10-009752 Victoria Menz vs. Dr. Emanuel Kontos Dmd, P.A. Status: Closed DOAH Final Order on Wednesday, June 1, 2011.

Summary: Respondent violated Pinellas County Code, which prohibits retaliation against a person who has opposed a discriminatory employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTORIA MENZ , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9752

)

DR. EMANUEL KONTOS DMD, P.A. , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings

(DOAH) , by its duly - designated Administrative Law Judge (ALJ)

Thomas P. Crapps, held a formal hearing in the above - styled case

on January 10 and 11, 2011, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Matthew K. Fenton, Esquire

Wenzel, Fenton, and Cabassa, P.A.

1110 North Florida Avenue, Suite 300

Tampa, Florida 33602

For Respondent: Jeremy W. Rodgers, Esquire

Spector Ga don and Rosen, LLP

390 Central Avenue, Suite 1550

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

Whether Respondent violated s ection 70 - 54, Pinellas County

Code, which prohibits retaliation against a pe rson who has

opposed a discriminatory employment practice, by terminating the

Petitioner's employment , and , if so, the appropriate penalty.

PRELIMINARY STATEMENT

On August 31, 2009, Petitioner, V ictoria Menz (Ms. Menz),

filed a Charge of Discrimination ag ainst Respondent, Dr. Emanuel

Kontos D . M . D . , P.A., with the Pinellas County Office of Human

Rights. Ms. Menz alleged in the Charge of Discrimination that

Respondent had subjected her to "retaliation, sexual harassment

and disparate trea tment due of my sex (female)."

On September 21, 2010, the Pinellas County Office of Human

Rights informed Ms. Menz and Respondent that "there is

reasonable cause to believe discrimination has occurred." The

determination by the Pinellas County Office of Human Rights

informe d Ms. Menz and Respondent that , under the county

ordinance , the parties had a "final opportunity to engage in

conciliation in order to resolve the matter."

On October 13, 2010, the Pinellas County Office of Human

Rights informed the parties that , because a ttempts to conciliate

the matter failed , the case would be forwarded to DOAH under

sections 70 - 77 an d 70 - 78, Pinellas County Code.

On October 18, 2010, the Pinellas County Office of Human

Rights requested assignment of an ALJ in accordance with

section 70 - 77(e) through (h) , Pinellas County Code , and the

contract for ALJ services between Pinellas County and DOAH .

On November 12, 2010, ALJ Thomas P. Crapps was assigned to

hear the case. On November 15, 2010, a Notice of Hearing was

entered, scheduling the ad ministrative hearing for January 10

and 11, 2011 , in St. Petersburg, Florida.

At the hearing, Ms. Menz presented the testimony of

herself ; Valerie Sholtes (Ms. Sholtes) ; Emanuel Kontos, D.D.S.

(Dr. Kontos) ; Kristen Chase (Ms. Chase) ; and Randall Weisel,

D. D.S. (Dr. Weisel), and introduced E xhibit s number ed 3, 4 , and

5 into evidence.

Respondent presented the testimony of Cindy O'Leary

(Ms. O'Leary), Brenda Little (Ms. Little), Dr. Kontos, and

Melissa Marchese (Ms. Marchese) and introduced E xhibit s number ed

1 through 13, 16, 18, 19, 21, 23 through 27, 29 through 31, 34

through 36, 39, 41 , 42, and 44 into evidence.

A T ranscript of the hearing was ordered and filed with DOAH

on February 22, 2011. Respondent filed its P roposed Re commended

O rder on March 11, 2011 , and Ms. Menz filed her P roposed

R ecommended O rder on March 14, 2011.

The undersigned issued a Recommended Order on May 12, 2011.

Neither party filed any exceptions to the Findings of Fact or

Conclusions of Law in the Recommended Order. May 23, 2011, wa s

the deadline for filing exceptions to the Findings of Fact and

Conclusions of Law in the Recommended Order. The Findings of

Fact and Conclusions of Law in the Recommended Order are adopted

in this Final Order.

