11-005198 Anne Boland vs. Division Of Emergency Management Status: Closed Recommended Order on Thursday, January 26, 2012.

Summary: Petitioners failed to demonstrate that Respondent discriminated against them on the basis of their sex or marital status.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNE BOLAND , )

)

Petitioner , )

)

vs. ) Case No . 11 - 5198

)

DIVISION OF EMERGENCY )

MANAGEMENT , )

)

Respondent . )

)

MICHAEL YOUNGER, )

)

Petitioner, )

)

vs. ) Case No. 11 - 5199

)

DIVISION OF EMERGENCY )

MANAGEMENT, )

)

Respondent, )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these

consolidated cases on December 12 and 13, 2011, in Tallahassee,

Florida, before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEA RANCES

For Petitioner: Anne Boland, pro se

Post Office Box 10253

Tallahassee, Florida 32302

For Petitioner: Michael Younger, pro se

Post Office Box 503

Tallahassee, Florida 32302

For Respondent: Gretchen Kelley Brantley, Esquire

Kurt E. Ahrendt, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether the Petitioners were subject to an unlawful

employment practice by Respond ent, the Florida Division of

Emergency Management (DEM), on account of their sex or marital

status in violation of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On March 23, 2011, Petitioner, Anne Boland (Boland), filed

an Employment Claim of Di scrimination with the Florida

Commission on Human Relations (FCHR) which alleged that the DEM

violated s ection 760.10, Florida Statutes, by discriminating

against her on the basis of her sex and marital status. The

Employment Claim of Discrimination alleg ed that Boland was

constructively discharged from employment with the DEM based on

an Ðinappropriate relationshipÑ with her supervisor, Michael

Younger.

On September 7, 2011, the FCHR issued a Determination: No

Cause and a Notice of Determination: No Caus e, by which the FCHR

dismissed BolandÓs claim of discrimination. On October 10, 2011,

Ms. Boland filed a Petition for Administrative Hearing with the

Commission. On October 11, 2011, the FCHR transmitted the

Petition to the Division of Administrative Hea rings to conduct a

Final Hearing.

On March 23, 2011, Petitioner, Michael Younger (Younger),

filed an Employment Claim of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that the DEM

violated s ection 760.10, Florida Stat utes, by discriminating

against him on the basis of his sex and marital status. The

Employment Claim of Discrimination alleged that Younger was

constructively discharged from employment with the DEM based on

an Ðinappropriate relationshipÑ with his subord inate employee,

Anne Boland.

On September 8, 2011, the FCHR issued a Determination: No

Cause and a Notice of Determination: No Cause, by which the FCHR

dismissed YoungerÓs claim of discrimination. On October 10,

2011, Mr. Younger filed a Petition for Adm inistrative Hearing

with the Commission. On October 11, 2011, the FCHR transmitted

the Petition to the Division of Administrative Hearings to

conduct a final h earing.

By O rders dated October 19, 2011, the cases were

consolidated, and the date of the final hearing was set for

December 12 and 13, 2011. The hearing was held as scheduled.

At the final hearing, Petitioners testified on their own

behalves. Petitioner s Ó Exhib its 1 - 4, 7 - 10, 15, 19 - 21, 31 - 32, 34,

and 36 - 37 were received into evidence. Petitioners proffered two

exhibits that were not received into evidence, and have not been

considered in this Recommended Order. Those exhibits have been

separately marked, and w ill travel with the record of this

proceeding. The DEM presented the testimony of Mr. Younger, Mark

Helms, the DEM Personnel Officer, and Gwen Keenan, who was, at

all times pertinent to this proceeding, the Bureau Chief for the

DEM Bureau of Compliance an d Planning. RespondentÓs Exhibits 2 -

3, and 14 - 20 were received into evidence.

The four - volume Transcript w as filed on January 12, 2012.

Respondent timely filed its Proposed Recommended Order .

Petitioners filed their P roposed Recommended O rder on Janu ary 26,

2012 . Both have been considered in the preparation of this

Recommended Order. References to statutes are to Florida

Statutes (2011) unless otherwise noted.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Ms. Boland was

separated f rom her husband, though they were not yet divorced.

2. Mr. Younger was married until he was asked by his wife

to leave the marital home on February 6, 2010. Mr. Younger

considered himself to be separated as of that date.

3. Mr. Younger was first emplo yed by the DEM in 2001. On

April 6, 2009, he was promoted to a Planning Manager position in

the Technological Hazards Section. In that position, he oversaw

employees in the Radiological Emergency Preparedness (REP)

Program and the Risk Management Plannin g Program. The Planning

Manager position was in Select Exempt Service, which is a

classification of supervisory and managerial positions that serve

at the pleasure of an agencyÓs senior management.

4. In his position as Planning Manager, Younger was

sup ervised by Shanti Smith, Administrator of the Technological

Hazards Section. Ms. Smith was supervised by Gwen Keenan, Bureau

Chief for the Bure au of Compliance and Planning. 1 /

5. Shortly after Younger began as Planning Manager, the DEM

determined that t here was a need to hire a Planner II in the REP

Program. A three - member interview panel, which included Younger,

was established to make a recommendation for the position. The

panel interviewed 5 or 6 applicants, including Boland, and

recommended the hir ing of Terry Chasteen to the position.

6. After Ms. Chasteen was hired, the DEM determined that

there was a need for a second Planner II in the REP Program, and

authorized the position to be selected from the existing pool of

interviewed applicants. Younger recommended Boland for the

position , and she was thereupon hired as a Planner II under

YoungerÓs direct supervision, effective June 19, 2009.

