13-001507 Dasyam Rajasekhar vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, September 11, 2013.

Summary: Petitioner failed to prove an unlawful employment practice of discrimination on the basis of national origin or retaliation under section 760.10, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DASYAM RAJASEKHAR ,

Petitioner ,

vs. Case No. 13 - 1507

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Respondent .

/

RECOMMENDED ORDER

On June 24 and 25, 20 13, a duly - noticed hearing was held in

St. Augustine, Flo rida, before F. Scott Boyd, an administrative

law j udge assigned by the Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Dasyam Rajasekhar, pro se

Carriage House, Room 43

2 297 Whitney Avenue

Hamden, Connecticut 06518

For Respondent: Francine Ffolkes, Esquire

Kara Gross, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether the Respondent committed an unlawful

employment practice under section 760.10, Florida Statutes

(2011), by discriminating against Petitioner on the basis of his

national origin , or by retaliating against him, and if so, what

remedy should be ordered.

PRELIMINARY STATEMENT

On October 5, 2012, Petitioner filed a complaint with the

Florida Commission on Human Relations (Commission), alleging

that the State of Florida, Department of Environmental

Protection, had discriminated against him based upon his

national origin, and had re taliated against him. On March 25,

2013, the Commission issued a Notice of Determination of No

Cause, and on April 23, 2013, Petitioner filed a Petition for

Relief. The matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge on April 25, 2013.

The case was noticed for final hearing on June 24 and 25,

2013, in St. Augustine, Florida. Petitioner testified o n his

own behalf and offered 65 exhibits, P - 1 through P - 65, which were

admitted into evidence. Respondent presented t he testimony of

three witnesses and offered 13 exhibits, R - 1 through R - 13, which

were admitted. At the final hearing, without objection, certain

exhibits were authorized to be late - filed by July 9, 2013, with

any objections to these exhibits to be filed by July 16, 2013,

and responses to objections by July 23, 2013. In response to

RespondentÓs request for additional time, and without objec tion

by Petitioner, the date of August 1, 2013, was set for the

submission of Proposed Recommended Orders.

After hearing, over 200 pages of exhibits were offered by

Petitioner and additional time to file objections and responses

was granted. On July 17, 2 013, Respondent filed objections to

some of these post - hearing exhibits. PetitionerÓs Exhibits P - 66

through P - 73 are admitted. RespondentÓs objections to the

remainder of the documents are su stained, as discussed below.

Petitioner filed a Motion for Spec ial Independent Counsel

for Investigation and for the Department of Environmental

Protection to Get to Work, as well as a Request to Respond to

RespondentÓs Proposed Recommended Order, which were denied on

August 6, 2013. Petitioner then filed Exceptions to

RespondentÓs Proposed Recommended Order, and an Order striking

these was filed on August 15, 2013. Petitioner filed a Request

for maps and other communications relating to flow ways on

August 20, 2013, which is denied, as discussed below. On

August 26 , 2013, Petitioner filed Notice of a public records

request that had been filed with the Department of Environmental

Protection pertaining to maps and communications relating to

flow ways. The five - volume Transcript of the proceedings was

filed with the D ivision of Administrative Hearings on July 17,

2013. Both parties timely submitted Proposed Recommended

Orders, which were considered.

FINDINGS OF FACT

1. The Department of Environmental Protection (DEP or the

Department) is an agency of the State of Flo rida. The Guana

Tolomato Matanzas National Estuarine Research Reserve (Reserve)

in Ponte Vedra, Florida, is a part of the Department, managed

under the Coastal and Aquatic Man aged Areas Program (CAMA). The

Reserve is essentially an institution for resear ch and education,

often involving partnerships with universities and other

government entities. The Department has more than 15 employees.

2. In July 2011, approval was granted to create a new

position for an E nvironmental S pecialist I to provide for the

Geographic Informat ion Systems (GIS) needs of long - term

monitoring, modeling, and mapping projects at the Reserve.

