12-003393 Sharon Douse vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, February 7, 2013.

Summary: Petitioner failed to show that the Agency illegally discriminated or retaliated against Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON DOUSE, )

)

Petitioner, )

)

vs. ) Case No. 12 - 3393

)

AGENCY FOR PERSONS WITH )

DISABILITIES, )

)

Respondent. )

)

RECOMMENDED ORDER

An admin istrative hearing was conducted in this case on

December 20, 2013 , in Tallahassee , Florida , before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sharon Douse , pro se

5269 P eanut Road

Graceville , Florida 32440

For Respondent: Julie Waldman , Esquire

Kelly Anthony, Qualified Representative

Agency for Persons with Disabilities

1621 Northeast Waldo Road

Gainesville, Florida 32609

S TATEMENT OF THE ISSUE

Whether Respondent , the Agency for Persons with

Disabilities (Respondent or the Agency ) , violated the Florida

Civil Rights Act of 1992, as amended, sections 760.01 Î 760.11 and

509.092 , Florida Statutes, 1/ by discriminating against

Petitioner , Sharon Douse (Petitioner) , during her employment

with the Agency and then by terminating her employment, based

upon her disability, marital status, sex, color, race , age , and

the national origin of her spouse, and by illegally retaliating

against her .

PRELIMINARY STATEMENT

On March 2 9 , 201 2 , Petitioner filed a charge of

discrimination (Charge of Discrimination) with the Florida

Commission on Human Relations (Commission) . A fter investigating

PetitionerÓs allegations, the Commission 's executive director

issued a De termination of No Cause on September 26, 2012 ,

finding that " no reasonable cause exists to believe that an

unlawful employment discrimination practice occurred . . . ."

An accompanying Notice of Determination notified Petitioner of

her right to file a Pet ition for Relief for an administrative

proceeding within 35 days of the Notice.

On October 15, 2012 , Petitioner timely filed a Petition for

Relief and , on October 16, 2012 , the Commission forwarded the

petition to the Division of Administrative Hearings fo r the

assignment of an administrative law judge to conduct a n

administrative hearing . The case was originally scheduled for a

final hearing to be held on November 29, 2012, but was

rescheduled and subsequently held on December 20, 2012.

During the adminis trative hearing , Petitioner called one

witness, testified on her own behalf , and introduced 13 exhibits

which were received into evidence as Exhibits P - 1 through P - 13.

Respondent called three witnesses and offered six exhibits which

were received into evi dence as Exhibits R - 1 through R - 6 .

The p roceedings were not recorded . The parties were given

30 days from the date of the hearing to submit their respective

proposed recommended o rders. T he parties timely filed their

Proposed Recommended Orders , which we re considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Sunland Center in Mariana, Florida, is operated b y the

Agency as an intermediate - ca re facility for developmentally -

disabled individuals. Connally Mano r is a residential setti ng

within Sunland Center for 16 developmentally - disabled

individuals with significant behavioral and medical involvement.

2. Petitioner began her emp loyment with the Agency on

July 15, 2011, until her dismissal on January 5, 2012. During

her employment , she was classified as career - service employee,

Human Services Worker II, assigned to provide direct care for

residents in Connally Manor .

3. As a career - service employee, Petitioner was required

to serve a one - year probationary period, during which she wa s

subject to termination at will.

4. While employed with the Agency, Petitioner had a number

of performance deficiencies and conflicts with her co - workers

and supervisors .

5. On July 22, 2011, Petitioner attended training for the

treatment and care of residents. Shortly thereafter, however,

Petitioner mishandled residents on at least two occasions . As a

result, Joe Grimsley, a senior human services support supervisor

for the Agency, suspended Petitioner from working independently

with residents, and a sked Petitioner to work closely with her

peers to learn appropriate care procedures.