FINDINGS OF FACT

1. Ms. Menz was hired by Dr. Weisel as a receptionist for

his dental office located in Tarpon Springs , Pinellas County,

Florida, on October 6, 2007. Ms. Menz's job responsibilities

included answering the phone, checking patients in and out of

the office, collecting co - payments, and entering treatment plans

in the record. According to Dr. Weisel, Ms. Menz was a good

employee because she was eager to learn , and she was very people

orientated.

2. Respondent is a professional association located in

Tarpon Springs, Pinellas County, Florida. Respondent employees

less than 15 employees and is in the business of providing

dentistry services. Respondent is subject to the Pinellas

County Code concerning h uman r elations.

3. I n June 2008, Dr. Weisel sold his Tarpon Springs dental

practic e to Dr. Kontos. Dr. Kontos had graduated from dental

school in May 2007 and had worked for another dentist office.

By January 2008, Dr. Kontos wanted to purchase a dental practice

in his hometown, Tarpon Springs. When Dr. Kontos purchased the

practice from Dr. Weisel, Dr. Kontos had no experience in owning

a business or managing employees.

4. According to Dr. Kontos, he decided to keep all of

Dr. Weisel's employees for continuity. Dr. Kontos described

Ms. Menz's job duties as opening the practice in the morning,

"in - putting insurance," collecting co - payments , and "doing

treatment plans."

5. By July 2008, Dr. Kontos had promoted one of the dental

assistants, Daniel Mauzerolle (Mr. Mauzerolle), to office

manager. During the time that Mr. Mauzerolle wo rked for

Dr. Kontos, they became friends and would socialize together.

6. Ms. Menz testified that she had complained to

Dr. Kontos in the past about Mr. Mauzerolle about issues from

work.

7. Ms. Sholtes , a former dental hygienist for Dr. Kontos,

also tes tified on Ms. Menz's behalf. She testified that

Ms. Menz was a good employee and courteous to patients.

8. By November 2008, Dr. Kontos hired Ms. Marchese to

collect aging insurance claims and account receivables, as well

as review his office procedures. According to Dr. Kontos, the

dental practice had a "phenomenal" amount of outstanding

insurance claims, in excess of $20, 000.00, which had been

denied.

9. Ms. Marchese had worked in the dental field since 1991

and was familiar with software system s used to run dental

offices. Further, she was familiar with the submission of

insurance f orms for dental reimbursement.

10. On May 11, 2009, Ms. Menz opened the office at

7:00 a . m. As she turned on her computer, Ms. Menz noticed the

internet web history sh owed that someone had used her computer

the night before. Ms. Menz found that one site had been visited

28 times. Upon visiting the site, Ms. Menz found that the

website contained pornographic images. Further, because

Mr. Mauzerolle was the only perso n that worked in the evening in

the office, Ms. Menz assumed that Mr. Mauzerolle was the person

who had accessed the pornographic site.

11. Ms. Menz credibly testified that she informed

Dr. Kontos and told him that Mr. Mauzerolle's actions were

unacceptable to her. Ms. Menz credibly testified that she told

Dr. Kontos that she could not work under the conditions that she

considered to be a hostile workplace environment. Dr. Kontos

informed Ms. Menz that he would "take care of it."

12. Dr. Kontos credibly t estified that Mr. Mauzerolle, in

addition to being the office manager, was his friend and that he

was not happy with Ms. Menz reporting the issues concerning the

pornography in his office.

13. Two days later, on May 13, 2009, Dr. Kontos terminated

Ms. Men z's employment. Ms. Menz credibly testified that at the

time of her termination, Dr. Kontos did not provide her a reason

for her termination, only stating "nothing personal, but I'm

going to have to let you go."

14. Dr. Kontos testified that he had alrea dy decided to

terminate Ms. Menz's employment before May 11, 2009, when

Ms. Menz complained about the pornography. According to

Dr. Kontos, Ms. Marchese had informed him since the end of 2008

about errors that Ms. Menz had been making at work that cost th e

dental practice money. Dr. Kontos indicated that Ms. Menz made

errors such as failing to collect co - payments or collecting

improper co - payments and failing to fill out the insurance forms

correctly. The result was that insurance claims would be denied

and the d ental office would lose money.