3. Dr. Michael Shirley is the d irector of the Reserve, a

position he has held since 2007. He has been an employee with

the DEP or its pred ecessor agencies since 1990. Dr. Shirley is

also the r egional a dministrator for the East Coast of Florida

Aquatic Preserve Program, and in that capacity is responsible

for overseeing the management of the Aquatic Preserves on the

East Coast of Florida. D r. Shirley is responsible for some 44

employees, including 34 at the Reserve. Since Dr. Shirley knew

a lot about GIS from his research background, he was excited

about the prospect of having a new GIS position at the Reserve.

4 . Dr. Shirley was very inv olved in filling the new GIS

a nalyst position. He reviewed the approximately 20 - 30

applications for the position, helped select individuals to

interview, and participated in interviews. Six applicants were

ultimately chosen f or interview by telephone or in - person by the

selection team. While the testimony was not entirely clear as

to the national origin of all of these individuals, one of them

had a national origin from China and one, Petitioner Mr. Dasyam

Rajasekhar , had a national origin from India.

5. Mr. RajasekharÓs application and r esume indicated that

he held a m aster Ó s d egree in f orestry from Stephen F. Austin

Uni versity, was experienced in GIS , Remote Sensing, and Geo -

Spatial analysis, and that he held a GIS Professional

Certification.

6. Mr. R ajasekhar did an excellent job in the interview.

On his own initiative, he gave a PowerPoint presentation, which

Dr. Shirley later made available to other staff. Dr. Shirley

testified that he was Ðvery exc itedÑ about the prospect of

Mr. Rajasekhar Ós comi ng on board and stated that, Ðhis resume,

his credentials, were by far the best of the applicants we had

received.Ñ All of the members of the interview team supported

him for the position. The team made a unanim ous recommendation

to the CAMA d irector, wh o had fin al approval authority, that

Mr. Rajas ekhar be hired.

7. In October 2011, Mr. Rajasekhar was hired as an

E n vironmental S pecialist I at the Reserve by the DEP. On

November 7, 2011, he acknowledged access to several Department

administrative polici es, including DEP 435, entitled ÐConduct of

EmployeesÑ and DEP 436, entitled ÐDiscrimination and Harassment.Ñ

Mr. Rajasekhar was a probationary employee for the first year, as

are all new hires, which meant that he could be dismissed without

cause and tha t he did not have the right to grieve or appeal

Department actions. After the initial year, a probationary

employee becomes a permanent career service employee. This

information was contained in DEP 435.

8. Mr. RajasekharÓs GIS a nalyst position was su pp osed to be

supervised by the w atershed c oordinator, but this position had

not yet been filled, so Mr. Joseph Burgess, the resource

m anagement c oordinator for the Reserve, reporting to the

a ssistant d irector, Ms. Ja net Zimmerman, was named as

Mr. Rajasekhar Ós immediat e supervisor. Mr. Burgess,

Ms. Zimmerman, and Dr. Shirley were th us all three supervisors of

Mr. Rajasekhar, moving up his cha in of command, and none of them

was a probationary employee. Mr. Burgess did not have any

experience in GIS, so any d etailed oversight of Mr. RajasekharÓs

work product was conducted by Dr. Shirley.

9. Mr. RajasekharÓs Position Description indicated that

among other duties, he was to apply GIS tools and products to

address resource conservation issues, develop inundation models

to reflect the impact of projected sea level rise on local

natural communities and public infrastructure, and develop GIS

maps for National Estuarine Research Reserve System (NERRS)

initiatives such as habitat mapping and change.

10. Mr. Rajasekha r had excellent skills in performing

Ðhigh Î endÑ geospatial analysis. He could look at satellite

imagery and turn it into a product. Mapping products were used

in every one of the ReserveÓs programs and were important in

making decisions on land - use and t he protection of Reserve

resources. They were also very important to the grants obtained

by the Re serve. Mr. Rajasekhar was well - qualified to do his job.

