12-001182 Victoria Carter vs. At And T Corp. Status: Closed Recommended Order on Wednesday, February 13, 2013.

Summary: Petitioner failed to establish a prima facie case of employment discrimination; accordingly, the Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTORIA CARTER , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1182

)

AT AND T CORP. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before Administrative Law Judge W. David Watkins of the Division

of Administrative Hearings, on October 24, 2012, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Neil L. Henrichsen, Esquire

Henrichsen Siegel, P . L . L . C .

1648 Osceola Street

Jacksonville, F lorida 32204

For Respondent: Anthony Hall, Esquire

Melanie Zaharias, Esquire

Littler Mendelson, PC

Suite 1250

111 North Magnolia Avenue

Orlando, F lorida 32801

S TATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was subjected

to discrimination by retaliation in violation of the Florida

Civil Rights Act (FCRA), sections 760.01 - 760.11, Florida

Statutes . 1 /

PRELIMINARY STATEMENT

On September 20, 2011 , Petitioner filed an employment

complaint of discrimination with the Florida Commission on Human

Relations (FCHR), alleging that Respondent had retaliated against

Petitioner because she filed an Equal Employment Opportunity

Commission (EEOC) Charge and in ternal complaints with Respondent

alleging sex discrimination. Thereafter, FCHR conducted an

investigation, and on February 27, 2012, issued its determination

of Ðno cause.Ñ Dissatisfied with the outcome of the FCHR

investigation, Petitioner timely filed a Petition for Relief,

alleging that she was the victim of unlawful retaliation

committed by Respondent, and requesting an administrative

hearing. On April 2, 2012, FCHR forwarded the petition to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a formal administrative

proceeding.

Pursuant to notice, the formal administrative hearing was

held on October 24, 2012. At the hearing, Petitioner testified

on her own behalf and presented the testimony of Diane Smith,

Marty E. Snipes, James Morris, and Amy Topnick. PetitionerÓs

Exhibits 2 - 8, 11 - 14, 16 - 23, 26 - 28, and 30 were received into

evidence. Respondent presented the testimony of Albert Miller.

RespondentÓs Exhibits 5, 12, 14, 22, 25 - 29, 31, 33, and 34 w ere

received into evidence.

At the conclusion of the final hearing, the parties

stipulated that proposed recommended orders would be filed within

20 days of the filing of the one - volume official transcript with

the Division, which occurred on December 17, 2012. However,

Petitioner subsequently filed a request for extension of time for

the parties to file their proposed recommended orders, and that

request was granted, without objection. Thereafter Petitioner

and Respondent timely filed Proposed Recommend ed Orders, both of

which have been carefully considered by the undersigned in the

preparation of this Recommended Order.

FINDING S OF FACT

Based on the testimony and documentary evidence presented at

hearing, the demeanor and credibility of the witnesses, and on

the entire record of this proceeding, the following findings of

fact are made:

Background

1 . Petitioner , Victoria Carter (Petitioner or Ms. Carter) ,

began her employment with AT&T on July 28, 2008, as a Directory

Advertising Sales Representative (D ASR). As a DASR, it was

Ms. CarterÓs responsibility to grow advertisement sales to AT&TÓs

current customer base as well as sell advertising to new

customers. Prior to the DASR position, Petitioner's 20 - year

employment career had been entirely in sales.

2. Petitioner's initial training with AT&T consisted of a

three - month program in Atlanta, Georgia, called the University of

Excellence. Petitioner successfully completed this training.

3. AT&T holds four advertising sales ÐcampaignsÑ per year.

The obj ective of each campaign is to sell advertisements and

create new business in a specified geographic area. Each campaign

ha s three to four teams, which consist of six to eleven DASRs.

Each team is led by an area sales manager (ASM) .

4. Following her com pletion of training in Atlanta,

Petitioner went to work in sales campaigns from October 2008,

through the summer of 2009. These campaigns focused on

advertising sales to customers in the Gainesville, Jacksonville,

Jacksonville Beach , and Palatka, Florida , markets.