7. At the time he recommended that she be hired as a

Planner II, Younger was well - acquainted with Boland. Beginning

in 2008, while employed in t he DEM Mitigation Planning Unit,

Boland began communicating with Younger via Twitter. In the fall

of 2008, Boland attended a seminar at which Younger was a

presenter. On December 12, 2008, Boland was hired to a position

in the Technological Hazards Secti on, and was assigned a desk

about ten feet from YoungerÓs office. They interacted in April

2009 , regarding flooding in Hamilton County, Florida. There is

no evidence that, at the time of YoungerÓs hiring recommendation

of Boland, their familiarity with o ne another was anything but

work related.

8. The Planner II position to which Boland was hired was

classified as a career service position. As such, Boland was

subject to a one - year probationary period during which the

employee may be separated without the right to appeal through the

career service process.

9. In late June 2009, shortly after Boland was hired, she

and Younger attended a social dinner together. The dinner was

held in conjunction with an Incident Management Team meeting in

Crystal River .

10. By September 2009, Boland was having personal

discussions with Younger about details of her private life,

including that she was separated from her husband and was

thinking about starting to date other men. Ms. Boland testified

that her separation was, by that time, common knowledge around

the DEM.

11. By early November, 2009, Younger and Boland had begun

walking together during their lunch breaks. During those walks,

Younger and Boland discussed, among other things, private

conversations Younge r had been having with his wife.

12. In November 2009, Younger and Boland traveled to the

Crystal River area for business related to the Crystal River

nuclear power plant and a proposed Levy County nuclear power

plant. They drove down together the day b efore scheduled

activities, and stayed the night at a hotel in the area. They

dined together that evening. Ms. Chasteen, who was also

scheduled to attend the meetings, chose to drive separately the

following morning.

13. At some point in November 2009, Mrs. Younger picked

Younger up from work, and proceeded to drive through the DEM

parking lot. Younger testi fied, unconvincingly, that

Mrs. YoungerÓs drive through the parking lot was merely to give

his son a better look at some emergency vehicles parked nearby.

In any event, Boland expressed concern over her action,

perceiving it as threatening, and discussed Ðtactical actionsÑ

with Younger in the event Mrs. Younger showed up at their

workplace.

14. On November 30, 2009, Younger and Boland drove to

Orl ando, Florida to attend a series of training programs, task

force meetings, and a FEMA Region IV Conference. The activities

spanned a period of two weeks, fro m November 30, 2009 to

December 11, 2009. Ms. Chasteen, who was involved in parts of

the schedul ed activities, stayed in Tallahassee for the first

part of the trip. Younger and Boland elected to stay in Orlando

over the intervening weekend.

15. During the intervening weekend, Mrs. Younger discovered

a series of Twitter messages from Younger direct ed to Boland.

Some of the messages included the abbreviated term ÐIAU,Ñ which

Mrs. Younger took to mean ÐI adore you,Ñ but which Younger

testified meant Ðin another universe.Ñ The tweets are not in

evidence, and their context cannot be ascertained. Rega rdless,

Mrs. Younger proceeded to send a series of three tweets to Boland

from YoungerÓs Twitter account. Boland took the first two tweets

as harassment, and the third as a threat. Later that evening,

Mrs. Younger called Younger and demanded that he retu rn to

Tallahassee. He did not.

16. The next morning, Sunday, December 6, 2009, Younger and

Boland were driving from a mee ting back to their hotel.

Mrs. Younger was waiting for them in the parking lot with the

coupleÓs children. Having parked away fr om Mrs. Younger so as to

avoid a confrontation between her and Boland, Younger went to

speak with his wife. She expressed concerns over the messages

exchanged between Younger and Boland, and Ðfelt compelledÑ to say

that she was attempting to save their ma rriage. She shouted at

Boland from across the parking lot, but made no other attempts to

engage her.

17. Mrs. Younger stayed at the hotel that evening. She

again indicated to Younger that she was trying to save their

marriage. Mrs. Younger returned to Tallahassee the next day.

Younger and Boland remained in Orlando for the conclusion of the

events.

18. Mrs. Younger returned to Orlando at the scheduled

conclusion of the training and picked up Younger. Younger

testified that he did not ask Mrs. Y ounger to pick him up, and

stated his belief that it was a waste of fuel for her to drive to

Orlando and back. He further testified that Mrs. Younger did not

say why she returned to Orlando to pick him up, and he apparently

did not ask.

19. Although B oland felt threatened by Mrs. YoungerÓs

actions, neither Younger nor Boland reported the threatening

communicati ons or actions to anyone at DEM . The reasons given

were that there was no reason to believe BolandÓs fears at the

time were Ðsubstantiated,Ñ th at YoungerÓs supervisor, Shanti

Smith, was a Ðgossip,Ñ and that based on YoungerÓs previous

training and experience as a law enforcement officer, he

perceived there to be no imminent threat arising from any of the

events.

20. In mid - December, 2009, Young er advised his wife that he

was attending an office party at the home of Ms. Keenan. Younger

did not attend the party. He instead had dinner with Boland,

during which they discussed matters pertaining to his personal

life.

21. On or about January 6, 20 10, Younger travelled with a

co - worker, Lou Ritter, to a task force, training, and response

team meeting in West Palm Beach. They returned on the evening of

January 8, arriving in Tallahassee after dark. Younger asked

Mr. Ritter to drop him off at Boland Ós residence, rather than at

his own house. His professed -- but unconvincing -- reason for

being droppe d off at BolandÓs after a three - day out - of - town trip

was that he needed to return a book to her.