11. One grant project, in place before Mr. Rajasekhar was

employed, was from the University of Flor ida (UF) to map changes

that would occur in wetlands due to sea level rise. D r. Shirley

was one of the Co Ï Principal Inv estigato rs on the project. Co -

principal i nvestigator status is conferred on the people who

write the grant proposal. Another major Res erve grant was from

the National Oceanic and Atmospheric Administration (NOAA) , which

funded 40 percent of the Reserve. It is very important for the

Reserve to maintain these grant relationships, because these

partnerships provide funds as well as visitin g personnel to allow

research to continue .

12. On December 26, 2011, the Reserve hired Ms. Andrea

Small as its Watershed Coordinator, reporting to Mr. Burgess.

Under the new staffing plan, the GIS a nalyst was supposed to

report to the w atershed c oord inat or. As a new employee,

Ms. Small was i n probationary status.

13. While Mr. RajasekharÓs ability to do high - end

geospatial analysis was never in question, issues soon arose

involving other tasks he was supposed to perform. He took longer

than most employ ees in using basic computer programs, such as

Microsoft Office programs, and staff complained to Dr. Shirley

that he would keep asking them to perform the same basic tasks

for him. Dr. ShirleyÓs response generally was:

HeÓs new. Help him, because we help

everyone. LetÓs get him Î - you know, get him

moving in the right direction.

As time went on, the pattern did not change, and some staff

members concluded that Mr. Rajasekhar was always going to ask

them to perform certain tasks for him, so they took the position

that they would show him something once, but then insist that he

do it for himself the next time.

14. Within the first thre e months of his employment,

Mr. Rajasekhar made an appointment to meet with Dr. Shirley. At

the meeting he firmly stated t hat he needed a pay raise.

Dr. Shirley testified that in tone it was Ðmore strong than

Òasked,Ó but not quite a demand.Ñ Dr. Shirley thought that the

request was badly timed. State government was laying off

workers, he had several other deserving emplo yees who had not had

a raise in several years, and Mr. Rajasekhar was still on

probation. Ra ises had to be approved at the d eputy s ecretary

level, and Dr. Shirley felt that although Mr. Rajasekhar had good

geospatial analysis skills, he could not justi fy putting him in

for a raise.

15. Dr. Shirley explained why the timing was bad and why he

felt he could not make the case for giving Mr. Rajasekhar a raise

just then. Mr. Rajasekhar took out a notebook and indicated to

Dr. Shirley that he was writing down, Ð[y]ou will not give me a

pay raise.Ñ Dr. Shirley felt that exaggerated effort at

documentation was meant to infer some sort of discrimination on

Dr. ShirleyÓs part. Dr. Shirley explained that he was not

treating Mr. Rajasekhar differently from anyone e lse. He told

Mr. Rajasekhar that if any employee came in after only three

months on the job, he would decline to put him in for a raise.

Dr. Shirley told him that if he believed that this was some sort

of discrimination, they needed to contact the Bureau of Personnel

Services and talk to them. This seemed to de - escalate the

situation, and Mr. Rajasekhar stopped writing. Mr. Rajasekhar

said that he did not want to call the Personnel o ffice, and

indicated to Dr. Shirley that h e understood the situation.

1 6. When a ranger needed maps relating to a prescribed fire

for resource management, Mr. Rajasekhar told the ranger that this

was Ðlow - endÑ GIS work, that the ranger could do it himself , and

that Mr. Rajasekhar would show him how to do it. Dr. Shirley

tes tified that the ranger was unfamiliar with GIS software and

that this was part of Mr. RajasekharÓs job. The Reserve had a

limited number of employees and everyone needed to help everyone

else to accomplish the ReserveÓs mission. Dr. Shirley felt that

mor ale and teamwork were suffering. However, Mr. Rajasekhar

ultim ately completed the burn maps.