15. According to Dr. Kontos and Ms. Marchese, on or before

April 8, 2009, Ms. Menz made an error that almost cost the

dental practice $2,000.00. The alleged error involved putting

the wrong information concerning a n insurance plan for a

patient. Based on this error, Dr. Kontos testified that he made

a decision with Mr. Mauzerolle and Ms. Marchese to place an

advertisement for a receptionist with Craigslist to replace

Ms. Menz. Later that day, Mr. Mauzerolle placed the

advertisement with Craigslist.

16. On April 9, 2009, potential job applicants began

calling Dr. Kontos' office about the receptionist position.

Ms. Menz took the phone messages from the applicants, including

Ms. Kristen Chase.

17. Ms. Menz credibly testified that based on phone calls

that she asked Dr. Kontos about the job advertisement and

whether or not she was doing a good job. Ms. Menz credibly

testified that Dr. Kontos stated that she was doing a good job

and not to worry about the advertiseme nt. Further, Ms. Menz

credibly testified that she asked Ms. Marchese about the

advertisement. Ms. Menz testified that Ms. Marchese stated that

Dr. Kontos was seeking to replace Christina Benzel (Ms. Benzel) ,

a co - worker who worked the front desk with Ms. Menz. Ms. Menz

believed Ms. Marchese because Ms. Menz had observed that

Ms. Benzel's job responsibilities had been reduced.

18. According to Dr. Kontos, sometime at the beginning of

May 2009, he and Mr. Mauzerolle interviewed Ms. Chase for the

reception ist job. According to Dr. Kontos, he offered Ms. Chase

the job after the interview , and he had decided to replace

Ms. Menz. Dr. Kontos' s testimony on the point that he offered

Ms. Chase the job in early May and had decided to replace

Ms. Menz is not cred ible.

19. Ms. Chase credibly testified that she did not receive

the job offer from Dr. Kontos at the interview in early May.

Further, Ms. Chase credibly testified that , because she did not

hear anything from Dr. Kontos, she had assumed that she had not

g otten the job. Further, Ms. Chase credibly testified that she

was of fered the job on May 14, 2009.

20. Dr. Kontos testified that he had decided to terminate

Ms. Menz on April 8, 2009, but that he did not tell her before

May 13, 2009 , because he "had to b uild up the nerve to do it."

He testified that he felt bad having to terminate her and that

he let her go because she made too many mistakes.

21. For support concerning the number of errors made by

Ms. Menz, Respondent offered the testimony of Ms. Marche se and

numerous exhibits.

22. Ms. Marchese testified that because of the number of

errors occurring in the office that she moved her work space to

be next to Ms. Menz. According to Ms. Marchese, she was

monitoring Ms. Menz and providing "one - on - one train ing."

Further, Ms. Marchese offered testimony that each day she would

conduct an "audit trail" of the office and bring errors to

Dr. Kontos' s attention daily. Ms. Marchese testified that

Ms. Menz failed to collect co - payments ; entered insurance

informati on incorrectly , resulting in insurance reimbursements

being denied ; failed to provide adequate information to support

insurance billings ; and gave patients incorrect estimates on the

amount that the patient would owe for different treatments based

on the p atient's insurance plan. Ms. Marchese testified that

she estimated that Ms. Menz had cost the dental office

approximately $100,000.00 in lost revenue and made 90 percent of

the office errors.

23. Ms. Marchese identified a number of exhibits that

supporte d Respondent's claim that Ms. Menz was t erminated for

numerous errors.

24. Ms. Marchese further testified that in March 2009 that

she told Dr. Kontos and Mr. Mauzerolle that Ms. Menz was

"untrainable" and that she should be terminated. According to

Ms. M archese, in April 2009, she discussed with Dr. Kontos and

Mr. Mauzerolle the error that nearly cost the practice $2,000.00

and the decision to advertise for the new receptionist.

25. After the advertisement was taken out in Craigslist

for the new receptio nist, Ms. Marchese remembered being asked by

Ms. Menz about the advertisement and about whether or not

Dr. Kontos was seeking to replace her. Ms. Marchese testified

that she told Ms. Menz that she did not know if Dr. Kontos was

seeking to replace her. Ms . Marchese denied telling Ms. Menz

that Dr. Kontos was seeking to replace Ms. Benzel.