5. Petitioner was successful as a DASR early on in her

career with AT&T. She landed a large account, Emergency Dental,

which elevated her into the PresidentÓs Club, in recognition of

outstanding sales.

6. Petitioner received congratulatory l etters from the

Southeast Regional Vice President of Sales for AT&T in August

2009, for exceeding her sales objectives on the Jacksonville and

Jacksonville Beach campaigns.

7 . Also in 2009, Petitioner was awarded a Perfect Customer

Quality Award (Silver Ranking) which was signed by several high -

ranking AT&T executives, including Regional Sales Manager Matt

Currey.

Petitioner's Employment Under ASM Morris

8. In November 2009, Petitioner was switched to the

Jacksonville campaign, which was led by James "A l" Morris.

Mr. Morris selected Petitioner to be on his team because of her

successful sales record. Mr. Morris was PetitionerÓs direct

supervisor from November 2009, until the end of the Jacksonville

campaign in June 2010.

9. In November 2009, Mr. Morr is advised Petitioner (and the

other DASRs) that due to the rollout of new computer software and

the attendant training they would not be permitted to go into the

field to sell to existing customers until late January 2010.

Instead, the team sales reps we re only to sell to non - billing

(new) accounts from November 2009, through January 2010.

10. From the outset of their relationship, Mr. Morris

observed that Petitioner did not want to follow AT&T policies and

procedures. Moreover, Petitioner did not demo nstrate a

willingness to be self - sufficient, or a desire to learn the

information systems to effectively do her job.

11. Mr. Morris observed that Ms. Carter wanted other DASRs

to do her work for her, including Elliott Hartman. Mr. Hartman,

who was on an entirely different team than Petitioner and did not

report to Mr. Morris, would on occasion enter PetitionerÓs work

into the system for her . This was a clear violation of AT&T

policy as DASRs were required to process their own paperwork.

Consistent wi th this policy Mr. Morris did not permit any of his

team members, much less someone not on his team, to key in

information for other DASRs. Accordingly, Mr. Morris instructed

Mr. Hartman not to enter in PetitionerÓs work for her.

12. In December 2009, P etitioner sought and obtained a

restraining order against Terry Hartman, Elliott Hartman's wife.

As stated by Petitioner in the Charge of Discrimination she filed

with the FCHR/EEOC on December 31, 2009, the restraining order was

necessary because:

In app roximately May 2009, a coworker's wife

began stalking me and making delusional and

completely false accusations pertaining to my

having more than a working relationship with

her husband. In late November or early

December of 2009, the situation had become so

stressful and frightening that I was forced to

seek a restraining order against the woman.

(Petitioner's Ex. 3)

13. Notwithstanding the above statement, made under penalty

of perjury, Petitioner admitted at hearing to having had a sexual

relationshi p with Mr. Hartman that lasted approximately one year.

14. Prior to the issuance of the restraining order

Petitioner had informed the AT&T human relations department that

she was being stalked by M r s. Hartman. On the day the restraining

order was issue d, December 3, 2009, Petitioner also spoke with the

General Manager, Matt Currey , and Mr. Morris about the situation

with the co - workers wife.

15. Following her conversation with Mr. Morris and

Mr. Currey on December 3, 2009, Petitioner perceived that sh e was

suddenly treated very differently by Mr. Morris. For example,

during the campaign review held that same day, Mr. Morris "was

basically yelling" at Petitioner, and a co - worker was instructed

not to assist Petitioner with entering information into the new

computer system.

16. According to Petitioner, in the middle of December 2009,

Mr. Morris and Mr. Currey also yelled at Petitioner over the

telephone. During this communication, she was directed to

immediately return to the office for the Ð YP Connec t Ñ training

test that she had previously scheduled to take after her Christmas

vacation. Petitioner informed them that she could not immediately

return to the office because her automobile had a flat tire. In

response, Mr. Morris and Mr. Currey directed Petitioner to take a

picture of the flat tire to corroborate her story. However, since

Petitioner did not have a camera, upon her return to the office

she presented a receipt for the tire repair as proof.