17. Mr. Rajasekhar also had difficulty completing other

more sophisticated tasks assigned to him. He asked Dr. Shirley

to run Kappa statistics for him. Kappa s tatistics are commonly

used in GIS work to correlate computer images with known reality

in the habitat. Mr. Rajasekhar had indicated on his resume that

he had developed a field sampling protocol to calculate Kappa

statistics. Yet , Mr. Rajasekhar approach ed Dr. Shirley at one

point and asked if Dr. Shirley would do the Kappa statistics on a

project. When Dr. Shirley asked Mr. Ra jasekhar why he was asking

the d irector of the Reserve to do the statist ics, Mr. Rajasekhar

replied , Ð[i]t needs to be done by a Ph.D.Ñ Dr. Shirley

testified that Mr . Rajasekhar later went to the research

c oordinator and asked the same qu estion, but that ultimately

Mr. Rajasekhar ended up doing the statistics himself.

18. Mr. RajasekharÓs presentation at his employment

interview a nd his credentials indicated that he could work with

pollution loading coefficients and determine how water flowed and

affected estuarine water quality. But , when Dr. Shirley asked

him to conduct such an analysis, he repl ied that this work

required a Ph .D . - level hydrologist. One of the first mapping

projects Mr. Rajasekhar produced for Dr. Shirley involved flow

ways, the way water flows through a watershed. Dr. Shirley was

using the map in a meeting with Flagler County officials when he

realized that Mr. Rajasekhar had indicated that in one canal

water was flowing in opposite directions. When this was called

to Mr. RajasekharÓs attention, he simp ly removed the arrow

directions and started referring to the maps as Ðflow linesÑ

rather than Ðflow ways.Ñ Th e maps then didnÓt show the

information that was needed, whi ch Dr. Shirley explained to

Mr. Rajasekhar.

19. Mr. Rajasekhar stat ed in his applicant profile ,

Ð[e]stuarine scientists would rate my knowledge of estuarine

ecology at an experienced professional level.Ñ Yet in working on

a project in which a vendor was going to take satellite imagery,

when it was necessary for Mr. Rajasekhar to determine the time of

low tide, he asked Mr. Burgess how he could do this. Mr. Burgess

had to show him how to read the NOAA tide chart. Within the same

period of time, Mr. Rajasekhar also asked Dr. Shirley the same

question, who showed him the same thing. In later conversations

between Mr. Burgess and Dr. Shirley, they realized this had

happened and discussed how odd th is was, if Mr. Rajasekhar was an

experienced prof essional of estuarine ecology.

20. When asked to do a pr oject, Mr. Rajasekhar would often

say that in order to do it properly, he would need a certain

amount of money, or new software, or additional hard dr ive space.

Dr. Shirley would have to repeatedly explain that the Reserve was

unfortunately on a limited budget and that a product would still

be valuable if done under less - ideal conditions. Rather than

delay the project, he would tell Mr. Rajasekhar tha t the analysis

should be performed with the best technology practically

available, and for Mr. Rajasekhar to annotate the data to

i ndicate the level of accuracy.

21. In early January, the Reserve was hosting a tour of the

watershed for UF personnel workin g on the sea level rise project.

The UF participants came over in two vans with lots of the

students who were working on the project. The trip required

four - wheel drive vehicles, and given the large number of people

from UF and the limited number of vehi cles, there was only enough

room for a few Reserve personnel to visit the watershed.

Dr. Shirley chose himself, as Direc tor, Ms. Emily Montgomery, the

coastal t raining p rogram coordinator and a co - principal

i nvestigator on the grant, and Ms. Small, the w a tershed

c oordinator, who was giving the tour of Pringle Creek, one of her

acquisition projects .

22. Mr. Rajasekhar subsequently approached Dr. Shirley and

said that he felt he had be en excluded from the trip.

Dr. Shirley explained why so few Reserve pers onnel could

participate and why he had selected the ones that he did.

23. In late January, when Dr. Shirley was on the road

visiting a preserve site, the UF team asked Dr. Shirley which

ÐtilesÑ of LIDAR data were missing for Pellicer Creek, because

they had decided to pick up the cost of filling in the missing

pieces. The UF people were going to meet with the vendor that

afternoon, so they wanted the information as soon as possible.

