11-005203 Reginald Burden vs. Winn-Dixie Corporation Status: Closed Recommended Order on Monday, June 17, 2013.

Summary: Petitioners failed to establish that their employment with Winn-Dixie was terminated due to race or gender discrimination, or a retaliatory motive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGINALD BURDEN,

Petitioner,

vs. Case No. 11 - 5203

WINN - DIXIE CORPORATION,

Respondent.

_______________________________

DONALD ROCKHOLD,

Petitioner,

vs. Case No. 11 - 5204

WINN - DIXIE CORPORATION,

Respondent.

/

RECOMMENDED ORDER

Pur suant to notice, a formal hearing was held in

Jacksonville, Florida , on July 27, 2012, October 17, 2012,

December 12 - 14, 2012, and January 23, 2013 , 1 / befo re W. David

Watkins , the duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nah - Deh Simmons, Esquire

The Gregory Law Firm

Post Office Box 41083

Jacksonville, Florida 32203

For Respondent: Karen Ibach Bowden, Esquire

Taylor, Day, Grimm, Boyd and Johnson

Suite 3500

50 North Laura Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Did Respondent, Winn - Dixie Corporation (Winn - Dixie ) ,

discriminate against Petitioner s on account of t he i r race or

sex , or retaliate against Petitioners in violation of chapter

760, Florida Stat utes ?

PRELIMINARY STATEMENT

Petitioners filed charges of discrimination with the

Florida Commission on Human Relations ( FCHR) on February 9,

2011, claiming that Winn - Dixie had discriminated against them on

the basis of their race and gender , and had reta liated against

them. The FCHR rendered a "No Cause" determination in both

cases on July 26, 2011.

On August 3 1 , 2011, Petitioners each filed a Petition for

Relief requesting an administrative hearing regarding the FCHR's

"No Cause" determination pursuan t to Fl orida Stat ute 760.11(7).

On December 15, 2011, the undersigned issued an Order of

Consolidation to consolidate the two matters. On Apri l 6, 2012,

Petitioners filed a m otion requesting the undersigned to remand

these matters to the FCHR and forego t he final h earing, which

Winn - Dixie opposed. Both parties briefed the issue, and on

April 13, 2012, the undersigned denied the Motion to R emand.

The final hearing was convened as noticed on July 27, 2012 ,

but was not completed . Additional days of hearing took place on

October 17, 2012, December 12 through 14, 2012, and January 23,

2013. As previously noted, the July and October hearings were

held by video teleconference and the others were in person in

Jacksonville, Florida. The parties agreed the evide nce

presented would be applicable to both cases except as to the

issue of damage s.

At hearing, Petitioners testified on their own behalf.

Additional witnesses called by Petitioners and Respondent

included Jayson Kielar (Petitioners' former supervisor), R obert

Scott ( Winn - Dixie h uman r esources m anager), Stacy Brink (Winn -

Dixie associate relations s pecialist), Frank Butler

(Petitioners' former co - worker), and Rick Jones (Petitioners'

former co - w orker). Petitioners' Exhibits 1 through 7 and

Responde nt's Exh ibits 1 through 10 , and 12 were admitted into

evidence.

At the conclusion of the hearing, the parties agreed to

file their proposed recommended orders within 20 days of the

filing of the official transcript . The transcript of the final

hearing was filed on March 25, 2013.

On the afternoon of April 15, 2013, the agreed deadline for

the filing of proposed recommended orders, successor counsel 2 /

for Petitioners filed a M otion for E xtension of T ime, seeking an

extension of the filing deadline to May 6, 2013 . This request

was opposed by Respondent, since its Proposed Recommended Order

had been timely filed that afternoon, creating concern that if

an extension were granted, Petitioners would have an unfair

advantage in the preparation of their proposed recomme nded

order. Over Respondent's objection , the undersigned granted the

requested extension. However, Respondent was given leave to

file a brief supplemental proposed order w ithin 10 days from

Petitioners' filing in order to minimize any prejudice that may

have resulted from the filing extension .