6. On August 25, 2011, because of excessive absences and

failure to perform duties in a timely manner, Petitioner

received counseling from Mr. Grimsley and Agency behavio r

program supervisor Scott Hewett. Petitioner was counseled for

excessive absences because, f rom July 18 through August 22,

201 1, Petitioner took a total of 48 hours of leave time, which

was greater than the Agency's policy of no more than 32 hours in

a 9 0 - day period. Although Petitioner discussed most of th os e

absences with her supervisor prior to taking the time off, as a

result of her absences, Petitioner missed some of h er initial

training, including p rofessional c risis m anagement t raining.

7. During the August 25 , 2011, counseling session,

Mr. Grimsley and Mr. Hewett also discussed other issues of

concern with Petitioner, including resident care, following

chain of command, team work, proper parking, and data collection

sheets.

8. As a follow - up , on the same day as the August 25th

counseling, Petitioner received some in - service training

regarding proper log book documenting, proper use of active

treatment sheet, and unauthorized and excessive absences.

9. Mr. Grimsley permitted Petitioner to go back to her

duties of working directly with residents after she received

additional training on August 27, 2011 .

10. On September 8, 2011, Petitioner's supervisors once

again found it necessary to counsel Petitioner regarding

resident care, chain of command, teamwork, parking, and d ata

collection, as well as to address two incidences of unsafe

handling of residents, and Agency policy regarding food in the

bedrooms, and class and work schedules.

11. Because of Petitioner's continued performance

deficiencies, o n October 5, 2011, Mr. Grimsley wrote an

interoffice memorandum to his supervisor, Agency residential

services supervisor , Julie Jackson, recommending Petitioner ' s

termination. The memorandum stated:

Mrs. Jackson:

I am writing to you in regard to Mrs. Sh aron

Douse HSW II Second Shift Connally Manor

Unit 3.

Mrs. Douse came to us July 15, 2011, since

then she has had three employee documented

conferences, due to poor work habits,

resulting in corrective action, including

retraining. These deficiencies inc lude and

are not limited to data collection,

excessive absences, and unsafe handling of

residents. This past week she was

insubordinate to her immediate supervisor by

refusing to answer the phone after being

requested to do so twice, and being directed

th at it is part of her job.

[Mr. Hewett] as well as my self [sic] has

made every effort to help Mrs. Douse achieve

her performance expectation; however these

attempts have been met with resistance as

Mrs. Douse openly refuses to take direction

from her supe rvisors and also to seek the

assistance of her peers, who have many years

of experience working with the Connally

Manor population. Mrs. Douse has not met

probationary period. Her continual

resistance to positive mentoring and her

confrontational attitud e and demeanor

towards her supervisors and coworkers is

creating an increasingly difficult work

environment, not only on Connally Manor, but

also on the other houses within the unit.

It is apparent that Mrs. Douse lacks the

willingness to improve her over all poor work

performance. I am formally requesting Mrs.

Douse to be terminated from her employment

here in Unit 3.

12. Mr. Grimsley's testimony at the final hearing was

consistent with the above - quoted October 5, 2011, interoffice

memorandum, and both his testimony and memorandum are credited.

13. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson

submitted a memo dated October 26, 2011, to the Agency's program

operations administrator , Elizabeth Mitchell, concurring with

the request for Petitioner' s termination. In turn, Ms. M itchell

agreed and forwarded her recommendation for termination to

Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved

the recommendation for termination, and, following

implementation of internal termination procee dings, Petitioner

was terminated on January 5, 2012, for failure to satisfactorily

complete her probationary period.

14. Petitioner made no complaints to Mr. Grimsley or

anyone else in the Agen cy's management until after

Mr. Grimsley's October 5, 2011, me morandum recommending

Petitioner's termination.

15. Petitioner's Charge of Discrimination filed with the

Commission on March 29, 2012, after her term ination, charges

that she was "discriminated against based on retaliation,

disability, marital status, sex , color, race and age." The

evidence adduced at the final hearing, however, failed to

substantiate Petitioner's allegations.

16. In particular, Petitioner's Charge of Discrimination 2/

alleges th at Mr. Grimsley discriminated against her because of

her age by "not providing [her] with the same training as

offered the other employees -- [professional crisis management

training] was offered to the younger employees who were hired at

or around the same time [as Petitioner]." The evidence at the

final hearing , however, showed that Petitioner was scheduled

for, but missed professional crisis management training, because

of her absences early in her employment. The evidence also

showed that professional crisis management training was not

necessary for the positi on for which Petitioner was hired.