Dr. Shirley e - mailed Mr. Rajasekhar to ask which tiles were still

missi ng based on the ma p that Mr. Rajasekhar had shown him a

month earlier. Mr. RajasekharÓs response only described

background information regarding the map. Dr. Shirley replied

that he only needed the number of tiles that were still missing.

Again, Mr. Raj asekhar was argumentative and evasive: he gave

explanations, but not the number of tiles that were missing.

This dialogue went on for four or five e - mails. Ms. Small, who

had been copied on all of th e e - mails, finally e - mailed

Mr. Rajasekhar to explain that all Dr. Shirley wanted to know was

whether or not the i magery had been acquired and the number that

were still missing. Mr. Rajasekhar finally p rovided that

information to Dr. Shirley.

24. Ms. Small and Mr. Rajasekhar were working in the same

small office, which was only about 12 square feet, with their

desks in opposite corners. After this incident, Ms. Small

testified that Mr. Rajasekhar got up from his desk, put his hands

on his hips, and said, Ð[w]ell, IÓve been excluded from the

project, so I d onÓt feel like I have to answer you,Ñ or words to

the effect. Ms. Small believed Mr. Rajasekhar was referring back

to the UF watershed tour. Ms. Small felt that because she was a

woman , Mr. Rajasekhar was not giving her the respect she deserved

and that he was being insubordinate to her as his supervisor.

Ms. Small told Mr. Rajasekhar that if he was going to be

demeaning to her, he needed to leave the room. Mr. Rajasekhar

did not leave, and Ms. Small decided that she should leave

instead.

25. After Ms . Small left the room , Mr. Rajasekhar e - mailed

Dr. Shirley, with copy to Mr. Burgess, saying: ÐA little while

ago Andrea told me that I should not be working in this office

and leave. Please let me know.Ñ Mr. Burgess replied, ÐRaj, You

do not have to le ave your office, continue working.Ñ

26. Dr. Shirley received complaints from both Ms. Small and

Mr. Rajasekhar about the incident. Ms. Small told him she felt

threatened and disrespected and Mr. Rajasekhar told him he felt

as if his character had been at tacked. Upon further inquiry ,

Dr. Shirley decided that Ms. Small had not been physically

threatened, but rather that she was upset at Mr. RajasekharÓs

Ðposturing,Ñ which she felt was inappropriate , as she was his

supervisor. Dr. Shirley was very concerne d with the

misunderstanding that had occurred and with this type of

interaction between his employees. Dr. Shirley was also

concerned that he had not been able to easily get a simple answer

from Mr. Rajasekhar. Dr. Shirley wanted to make things work. He

wanted to get his employees working together and not lose the

potentially very important contribution Mr. Rajasekhar could make

to the Reserve.

27. On January 30, 2012, Dr. Shirley met with Mr. Burgess,

Ms. Small, and Mr. Rajasekhar to find out more deta ils about the

incident and to try to work out a plan for the future.

28. In considering optio ns to resolve the tensions,

Dr. Shirley discovered after talking with Department personnel in

Tallahassee that because Ms. Small and Mr. Rajasekhar were both

serv ing in the position of Environmental Specialist I, that she

could not technically be his supervisor, even though she had been

serving in that role for about a month.

29. On January 31, 2012, Dr. Shirley sent an e - mail to the

three summarizing their meetin g. The e - mail outlined several

procedures to Ðimprove communication and efficienciesÑ with

respect to GIS services. Among other items, the e - mail outlined

that Mr. Rajasek har would report to Mr. Burgess, Mr. Rajasekhar

would provide a list of current GIS projects underway with

milestones t o completion, GIS projects would be completed using

the best practically available data, notations would be made as

to the accuracy of the product, and a summary report would be

prepared by Mr. Rajasekhar at the completi on of each project.

The e - mail identified three projects as Ðhigh priorityÑ: SLAMM

Model Inputs to the UF Team; the NERRS Habitat Mapping and Change

Initiative; and the Reser veÓs Flow - Ways modeling effort.