Ms. Marchese, however, admitted that Dr. Kontos had been unhappy

with Ms. Benzel based on her internet usage at the office .

26. Ms. Marchese testified that she informed Dr. Kontos

about each of these errors daily and testified about a group of

exhibits. A review of the exhibits identified by Ms. Marchese,

E xhibits 25, 27, 29, 30, 31, 34, 35, 36, 41, and 44 shows that

the documents are dated December 18 and 21, 2009. Whe n

questioned about the dates on the exhibits, Ms. Marchese

testified that these exhibits were documentation from the "daily

sheets" and that she had "minimized the amount of discovery."

Also, she explained that the documents were "printed to condense

the information into one page instead of, for instance, on

exhibit 25, it would have been over 30 pages." Further, she

testified that she had added the notes explaining Ms. Menz's

errors to the sheets on or after December 18, 2009. The "daily

sheets" were no t admitted into evidence. At best, the offered

exhibits may be considered summaries. Even considering the

documents, the record shows that the offered exhibits show that

the documents were compiled to support Ms. Menz's termination

after May 13, 2009, an d in response to the investigation by

Pinellas County. Thus, the exhibits carry littl e weight in the

consideration.

27. Similarly, E xhibits 10, 11, 18, 23 , and 24 are all

dated after Ms. Menz's termination date of May 13, 2009. A

review of E xhibit 10 sh ows a "Single Patient Ledger" printed up

on September 8, 2009. Based on Ms. Marchese's testimony, the

document shows that on April 8, 2009, the patient received two

dental procedures that cost $1,050.00. According to

Ms. Marchese, the patient was told to pay $215.00 for two

treatments. Presumably, the balance of the dental bill would be

paid by insurance. However, Ms. Marchese testified that the

patient did not have dental coverage for the two procedures.

Consequently, the dental office lost money on t he two procedures

because the patient refused to pay , and there was no insurance

to bill. Although the testimony shows this event occurred

before the termination, the "Single Payer Ledger" is dated after

the termination. Further, a hand - writte n notation from the

patient's chart, which is part of E xhibit 10, stating that

"Valerie dropped the ball on the correct fee twice" is dated

May 14, 2009, the day after her termination. Similarly, a

review of E xhibits 23 and 24 shows that they are insurance

claims th at were denied before May 13, 2009. Ms. Marchese

testified that Dr. Kontos was aware of these errors. However,

E xhibits 23 and 24 only show that insurance claims were re -

submitted after the date of Ms. Menz's termination. The

exhibits do not support the finding that the claims were denied

because of Ms. Menz or that these errors were considered before

terminating her employment. These exhibits were prepared after

the termination as a justification for the action as opposed to

contemporaneous proof of Ms . Menz's performance.

28. In contrast to the above listed exhibits, E xhibits 6,

7, 8, and 9 are examples of errors and notes that were

documented before Ms. Menz's termination. A review of these

exhibits shows that the complained of errors occurred on

Ja nuary 22, 2009 ; February 3, 2009 ; March 2, 2009 ; and April 27,

2009 .

29. Respondent also offered the testimony of other

employees from the dental office. Ms. Little, a dental

hygienist, testified that she was aware that Ms. Menz made

errors in entering c odes for different treatment plans. She had

spoken to Ms. Menz about the error , and Ms. Menz indicated that

she would try to correct the problem. According to Ms. Little,

the errors continued , but w ere not as bad. Finally, Ms. Little

testified that Ms. Marchese was responsible for insurance claims

with the office. Similarly, Ms. O'Leary, a dental hygienist,

testified that she knew that Ms. Menz had some issues with

insurance, but that she had a good working relationship with

Ms. Menz.

30. M s. Menz cand idly admitted that she made mistakes at

her work and credibly testified that she was never told of the

many errors that Respondent was claiming she had made or that

she had c ost Respondent money.

31. Dr. Kontos admitted that that he did not individually

c ounsel Ms. Menz about her errors. Rather than counsel

individual employees, Dr. Kontos testified that it was his

practice to speak to his employees as a group about errors

because he wanted to avoid similar errors.

