. Texas Rangers , 492 F.3d 605,

612 (5th Cir. 2007)("It is well established that the denial of a

purely lateral transfer is not an adverse employment action

redressible under Title VII"); Amro v. Boeing Co. , 232 F.3d 790,

795, 798 (10th Cir. 2000)(holding th at employer's conduct in

patting plaintiff down to search for a tape recorder and

searching a folder that plaintiff was carrying did not

constitute adverse employment actions); Hashemian v. Louisville

Reg'l Airport Auth. , 2010 U.S. Dist. LEXIS 76024, *11 ( W.D. Ky.

2010)("Plaintiff alleges . . . that he was subjected to a dog

search of his personal belongings because of his national origin

in violation of Title VII. Defendants argue a search does not

constitute an adverse employment action for purses of Tit le VII.

The Court agrees with Defendants. As explained, an adverse

employment action typically inflicts direct economic harm and

involves a materially adverse chan ge in the terms of

employment"); Foster v. Tex. Health Sys. , 2002 U.S. Dist. LEXIS

12081, * 22 - 23 (N.D. Tex. 2002)(concluding that employer's search

of plaintiff's locker did not constit ute an adverse employment

action ).

46 . However, the June 2009 reprimand constitutes an

adverse employment action , as it rendered Petitioner ineligible

for promotion for six months. See Atanus v. Perry , 520 F.3d

662, 675 (7th Cir. 2008)(observing that a reprimand that affects

an employee's eligibility for promotion constitutes an adverse

employment action); Breaux v. City of Garland , 205 F.3d 150, 157

(5th C ir. 2000)("Adverse employment actions are discharges,

demotions, refusals to hire, refusals to promote, and

reprimands ")(emphasis added).

47 . During her final hearing testimony , Petitioner

clarified that her discrimination claim regarding the June 2009

reprimand is based on her protected status as a female.

Accordingly, to satisfy the fourth element of a prima facie

case, Petitioner was required to prove that one or more

similarly situated male employees were treated differently.

Petitioner wholly fail ed to m eet her burden on this point, and

as such, cannot establish a prima facie case. See Wierman v.

Casey's Gen. Stores , 638 F.3d 984, 994 (8th Cir. 2011)( affirming

order granting defendant's motion for summary judgment on

plaintiff's Title VII claim wh ere plaintiff failed to identify

any similarly - situated individuals for comparison; "[Plaintiff]

has not cited any evidence that similarly - situated store

managers were accused of similar misconduct and were disciplined

differently "); Lyons v. Metro. Gov't of Nashville , 2011 U.S.

App. LEXIS 5932, *14 (6th Cir. 2011)("Lyons does not identify

any similarly - situated employee who was treated more favorably.

We therefore affirm the district court's determination that

Lyons failed to establish a prima facie case of gender

discrimination"); Walton - Horton v. Hundai of Ala. , 402 Fed.

Appx. 405, 408 (11th Cir. 2010)("Here, Walton - Horton failed to

identify any male comparators who engaged in conduct 'nearly

identical' to that for which she was discharged . . . .

Accord ingly, because Walton - Horton failed to show any similarly

situated male employee was treated more favorably, summary

judgment was proper on this claim").

48 . Even assuming Petitioner had established a prima facie

case of gender discrimination in co nnection with her reprimand,

Respondent has proffered a legitimate non - discr iminatory reason

for the action: Petitioner's reference to Ms. Robinson, a co -

worker, as "low down and dirty" in the presence of Ms. Robinson

and four other employees. In respons e, Petitioner has adduced

no evidence to establish that the proffered reason was merely a

pretext for discrimination. See Combs v. Plantation Patterns ,

106 F.3d 1519, 1538 (11th Cir. 1997) (holding that a plaintiff

must show "such weaknesses, implausibilit ies, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence " ).

49 . For these reasons, Petitioner has failed to prove that

she is th e victim of any discrete act of employment

discrimination.

E. Retaliation Claim

50 . The undersigned will now address Petitioner's

retaliation claim, in which she alleges that Respondent

subjected her to adverse employment actions in response to the

di scrimination complaints she filed.

51 . 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 whic h 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.

52 . As there is no direct evidence to s upport Petitioner's

claim, the undersigned must apply the specialized burden -

shifting framework applicable to Title VII retaliation actions

in analyzing her claim of retaliation under the FCRA. See Gant

v. Kash N' Karry Food Stores , 390 Fed. Appx. 943, 94 4 - 45 (11th

Cir. 2010). Pursuant to this framework, an employee must first

establish a prima facie case of retaliation, which requires

proof that Petitioner: (1) engaged in protected activity; (2)

bore the brunt of a materially adverse employment action; and

(3) that the first two elements were casually linked to one

another. Crawford v. Carroll , 529 F.3d 961, 970 (11th Cir.