22. During the month of January, 2010, Younger spe nt Ða

couple of nightsÑ at BolandÓs residence. One of those overnight

visits occurred while Mrs. Younger was hospitalized for suicidal

thoughts. Mrs. YoungerÓs mother was taking care of YoungerÓs

children that evening, though Younger did not know where t hey

were staying. There was no explanation as to why Mrs. YoungerÓs

hospitalization was a reason for Younger to sleep over at

BolandÓs house. The reason for the second January sleepover was

not revealed.

23. On January 19, 2010, Younger asked to meet w ith

Mr. Helms, the DEM Personnel Officer. The purpose of the meeting

was to determine how one might accommodate a hypothetical

situation where a supervisor is interested in dating a

subordinate employee. Younger indicated that it was an

Ðexploratory meet ingÑ designed merely to inquire about

possibilities Ðdown the road.Ñ Younger testified that when he

arranged the meeting, he had not considered whether he wanted to

engage in a relationship with Boland. However, he knew that it

would be improper for a su pervisor to have a relationship with a

subordinate in the chain of command.

24. Younger and Boland discussed the meeting and its

purpose beforehand, and discussed the substance of the meeting at

length after it occurred, though neither claimed to have specific

recollection of their discussions. Boland understood that there

would have to be a restructuring of the DEM organizational chart

to accommodate a relationship with Younger.

25. During the meeting with Mr. Helms, Younger asked, as a

Ðhypotheti cal question,Ñ what options were available to a

supervisor who wanted to date a subordinate employee. He

testified that he did not reveal that his inquiry was directed

towards a relationship with Boland, because at the time it was

not something he was pur suing. Given the circumstances and

events leading up to the January 19 meeting, and the fact that he

and Boland had prior discussions about the meeting and its

purpose, YoungerÓs testimony that the meeting was entirely

hypothetical seems contrived.

26. Mr. Helms identified the problems associated with a

supervisor having a relationship with a subordinate. Those

problems included ethical issues, issues of judgment,

implications as to the fairness of evaluations and assignments,

the perceptions of other employees regarding preferential

treatment, and the possibility that the agency could be exposed

to liability for sexual harassment if the relationship soured.

Mr. Helms indicated in no uncertain terms that if a relationship

with a subordinate was a possi bility, Younger should Ðget out in

front of the situation.Ñ By that, Mr. Helms meant that Younger

should disclose the relationship before it started, and seek

accommodation within the DEM organizational structure. Mr. Helms

stressed that waiting until th e relationship commenced would

entail serious consequences. Mr. Helms memorialized the meeting

on his calendar, but had no intention to reveal the meeting

unless it subsequently came to light that Younger was engaged in

a relationship that was not disclos ed.

27. On January 22, 2010 , Younger testified that Shanti

Smith approached him in the breezeway between their office

buildings and asked him if he knew about BolandÓs Ðfreaky sex

life.Ñ The context in which the statement was made was not

described. Yo unger testified that the comment made him

uncomfortable, and that he did not respond. Younger did not

disclose the comment to anyone at the DEM until March 23, 2010 ,

when he was faced with dismissal. He testified that he feared

retaliation if he complain ed, but identified no instance of that

having occurred p reviously.

28. On January 24, 2010, Younger and Ms. Smith travelled to

Miami for work related to the Haiti earthquake relief. At no

time during the drive to Miami or back to Tallahassee did Younger

make any exploratory inquiries as to how Ms. Smith, his direct

supervisor, might respond to a potential desire by a member of

her staff to date a subordinate because, according to Younger,

Ðthat was not on the radar at that time.Ñ However, Younger did

re veal that he and his wife were having marital difficulties.

29. At some point prior to February 6, 2010, Mrs. Younger

directly confronted Younger with her suspicion that he was

carrying on an intimate relationship with Boland. On Saturday,

February 6, 2 010, Mrs. Younger asked Younger to leave the marital

home, which he did. Younger testified that he was not

financially capable of staying at a hotel. Although Younger had

lived in Tallahassee his entire life, he apparently had no

friends or family that h e could turn to for temporary lodging.

Thus, despite Mrs. YoungerÓs belief that Boland was a cause of

the marital collapse, and despite the fact that Boland was his

direct subordinate, Younger determined that the only viable place

for him to stay was at B olandÓs house. He arrived at her house

on the evening of February 6. She immediately took him in, and

he ended up staying full - time.

30. Upon returning to work on February 8, 2 010, Younger

told no one at DEM of his new living arrangement, his reason

being that he did not Ðbelieve there was a policy that required

[him] to do that.Ñ Younger also testified that because of his

busy travel schedule, it was difficult to get everyone involved

in the same place to relate the information regarding his moving

to BolandÓs house. He did not want to discuss the matter over

the telephone, as the telephone is Ðsometimes less than

reliable.Ñ

31. Younger, as BolandÓs direct supervisor, was charged

with completing her performance evaluation. BolandÓs evaluation

cov ered her period of employment from her June 19, 2009 , hire

date to February 28, 2010. The evaluations were due 60 days from

February 28, 2010. Younger testified that, at some time prior to

March 15, 2010, he decided that he would not evaluate BolandÓs

pe rformance because of fears that his objectivity could be

compromised. He did not relate that decision to anyone at the

DEM until questions about his relationship with Boland began to

surface.

32. On or about March 15, 2010, it came to the attention of

M s. Smith and Ms. Keenan that Petitioners were regularly driving

to work together. Ms. Keenan instructed Ms. Smith to discuss

whether Younger could find someone else to car - pool with, as

regularly car - pooling with a subordinate created an appearance to

oth er employees of impropriety and potential favoritism.