Nevertheless, the evidence also demonstrated that , if Petitioner

had not been terminated, the Agency intended to provide her with

that training.

17. Petitioner's Charge of Discrimination also asserts

that Mr. Grimsley d iscriminated against her by "[n]ot allowing

[her] to have . . . scheduled time off . . . [and taking away

her] scheduled time off August 12th & 13th and [giving it to a]

Caucasian female." The evidence did not substantiate this

allegation. Rather, the ev idence demonstrated that Petitioner

had extraordinary time off during her first two months of

employment.

18. Next, Petitioner's Charge of Discrimination states

that Mr. Grimsley did not follow up on her written concerns and

verbal complaints to the "depa rt [ment] head" regarding the

welfare of the disabled residents. Petitioner alleges that she

was terminated as a result of her complaint that Mr. Grimsley

"sat in the kitchen and baked cookies with the staff who were

neglecting disabled residents." Petiti oner, however, failed to

present any evidence at the final hearing with regard to this

allegation. Rather, the evidence showed that, while employed,

Petitioner never reported any instances of abuse, neglect , or

exploitation to the Florida Abuse Registry, as required by her

training. And , there is no evidence that she reported any such

concerns to any outside agency prior to her Charge of

Discrimination. Petitioner otherwise presented no evidence

suggesting that she was terminated in retaliation for engag ing

in any protected activity.

19. Petitioner's Charge of Discrimination further states

that she was discriminated against on the basis of her

disability because Mr. Grimsley did not allow her to be properly

monitored by her physician , and that when she would bring in her

doctor's notes, Mr. Grimsley would refuse to put them in her

personnel file. The only support for this claim were two

medical re ports on Petitioner, one prepared in April 2011, and

one prepared in October 2011.

20. Accordi ng to Peti tioner, she gave the reports to

someone at the Agency's human resources office. She could not,

however, identify the person to whom she gave the reports.

Also, according to Petitioner, it was in November 2011, after

she was recommended for termination, t hat she gave her medical

reports to the Agency to be filed. Considering the

circumstances, the undersigned finds that Petitioner's testimony

regarding this allegation is not credible .

21. In addition, the evidence did not show that Petitioner

ever asked the Agency for an accommodation for her alleged

disability. Rather, based upon the evidence, it is found that

Petitioner never advised the Agency, and the Agency was unaware,

that Petitioner had a disability. It is also found that

Petitioner n ever asked the Agency for an accommodation for her

alleged disability.

22. Petitioner , in her Charge of Discrimination , further

contends that part of the employee counseling session documented

on employee - documented conference forms dated August 25, 2011,

and all of the counseling session documented in a September 8,

2011 , employee - documented conference form , were held without

her , and that some of the concerns expressed on those documents

were fabricated . There were two forms documenting discussions

from the August 25th session that were submitted into evidence Ï

- one was signed by Petitioner, the other was not. The

employee - documented conference form from the September 8, 2011,

session was signed by Petitioner's supervisors, but not

Petitioner.

23. Mr. Grimsley , who was present for all of the

counseling discussions with Petitioner documented on the forms,

testified that the documented discussion s occurred, but that he

just forgot to get Petitioner's signatures on all of the forms.

During the final hearing, Peti tioner acknowledged most of the

documented discussions , including two incidents of mishandling

residents and the resulting prohibition from working with

residents imposed on her until she received additional training.

Considering the evidence, it is found that all of the counseling

discussions with Petitioner documented on the three forms

actually took place, and that they accurately reflect those

discussions and the fact that Petitioner was having job

performance problems .