32. Ms. Menz testified that she earned $10.75 an hour and

that she had been out of work for 87 weeks. Ms. Menz agreed

with her counsel's question that her calculated damages were

$37,410.00. The record also shows that Ms. Menz filed for

unemployment compensation, but was unclear about whethe r or not

she received any compensation.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction to hear the instant case pursuant to

section 120.65(7), Florida Statutes (2010), and section 70 - 77(e)

through (h) , Pinellas County Code .

34. Section 70 - 52 , Pinellas County Code, sets out the

purpose and intent of the c ode concerning human relations and

addressing discrimination. Specifically, s ection 70 - 52 ,

Pinellas County Code , reads as follows:

(a) The general purposes of this divisi on

are to:

(1) Provide for execution within the county

of the policies embodied in the Federal

Civil Rights Act of 1964, as amended.

(2) Secure for all individuals within the

county the freedom from discrimination

because of race, color, religion, nati onal

origin, sex, sexual orientation, age,

marital status, or disability in connection

with employment, and thereby to promote the

interests, rights and privileges of

individuals within the county.

(b) This division shall be liberally

construed to prese rve the public safety,

health and general welfare, and to further

the general purposes stated herein.

(c) The enforcement of this division may be

delegated by interlocal agreement to other

units of local governmen t or to nonprofit

corporations.

35. Sec tion 70 - 53, Pinellas County Code, defines the

unlawful discriminatory employment practices. Section 70 - 53,

Pinellas County Code, provides, in pertinent part:

(a) Unlawful discrimination in employment

practices.

(1) Employers. It is a discriminato ry

p ractice for an employer to:

a. Fail or refuse to hire, discharge, or

otherwise discriminate against an individual

with respect to compensation or the terms,

conditions, or privileges of employment

because of race, color, religion, national

origin, sex, s exual orientation, age,

marital s tatus, or disability; or

b. Limit, segregate, or classify an

employee in a way which would deprive or

tend to deprive an individual of employment

opportunities or otherwise adversely affect

the status of an employee becau se of race,

color, religion, national origin, sex,

sexual orientation, age, marital status, or

disability.

c. The above described prohibited

discrimination on the basis of sex includes

sexual harassment, including same - sex sexual

harassment, and pregnanc y discrimination.

36. Next, s ection 70 - 54, Pinellas County Code, prohibits

retaliation against a person who has opposed a discriminatory

practice. Specifically, s ection 70 - 54 , Pinellas County Code,

provides that it is an unlawful discriminatory practice for a

person to:

(1) Retaliate or discriminate against a

person because he or she has opposed a

discriminatory practice, or because he or

she has made a charge, filed a complaint,

testified, assisted, or participated in an

investigation, proceeding, or h earing under

this division;

(2) Aid, abet, incite, or coerce a person

to engage in an unlawful discriminatory

practice;

(3) Willfully interfere with the

performance of a duty or the exercise of a

power by the commission or one of its staff

members or representatives; or

(4) Willfully obstruct or prevent a person

from complying with the provisions of this

division or an order issued thereunder.

37. Because s ection 70 - 52 , Pinellas County Code,

identifies that the purpose of these ordinances is to imp lement

the Federal Civil Rights Act of 1964, federal law is instructive

applying the ordinances to the facts.

38. Title VII prohibits an employer from discriminating

against a person based on the person's race, color, religion,

sex, or national origin, or from retaliating against an employee

for reporting discrimination. 42 U.S.C. §§ 2000e - 2(a)(1) &

3(a). The plaintiff bears the ultimate burden of proving

retaliatory treatment by a preponderance of the evidence.

Earley v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th Ci r.

1990)(discrimination case).

39. Where direct evidence of retaliation is lacking, a

plaintiff may present circumstantial evidence sufficient to

create a jury question. See E.E.O.C. v. Joe's Stone Crab, Inc. ,

296 F.3d 1265, 1272 (11th Cir. 2002)(discrimination case). A

retaliation claim based on circumstantial evidence is analyzed

according to the burden - shifting framework established by

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973) ; Goldsmith v. City of Atmore , 996 F.2d

1155, 1162 - 63 (11th Cir. 1993). Accordingly, if a plaintiff

establishes a prima facie case of retaliation, and the employer

proffers a legitimate, nondiscriminatory reason for its

employment action, the plaintiff must then sho w that the reason

is a pretext for retaliation. Id. at 1163.