33. Ms. Smith asked Younger about the car - pooling

arrangement with Boland. On direct inquiry from Ms. Smith,

Younger denied that he and Boland were Ðliving together.Ñ He

testified that he believed h is answer to be accurate since he

maintained that his living arrangement with Boland was as friends

and, in his mind, Ðliving togetherÑ connoted co - habitation.

Approximately one hour later, and having had second thoughts

about his answer, Younger came to Ms. SmithÓs office and admitted

that he was living at BolandÓs house. Ms. Smith indicated that

the arrangement was unacceptable, and that Younger should move to

another location. It was at or about that time that Younger

revealed his intent to decline to evaluate BolandÓs job

performance.

34. When Ms. Smith reported back to Ms. Keenan, it was with

the information that Petitioners were living under the same roof.

Ms. Keenan determined that, even if the relationship were

strictly platonic, it served to cloud the supervisor/subordinate

relationship. Therefore, she asked Ms. Smith to discuss the

matter with Petitioners to ask that they make alternate

accommodations.

35. On March 17, 2010, Young er made a travel request to

Ms. Keenan for Boland to attend REP training on nuclear

regulation from March 22 - 26, 2010. The travel request was made

by telephone. The travel request did not go through Ms. Smith,

which would have been the normal protocol. Younger testified

that Ms. Smith was out of the office that day, that he did not

know where she was, and that he did not know if he could make the

travel request to her by telephone. No explanation was provided

as to why it was acceptable to make a telephonic travel request

to Ms. Keenan, but not to Ms. Smith.

36 . The DEM was under travel restrictions, which led

Ms. Keenan to ask Ms. Smith if the travel request was legitimate.

Ms. Smith determined that Ms. Chasteen was originally scheduled

to attend the training course on her own. When Ms. Chasteen had

to cance l her attendance for medical reasons, Younger contacted

Ms. Keenan to amend the travel request to authorize Boland to

attend. In addition, though h e did not intend to go when

Ms. Chasteen was scheduled to take the training, Younger decided

to accompany Bo land to the training in order to ÐauditÑ the

course. The course was the same as that attended by Petitio ners

during their November 30 - December 11, 2009 , Orlando trip, and

attended again by Younger in January 2010. However, Younger

testified that the De cember course was a ÐpilotÑ version of the

training, and that it was sufficiently different from that being

offered in March to justify their attendance again. Why Younger

believed his attendance was not warranted when Ms. Chasteen was

scheduled to take t he training, but was warranted when Boland was

substituted for Ms. Chasteen, was not explained.

37. When advised of the circumstances surrounding

PetitionersÓ travel, Ms. Keenan began to sort the Ðdata pointsÑ

that increasingly pointed to Petitioners be ing involved in a

personal relationship. At that time, the points include d the

car - pool issue, the house - sharing issue, and now the travel

issue. She thereupon requested the DEM Chief of Staff to cancel

PetitionersÓ travel request, and to advise Mr. Helms of the

situation.

38. On or about March 19, 2010, Ms. Smith met with

Mr. Helms to discuss PetitionersÓ si tuation. Ms. Smith advised

Mr. Helms of the car - pooling, the living arrangements, and the

fact that Younger had initially denied that he was l iving at

BolandÓs house. During their conversation, Mr. Helms disclosed

the details of his January 19, 2010 meeting with Younger.

Ms. Smith related the information regarding the January 19, 2010,

meeting to Ms. Keenan.

39. Upon being advised of the Jan uary 19, 2010 meeting,

which she considered to be an additional Ðdata point,Ñ Ms. Keenan

met with Ms. Smith and Mr. Helms. She determined that

Petitioners would have the opportunity to meet with management

and describe the circumstances of their relations hip. If

Petitioners denied the existence of a personal relat ionship,

Ms. Keenan would take that information and consider a solution.

If Petitioners admitted to a relationship, Ms. Keenan determined

that there were three possibilities: dismissal, demotion , or

resignation. Although Ms. Keenan ultimately consulted with other

persons in the DEM, including the acting Chief of Staff, Angela

Peterson, and the interim Director, David Halstead, the evidence

demonstrates that the selection of which option would be

implemented was to be Ms. KeenanÓs alone.

40. Ms. Keenan developed a script that she intended to read

from at the March 22, 2010 , meeting so as not to leave anything

out.

41. Late in the afternoon of March 22, 2010, Petitioners

met with Ms. Keenan, Ms . Smith, and Mr. Helms. Ms. Keenan,

reading from her script, asked Petitioners if they were engaged

in a personal relationship. Boland answered immediately that

they were. Younger initially remained silent, but subsequently

admitted that he and Boland w e re in a personal relationship. 2 /

Both stated that they meant to come to Ms. Keenan earlier, but

that their busy schedules prevented everyone from getting

together. Ms. Keenan was unimpressed with that explanation,

since she had a well - understood open - do or policy; since she made

it clear that if any manager had an issue, they would be

accommodated; and since all managers, including Younger, had a

state - issued Blackberry and Ms. KeenanÓs cell phone number.

42. Ms. Keenan stripped Younger of his supervi sory duties,

presented Petitioners with the options of resignation or

dismissal, and gave them until noon on March 23, 2010 , to decide.