24. Petitioner's Charge of Disc rimination also alleges

that a fellow employee discriminated against her because of her

age and race based on an incident where , according to

Petitioner, a co - worker screamed and yelled at her because

Petitioner had not answer ed the house telephone. At th e

hearing, Petitioner submitted into evidence affidavits regarding

the incident from the co - worker and another worker who observed

the incident. Neither of the affidavits support s Petitioner's

contention that she was discriminated against. Rather, they

b oth support the finding that Petitioner had trouble getting

along with co - workers and accepting directions from Agency

staff. Further, according to Petitioner, after she talked to

Mr. Grimsley about the incident, he spoke to both Petiti oner and

the co - wor ker, and the ir conflict was resolved. The incident

occurred after Mr. Grimsley had already recommended that

Petitioner be terminated.

25. Finally, Petitioner alleges in her Charge of

Discrimination that Mr. Hewett discriminated against her based

upon her marital status, race, and the national origin of her

spouse. In support , Petitioner contend s that Mr. Hewett "made

rude comments about art work on my locker that Scott knew my

husband had drawn[,]" asked, "[do] blacks like classical music?"

and, upon see ing Petitioner's apron that was embroidered with a

Jamaican flag, Mr. Hewett said, "You can't trust things from

overseas," when he knew that her husband was Jamaican.

Petitioner also stated that Mr. Hewett "bullied her" about

answering the telephone.

26. While Petitioner testified that she wrote to Agency

management regarding these comments and the alleged bullying by

Mr. Hewett, she did not retain a copy. The Agency claims that

Petitioner never complained abou t these alleged comments or

Mr. Hewett's all eged bullying while she was an employee.

Considering the evidence presented in this case, and

Petitioner's demeanor during her testimony, it is found that

Petitioner did not raise these allegations against Mr. Hewett

until after her termination from the A gency.

27. It is further found that if Mr. Hewett made the

alleged comments , as described by Petitioner during her

testimony, Mr. Hewett's comments were isolated and not

pervasive. Further, Petitioner's testimonial description of

Mr. Hewett's comments did not indicate that his comments were

overtly intimidating, insulting, or made with ridicule, and the

evidence was insufficient to show, or reasonably suggest, that

Mr. Hewett's alleged comments made Petitioner's work environment

at the Agency hostile or intolerable .

28. In sum, Petitioner failed to show that the Agency

discriminated against Petitioner by treating her differently ,

creating a hostile work environment, or terminating her because

of her disability, marital status, sex, color, race , age , o r her

spouse's national origin . Petitioner also failed to show that

the Agency retaliated against her because of any complaint that

she raised or based upon Petitioner's engagement in any other

protected activity .

CONCLUSIONS OF LAW

29. The Division of A dministrative Hearings has

j urisdiction over the parties and subject matter of this

proceeding p ursuant to section 120.569 and s ubsection 120.57(1),

Florida Statutes , and Florida Administrative Code Rule

60Y - 4.016(1).

30. The State of Florida, under the l egislative scheme

contained in s ections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

sp ecifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

31. The Florida law prohibiting unlawful employment

practices is found in s ection 760.10 . That section prohibits

discrimination Ð against any ind ividual 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.Ñ

§ 760.10(1 )( a), Fla. Stat.

32. Florida courts have held tha t because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amended, federal case law dealing with Title VII is applicable.

See , e.g. , Fl a . Dep't of Cmty. Aff. v. Bryant, 586 So. 2d 1205 ,

1209 (Fla. 1st DCA 1991) .

33. As developed in federal case s , a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without infere nce or presumption. 3 / Usually,

howev er, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

34. Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a prepond erance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petiti oner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep't of Hous. & Urban Dev. v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990)(housing discrimination claim); accord

Va lenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

35. Therefore, in order to prevail in her claim against

the Agency , Petitioner must first establish a prima facie case

by a preponderance of the evidence. Id. ; § 120.57(1)(j), Fla.

Stat. ("Findings of fact shall be based upon a preponderance of

the evidence , except in penal or licensure proceedings or except

as otherwise provided by statute and shall be based exclusively

on the evidence of record and on matters officially

recognized.").

36. "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield , 115 F.3d at

1562 ; cf. , Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000)( " A preponderance of the evidence is ' the greater weight of

the evidence,' [citatio n omitted] or evidence that 'more likely

than not' tends to prove a certain proposition ." ).