30. D r. Shirley, Mr. Burgess, and Mr. Rajasekha r jointly

developed a GIS a nalyst work plan for Mr. Rajasekhar. It listed

seven major projects that he was to be working on, including the

updating of Ðburn maps,Ñ SLAMM inputs to the UF group, the

preparation of a GTMNERR Habitat Mapping plan, and genera tion of

LIDAR based water flow ways. These projects included interim and

final products, as well as due dates. Dr. Shirley was very

pleased with the e - mail outlining workflow changes and the work

plan, because he believed they reflected collaborative eff ort and

he hoped and believed that they would improve operations at the

Reserve and resolve some of the issues regarding Mr. RajasekharÓs

employment.

31. DEP Deputy Secretary Greg Munson was scheduled to visit

the Reserve on May 25, 2012. Dr. Shirley pre pared an agenda for

the visit, establishing staff assignments and themes for various

tours and briefings to complement DEP headquarters initiatives

relating to restoration, ecotourism, and water resources. While

some agenda items specified participation b y specific staff

members, Mr. Rajasekhar was not listed on any of these. Other

items, including lunch at the Matanzas Inlet Restaurant, and a

meeting with all Reserve staff, were open to everyone.

32. Mr. Rajasekhar did not show up at the time and place

scheduled for Deputy Secretary Mun son to meet with staff, but

Mr. Rajasekhar did meet with him for a short period shortly aft er

the scheduled meeting time.

33. Sometime in May, Mr. Rajasekhar e - mailed Dr. Kathryn

Frank, head of the sea level rise project being conducted by the

Reserve and UF, requesting that he be added as a c o - principal

i nvestigator on the project Ðfor ethical reasons.Ñ He did not

let his s upervisor, Mr. Burgess, or the d irector, Dr. Shirley ,

know that he was doing this. Dr. Frank ex pla ined to

Mr. Rajasekhar that his contribution was appreciated, but that

c o - p rincipal i nvestigator status rested with the people who

initially submitted the grant. Dr. Frank called Dr. Shirley to

ask what was going on and to comment that the request was ver y

strange. Dr. Shirley was concerned because of the important

relationship between UF and the Reserve. On May 29, 2012,

Mr. Rajasekhar was counseled by Dr. Shirley for inappropriately

contacting the hea d of the UF project to request co - p rincipal

i nvestig ator status without even advising his superiors or

getting their permission to do so. Mr. Rajasekhar indicated that

he understood and would not do it again.

34. On May 31, 2012, a meeting was held at UF on the sea

level rise project. Dr. Shirley, Ms. Mo ntgomery, Ms. Small, and

Mr. Rajasekhar made the drive over. Mr. Rajasekhar was critical

of the UF speakers and the SLAMM modeling that was presented.

Dr. Shirley was not too concerned for the presenters themselves,

because as scientists, he believed tha t they would be used to

criticism. However, he later testified that he was concerned

because Mr. Rajasekhar had offered no solutions, but had just

criticized the accuracy of the model, wit h no constructive

suggestions about how it could be improved. Then , during

discussions at the meeting about emergency management issues

relating to sea level rise and people getting away from the

coast, Mr. Rajasekhar made the comment that he person ally had a

low income and would no t be able to get out because he was at the

poverty level. Dr. Shirley was concerned because he believed

this personal reference was Ðinappropriate,Ñ that it was not

true, and that it embarrassed the Department and presented the

Department in a bad light.

35. On June 4, 2012, Mr. Raja sekhar re ceived an official

ÐoralÑ reprimand from Dr. Shirley for conduct surrounding the UF

project team meeting and his comments regarding his personal

income. The reprimand cited his behavior as a violation of DEP

Standard of Conduct 435 - 7(a), Conduct Unbecomin g a Public

Employee. Mr. Rajasekhar was directed not to engage in further

conduct that would bring discredit to DEP or to the State. The

reprimand also noted that Mr. Rajas ekhar Ðbarely spokeÑ on the

two - hour drive to and from the meeting and did not wal k with the

rest of the delegation, but wa lked far in front of them.