43. After the March 22, 2010 , meeting, Boland decided that

she would submit her resignatio n. She asked to speak with

Ms. Keenan and Mr. Helms on the morning of March 23, 2010, and

advised them of her decision. Boland testified that it was her

choice to resign. She admitted that she and Younger were in a

serious relationship, but that the relationship developed after

sh e was hired in the Planner II position. She told Ms. Keenan

that she was sorry to have placed her in a bad situation as a

result of her relationship with Younger, and regretted that they

had not handled the situation better. She stated that she hoped

the DEM would keep Younger because he was important to the

program. She reiterated that it had not been her intent to

deceive anyone at DEM about her relationship with Younger.

44. Ms. Keenan did not direct Boland to resign, but

suggested that if resigna tion was her decision, she speak with

Mr. Helms for assistance in drafting a letter. Ms. Keenan then

left the meeting.

45. Mr. Helms and Ms. Smith determined the process for

Boland to turn in her state - issued equipment. By 9:00 p.m. on

March 23, 2010, Boland submitted h er letter of resignation to

Ms. Keenan. Although March 23, 2010 , was her last day in the

office, her final day was set as April 2, 2010. By allowing that

to be her last day, Boland was able to use some accumulated leave

that she would n ot have been paid for due to her probationary

status, and would receive an additional full month of health

insurance coverage. That severance date was, under the

circumstances, a reasonable and generous accommodation on the

part of the DEM.

46. Also dur ing the morning of March 23, 2010, and after

BolandÓs meeting, Younger met with Ms. Keenan and Mr. Helms. He

advised them that he did not intend to resign. He reiterated

that he had not intended to deceive anyone, but explained that he

was a perfectionis t and had not yet found the perfect time to

reveal the relationship. At the March 23, 2010 , meeting, Younger

disclosed, for the first time, Ms. SmithÓs Ðfreaky sex lifeÑ

comment allegedly made on January 22, 2010. Given the lack of

materiality of the sta tement to any issue in this proceeding, and

the hearsay nature of the testimony, no finding is made as to

whether Ms. Smith actually made that comment or not.

47. On March 25, 2010, Younger again advised Ms. Keenan

that he was not going to resign, but would let the decision -

making process run its course. Younger reiterated that he had

not meant to deceive Ms. Keenan about the relationship.

48. Ms. Keenan determined that the totality of the

circumstances -- especially the fact that Younger had discu ssed

the issue of a superior/subordinate relationship with Mr. Helms

in January, 2010, but ignored Mr. HelmsÓ advice and instruction -

- created significant doubt as to YoungerÓs judgment and

managerial integrity. The REP Program is one of the most

sensiti ve in the agency. Having lost all confidence in YoungerÓs

ability to effectively serve in the program, Ms. Keenan decided

to dismiss Younger from his position. She asked Mr. Helms to

relate her decision to Younger. Mr. Helms told Younger of

Ms. KeenanÓs decision, and advised him that he still had the

option to resign by noon on March 26, 2010.

49. On the morning of March 26, 2010 , Younger submitted his

letter of resignation to Ms. Keenan. His final day was set as

April 16, 2010 , so that he could use s ome accumulated leave for

which he would not otherwise have been paid. That severance date

was, under the circumstances, a reasonable and generous

accommodation on the part of the DEM.

50. Ms. Keenan, as the decision - maker for the DEM in this

matter, te stified that her decision to accept the resignations of

Petitioners or, had they not done so, to dismiss Petitioners, was

based solely on what she considered to be an improper personal

relationship between a supervisor and a subordinate. She

testified tha t she did not initiate or take any action based on

the marital status of either Petitioner. She further testified

that she did not initiate or take any action based on BolandÓs

female gender or YoungerÓs male gender. Her decision would have

been unaffect ed regardless of whether Petitioners were single,

married, or divorced, and regardless of whether the gender roles

had been reversed. Ms. KeenanÓs testimony was credible, clear,

and convincing, and is accepted by the undersigned.

Comparators

51. The only evidence of other DEM personnel who were in

ÐcomparableÑ circumstances, but who were treated differently than

Petitioners, involved Denise Imbler, a DEM Community Program

Manager, and Donald Kunish, a DEM Planning Manager and

Ms. ImblerÓs direct subordina te. They were in their

supervisor/subordinate organizational positions from September

2001 until September 30, 2003.

52. At some point in their professional relationship,

Ms. Imbler and Mr. Kunish developed an attraction for one

another. Before ac ting on their mutual attraction, Ms. Imbler

and Mr. Kunish went to their Bureau Chief, Eve Rainey, to try and

work out an arrangement that would allow them to date one another

without running afoul of supervisor/subordinate ethical

considerations. At the time of the request, Craig Fugate was the

Director.

53. Since Ms. Imbler and Mr. Kunish disclosed their intent

before acting on it, the DEM was willing to try and accommodate

their request. A number of options were considered to sever the

supervisor/sub ordinate relationship, including transfers to

different positions, and up to the resignation of one of them.

After some consideration, the decision was made that an

organizational change could be made that called for Mr. Kunish to

report directly to Ms. R ainey. Thus, Ms. Imbler would no longer

be Mr. KunishÓs supervisor, eliminating the DEMÓs concerns of

ethics and managerial integrity. The organizational change was

implemented on October 1, 2003.

54. After the organizational change was made, Ms. Imbl er

and Mr. Kunish began to see one another on a personal level.

Since their personal issues had been revealed and resolved well

beforehand, there were no adverse employment actions resulting

from their relationship.

55. Both Ms. Imbler and Mr. Kunish wer e single, as opposed

to being married but separated, thus leading Petitioners surmise

that they were treated differently than persons outside of their

protected class due to their ma rital status. In addition,

Ms. Imbler, the supervisor, was female while M r. Kunish, the

subordinate, was male, as opposed to the other way around, thus

suggesting to Petitioners that they were treated differently due

to their sex.