2008). If a prima facie case is shown, the burden shifts to the

employer to articulate a legitimate, non - discriminatory reason

for its actions. Bryant v. Jones , 575 F.3d 1281, 13 08 (11th

Cir. 2009). 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 pretex t for illegal discrimination. Id.

53 . Turning to the merits of her claim, Petitioner has

satisfied the first element of a prima facie case, as the

evidence is undisputed that she filed numerous discrimination

complaints with Respondent duri ng the relevant time period.

Carrington v. City of Des Moines , 481 F.3d 1046, 1051 (8th Cir.

2007)( " [ C ] arrington's numerous verbal and written complaints of

discrimination are protected activity").

54 . Moving on to the second pron g, it is critical to no te

that the category of adverse actions sufficient to trigger Title

VII' s anti - retaliation provision is " not limited to

discriminatory actions that affect the terms and conditions of

employme nt. " Ahern v. Shinseki , 629 F.3d 49, 55 (1st Cir.

2010)(quoting Burlington N. & Santa Fe Ry. Co. v. White , 548

U.S. 53, 64 (2006)). Unlike the substantive anti - discrimination

provisions of Title VII, the anti - retaliation provision covers

all "employer actions that would have been materially adverse to

a reasonable emp loyee," defined as actions that are "harmful to

the point that they could well dissuade a reasonable worker from

making or supporting a charge of discrimination." Burlington ,

548 U.S. at 57; Johnson v. Cambridge Indus. , Inc. , 325 F.3d 892,

902 (7th Cir. 2 003)(observing that in the context of retaliation

claims, a "mo re generous standard" applies when analyzing

adverse actions ). This objective assessment "should be judged

from the perspective of a reasonable person in the plaintiff's

position, considering all the circumstances." Oncale v.

Sundowner Offshore Servs., Inc. , 523 U.S. 75, 81 (1998).

55 . Even under this more lenient standard, of the incidents

about which Petitioner complains (the June 2009 reprimand, the

belated provision of background check training, the search of

her person, the untimely performance evaluation, and the delay

in approving her lateral move to the Glades Work Camp), only the

reprimand ÏÏ which render ed her ineligible for promotion for six

months ÏÏ constitutes an adverse emp loyment action. See

Leatherwood v. Anna's Linens Co. , 384 Fed. Appx. 853, 858 (11th

Cir. 2010)(holding that employer's reprimands of plaintiff

constituted an adverse employment action for the purpose of

satisfying a prima facie case of retaliation); Ahern v.

Shinseki , 629 F.3d 49, 56 (1st Cir. 2010)(holding delay in

providing training to plaintiff did not constitute an adverse

action in the retaliation context); Amro v. Boeing Co. , 232 F.3d

790, 795, 799 (10th Cir. 2000)(holding that employer's conduct

in patting plaintiff down to search for a tape recorder and

searching a folder that plaintiff was carrying did not

constitute adverse employment actions for the purpose of

establishing a prima facie case of retaliation); Everroad v.

Scott Truck Sys. , 604 F.3d 471, 480 (7th Cir. 2010) (holding that

even in the context of a retaliation claim, a purely lateral

transfer does not constitute an adverse employment action) ; Roff

v. Low Surgical & Med. Supply, Inc. , 2004 U.S. Dist. LEXIS

30845, *18 - 19 (E.D.N.Y. 2004)(di smissing plaintiff's retaliation

claim for failing to state a cause of action; "[P]laintiff's

allegation that her vehicle and personal belongings were

searched also does not constitute an adver se employment

action").

56 . To satisfy the thi rd prong of a prima facie case of

retaliation, Petitioner must demonstrate a causal connection

between the protected ac tivity and the adverse decision. This

casual link element is construed broadly:

[S]o that "a plaintiff merely has to prove

that the prot ected activity and the . . .

[adverse] action are not completely

unrelated." Olmsted v. Taco Bell Corp. , 141

F.3d 1457, 1460 (11th Cir. 1998). "A

plaintiff satisfies this element if she

provides sufficient evidence" of knowledge

of the protected expressi on and "that there

was a close temporal proximity between this

awareness and the adverse . . . action."

Shotz , 344 F.3d at 1180 n.3 (quoting Farley

v. Nationwide Mutual Ins. Co. , 197 F.3d

1322, 1337). A "close temporal proximity"

between the protected ex pression and an

adverse action is sufficient circumstantial

evidence of a causal connection for purposes

of a prima facie case. See Olmsted , 141

F.3d at 1460. We have held that a period as

much as one month between the protected

expression and the advers e action is not too

protracted.