Notwithstanding the extension of time granted to

Petitioners, no proposed recommended order was filed on their

behalf as of the May 6, 2013 , deadline. However, one week

later, on May 13, 2013, Petitioners' Propose d Recommended Order

was filed with the Division. The late - filed Proposed

Recommended Order immediately precipitated the filing of a

Motion to Strike by Winn - Dixie on the grounds it was untimely.

No response to the M otion to S trike was filed by Petitioner s.

On May 21, 2013, the undersigned entered an Order denying

the M otion to S trike Petitioners' Proposed Recommended Order but

at the same time extending by seven days the period within which

Winn - Dixie was permitted to file a brief supplemental response

t o Petitioners' filing. On May 30, 2013, Winn - Dixie filed a

supplemental proposed order in response to Petitioners' filing.

The Proposed Recommended Order s submitted by Petitioners

and Respondent , as well as Winn - Dixie's response to Petitioners'

Proposed Recommended Order, have all been carefully considered

in the preparation of this Recommended Order.

All citations are to Florida Statutes (201 1 ) unless

otherwise indicated.

FINDINGS OF FACT

Based up on the demeanor and credibility of the witness es

and other evidence presented at the final hearing and on the

entire record of this proceeding, the following findings of fact

are made:

1 . Petitioners , Reginald Burden (Burden) and Donald

Rockhold (Rockhold) were co - workers and Warehouse Supervisors

for the night shift at Winn - Dixie's General Merchandise

Distribution (GMD ) facility on Edgewood Avenue in Jacksonville ,

Florida. At the time of their termination from Winn - Dixie ,

Rockhold had worked for Winn - Dixie for almost ten years and

Burden for fourteen year s.

2 . In March 2009 , Rockhold's supervisor , Mark Murray

(Murray) received an anonymous letter accusing Rockhold (a / k/a

Rocco) of being unable to control his libido and attempting to

" sleep with as many women under him as possible, married or

single. " Mu rray showed the letter to his immediate supervisor,

Operations Manager Jayson Kielar (Kielar) , who in tu rn showed it

to his supervisor, Distribution Center Manager Robert Stewart

(Stewart) .

3 . Contrary to Winn - Dixie policy, the existence of the

letter ac cusing an employee of sexual harassment was not

immediately brought to the attention of the Winn - Dixie Human

R esources (HR) office . According to Kielar, Stewart did no t

inform HR because he was afraid someone wou ld be fired.

Instead, it was decided the m atter would be handled internally

at the GMD . Stewart and Kielar informally questioned Rockhold,

who denied all of the allegations in the letter. Kielar

questioned Stewart's decision not to involve HR, but beca use

Stewart was his boss, he capitulated.

4 . In December 2009, Winn - Dixie received a second, similar

anonymous letter complaining about rampant sexual ha rassment in

the GMD. This time, however, Peter Lynch, Winn - Dixie's CEO also

received a copy. Entitled "Gross Abuse of Power Winn - Dixie Sex

Camp ," the letter contained lurid accusations of sexual

misconduct and named Rockhold as the worst abuser. The letter

also accused several other male supervisors, namely Burden

(a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of

sexually harassing female employees.

5 . Winn - Dixie immediately launched an investigation to

determine whether the allegations were accurate. Robert Scott

( an African - American male), Tanya Kornegay ( an African - American

female), and Stacy Brink ( a white female) interviewed numerous

GMD employees and obtained written witness statements. Rockhold

was interviewed twice ( January 18 and 25, 2010 ) and Burden once

(January 18, 2010) .

6 . During the course of the investigation, it became

evident that many of the more sordid accusa tions of overt sexual

misconduct in the letters were false or unsubstantiated.