17. Petitioner ultimately completed the YP Conne ct test on

January 4, 2010, and received a score of D. Of the 31 DASR's who

had taken the test as of January 4, 2010, 15 (nearly 50%) received

scores of D or lower. Of the 15 DASRs who received a score of D

or lower, 11 were males. There is no credib le evidence in this

record that Petitioner's test was graded in an unfair or

discriminatory manner.

18. As part of the Jacksonville campaign, Emergency Dental,

the large account that helped put Petitioner in the PresidentÓs

Club, became one of Ms. Carter Ós assigned accounts. According to

the testimony of Mr. Morris, which is credible, Petitioner

provided Emergency Dental terrible customer service. As a result,

the client became very upset with Petitioner because she failed to

meet his requests or follow - up with him. Emergency Dental even

requested that Ms. Carter not handle their account, and

accordingly, PetitionerÓs ASM, Mr. Morris, had to service the

account. Emergency Dental ultimately received a very large

adjustment for PetitionerÓs failure to pr ocess the ir paperwork

properly and for errors in its ads.

19. Petitioner also had issues using General Manager

Overrides (GMOs) as a sales tool. GMOs are discounts on

advertising pricing that can only be offered with manager

approval, and were to be use d sparingly. DASRs are not permitted

to offer discounts prior to manager approval.

20. Mr. Morris approved all but two of PetitionerÓs GMOs.

The first involved Concrete Advantage, wherein Ms. Carter called

Mr. Morris to approve a specific discount, wh ich he did. However,

when Petitioner arrived back at the office, it became apparent

that Ms. Carter had offered Concrete Advantage a larger,

unapproved discount, which was outside of Mr. Morris's approval

authority. The second GMO denial occurred with An derson

Insurance, wherein Petitioner took it upon herself to offer an

81 percent discount off of the display ad and a total discount of

65 percent . Again, this discount was beyond Mr. MorrisÓ authority

and required vice president approval before a DASR could offer it.

However, Petitioner nonetheless offered the discounts before

receiving the necessary approval. Notwithstanding Petitioner's

unauthorized discount offers, both of these GMOs were eventually

approved by Mr. Currey in order to maintain good client relations.

21. Petitioner's Charge of Discrimination dated December 31,

2009, was mailed to AT&T on January 14, 2010. In her Charge,

Petitioner alleged that she was treated differently after telling

Mr. Morris about the restraining order against Ms. Hartman.

Specifically, Petitioner alleged: (1) Mr. Morris would not allow

Mr. Hartman to assist with closing accounts; (2) her requested

GMOs were not approved; and (3) Mr. Morris requested that Carter

return to the office to take the YP Connect test, but Petitioner

had a flat tire and Mr. Morris asked that she take a picture of

the flat tire. All three of these allegations relate to incidents

that occurred prior to December 31, 2009.

22. On January 7, 2010, Petitioner lodged an internal

complaint with AT&TÓs ethics hot line. In the complaint

Petitioner alleged that she was being Ð subjected to constant

criticism, micro - management and intense scrutiny of sales

contracts by managers. Ñ Petitioner also alleged that she was

being treated differently fr om her male co - workers, including that

she was Ð the only person required to take the YP Connect test

immediately, even though there were other team members, including

Premise Representative Scott Trimbull, and Elliot Hartman, who had

not yet completed the test. Ñ 2 / Mr. Morris and Mr. Currey were

specifically named in PetitionerÓs internal ethics complaint.

Notably, this complaint also included the statement that

Petitioner was being stalked by M r s. Hartman, who was making

Ð delusional statements Ñ about a pe rceived relationship between

Petitioner and Mr. Hartman.