40. A party may establish a prima facie case of

retaliation by showing that (1) he or she engaged in statutorily

protected expression; (2) he or she suffered an adverse

employment action; and ( 3) there is some causal relationship

between the two events. Holifield v. Reno , 115 F.3d 1555, 1566

(11th Cir. 1997).

41. As to the second prong, "a plaintiff must show that a

reasonable employee would have found the challenged action

materially adverse. " Burlington N. & Sante Fe Ry. Co. v. White ,

548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). In

Burlington Northern , the Supreme Court stated that "[t]he

antiretaliation provision [of Title VII] protects an individual

not from all retaliation , but from retaliation that produces an

injury or harm." Id. at 67. The acts must be material and

significant and not trivial. Id. at 68; see also Crawford v.

Carroll , 529 F.3d 961, 973 n.13 (11th Cir. 2008).

42. As for the third element of causal - rela tionship, the

courts construe the element broadly, so that a plaintiff simply

has to demonstrate that the protected activity and adverse

action are not completely unrelated. Higdon v. Jackson , 393

F.3d 1211, 1220 (11th Cir. 2004). A "close temporal proxi mity"

between the employee's protected activity and adverse actions

may be sufficient circumstantial evidence to create a genuine

issue of material fact of a causal connection. Brungart v.

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

H owever, "[i]f there is a substantial delay between the

protected expression and the adverse action in the absence of

other evidence tending to show causation, the complaint of

retaliation fails as a matter of law." Higdon , 393 F.3d at

1220 - 21 (holding tha t, by itself, three months was insufficient

to prove causation).

43. After establishing a prima facie case, the burden

shifts to the employer to provide a legitimate, non -

discriminatory reason for the employment action. Goldsmith , 996

F.2d at 1162 - 63.

44 . If the employer provides a legitimate, non -

discriminatory reason for the employment action, then the burden

shifts back to the plaintiff to show that the employer's offered

reason is a pretext. Id. Pretext means that the reason given

by the employer w as not the real reason for the adverse

employment decision. Combs v. Plantation Patterns , 106 F.3d

1519, 1528 (11th Cir. 1997). "[A] reason cannot . . . be 'a

pretext for discrimination' unless it is shown both that the

reason was false, and that discrim ination was the real reason."

St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S. Ct.

2742, 125 L. Ed. 2d 407 (1993) (emphasis omitted). In this

respect, conclusory allegations or unsupported assertions,

without more, "are not sufficient to raise an inference of

pretext[.]" Mayfield v. Patterson Pump Co. , 101 F.3d 1371, 1376

(11th Cir. 1996) (quotation omitted). Instead, the plaintiff

must "present significant probative evidence" of pretext. Id.

(quotation omitted). The plaintiff must meet the pr offered

reason "head on and rebut it, and the employee cannot succeed by

simply quarreling with the wisdom of that reason." Chapman v.

AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). The

trier of fact should consider "whether the plaintiff ha s

demonstrated 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." Jackson v. Ala. State

Ten ure Comm'n , 405 F.3d 1276, 1289 (11th Cir. 2005) (quotation

omitted). The "identification of inconsistencies in the

defendant's testimony is evidence of pretext," but the "mere

denial of credibility" has no evidentiary value. Howard v. BP

Oil Co. , 32 F.3 d 520, 523, 526 (11th Cir. 1994).

45. Applying the rules of law to the facts in this case,

the record shows that Ms. Menz established that Respondent

violat ed section 70 - 54 , Pinellas County Code, by retaliating

against her for complain ing about the office manager accessing

pornography from Ms. Menz's work computer.

46. The record clearly shows that Ms. Menz met her initial

burden of showing a prima facie case. It is undisputed that

Ms. Menz's complaint to Dr. Kontos that the office manager had

accessed p ornographic websites on Ms. Menz's computer was

protected activity. Further, the facts here show that Ms. Menz

had an adverse employment action when she was terminated.