However, the investigation did reveal violations by Petitioners

of Winn - Dixie 's "Written Company Policy Statement on Harassment,

Including Sexual and Racial Harassment . " That Statement

provides in relevant part:

The company will not tolerate any

harassment that degrades or shows hostility

towards an individual because of race, color

religion, sex, national origin, age or

disability, including, but not limited to

slurs, jok es , verbal abuse, stereotyping,

threats, intimidation, hostile acts, or

denigrating or hostile written or graphic

material circulated or posted in the Company

premises. Anyone who violates these

guidelines will be subject to termination.

* * *

3. Management at all levels is

responsible for reporting and taking

corrective action to prevent harassment in

the work place.

* * *

The following conduct, especially by

managers, can be as serious (or even more

serious) than harassment itself:

- Ignori ng or conc e aling harassment, or

treating it as a joke.

- Failing to report known harassment.

- Retaliating against associates

reporting or complaining of

harassment.

- Being dishonest or refusing to

cooperate with a harassment

investigation.

7 . With respec t to Rockhold, the investigation revealed

that Rockhold had heard racial slurs and racially inappropriate

remarks among employees but failed to take any disciplinary

ac tion or report the harassment to HR. One employee complained

that Rockhold observed Afr ican - American and white employees

using the words "nigger" and "cracker" in the workplace. In

addition, another employee complained that Rockhold ignored a

co - worker saying, "If you come back in Middleburg, we'll show

you how we used to do them black boys back in the days."

8 . At hearing, Rockhold acknowledg ed that he hear d GMD

employees calling each other "nigger" or "cracker." He stated

that he "called them out on it." He explain ed his failure to

take any formal disciplinary action by stating , "It wa sn't

malicious. It was the n - word between black guys being thrown

back and forth as a nickname." According to Rockhold, h e didn't

think it was inflammatory in that context and was merely their

vernacular.

9 . The investigation also revealed allegations from

several employees that Burden made inappropriate sexual comments

toward female employees. These included witness statements from

John Mason, Tamm y Underwood, Amber Brown and Frank Butler.

Burden was reported as saying one female employee had "big

tit ties," and telling another female employee that she looked

good in her jeans, that Burden could "handle" her , and when was

she going to let him be the one for her, and that she didn't

need to mess with the young guys because he (Burden) could

please her be tter in the bedroom. One GMD employee testified at

hearing that he was present when Burden told a group of

employees that he thought a particular female employee had "nice

tits."

10 . Petitioners knew Wi n n - Dixie did not tolerate sexual or

racial harassme nt in the workplace, and they were tas ked with

making sure the environ ment was not one where employees felt it

would be tolerated. Both Petitioners received sexual and racial

harassment training as part of their leadership training.

11 . Winn - Dixie's emp loyment policies emphasize the

importance of supervisors' roles as leaders and the importance

of not giving the impression to employees that it is acceptable

to make inappropriate jokes in the workplace. Moreover, a

supervisor has a duty to act when obser ving harassing behavior

in the workplace. The failure to act communicates to

subordinates the company condones or tolerates the behavior .

12 . As a result of the investigation, Winn - Dixie decided

to terminate Petitioners' employment. Several members of Winn -

Dixie 's management (male, female, white and African - American)

were involved in making this decision . One of those involved in

making the decision testified that the group never discussed or

considered Petitioners' gender in their decision to terminat e

Petitioners' employment.

13 . The termination notice s given to Petitioners are

identical, and read as follows: "As the result of an anonymous

letter received in early January 2010 , addressed to Peter Lynch,

a thorough investigation was conducted relativ e to alleged

allegations of inappropriate comments by Associates regarding

sexual and racial comments in the presence of management in the

Jax - GMD Warehouse. The investigation clearly identifies you as

a willing participant or lack of effective execution of the

proper protocol established through management training (Duty to

Act) to address inappropriate comments from Associates as

required by Winn - Dixie's Policy in your Supervisor position."