37. Petitioner's Charge of Discrimination against the

Agency , in essence, alleges that Petitioner was subjected to

disparate treatment and terminated because of he r disability,

marital status, sex, color, race, age , and national origin of

her spouse . Petitioner's Charge of Discrimination also mentions

retaliation. Petitioner, however, failed to prove her

allegations.

38. Petitioner did not present any statistical or direct

evidence of discrimination , and otherwise failed to present a

prima facie case of discrimination based on disparate treatment.

39. In order to establish a prima facie case of

discrimination b ased on disparate treatment, a p etitioner must

show t hat: (1) s he belongs to a protected class ; (2) s he was

subjecte d to adverse job action; (3) her employer treated

similarly - situate d employees outside her classification more

favorably; and (4) s he was qualified to do the job. Holifield ,

115 F.3d at 1562.

40. To demonstrate that similarly - situated employees

outside her protected class were treated more favorably ,

Petitioner must show that a ÐcomparativeÑ employee was

Ðsimilarly situated in all relevant respects,Ñ meaning that an

employee outside of Petitio ner's protected class was "involved

in or accused of the same or similar conduct" and treated in a

more favorable way. Id.

41. As far as the verbal and written counseling that

Petitioner received prior to her termination, Petitioner failed

to present evi dence that similarly - situated employees outside

Petitioner's protected class were or would have been treated any

differently .

42. Petitioner also failed to present sufficient evidence

to show disparate treatment resulting in her discharge by

failing to id entify another non - protected class employee with

similar job performance problems during their employment

probationary period that was not terminated , as was Petitioner .

43. Therefore, Petitioner did not establish a prima facie

case of discriminatory coun seling, discipline , discharge, or

unfairness based on disparate treatment.

44. When a P etitioner fails to present a prima facie case

the inquiry ends and the case should be dismissed . Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996) .

45. Even if Petitioner had established a prima facie case

of discriminatory treatment or discharge , the Agency met its

burden of demonstrating that it had legitimate,

nondiscriminatory reason s for counseling and then ultimately

discharging Petitioner.

46. The Agency demonstrated that the documented counseling

sessions held with Petitioner and her subsequent termination,

were legitimate and based on Petitioner's poor job performance .

T he Agency also presented evidence showing that the reason

Petitioner did not receive professional crisis management

training was because of her absences from work. The Agency

further showed that , even though the training was not required

for her position, Petitioner would have eventually received the

training , had she had not bee n terminated.

47. T he evidence demonstrated that the Agency counseled

and eventually terminate d Petitioner without regard to

Petitioner's membership in any protected class , but rather,

based upon legitimate, non - discriminatory reason s .

48. Petitioner off ered no proof that the Agency's

proffered reasons for counseling or discharging her, or the

Agency's explanation of why Petitioner did not receive

professional crisis management training , were pretexts for

unlawful discrimination . In proving that an emplo yer ' s asserted

reason is merely a pretext :

A plaintiff is not allowed to recast an

employer 's proffered nondiscriminatory

reasons or substitute [her] business

judgment for that of the employer. Provided

that the proffered reason is one that might

motivat e a reasonable employer, an employee

must meet that reason head on and rebut it ,

and the employee cannot succeed by simply

quarreling with the wisdom of that reason.

Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000).

49. PetitionerÓs speculat ion as to the motives of the

Agency , standing alone, is insufficient to establish a prima

facie case of discrimination. See , e.g. , Lizardo v. DennyÓs,

Inc. , 270 F.3d 94, 104 (2d Cir. 2001) (Plaintiffs have done

little more than cite to their mistreatment and ask the court to

conclude that it must have been related to their race. This is

not sufficient.Ñ).

50. For the foregoing reasons, it is concluded that

Petitioner failed to establish her claim of discrimination based

on disparate treatment .

51. Petit ioner also failed to demonstrate that she was

subjected to discrimination based upon a hostile work

environment. A hostile work environment claim is established

upon proof that Ðthe workplace is permeated with discriminatory

intimidation, ridicule, and in sult, that is sufficiently severe

or pervasive to alter the conditions of the victimÓs employment

and create an abusive working environment.Ñ Miller v. Kenworth

of Dothan, Inc. , 277 F.3d 1269, 1275 (11 th Cir. 2002) (quoting

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1998)).