56. Ms. Imbler and Mr. Kunish did not report to the same

supervisors as did Petitioners. Ms. Im bler and Mr. Kunish did

not engage in conduct similar to the Petitioners. Ms. Imbler and

Mr. Kunish were open, direct, and forthcoming with the DEM, and

took action before commencing their relationship to prevent

adverse inferences as to their ethics and integrity. In short,

the situation involving Ms. Imbler and Mr. Kunish was materially

dissimilar from that of Boland and Younger. Their conduct, and

the DEMÓs reaction to it, is distinguishable and therefore

inapplicable as a comparator.

Ultimate Findi ngs of Fact

57. In this case, Ms. KeenanÓs decision to take

disciplinary action against Petitioners was based entirely on the

realistic and good faith belief that Younger, a supervisor, and

Boland, a subordinate employee, were carrying on a personal

rela tionship without advising the DEM. Whether the suspicion was

accurate or not is not the issue. Ms. Keenan thought it was

accurate. Even if mistaken in her belief, a personal

relationship between a supervisor and a subordinate raises issues

of judgment a nd managerial integrity, as well as ethical issues

of preferential treatment, assignments, and performance

evaluations that reflect on both Younger and Boland. Those

issues were sufficient to warrant Ms. KeenanÓs, and thereby the

DEMÓs, decision to seek a nd accept PetitionersÓ resignations.

58. There was no competent, substantial evidence adduced at

the hearing that any persons who were not members of the

Petitioners Ó protected classes, i.e., having the marital status

of being separated, and having their respective genders, were

treated differently from Petitioners, or under similar

circumstances were not subject to similar adverse employment

actions.

59. There was n ot a scintilla of evidence introduced at the

hearing that PetitionersÓ marital status or sex had anything to

do with their being discharged by the DEM, and it is expressly

found that those factors formed no basis for the discharge of

either Petitioner.

CO NCLUSIONS OF LAW

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

(2011), grant DOAH jurisdiction over the subject matter of this

proceeding and of the parties.

61. Section 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

62. Petitioners advance two claims. First, they maintain

that DEM discriminated against them on account of their marital

status as Ðseparated.Ñ Second, Petitioners each claim th at the

DEM discriminated against them on account of their sex, being

female for Boland and male for Younger.

63. Section 760.11(1) provides that Ð[a]ny person

aggrieved by a violation of ss. 760.01 - 760.10 may file a

complaint with the [FCHR] within 365 d ays of the alleged

violation . . . .Ñ Petitioners timely filed their complaints.

64. Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 h as occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any suc h request must be made

within 35 days of the date of determination of reasonable cause.

. . .Ñ Following the FCHR determination of no cause ,

Petitioners timely filed their Petitions for Relief requesting

this hearing.

65. Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Florida Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

North America, LLC. , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State

Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't

of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

66. Petitioners have the burden of proving by a

preponderance of the evidence that the DEM committed an unlawful

em ployment practice. See St. Louis v. Fla. Int'l Univ. , 60 So.

3d 455 (Fla. 3 rd DCA 2011); Fla. Dep't of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

67. Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v .

GlobeGround North America, LLC. , 18 So. 3d at 22. 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 ÐÒonly the most blatant remarks,

whose intent could be nothing othe r than to discriminate. . .Ó

will constitute direct evidence of discrimination.Ñ Damon v.

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

Cir. 1999)(citations omitted).

68. Petitioners presented no direct or statistical evidence

of disc rimination by the DEM in its decision to dismiss

Petitioners.

69. In the absence of any direct evidence of discriminatory

intent, Petitioners must rely on circumstantial evidence of such

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

(1973) , and as refined in Texas DepÓt of Cm ty . Aff . v. Burdine ,

450 U.S. 248 (1981) and St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993), the United States Supreme Court established the

procedure for determining whether employment discrimination has

occurre d when employees rely upon circumstantial evidence of

discriminatory intent.

70. Under McDonnell Douglas , Petitioners have the initial

burden of establishing a prima facie case of unlawful

discrimination. To establish their prima facie case under

s ecti on 760.10(1)(a), Petitioners must prove that: (1) they were

members of a protected class; (2) that they were qualified for

their jobs; (3) that they were subject to an adverse employm ent

decision; and (4) similarly - situated employeeÓs outside the

Petitione rsÓ protected class were treated more favorably.

McDonnell Douglas Corp. v. Green , at 802; Texas DepÓt of Cmty.

Aff. v. Burdine , at 252 - 253; Burke - Fowler v. Orange Cnty . , Fla. ,

447 F.3d 1319, 1323 (11th Cir. 2006); Valenzuela v GlobeGround

North America, LLC. , 18 So. 3d at 22.

71. If the Petitioners are able to prove their prima facie

case by a preponderance of the evidence, the burden shifts to

the employer to articulate a legitimate, non - discriminatory

reason for its employment decisio n. Texas DepÓt of Cm ty . Aff.

v. Burdine , 450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So.

2d 1183 (Fla. 1 st DCA 1991). The employer has the burden of

production, not persuasion, to demonstrate to the finder of fact

that the decision was non - discrimin atory. DepÓt of Corr. v.

Chandler , supra. This burden of production is "exceedingly

light." Holifield v. Reno , 115 F.3d 1555, 1564 (11 th Cir.

1997); Turnes v. Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11 th

Cir. 1994).