Dr. Shirley noted that this behavior was not unprofessional, but

that it concerned him. The reprim and further advised that if

Mr. Rajasekhar was having issues or problems that he felt he

could not discuss with Dr. Shirley, that the Employee Assistance

Program was available to him and to his family.

36. When Mr. Rajasekhar was presented with the reprimand,

he became defensive and argumentative. He denied having said

that his income was a t poverty level. However, Dr. Shirley did

not believe this because the other Reserve employees present at

the UF meeting confirmed that h e had made that statement.

Mr. Rajasekhar went on to tell Dr. Shirley that he felt he had

been excluded from the Depu ty SecretaryÓs visit that occurred

earlier in the month. Mr. Rajasekhar began talking about

discrimination, saying that he had been a union representative at

the Minnesota Department of Natural Resources and that knew what

his rights were. Dr. Shirley wa s surprised at this response to

the oral reprimand, because he considered it to be only a minor

corrective action, not action leading toward dismissal or

consti tuting significant discipline.

37. Mr. Rajasekhar prepared a written response to the

reprimand that same day. After presenting his differing

recollecti on of the remarks regarding low - income housing and

poverty - level incomes, his response went on to state in part:

I appreciate you bringing your concerns about

my behavior during the drive and the wal k.

Thanks for letting me know that the same is

not un - professional. I participated in the

work - related topics and fully acknowledge

that I did not do so in non - work related

topics (such as individual private matters).

* * *

Finally in future even if I am cautious,

there inevitably would come some complaints

that my conduct is unbecoming of a public

employee in the eyes of some or few; for

example when issues such as ethnicity/

demographics crop up. Would I then be

subjected to more disciplinary action? Would

minimizing (or possibly eliminating) my

presence in public or other forums be

helpful?

38. PetitionerÓs presumably sarcastic reference to courses

of conduct he should follow in the future when issues might arise

involving ethnicity fell short of a direct claim that the oral

reprimand was an act of discrimination. However, his response

did indicate that Mr. Rajasekhar perceived some connection

between his comments at the UF meeting, his nation al origin, and

the reprimand.

39. In response to Mr. R ajasekharÓs statement during the

meeting on the oral reprimand that he had felt excluded during

the Deputy SecretaryÓs visit, Dr. Shirley found the original

e - mail that he had sent out to all of the staff with the agenda

attached. Dr. Shirley forwarded this e - mail to Mr. Rajasekhar on

June 4, 2013, stating that Mr. Rajasekhar had not been excluded

and again explaining that due to the limited time , only a few

aspects of Reserve functions that related to DEP priorities could

be place d on the agenda.

40. Shortly afterward, Ms. Zimmerman was coordinating

preparation of NOAA Operations Grant progress reports. She sent

out an e - mail at 12:38 p.m. on June 11 to several staff members ,

including Mr. Rajasekhar, explaining that two reports were due:

progress re port #4 on F0990; and the second p rogress report on

F1001. Both of these reports were to cover the first half of the

calendar year. She explained that she was attaching to the

e - mail the remaining tasks from F0990 that she needed an update

paragraph on, as well as a copy of progress report #3 so the

staff could see what had been sent for the previous reporting

period. She requested the update paragraphs by July 13, 2013,

and advised that she would send out similar information on her

request for the o the r grant report, F1001, shortly.

41. At 2:37 p.m. on June 11 , Mr. Rajasekhar replied to

Ms. ZimmermanÓs e - mail by pasting two paragraphs from progress

report #3 along with the following comments:

I have gone through the documents and perused

the items o f relevance as requested by you.

I seem to be in the dark and also somewhat

confused. Below is the summary of what I

just learned:

* (text pasted from progress report #3) *

This is the first time; I am coming across

this information in any significant way. I

believe I have not been provided this

document before for perusal. I have not been

involved in any decisions either.