Evidence of Mr. Hewett's alleged comments was insufficient to

reasonably demonstrate that Petitioner's work environment at the

Agency was a hostile work environment permeated with

discriminatory intimidation, ridicule, or insult . Rather,

Petitioner's testimonial description of Mr. Hewett's comments,

if accurate, indicated that they were isolated, not pervasive,

and not suggestive of an abusive work environment. In addition,

while it was shown that Petitioner had conflicts with ot her

employees, the evidence in that regard did not demonstrate a

hostile work environment based on discrimination, but rather was

indicative of Petitioner's inability to get along with co -

workers.

52. Petitioner also failed to demonstrate that the Agency

unlawfully retaliated against her. Petitioner presented n o

direct evidence of retaliation . Thus, under the same burden - of -

proof analysis discussed above, Petitioner must first establish

a prima facie case . In order to demonstrate a prima facie case

of r etaliation, Petitioner must show: (1) that s he was engaged

in statutorily - protected expression or conduct; (2) that s he

suffered an adverse employment action ; and (3) that there is

some causal relationship between the two events. Holifield , 115

F.3d at 15 66.

53. Petitioner failed to establish a causal link between

any alleged protected conduct and the adverse employment

action s . A s to whether Petitioner was engaged in statutorily -

protected conduct or expression , Petitioner asserted at the

final hearing t hat, prior to her termination, she complained to

management about Mr. Grimsley's neglect of residents and about

Mr. Hewett's alleged discriminatory comments and bullying .

Petitioner failed , however, to prove that she made these

complaints prior to her ter mination .

54. Even if Petitioner had proved that she had actually

complained about Mr. Grimsley or Mr. Hewett prior to her

termination, the Agency advanced legitimate, non - retaliatory

reasons for Petitioner's counseling and termination . Like the

disparat e treatment analysis, above, in claims asserting

retaliation, once an employer offers a legitimate, non -

discriminatory reason to explain the adverse employment action,

a P etitioner must prove that the proffered reason was pretext

for what actually amounted to disc rimination. Id. Rather than

supported by credible evidence, the only support Petitioner has

for the Agency 's alleged retaliatory motives is based upon

Petitioner's unsupported opinion which , standing alone, is

insufficient. See Lizardo , supra .

5 5. Petitioner did not carr y her burden of persuasion

necessary to state a prima facie case for her claims of

discrimination or retaliation under any theory advanced by

Petitioner . Even if s he had, the Agency proved legitimate,

nondiscriminatory reason s f or the counseling Petitioner received

and for termination of Petitioner's employment, which Petitioner

failed to show were a mere pretext for unlawful discrimination.

56. Therefore, it is concluded, based upon the evidence,

that the Agency did not violate the Flo rida Civil Rights Act of

1992 , and is not liable to Petitioner for discrimination in

employment or unlawful retaliation .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission o n Human Relations

enter a Final Order dismissing PetitionerÓs Charge of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND E NTERED this 7th day of February , 201 3 , in

T allahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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

Di vision of Administrative Hearings

this 7th day of February , 2013 .

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively cha nged since

the time of the alleged discrimination.

2 / The particular s of Petitioner's allegations are set forth on

the two pages attached to the Charge of Discrimination.

3 / For instance, an example of direct evidence in an age

discrimination case woul d be the employer's memorandum stating,

ÐFire [petitioner] Î he is too old,Ñ clearly and directly

evincing that the plaintiff was terminated based on his age.

See Early v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th

C ir. 1990)).

COPIES FURNISHED :

S haron Douse

5269 Peanut Road

Graceville , Florida 32440

Julie Waldman , Esquire

Kelly Anthony, Qualified Representative

Agency for Persons with Disabilities

1621 Northeast Waldo Road

Gainesville, Florida 32609

Denise Crawford, Agency Clerk

Florida Commi ssion on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cheyanne Costilla , Interim General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBM IT 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.