72. If the employer produces evide nce that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a

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

509 U.S. at 516 - 518. In order to satisfy this f inal step of the

process, Petitioners must Ðshow[] directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v .

Chandler , 582 So. 2d at 1186, citing Tex. Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256 . The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

( citations omitted) Holifield v. Reno , 115 F.3d at 1565.

73. The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful discriminatory intent. As set forth by the

Eleven th Circuit Court of Appeals, Ð[t]he employer may fire an

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

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

is not for a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall

CommcÓns , 738 F.2d 1181, 1187 (11th Cir. 1984). In a proceeding

under the Civil Rights Act, Ð[w]e are not in the business of

adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a cha llenged employment decision.Ñ Damon v.

Fleming Supermarkets of Fla., Inc. , 196 F.3d at 1361. Moreover,

Ð[t]he employerÓs stated legitimate reason . . . does not have to

be a reason that the judge or jurors would act on or approve.Ñ

DepÓt of Corr. v. Cha ndler , 582 So. 2d at 1187.

Prima Facie Case

74. The Petitioners failed to prove a prima facie case

that their dismissal by the DEM was motivated by discriminatory

intent based either on their marital status or their gender.

75. The undersigned is wil ling to accept that both

Petitioners are members of protected classes by virtue of their

genders. Although Younger is male, he can be considered as a

member of a protected class, since the term Ðse xÑ in s ection

760.10 is a general term that in everyday us age can mean either

male or female. See Gen. Dynamics Land Sys. v. Cline , 540 U.S.

581, 597 - 598 (2004); Oncale v. Sundowner Offshore Servs. , 523

U.S. 75 (1988).

76. The undersigned is also willing to accept that

PetitionerÓs status as being separated fr om their respective

spouses puts them as members of a protected class. See Donato

v. American Telephone and Telegraph Co. , 767 So.2d 1146, 1155

(Fla. 2000 ) (Ðwe hold that the term Òmarital statusÓ as used in

section 760.10 of the Florida Statutes means the state of being

married, single, divorced, widowed or separated. . . .Ñ) .

77. Both Petitioners established that they were qualified

to hold their positions by virtue of their being hired to, and

holding those positions. See Damon v. Fleming Supermarkets of

Fla., Inc. , 196 F.3d at 1360 (Ð. . . plaintiffs, who have been

discharged from a previously held position, do not need to

satisfy the McDonnell Douglas prong requiring proof of

qualification. . . . [I]n cases where a plaintiff has held a

position for a significant period of time, qualification for

that position sufficient to satisfy the test of a prima facie

case can be inferred.Ñ)(citations and internal quotation marks

omitted).

78. Both Petitioners suffered an adverse employment action,

in that th ey were each compelled to resign in the face of pending

dismissal. 3 /

79. Where Petitioners have failed in the establishment of

their prima facie case is their complete and abject failure to

demonstrate that persons not in their protected classes were

tre ated differently in comparable situations. As established by

the Fifth District Court of Appeal :

ÐIn determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

ar e involved in or accused of the same or

similar conduct and are disciplined in

different ways.Ñ The employee must show

that she and the employees outside her

protected class are similarly situated Ðin

all relevant respects.Ñ Thus, Ðthe quantity

and quali ty of the comparator's misconduct

[must] be nearly identical to prevent courts

from second - guessing employers' reasonable

decisions and confusing apples with

oranges.Ñ

Similarly situated employees Ðmust have

reported to the same supervisor as the

plaintif f, must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to the

plaintiff's, without such differentiating

conduct that would distinguish their conduct

or the appropriate disci pline for it.Ñ If a

plaintiff fails to present sufficient

evidence that a non - protected, similarly

situated employee was treated more favorably

by the employer, the defendant is entitled

to summary judgment. (Citations omitted)

Valenzuela v GlobeGround North America, LLC. , 18 So. 3d at 22 -

23.

80. Ms. Imbler and Mr. Kunish, whom Petitioners identified

as the only comparators, shared few similarities with

Petitioners. Therefore, Petitioners have failed to prove a prima

facie case of discrimination, and their petitions for relief

should be dismissed.

Legitimate, Non - discriminatory Reason

81. Assuming, for the sake of argument, that Petitioners

made a prima facie showing (which they did not), the burden would

shift to the DEM to proffer a legitimate non - discriminatory

reason for its action, which at this stage is a burden of

production, not a burden of persuasion. Holland v. Washington

Homes, Inc. , 487 F.3d 208, 214 (4 th Cir. 2007).

82. The DEM met its burden by producing credible, clear,

and convinc ing testimony and documentary evidence of its

reasonable and good faith belief that Petitioners were engaged in

an undisclosed personal relationship, and that the relationship

adversely affected managementÓs belief in PetitionersÓ judgment,

truthfulness, a nd integrity. The DEM furthermore proved that the

disciplinary action of dismissing Petitioners was due solely to

those reasons, and not to reasons of sex or marital status.

Although the DEMÓs burden was light, the evidence showing its

reason to be legit imate and non - discriminatory was overwhelming.

Therefore, even if Petitioners had met their burden of

establishing a prima facie case of discrimination, the DEM has

refuted such prima facie case by proffering a legitimate non -

discriminatory reason for Pet itionersÓ constructive dismissal.