14 . At hearing, Rockhold described his job as " being his

life, other than his children. " He also testified that being

falsely accused of sexual misconduct or ignoring employees who

engaged in sexual or racial misconduct, then being fired, ruined

his life. He " poured his heart and soul into the company " and

testifie d that no one had ever come to him, as a supervisor,

with any kind of a problem with regard to sexual or racial

misconduct.

15 . Burden testified that he believed that Robert Scott

(African - American male) was the one that made the decision to

terminate hi m , not Jayson Kielar (white male) since Kielar had

written a letter of recommendation for Burden after he was

terminated. Burden testified that he believed he was terminated

because he was a man accused of sexual harassment and that

somebody had to take t he responsibility for the false

allegations.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569 and 120.57(1) , Florida

Statutes .

Race and Sex Discrimination Claims

17 . Petitioners claim they were discriminated against by

Winn - Dixie because of their race and sex (male) , in violation of

the Florida Civil Rights Act of 1992 ("FCRA " ). Petitioners also

allege that their firing was a retaliatory a ct by Winn - Dixie .

18 . Section 760.10(1)(a), Flor ida Statutes , makes it

unlawful for an employer to take adverse action against an

individual because of the individual's race or sex. Under the

FCRA, an employer commits an unlawful employment practice if it

terminates or retaliates against employees based on their

protected status, which in thi s case, are race and gender. See

§ 760.10(1)(a) , Fl orid a Stat utes .

19 . Sect ion 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before the Division of Administrative Hearings. "If the

administrative law judge finds that a violation of the Florida

Civil Rights Act of 1992 has occurred, he or she shall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay." Id .

20 . Florida's c hapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently, Florida

courts lo ok to federal case law when interpreting c hapter 760.

Valenzuela v GlobeGround N . Am . , LLC. , 18 So. 3d 17 (Fla. 3rd

DCA 2009).

21 . Petitioners claim disparate treatment (as opposed to

disparate impact) under the FCRA; in other words, they claim

they we re treated differently because of their race and gender.

Petitioner s ha ve the burden of proving by a preponderance of the

evidence that Resp ondent discriminated against them . See Fla .

Dep't of Transp . v. J.W.C. Co . , 396 So. 2d 778 (Fla. 1st DCA

1981). A party may prove unlawful race and sex discrimination

by direct or circumstantial evidence. Smith v. Fla. Dep't of

Corr. , Case No. 2:07 - cv - 631, ( M.D. Fla. May 27, 2009); 2009 U.S.

Dist. LEXIS 44885 ( M.D. Fla. 2009).

22 . Direct evidence is evidence, th at, "if believed,

proves [the] existence of [a] fact in issue without inference or

presumption." Burrell v. Bd . of Tr . of Ga. Military College ,

125 F.3d 1390, 1393 (11th Cir. 1997). Direct evidence consists

of "only the most blatant remarks, whose intent could be nothing

other than to discriminate" on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir.

1989).

23 . The record in this case did not establish unlawful

race or gender discrimination by direct evidence.

24 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v . GlobeGround N . Am . , LLC. , supra . Facts that are

sufficient to establish a prima facie case must be adequate to

permit an inference of d iscrimination. Id .

25 . Accordingly , Petitioners must prove discrimination by

indirect or circumstantial evidence under the McDon nell Douglas

framework. Petitioners must first establish a prima facie case

by showing: ( 1 ) they are a member of a protected class; (2) they

were qualified for the job; (3) they were subjected to an

adverse employment action; and (4) other similarly - situa ted

employees, who are not members of the protected group, were

treated more favorably than Petitioners. See McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 802 (1973). "When comparing

similarly situated individuals to raise an inference of

discriminator y motivation, these individuals must be similarly

situated in all relevant respects." Jackson v. BellSouth

Telecomm. , 372 F.3d 1250, 1273 (l1th Cir. 2004).