23 . The internal complaint was investigated by AT&T and

closed as unsubstantiated. The report found that the managers

charged in the complaint (Morris and Currey) were Ð performing job

responsibili ties ensuring policies and procedures are not being

violated. Ñ (Petitioner's Ex. 2)

24 . According to Petitioner, following her FCHR/EEOC charge

and her internal ethics complaint, PetitionerÓs work continued to

be micromanaged and scrutinized. In additi on, Mr. Morris would

speak with Petitioner in a very hostile tone of voice, and she

would sometimes walk out of his office shaking, distraught and

taken aback by his behavior. According to Petitioner, Mr. MorrisÓ

demeanor was very angry and Ðvery, very ho stile, talking down to

[Petitioner].Ñ On one occasion Diane Smith, who worked with

Petitioner and Mr. Morris in the same office, observed Mr. Morris

calling Petitioner into his office and being vocal and

condescending with her. Ms. Smith also observed th at Petitioner

exited the office and appeared Ðpretty shaken up.Ñ

25 . On February 19, 2010, Petitioner filed a grievance with

her union, Communications Workers of America (CWA) Local 3106,

alleging she was being subjected to a hostile work environment.

N o specific factual allegations were included with the grievance,

just that Petitioner was being subjected to Ð discrimination,

harassment and inequity of treatment. Ñ However, at hearing

Petitioner testified that she filed the grievance because she

disagree d with Mr. MorrisÓ decision not to approve a GMO for two

accounts, Concrete Advantage and Anderson Insurance. The

grievance was later retracted by Petitioner Ð per agreement between

Matt Currey, GM and Elliott Hartman, CWA. Ñ

26 . On May 12, 2010, Petition er filed another grievance with

her union because she had received a written warning for failing

to follow Respondent's Ð reporting out Ñ policy.

27 . Petitioner filed a final grievance to receive pay for

attending a prior grievance meeting. In response t o this

grievance Mr. Miller agreed to pay Petitioner and all other

affected DASRs for their time at the meeting.

28. After the conclusion of the Jacksonville campaign in

June 2010, Petitioner was not supervised by Mr. Morris again.

Petitioner's Employmen t Under ASM Amy Topnick

29 . Following the Jacksonville campaign PetitionerÓs next

assignment was the Palatka campaign. ASM Amy Topnick selected

Petitioner for the Palatka campaign because Petitioner was a

former peer and friend. Ms. Topnick and Petitio ner started as

DASRs at approximately the same time in 2008. Ms. Topnick did

not speak with Mr. Morris about Petitioner before selecting her

for the campaign, and Ms. Topnick was unaware of PetitionerÓs

December 31, 2009 , Charge of Discrimination.

30 . A fter the Palatka campaign began, Ms. Topnick spoke

with Mr. Morris about her team's composition, including

Petitioner. Mr. Morris told Ms. Topnick that Petitioner had

struggled in her position during the Jacksonville campaign and

needed to be monitored fo r accuracy. Following this conversation

with Mr. Morris, Ms. Topnick explained to Petitioner that this

campaign would be PetitionerÓs chance to Ð redeem herself Ñ from

her past problems with the computer system and with her sales.

31 . The Palatka campaign lasted from June 18, 2010, until

August 3, 2010. According to Ms. Topnick's testimony, which is

credible, PetitionerÓs performance during the Palatka campaign

was Ð dismal, at best. Ñ Specifically, Petitioner did not handle

her accounts; she did not keep track with the pacing of her

accounts; and she did not follow - up with her clients. In

addition, Ms. Topnick discovered that Petitioner did not know the

pricing plan; was unable to maneuver through RespondentÓs

computer applications in order to perform her job; failed to

prep are for her accounts; failed to set appointments on a timely

basis; and failed to properly answer customer queries. As a

result of these serious shortcomings, Ms. Topnick had to handle a

majority of PetitionerÓs accounts.

32 . Althou gh Petitioner received the credit for her

accounts during the Palatka campaign, Ms. Topnick credibly

testified that she, not Ms. Carter, actually handled the

accounts. In August 2010, Albert Miller replaced Mr. Currey as

PetitionerÓs General Manager. Pet itioner does not allege that

Mr. Miller discriminated or retaliated against her.

33. Following the Palatka campaign, Petitioner worked on the

Gainesville campaign and continued to report to Ms. Topnick. The

Gainesville campaign lasted until September 20 10. In September

2010, Ms. Topnick had issues with Petitioner calling out without

following the proper procedures.