Pretext

83. Assuming again, for the sake of argument, that

Petitioners made a prima facie showing, then upon DEMÓs

production of evidence of a legitimate non - discriminatory reason

for its action, the burden shifted ba ck to Petitioners to prove

by a preponderance of the evidence that DEMÓs stated reasons

were not its true reasons, but were a pretext for

discrimination. To do this, Petitioners would have to Ðprove

Ò both that the reason was false, and that discrimination was the

real reasonÓ for the challenged conduct.Ñ Jimi nez v. Mary

Washington Coll . , 57 F.3d 369, 378 (4th Cir. 1995) , citing

St. Mary's Honor Center v. Hicks , 509 U.S. at 515. (emphasis in

original). To show pretext, Petitioners Ðmust be afforded the

Òopportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.ÓÑ Reeves

v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000)

(citations omitted). Petitioners could accomplish this goal Ðby

showing that the employer's proffered explanation is unworthy of

credence.Ñ Texas De pÓ t of Cmty. Aff. v. Burdine , 450 U.S. at

256 .

84. The only evidence of pretext produced by Petitioners

consisted of complaints of a ÐgossipyÑ supervisor who

(allegedly) once made an inappropriate comment about Boland,

concerns by the ÐgossipyÑ supervisor about YoungerÓs job

performance, inconsequential assumptions as to the PetitionersÓ

marital status expressed during the March 22, 2010 , meeting, and

minor discrepancies in the sequence of events surrounding

PetitionersÓ dismissal. None of the e vidence supports a finding

or a conclusion that the DEMÓs proffered explanation was false,

nor does it support an inference that the explanation was

pretextual.

Conclusion

85. The DEM put forth uncontested evidence that

Petitioners were discharged becaus e they were engaged in an

unethical personal relationship that called their judgment and

integrity into question. Whether Petitioners were actually

engaged in such a relationship, as opposed to just Ðcar -

poolingÑ, is irrelevant, because the DEM believed t hey were so

engaged. Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel

decisions,Ñ such as the decision to discharge an employee for

uneth ical conduct. See Holland v. Washington Homes, Inc. , 487

F.3d at 220. Because Boland and Younger failed to put forth any

credible evidence that the DEM had some discriminatory reason

for discharging them, their petitions must be dismissed.

RECOMMENDAT ION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

a) that the Florida Commission on Human Relations issue a

final order finding that Respondent, Division of Emergency

Management , did not commit any unlawful employmen t practice as

to Petitioner, Anne Boland, and dismissing the Petition for

Administrative Hearing filed in FCHR No. 2011 - 1065, DOAH Case

No. 11 - 5198; and

b) that the Florida Commission on Human Relations issue a

final order finding that Respondent, Divisi on of Emergency

Management , did not commit any unlawful employment practice as

to Petitioner, Michael Younger, and dismissing the Petition for

Administrative Hearing filed in FCHR No. 2011 - 1066, DOAH Case

No. 11 - 5199.

DONE AND ENT ERED this 26th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 26th day of January , 2012 .

1/ Due to a reorganization of the DEM , the Bureau of Compliance

and Planning was renamed as the Bureau of Preparedness, effective

July 1, 2010. However, when the organizational bill passed the

legis lature earlier in 2010, the DEM immediately began to

internally refer to the bureau as the Bureau of Preparedness.

Thus, exhibits and testimony that refer to the Bureau of

Preparedness are deemed to apply equally to the Bureau of

Compliance and Planning.

2/ During their testimony, Petitioners disputed that they

admitted to a ÐpersonalÑ relationship at the March 22, 2010 ,

meeting, and testified that Ms. Keenan ac tually asked if they

were involved in an ÐinappropriateÑ relationship. Petitioners

testified that they admitted to an ÐinappropriateÑ relationship,

but believed it related only to their car - pooling. Given the

events that had transpired since November 30, 2009, culminating

with the fact that Petitioners had been living under the same

roof for more than 6 weeks, even if Ms. Keenan used the word

ÐinappropriateÑ instead of Ðpersonal,Ñ PetitionersÓ testimony

that they did not understand Ms. KeenanÓs questions to be related

to whether they were engaged in a relationship of a more intimate

nature than a car - pool is not credible, and is not accepted. The

most persuasive evidence is that Ms. Keenan asked Petitioners

directly whether they were engaged in a personal relationship, to

which Boland, and eventually Younger, admitted they were.

3/ At the conclusion of the March 22, 2010 , meeting, Boland and

Younger were faced with an order to resign or be fired. Having

little or no choice in the matter, Petitioners chos e to salvage

what dignity they could, and submitted letters of resignation

that did not burn bridges on the way out. The undersigned

accepts the argument that, given the circumstances, the decisions

were not voluntary, but were constructive discharges. A s stated

by the First District Court of Appeal:

Under federal case law appellantÓs

resignation would be considered a

constructive discharge, meaning that a person

may be deemed discharged if the words and

actions of the employer would logically lead

a pru dent person to believe his tenure had

been terminated. NLRB vumbull Asphalt

Company , 327 F.2d 841 (8 th Cir. 1964); Jack

Thompson Oldsmobile v. NLRB , 684 F.2d 458

(7 th Cir. 1982); Young v. Southwestern S&L

Association , 509 F.2d 140 (5 th Cir. 1975).

Le Dew v. Unemplmt. App. CommÓn , 456 So. 2d 1219, 1223 - 1224 (Fla.

1st DCA 1984). Accepting the resignations as constructive

discharges supports a conclusion that Petitioners were subject to

adverse employment decisions as a result of their relationship.

Suc h a finding does not mean, however, that the adverse

employment decisions were the result of unlawful discrimination.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, F lorida 32301

Anne Boland

Post Office Box 10253

Tallahassee, Florida 32302

Michael S. Younger

Post Office Box 503

Tallahassee, Florida 32302

Gretchen Kelley Brantley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Flo rida 32399

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.