26 . Thus, in order to establish a prima facie case of

disparate treatment based on gender , Petiti oners must show that

Winn - Dixie treated similarly - situated female employees

differently or less severely. Valdes v. Miami - Dade Coll. , 463

Fed. Appx. 843, 845 (11th Cir. 2012); Camara v. Brinker Intern. ,

161 Fed. Appx. 893 (11th Cir. 2006). See also Longa riello v.

Sch . Bd. Of Monroe Cnty . , Fla. , 987 F. Supp. 1440,1449

(S.D.Fla.1997) (quoting Coleman v. B - G Maint . Mgmt . of Colo . ,

Inc. , 108 F.3d 1199, 1204 (10th Cir.1997) ) ("Gender - plus

plaintiffs can never be successful if there is no corresponding

subclass of members of the opposite gender. Such plaintiffs

cannot make the requisite showing that they were treated

differently from similarly - situated members of the opposite

gender."). Similarly, to support a claim of race

discrimination, Petitioners must est ablish that similarly

situated Winn - Dixie employees of a different race were treated

differently or less severely.

31 . The findings of fact here are not sufficient to

establish a prima facie case of discrimination based on gender

or race . Petitioners fa iled to identify any other similarly -

situated females who were treated more favorably. Indeed , there

was no mention of any female in a remotely similar supervisory

position at Winn - Dixie. Instead, Petitioners focused solely on

other male employees whom t hey believed were treated more

favorably, namely Murray, Turner and Kielar , who were also

accused of sexual harassment in the anonymous December letter

and whom Petitioners thought should have been terminated.

32 . With respect to the claim of race discri mination,

there is no evidence in this record to support the allegation

that either Petitioner was treated differently than other

similarly situated employees because of his race. To the

contrary, the fact that both Petitioners were night - shift

supervisor s at the GMD, one African - Amer ican and the other

white, undermines the ir race discrimination claim.

33 . Winn - Dixie presented ample evidence to support its

position that Petitioners were fired for legitimate,

nondiscriminatory reasons. Burden was termina ted for making

inappropriate sexual comments to employees and Rockhold was

terminated for allowing racial and sexual comments to be made in

his presence without taking corrective/disciplinary action.

34 . Petitioners spent a significant amount of effort

a ttempting to analyze and challenge the methodology, accuracy,

substance, thoroughness and results of Winn - Dixie's internal

investigation. However, it has been consistently held that the

c ourt's role is to prevent unlawful employment practices and

"not to act as a super personnel department that second - guesses

employers' business judgments." Wilson v. B/E Aerospace, Inc. ,

376 F.3d 1079, 1092 (11th Cir. 2004). An employee cannot

succeed by simply quarreling with the wisdom of the employer's

reason. Chapma n v. AI Transp. , 229 F.3d 1012 (l 1 th Cir. 2000);

see also Alexander v. Fulton Cnty . , Ga . , 207 F.3d 1303, 1341

(lIth Cir. 2000) ( "[I]t is not the court's role to second - guess

the wisdom of an employer's decisions as long as the decisions

are not racially mo tivated.") .

35 . Petitioners repeatedly attempted to establish that

Winn - Dixie did not consistently apply its own policies,

particularly its anti - nepotism and progressive discipline

policies. F or example, Petitioners went to great lengths to try

to estab lish that several male managers had been sexually

involved and subsequently married a co - worker or subordinate.

Even if true , however, those allegations are completely

irrelevant to Petitioners' gender discrimination claims. Winn -

Dixie never claimed it discharged either Petitioner for engaging

in a sexual relationship with a co - worker. Moreover, the only

purported exceptions to the policy in question were other male

supervisors. There was no evidence that females were permitted

to violate the anti - nepo tism policy while males were not.