34. Consistent with AT&T procedure, Ms. Topnick advised the

Human Relations department of the problem she was having with

Petitioner not complying with company procedure. In response,

Petitioner claimed she was never told of the policy. No

discipline was imposed on Petitioner as a result of this incident.

35. Ms. Topnick did not treat Petitioner differently than

anyone else on her team. Ms. Topnick simply expected Ms. Carter

to follow company procedures. Petitioner did not file an ethics

complaint against Ms. Topnick during the time Ms. Topnick

supervised her.

36. During the Palatka and Gainesville campaigns,

Ms. Topnick was not awar e that Petitioner had filed a Charge of

Discrimination against Respondent. Furthermore, Ms. Topnick was

unaware that Petitioner had filed several grievances involving

Mr. Currey and Mr. Morris. Ms. Topnick credibly testified that no

one, including Mr. Mo rris, Mr. Currey, or Mr. Miller ever

suggested to her that she should retaliate against Petitioner in

any way.

37. The credible evidence of record does not support a

finding that Petitioner was targeted for retaliation, or that she

was otherwise discrimi nated against. There is no credible

evidence that Petitioner received unfavorable treatment based upon

her gender or any other prohibited basis, or that other employees

received more favorable treatment. To the contrary, the evidence

established that Pet itioner's behavior and poor work performance

merited the sometimes harsh and directly critical treatment and

intense scrutiny she received from her managers.

PetitionerÓs Leave of Absence and Failure to Return to Work.

38. Beginning in May 2010, Petitio ner developed health

issues that progressively worsened. Specifically, Petitioner

experienced migraine headaches and backaches that Petitioner

attributed to stress at work. In an attempt to address these

health issues, Petitioner sought counseling throug h RespondentÓs

Employee Assistance Program.

39. Petitioner's last day at work was October 6, 2010. Due

to the health problems she was experiencing, Petitioner was placed

on short - term disability effective October 8, 2010.

40 . On January 7, 2011, Petit ioner filed a second complaint

with the AT&T Human Relations Department, this time alleging that

Ms. Topnick had made inappropriate comments about CarterÓs

disability leave. At hearing, Ms. Topnick credibly denied ever

making such comments.

41 . Petitio nerÓs short - term disability leave request was

denied in January 2011, and Petitioner was given notice that she

would have to reapply. On January 26, 2011, Petitioner filed her

application for short - term disability appeal leave of absence, and

on February 11, 2011, Petitioner was granted a 250 - day

administrative leave of absence, also known as short - term

disability appeal leave.

42 . On July 28, 2011, Stacy Korzekwa, leave of absence

administrator, extended CarterÓs short - term disability leave of

absence t hrough September 15, 2011. See RespondentÓs Ex. 27. In

an email to Carter, Ms. Korzeka explained:

Vickie:

Per our conversation this afternoon, I have

extended the STD Appeal Leave of Absence (LOA)

through 9/15/11 to allow additional time for

the decisio n of your 1 st appeal with the AT&T

Integrated Disability Service Center (IDSC).

As I explained, this leave will continue to

protect your absence while you go through the

appeal process. The leave has a maximum

duration of 450 days. I typically grant 250

days to allow the employee to complete their

1 st appeal. The additional 200 days is

granted when the employee requests an

extension of the LOA while they complete the

2 nd appeal (if necessary).

Since the IDSC may not be able to render a

decision on the 1 st appeal for another 45

days, IÓm extending the end date of your leave

from 8/30/11 to 9/15/11 (approval email

attached). Please note that the end date is

just an estimate. You have a responsibility

to mail a new LOA Application to me once the

appeal d ecision is made.

Once the IDSC renders a decision about your

disability claim, they will mail you a letter

regarding the decision. If any portion of

your disability benefit is still denied, they

will include another LOA application titled

Exhibit A2: App lication for Extension of STD

Appeal Leave of Absence. You have 20 days

from the date of that letter to mail me the

new LOA Application if you want to remain on

the STD Appeal LOA while you complete your 2 nd

appeal. I would process the application and

gi ve you the remaining balance (up to 450

days) for the leave.