Finally, Ms. Menz established the causation element based on the

temporal proximity o f her termination to her complaint. It was

not disputed that Respondent terminated Ms. Menz within two days

of her complaint. Based on this proximity, Ms. Menz brought

forward evidence of causation.

47. Next, the record clearly shows that Respondent met its

burden of providing a legitimate non - discriminatory reason for

terminating Ms. Menz's employment. Respondent brought forward

evidence showing that it terminated Ms. Menz for performance

issues. Respondent brought forward evidence showing that

Ms. Me nz had made costly errors during her employment and that

on April 8, 2009, Dr. Kontos had decided to advertise for

Ms. Menz's position. Further, Dr. Kontos testified that he had

hired another individual to replace Ms. Menz by the first week

of May 2009, o ver a week before Ms. Menz's termination on

May 13, 2009. Therefore, Respondent met its burden of providing

a legitimate, non - discriminatory reas on for Ms. Menz's

termination.

48. The record shows that Ms. Menz met her burden of

showing that Respondent's offered reasons were pretextual and

that the real reason for her termination was her complaint

against the office manager. Respondent's offered explanation

that Dr. Kontos had already made the decision to terminate

Ms. Menz for performance issues before May 13, 2009 , is pre -

textual for three reasons.

49. First, the majority of Respondent's exhibits show that

they were compiled after the date of Ms. Menz's termination and

in response to the human relations complaint filed by Ms. Menz.

According to Ms. Ma rchese, she made notes each day documenting

Ms. Menz's errors. Further, Ms. Marchese explained that the

offered exhibits documented these daily errors and condensed

lengthy information. At hearing , the "daily sheets" and notes

made contemporaneous with M s. Menz's alleged errors were not

brought forward into evidence. It is inconsistent that

Ms. Marchese would make daily notes concerning Ms. Menz's

errors, but then seven months later have to compile the

documented information into a condensed form. Had t he daily

error reports been compiled each day, as Ms. Marchese testified,

then documents made contemporaneous with the observations would

have been offered into evidence. It is clear that these offered

exhibits, for the most part, were documents generated to answer

the investigation by the Pinellas County Human Relations

Commission regarding Ms. Menz's complaint. Moreover,

E xhibits 6, 7, 8, and 9 appeared to be contemporaneous notations

of errors that Ms. Menz made at her job before her termination

that w ere not the basis for her termination. The dates from

those errors are January 22, 2009 ; February 3, 2009 ; March 2,

2009 ; and April 27, 2009. These dates, with the exception of

the April 27, 2009, date occur well before the date that

Ms. Menz was termina ted. The lack of temporal proximity to the

date that Ms. Menz was terminated, May 13, 2009, shows that

these errors were not considered as basis for her termination.

Again, a reasonable person would reach the conclusion that if a

serious employment error as described by Dr. Kontos is occurring

in the workplace that an employer either will counsel the

employee or terminate the employee. Here, Dr. Kontos did

neither action. Thus, it is not plausible that any of these

complained of errors in E xhibits 6 thr ough 9 formed the basis

for Dr. Kontos' s decision to terminate Ms. Menz.

50. Second, Dr. Kontos' testimony that he did not

terminate Ms. Menz earlier in the year because he lacked courage

is not plausible in light of his and Ms. Marchese's testimony

about the scope and quantity of Ms. Menz's errors. According to

Dr. Kontos and Ms. Marchese, Ms. Menz made constant errors and

that these errors cost the dental practice an estimated

$100,000.00. Further, according to both Dr. Kontos and

Ms. Marchese, Ms. Mar chese would inform Dr. Kontos about these

errors daily. The record showed that Dr. Kontos hired

Ms. Marchese by November 2008 and that by the end of 2008

Ms. Marchese was informing him about Ms. Menz's errors. Yet,

despite the constant and costly errors, Dr. Kontos did not give

Ms. Menz any one - on - one counseling about her job or terminate

her. Rather, the record shows that two days after she

complained about the office manager, who was Dr. Kontos' s

friend, she was terminated. It is not plausible that an

employer would allow an employee to keep making costly mistakes

each day without taking some action. The more credible

explanation is that Respondent terminated Ms. Menz in

retaliation for her complaint.