36 . Essentially, Petitioners ' position is that their

term ination was unfair. Both Petitioners asserted at hearing

that following receipt of the second anonymous letter, Winn -

Dixie management was under pressure "to do so mething to

somebody . " Regardless of whether Rockhold and Burden unfairly

became the victims of a Winn - Dixie witch - hunt, c ourts have

repeatedly held an employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts or for

no reason at all, as long as its action is not for a

discriminatory reason . Elrod v. Sears, Roebuck & Co. , 939 F.2d

1466, 1470 (11th Cir. 1991); Nix v. WLCY Radio/Rahall Cmmc'ns ,

738 F.2d 1181, 1187 (11th Cir. 1984); see also Damon v. Fleming

Supermarkets of Fla . , Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999)

("We 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 challenged

employment decision .").

37 . The evidence of record does not support Petitioners'

theory that they were fired for discriminatory reasons. There

is no evidence that either Petitioner was fired because of his

race or gender. Rather, the greater weight of the evidence

establ ished that both Petitioners were fired for violating Winn -

Dixie 's policy prohibiting sexual and racial harassment: Burden

for making inappropriate sexual comments to fellow employees;

and Rockhold for tolerating racial and sexual comments in his

presence. There is no credible evidence that the stated reasons

for the terminations were a pretext for racial or gender

discrimination.

Retaliation Claim

38 . Petitioner s also assert a claim of unlawful

retaliation , evidently based upon the fact that they were

i nterviewed as part of Winn - Dixie 's internal investigation and

denied any wrongdoing .

39 . "It is an unlawful employ ment practice for an

employer. . .to discriminate against any person because the

person has opposed any practice which is an unlawful empl oyment

p ractice 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."

§ 760.10(7), Fla. Stat.

40 . Section 760.10(7) is identical to the language found

at 42 U.S.C. s ection 2000e - 3(a), with the exception that the

paragraph begins, "It is" in the Florida version and begins, "It

shall be" in the Federal version. The difference in the first

few words has no effect on the meaning of the statutes .

41 . "Under the opposition clause, an employer may not

retaliate against an employee because the employee 'has opposed

any practice made an unlawful employment practice by this

subchapter.' 42 U.S.C. § 2000e - 3(a). And, under the

p articipa tion clause, an employer may not retaliate against an

employee because the employee 'has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.' Id. "

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

2000).

42 . "The statute's participation clause 'protects

proceedings and activities which occur in conjunction with or

after the filing of a formal charge with the EEOC.' . . . The

opposition clause, on the other ha nd, protects activity that

occurs before the filing of a formal charge with the EEOC, such

as submitting an internal complaint of discrimination to an

employer, or informally complaining of discrimination to a

supervisor." Muhammad v . Audio Visual Servs. Grp . , 380 Fed.

Appx. 864, 872 (11th Cir. Ga. 2010) (quoting Total Sys. Servs. ,

221 F.3d at 1174) ) ; see a lso Rollins v. State of Fla. Dep't of

Law Enf . , 868 F.2d 397, 400 (11th Cir. 19 89).

43 . This record is devoid of any evidence that Petitioner s

ever "m ade a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing" prior to

their termination from employment. Prior to f iling their

charges with the FCH R, neither Petitioner complained of any

discrimination or o pposed any discriminatory action. In fact,

it was quite the opposite: Petitioners failed to stop and at

times even participated in the racial slurs and sexual

jokes/statements that occurred at the GMD. Accordingly,

Petitioner s cannot establish a retalia tion claim under the

statute's participation clause as a matter of law.

44 . "To establish a prima facie case of retaliation under

Title VII, Plaintiff 'must show that: (1 ) [she] engaged in

statutorily protected activity; (2) [she] suffered a materially

a dverse action; and (3) there was a causal connection betw een

the protected activ ity and the adverse action.' " Root v. Miami -

Dade Cnty . , 2010 U.S. Dist. LEXIS 117811 at *11 (S.D. Fla.

Aug. 6, 2010) (quoting Howard v. Walgreen Co. , 605 F.3d 1239,

2010 WL 19 04966, at * 5 (11th Cir. 2010)) ; see also Goldsmith v.

Bagby Elevator Co. , 513 F.3d 1261, 1277 (11th Cir. 2008).