Please let me know if you have any questions.

Stacy Korzekwa

Leaves of Absence Administrator

At hearing, Petitioner acknowledged that she received this email.

43. Petitioner also acknowledge d that she missed the

deadline to file an application for a second leave of absence.

Despite knowing she had missed the deadline, Petitioner

nonetheless applied for a short - term disability leave of absence

on September 7, 2011, stating: Ð I would like to r equest an

extension on my Leave of Absence from AT&T at this time. I

understand I have missed the deadline of 20 days from 8/5/11 when

my attorney and I received the Exhibit A2 notice. Ñ

44 . On September 16, 2011, Ms. Korzekwa sent Petitioner an

email no tifying her of the denial of her leave of absence appeal

stating:

Victoria:

Attached is the determination email for the

request for an extension of the STD Appeal

LOA. One of the requirements for the leave is

that the LOA application must be postmarked

w ithin 20 days of the denial letter date at

the top of the form. Your form was postmarked

effective 9/07/2011 and the denial uphold

letter date was 8/05/2011.

45 . Since Petitioner missed the leave of absence extension

request deadline, General Manager M iller notified Petitioner on

September 14, 2011, by letter that she would need to return to

work not later than September 19, 2011, or face Ð disciplinary

action up to and including termination. Ñ Despite the opportunity

to return to work, Petitioner inform ed Mr. Miller that she was not

able to return to work full - time. Inasmuch as Petitioner did not

return to work, Respondent terminated PetitionerÓs employment on

September 19, 2011.

46. As of the date of the hearing, Petitioner had not been

employed sinc e being terminated by AT&T. Petitioner explained

that she had not yet been released by her doctors to return to

work full - time, although her doctors Ð may have released me to work

on a part - time basis. Ñ

47. Mr. Morris never had any discussions with Ms. K orzekwa

about Petitioner or her Charge of Discrimination. One day after

her termination from Respondent, on September 20, 2011, Petitioner

filed the Charge of Discrimination at issue herein . The only

allegation in this Charge was retaliation.

CONCLUSIONS OF LAW

48 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1) and 760.01, et seq. , Fla.

Stat.

49 . Petitioner's case is based upon her allegation that

Responden t discriminated against her by retaliation during her

employment, in violation of the Florida Civil Rights Act,

sections 760.01 - 760.11.

50 . The retaliation charge at issue herein was filed on

September 20, 2011. Alleged acts of discrimination which

oc curred more than 365 days from September 20, 2011 , are time -

barred and are not properly before the Division. To assert a

claim under the Florida Civil Rights Act, a petitioner must first

file a charge of discrimination with the FCHR within 365 days of

the alleged violation. See § 760.11(1) Fla. Stat. A Ð past act

of discrimination for which a party did not file a charge with

the [FCHR] within the limitations period is legally equivalent to

a discriminatory act that occurred before enactment of [the

Florid a Civil Rights Act]. Ñ Paldano v. Althin M edical , 974 F.

Supp. 1441, 1444 (S.D. Fla. 1996). In National Railroad

Passenger Corp. v. Morgan , 536 U.S. 101 (2002), the United States

Supreme Court held that a plaintiff must raise claims of discrete

discrimina tory and retaliatory acts through the filing of an EEOC

charge within the applicable limitations period. Id. at 122.

This holding is equally binding on parties asserting violations

of the Florida Civil Rights Act. See City of Hollywood v. Hogan ,

986 So. 2d 634, 641 (Fla. 4th DCA 2008) (providing that federal

case law interpreting Title VII is applicable to cases arising

under the FCRA). The Supreme Court explained that Ðdiscrete

discriminatory acts are not actionable if time barred, even when

they are re lated to acts alleged in timely filed charges.Ñ

National Railroad , 536 U.S. at 113.