Higdon v. Jackson , 393 F.3d 1211, 1220 (11th Cir. 2004) (emphasis

added); Donnellon v. Fruehauf Corp. , 794 F.2d 598, 600 - 01 (11th

Cir. 1986)(holding plaintiff established a prima facie case of

retaliation where an adverse e mploymen t action was taken one

month after plaintiff filed a sexual discrimination complaint ;

"The short period of time, however, between the filing of the

discrimination complaint and the plaintiff's discharge belies

any assertion by the defendant that th e plaintiff failed to

prove causation. The plaintiff carried her initial burden" ).

57 . Returning to the facts at hand , the evidence

demonstrates Petitioner was reprimanded on June 24, 2009, less

than one month after she filed five discrimination comp laints

through Respond ent's internal complaint procedure. Pursuant to

the authority cited above, the clos e temporal proximity between

Petitioner's filing of the complaints and the adverse action is

sufficient to satisfy the casual connection element of a prima

facie case.

58 . As Petitioner has established a prima facie case of

retaliation, the burden shifts to Respondent to articulate a

legitimate, non - discriminatory reason for its actions. Bryant

v. Jones , 575 F.3d 1281, 1307 - 08 (11th Cir. 2009). Re spondent

has met its burden, as Warden S hannon credibly testified that

Petitioner was reprimanded due to disrespectf ul and

inappropriate remarks Petitioner made to a co - worker,

Ms. Robinson.

59 . As Respondent has advanced a legitimate, non -

discr iminatory explanation for the reprimand, "the presumption

of retaliation disappears, and [Petitioner] must demonstrate

that [Respondent's] reason[] [is] a pretext for prohibited

retaliatory conduct." Entrekin v. City of Panama City Fla. , 376

Fed. Appx. 98 7, 997 (11th Cir. 2010)(internal quotations

omitted). To meet this burden, Petitioner must demonstrate

"such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in [Respondent's] proffered

legitimate reason[] for its action tha t a reasonable factfinder

could find [the reason] unworthy of credence." Id.

60 . Petitioner has not demonstrated that Respondent's

explanation for her reprimand is incoherent, contradictory,

implausible, inconsistent, or defective in any other mann er. As

the undersigned finds Warden Shannon's explanation regarding the

reprimand wholly credible , Petitioner's retaliation claim fails.

See i d. at 997 - 98.

F. Religious Discrimination Claim

61 . As described previously, Department of Corrections

Procedure 602.016(4)(j)(17) prohibits employees from brin g ing

"recreational reading material (non - work related) such as books,

magazines, newspapers, etc" inside the secure perimeter of

department institutions. Respondent does not dispute that this

rule e ncompasses all no n - work related reading materials ,

including rel igious texts. It is further undisputed that the

rule has precluded Petitioner from brin g ing her B ible into her

work areas, a situation which Petitioner claims rises to the

level of religious discrimination.

62 . In the context of the FCRA , which is interpreted in

accordance with Title VII, a claim for religious discrimination

can be asserted under two different theories: "disparate

treatment" and "failure to accommodate." Peterson v. Hewle tt -

Packard Co. , 358 F.3d 599, 603 (9th Cir. 2004). Although

Petitioner has not specified which of the two alternatives she

is relying upon, the undersigned will broadly construe her

complaint of discrimination so as to consider her allegation

under both t heories.

63 . To succeed under the theory of disparate treatment,

Petitioner must show that Respondent treated her differently

than other employees because of her religious beliefs.

Chalmers v. Tulon Co. of Richmond , 101 F.3d 1012, 1017 (4th Cir.

1996); Breech v. Ala. Power Co. , 962 F. Supp. 1447, 1456 (S.D.

Ala. 1997). However, Petitioner has adduced not a scintilla of

evidence that would permit the undersigned to conclude that the

Department policy was applied differently to her than any other

prison e mployee. Accordingly, Petitioner is unable to establish

a claim of religious discrimination under a disparate treatment

theory.

64 . Nor can Petitioner succeed under a theory of failure

to accommodate, as there is no evidence that she failed to

comply with the policy and was penalized by Respondent as a

result. See Beadle v. City of Tampa , 42 F.3d 633, 636 n.4 ( 11th

Cir. 1995) (holding that to establish a prima facie case of

religious discrimination based upon a failure to accommodate,

the plaintiff mus t show "(1) that he had a bona fide belief that

compliance with a requirement of employment would be contrary to

his religious belief or practice; (2) that he informed his

employer about the conflict; and (3) that he was discharged or

penalized for failing to comply with the conflicting employment

requirement")(emphasis added); cf. EEOC v. Geo Group. Inc. , 616

F.3d 265, 271 - 77 (3d Cir. 2010)(holding that prison dress code,

which applied to all employees and had the effe ct of preventing

plaintiff from wearin g Muslim religious attire to work , did not

constitute religious discrimination pursuant to Title VII).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at 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 22nd day of July, 2011 , in

Tallahassee, Leon C ounty, Florida.