45 . The first element of Petitioners ' prima facie case of

retaliation under the opposition clause requires the m to

establish that t he y engaged in statutorily protected opposition

conduct. To do so, Petitioner s must show that t he y opposed

conduct by the employer based upon an objectively reasonable

belief that the employer was engaged in unlawful employment

practices. See , e .g. , Harper v. Block buster Ent. Corp. , 139

F.3d 1385, 1388 (llth Cir. 1998); Brown v . Sybase, Inc. , 287 F.

Supp 2d 1330, 1346 - 47 (S.D. Fla. 2093).

46 . In addition, Petitioner s must show that the decision -

maker responsible for the adverse action was actually aware of

the emp loyee's prote cted opposition at the time the d ecision

maker took the adverse action. See Brown , 287 F. Supp 2d at

1347; see also Brungart v. BellSouth Telecomm., Inc. , 231 F.3d

791, 799 (11th Cir. 2000); Holifield v. Reno , 115 F.3d 1555,

1566 (11th Cir. 1 997). A court will not presume that a decision

maker was motivated to retaliate by something unknown to him or

her. See Brungart , 231 F.3d at 799. Thus, in order to

constitute protected opposition activity, Petitioner s must, at

the very least, communica te their belief that illegal

d iscrimination is occurring. See Webb v. R & B Holding Co. , 992

F. Supp. 1382, 1389 (S.D. Fla. 1998) ("It is not enough for the

employee merely to complain about a certain policy or certain

behavior . . . and rely on the emplo yer to infer that

d iscrimination has occurred."); see a lso Johnson v. Fla. , 2010

U.S. Dist . LEXIS 42784, 4 - 5 (N.D. Fla. Mar. 30, 2010).

47 . Petitioner s failed to establish their prima facie case

of retaliation under the opposition clause. There is no

credible evidence that either Petitioner ever complained about

discrimination or in any manner opposed what he believed to be

unlawful conduct during his employment.

48 . The s o le basis for Petitioners ' claim of retaliation

is that they were engaged in pr otected activity by the mere fact

that they were interviewed as part of Winn - Dixie's internal

investigation and denied any wrongdoing. This argument is

unsupported by law or logic . Denying allegations of sexual

harassment does not constitute "participati ng in an

investigation" of discrimination. If that were the case, the

whole purpose of investigating allegations of discrimination

would be defeated as no employer could ever terminate someone if

he or she denied the discriminatory conduct being investiga ted.

Petitioner s did not e ngage in any protected activity, and t he y

therefore failed to establish the first prong of a prima facie

case of retaliation .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at the Florida Commission on Human

Relations dismiss the Petition s for Relief from an Unlawful

Employment Practice filed against Respondent .

DONE AND ENTERED this 1 7 th day of June , 201 3 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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

Divis ion of Administrative Hearings

this 1 7 th day of June , 201 3 .

ENDNOTES

1 / The July and October hearings were held by video

teleconference; the others were in person.

2 / By Order dated April 5, 2013, Nah - Deh Simmons , Esquire , wa s

recognized as counsel of record for Petitioners Burden and

Rockhold in substitution for Lisa Lovingood Kelly. Previously,

by Order dated March 12, 2013, Karen Ibach Bowden , Esquire, was

recognized as counsel of record for Winn - Dixie in subs titut ion

for Latasha Garrison - Fullwood.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Karen Ibach Bowden, Esquire

Taylor, Day, Grimm, Boyd and Johnson

Suite 3500

50 North Laura Street

Jacksonville, Florida 32202

Nah - Deh Simmons, Esquire

The Gregory Law Firm

Post Office Box 41083

Jacksonville, Florida 32203

Cheyanne Costilla, Interim Gen eral Co unsel

Florida Commission on Human Relations

Suite 100

200 9 Apalachee Parkway

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 file d with the agency that

will issue the Final Order in this case.