51 . Ms. Carter's Petition for Relief alleges a pattern of

harassing, condescending and disparaging treatment, and unfair

criticism and scrutiny by management from the pe riod of May 2009 ,

through September 28, 2010, until shortly before she left AT&T on

medical leave. (Petition for Relief, paragraphs 5 through 21).

The vast majority of the allegations of discrimination found in

paragraphs 5 through 21 of Ms. CarterÓs Pet ition occurred prior

to September 20, 2010 , and accordingly are time - barred and cannot

form the basis of Ms. CarterÓs claim of retaliation. 3 / However,

even were those allegations not time - barred, the facts adduced at

hearing do not support a finding of di scriminatory treatment of

Petitioner by Respondent.

52 . Petitioner claims that Respondent retaliated against

her after she filed her 2010 Charge and that she was unlawfully

terminated as a result. Under Title VII, Ð[i]t shall be an

unlawful employment p ractice for an employer to discriminate

against any of his employees . . . because . . . [h]e has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding or hearing under this subchapter. 42

U.S.C. § 2000e - 3(a).

53 . In order to prevail, Ms. Carter has the ultimate burden

of proving by a preponderance of the evidence that Respondent

committed an unlawful employment practice by discriminating

against her. Fla . Dep Ó t of Transp . v. J.W.C. Co . 396 So. 2d 778

(Fla. 1s t DCA 1981).

54 . No direct or statistical evidence of discrimination

exists in this case. Therefore , a finding of discrimination, if

any, must be based on circumstantial evidence.

55 . The burden and order of proof in discrimination cases

involving cir cumstantial evidence is set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 03 (1973).

56 . To demonstrate discrimination under McDonnell Douglas

Corp. , Ms. Carter must first establish a prima facie case of

discrimination. Thereafter, the em ployer may offer legitimate,

nondiscriminatory reasons for its employment action. If the

employer does that, in order to prevail, Ms. Carter must

establish that the employer's articulated legitimate,

nondiscriminatory reasons were a pretext to mask unlawf ul

discrimination. Smith v. J. Smith Lanier & Co. , 352 F.3d 1342

(11th Cir. 2000).

57. To establish a prima facie case of retaliation,

Petitioner must show that: 1) she was engaged in an activity

protected under Title VII; 2) she suffered an adverse emp loyment

action; and 3) there was a causal connection between the protected

activity and the adverse employment action. See Pennington v.

City of Huntsville , 261 F.3d 1262 (11th Cir. 2001). To satisfy

the causal connection requirement, Petitioner must est ablish that

the protected activity and the alleged retaliatory action are not

completely unrelated. Wideman v. Wal - Mart Store, Inc. , 141 F. 3d

1453 (11th Cir. 1998). Notably, the person who engaged in the

alleged conduct must be aware of the protected act ivity. Gupta v.

Fl a. Bd. o f Regents , 12 F.3d 571 (11th Cir. 2000).

58. It is undisputed that PetitionerÓs filing of her 2010

Charge of Discrimination is protected activity. However,

Ms. Carter failed to establish the remaining elements of a prima

facie case of retaliation.

59. PetitionerÓs allegations of unlawful termination are

unfounded. On or about September 19, 2011, Petitioner refused to

return to work. In essence, Petitioner abandoned her job that was

open and waiting for her. An employee who voluntarily resigns

cannot claim that she suffered an adverse employment action under

Title VII. See Fannin v. Lemcko Florida , 2007 U.S. Dist Lexis

1267 (M.D. Fla. Jan. 5, 2007); Hammon v. DHL Airways , I nc. , 165

F.3d 441 (6th Cir. 1999).

60 . Furthermo re, Petitioner cannot include any allegations

that occurred before the protected activity (the filing of her

December 31, 2009 Charge) as a retaliatory adverse employment

action. Thus, PetitionerÓs complaints regarding GMO approvals and

the flat tire inci dent, which occurred before PetitionerÓs

December 31, 2009 Charge, cannot be considered retaliatory as they

occurred before PetitionerÓs protected activity, the filing of the

December 31, 2009 , Charge.