51. Third, and finally, the reason that Responden t's

explanation is pretextual is seen in the facts concerning the

April 8, 2009 , advertisement, and Dr. Kontos' s testimony that he

had already hired Ms. Chase to replace Ms. Menz before the

May 13, 2009 , termination. The record clearly showed that

Respond ent took an advertisement on April 8, 2009 , for a front

office receptionist. The dispute, however, centers on whether

the advertisement was taken to replace Ms. Menz or Ms. Benzel.

Ms. Menz credibly testified that she asked Dr. Kontos and

Ms. Marchese ab out the advertisement and whether or not she was

being replaced. She was also credible in her testimony that

Dr. Kontos told her not to worry and that she was doing a great

job. Ms. Menz credibly testified that Ms. Marchese had told her

the office was re placing Ms. Benzel. This explanation was

supported by Ms. Menz's observation that Dr. Kontos had been

tak ing jobs away from Ms. Benzel.

52. Respondent's explanation that Ms. Menz had made a

mistake on April 8, 2009, which almost cost the office

$2,000.00 , was not supported by documentation. Respondent

offered E xhibit 10 as evidence of the mistake on April 8, 2009.

However, as discussed earlier, the documentation of this error

occurred after Ms. Menz's termination. Thus, Respondent's

offered explanation is not supported by documentation that

occurred contemporaneous with the event.

53. Next, the record did not support Dr. Kontos' s

explanation that he had already offered the receptionist job to

Ms. Chase before terminating Ms. Menz. Ms. Chase credibly

t estified that she did not receive the phone call offering the

job until May 14, 20 09 , which is after Ms. Menz's termination.

Therefore, Dr. Kontos' s offered explanation that he had already

offered the job to Ms. Chase before terminating Ms. Menz is

pretex tual.

54. Under section 70 - 78, Pinellas County Code, the

undersigned has the authority to award actual damages and

reasonable costs and attorney ' s fees incurred by a party which

were caused by a violation of this division. Based on the

evidence presented at hearing , Ms. Menz's actual damages are

$37,410.00, and she is entitled to an award of reasonable costs

and attorney ' s fees.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

A. Respondent violated section 70 - 54, Pinellas County

Code.

B . Respondent is to pay Ms. Menz the sum of $37,410.00 for

lost wages, which shall accumulate interest until fully

satisfied at the statutory rate of six percent per annum ; and

C . Respondent shall pay Ms. Menz reasonable attorney ' s

fees and costs in prosecuting this action . Jurisdiction is

retained to determine the amount of reasonable attorney's fees

and costs . The parties are directed to confer within 20 days

concerning the amount of attorney's fees and costs. Within five

days of conferring with each other, the parties are to inform

the undersigned whether or not they are able to stipulate to an

amo unt of attorney's fees and costs. If the parties are able to

stipulate an amount of the attorneys' fees and costs, then the

stipul ation shall be sent to the undersigned for review and

approval. I f the parties are unable to reach a stipulation as

to attorney's fees and costs, then a hearing shall be set to

determine the reasonable amount of attorney's fees and costs.

DONE AND ORDERED this 1st day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June , 2011 .

COPIES FURNISHED :

William C. Fa u lkner, Esquire

Pinellas County Attorney's Office

315 Court Stree t

Clearwater, Florida 33756

Jeremy W. Rodgers, Esquire

Spector Gadon and Rosen, LLP

390 Central Avenue, Suite 1550

St. Petersburg, Florida 33701

Matthew K. Fenton, Esquire

Wenzel, Fenton, and Cabassa, P.A.

1110 North Florida Avenue, Suite 300

Tampa, Fl orida 33602

Leon W. Russell, Director/EEO Officer

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, 5th Floor

Clearwater, Florida 33756

Peter J. Genova, Jr., EEO Coordinator

Pinellas County Office of Human Rights

400 South Fort Har rison Avenue, 5th Floor

Clearwater, Florida 33756

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District C ourt of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.