S

___________________________________

Edward T. Bauer

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 22nd day of July, 2011 .

ENDNOTES

1 Respondent's termination of Petitioner's employment is not at

issue in this proceeding. See King v. Dep't of Corr. , Case No.

10 - 4818 (Fla. DOAH Oct. 14, 2010)(Order on Respondent's Motion

to Limit Issues).

2 Although Petitioner further alleges that Mr. Carrigan made a

comment during the Christmas gathering that he wanted to "crack

and eat a young girl's nut," the undersigned fin ds, based upon

the testimony of Mr. McPherson, that no such remark was made.

3 Warden Shannon credibly testified that the ten - day suspension

meted out to Mr. Carrigan, who had been discipline free for

approximately fifteen years, was consistent wit h Respondent's

progressive discipline policy.

4 Although Mr. McPherson was aware at the time of the search

that Petitioner had previously filed various complaints and

grievances, the undersigned credits his testimony that the

search was not conducted i n retaliation for Petitioner's

complaints.

5 Petitioner also claims that Warden Shannon refused to approve

her request to bring injectable prescription medication into the

f acility. The undersigned finds the contrary testimony of

Warden Shannon to be more credible on this point.

6 Petitioner successfully challenged the evaluation ÏÏ which rated

Petitioner at a level below expectations ÏÏ on the basis of its

untimeliness. As a result, the evaluation was amended to change

Petitioner's rating to "meets expectations." However, there is

no evidence that the delay in completing the evaluation was due

to any protected classification or activity of Petitioner.

7 Although Petitioner further testified that Mr. Carrigan made

improper comments on other occas ions, she failed to offer any

specificity regarding the content s of the remarks, their

context, or when they were made. It is well - settled that vague

testimony of the sort offered by Petitioner is insufficient to

sustain a hostile environment claim. See Easterly v. Dep't of

the Army , 2010 U.S. Dist. LEXIS 26725 (E.D. Cal. 2010)("Here,

Plaintiff's allegation of two specific comments and vague

allegations of other remarks is insufficient to state a hostile

environment claim"); Lester v. Sec'y of Veterans Af fairs , 514 F.

Supp. 2d 866, 873 n.3 (W.D. La. 2007)("[Plaintiff] has not

alleged specific comments and conduct in support of a purported

hostile work environment claims and the record evidence does not

support a finding of a workplace permeated by offensiv e conduct

based on race"); see also Hillburn v. Murata Elecs. N. Am.,

Inc. , 181 F.3d 1220, 1228 (11th Cir. 1999)("Conclusory

allegations without specific supporting facts have no probative

value"); Bamawo v. Dep't of Corr. , Case No. 02 - 3786, 2003 Fla.

Div. Adm. Hear. LEXIS 1042 (Fla. DOAH Sept. 18, 2003)( " Mr.

Bamawo comp lains that Captain Pardue made 'countless' derogatory

remarks to him, that Captain Pardue gave him work assignments

that no one else wanted, that Captain Pardue refused to approve

his reques ts time off, that Captain Pardue refused to designate

him as supervisor because Captain Pardue thinks 'Africans are

dumb,' but these complaints are not sufficiently specific to

establish that Mr. Bamawo was subjected to harassm ent that was

'severe or perva sive.' In a Title VII empl oyment discrimination

case, c onclusory allegations without specific supporting facts

have no probative value")(internal quotation and citation

omitted).

8 These allegations, which do not involve acts of ridicule or

insult, must be analyzed independently of Petitioner's hostile

environment claim. See McCann v. Tillman , 526 F.3d 1370, 1379

(11th Cir. 2008)("As the district court properly found, the

remainder of McCann's allegations concern patterns of

discrimination practiced against black employees, which

constitute discrete acts that must be challenged as separate

statutory discrimination and retaliation claims. These cannot

be brought under a hostile environment claim that centers on

discriminatory intimidation, ridicule, and insult")(internal

quotations omitted).

COPIES FURNISHED :

Vernell King

Post Office Box 705

West Palm Beach, Florida 33402

Jill Bennett, Esquire

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

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 Relati ons

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 O rder should be filed with the agency that

will issue the Final Order in this case.