61. Even assuming Petitioner suffered an adverse emp loyment

action, there is no causal connection between her 2010 Charge and

her September 2011 termination. Petitioner failed to make even a

minimum showing to establish a causal element of a prima facie

claim of retaliation , i.e. that the employer was actu ally aware of

the protected expression at the time it took adverse employment

action. A court will not presume that a decision - maker was

motivated to retaliate by something unknown to him or her.

Brungart v. BellSouth Telecommunications, Inc. , 231 F.3d 7 91 (11th

Cir. 2000); Holifield v. Reno , 115 F.3d 1555 (11th Cir. 1997).

Indeed, Petitioner has presented no evidence that Ms. Korzekwa,

the Leave of Absence Administrator who denied PetitionerÓs second

appeal leave as untimely, had any knowledge whatsoever that

Petitioner had previously filed an EEOC Charge in 2010.

Furthermore, Petitioner presented no evidence that Ms. Korzekwa

had knowledge of PetitionerÓs union grievances or her complaints

through the Human Resources department. In fact, Mr. Morris,

Ms . Topnick and Mr. Miller all credibly testified that they never

discussed any such issues with Ms. Korzekwa.

62. Importantly, Petitioner acknowledged that she missed the

deadline for her leave of absence appeal and that she did not

return to work on Sept ember 19, 2011, as required. Consequently,

there is no evidence of a causal link between Ms. CarterÓs

termination and her 2010 Charge, and, under the facts found

herein; no inference of a causal link arises. Since Petitioner

cannot overcome the first hur dle of establishing a prima facie

case of discrimination, her claim must fail.

63 . Even if one assumes arguendo that Ms. Carter proved a

prima facie case, Respondent provided a nondiscriminatory reason

for terminating Petitioner. Specifically, Ms. Carte r did not

return to work on September 19, 2011 , after being expressly

notified in writing that her failure to return would result in

"disciplinary action up to and including termination."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

dismiss the Petition of Victoria Carter.

DONE AND ENTERED this 1 3 th day of February , 2013 , 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

Division of Administrative Hearings

this 1 3 th day of February , 2013 .

ENDNOTE S

1 / All references to the Florida Statutes are to the 2012

version, unless otherwise noted.

2 / Petitioner's assertion that Mssrsimble and Hartman had not

taken the YP Connect test as of the date of her complaint is

inaccurate. According to an e - mail from Ted Kokkinos (the AT&T

employee in charge of administering the test), which is credible,

both took the test on January 4, 2010, the same day it was taken

by Petitioner. (Respondent's Ex. 14)

3 / Only two of Petitioner's allegations of discrimination

arguably occurred on or after September 20, 2010. They are:

21. Through the month of September 2010,

Topnick continued t o threaten Ms. Carter with

unwarranted discipline and potential

termination for issues regarding her report

submittals and Ms. Carter's alleged failure

to properly communicate with management.

Topnick also continued with criticism and

condescending emails that were not

legitimate.

22. Eventually, on September 28, 2010,

Ms. Carter spoke with General Manager Miller,

only to be met with more condescending

speech. He responded, Ð guess you're in a bit

of a pickle . . . You can't work with Al

Morris and now A my Topnick. Ñ The pattern of

unfair criticism and scrutiny by management

was a hostile work environment that caused

Ms. Carter to be in a constant state of

anxiety and uneasiness, resulting also in

more back pain.

(Victoria Carter's Petition for Relief,

p .4,5)

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Neil L. Henrichsen, Esquire

Henrichsen Siegel, P.L.L.C.

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Jacksonville, Florida 32204

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BellSouth Advertising and Publishing Corporation

d/b/a AT&T Advertising Solutions

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Anthony J. Hall, Esquire

Littler Mendelson PC

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Melanie Zaharias, Esquire

Littler Mendelson, P.C.

Suite 1250

111 North Magnolia Avenue

Orlando, Florida 32801 - 2366

Cheyanne Costilla, Interim Gen eral Co unsel

Florida Commission on Human Relations

Suite 100

2009 A palachee 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 filed w ith the agency that

will issue the Final Order in this case.