* (more text from progress report #3) *

The above document contains much more

information (GIS) and is concise (the way

that wou ld be ideal). However the

information for most part is new to me.

1. Flow ways update: I have not been privy

to most of the information and neither have

been involved (in any significant way) in any

aspect of development.

2. Habitat mapping and chang e plan Update:

The same as above.

Hence if you need professional, accurate and

significant response from [sic] , I request

that I be more involved in the critical

processes that produce these portions of the

document so that I may be better equipped to

do so. In addition it would greatly help

some aspects of my work. Please let me know.

42. Later that same afternoon, Ms. Zimmerman sent a second

e - mail to several staff members , including Mr. Rajasekhar,

specifically requesting input into the second prog ress report for

NOAA F1001. She attached the original grant task text, as well

as a copy of the previous progress report (July through

December 2011) as an example of what she was looking for. The

e - mail further identified the specific tasks each of th e staff

members was responsible for (Mr. RajasekharÓs were identified as

Task 4, outcome 4; and Task 5, outcome 1) , asking for an update

paragraph by July 13, 2012.

43. Ms. Zimmerman and Mr. Rajasekhar had further

communications regarding the update par agraphs. He forwarded her

e - mails he had sent earlier involving the two projects. She

requested him to summarize this information into update

paragraphs. He sent her another document. She asked him to

carefully review her original e - mails and to submit an updated

paragraph on each project.

44. On June 12, 2012, Mr. Rajasekhar responded to

Ms. Zimmerman, with copies to D r. Shirley and Mr. Burgess, in

part as follows:

I have gone through the two documents (the

relevant part). Both the documents contain

information that is new to me for the most

part. In addition, I have not been involved

in producing or guidance of these documents.

In fact very little of my time or efforts are

spent on such activities. A very minor part

of these large documents is in fact relevant

to my performance. After spending

significant time going through the documents

and perusing the items of relevance, I am

more confused. One document has items of

relevance (4 & 1) as guided by you that I am

not aware of till now. Had my wo rk involved

discussing or guiding these in any way, I

would have been more equipped to adequately

respond. More over when such documents come

to my attention for response, I recommend

that relevant part/s be sent to me so that I

am not confused anymore an d do not

unnecessarily tax my time or efforts.

45. These communications from Mr. Rajasekhar were not

helpful to Ms. Zimmerman in preparing the progress reports. The

tasks for which she was reques ting update paragraphs from

Mr. Rajasekhar involved the fl ow ways project and the Habitat

Mapping and Change Plan , which were part of Mr. RajasekharÓs

agreed - upon work plan and which had been identifie d as Ðhigh

priorityÑ projects.

46. Ms. Zimmerman sent an e - mail to Ms. Geraldine Austin,

with copy to Dr. Shirle y and Mr. Burgess, stating in part, Ð[a]s

a probationary employee the amount of oversight/direction needed

of this employee and his response lead me to believe that

termination is necessary.Ñ

47. On June 13, 2012, Dr . Shirley sent an e - mail to

Mr. Larry N all, interim CAMA Director, describing some of the

incidents and concerns regarding Mr. Rajasekhar. In the

discussion of the oral reprimand, the e - mail specifically

mentioned Mr. RajasekharÓs references to discrimination. The e -

mail also summarized the s ituation involving Ms. ZimmermanÓs

attempts to update the progress re ports for the NOAA grants.

Dr. Shirley also forwarded the e - mail to Mr. Kevin Claridge, who

had been hired to fill the open position of CAMA Director, but

had not yet begun work.

48. Dr . Shirley testified that he believed that the

situations involving Mr. Rajasekhar were affecting staff, morale,

teamwork, and the ReserveÓs partners. He found Mr. RajasekharÓs

communications in response to requests from other staff members,

including the a ssistant d irector and himself, to be often evasive

and defensive. He believed that Mr. Rajasekhar defined his own

duties very narrowly and that Mr. RajasekharÓs conduct and

communications negatively impacted Reserve workflow and had the

potential to dama ge the Reserve Ós partnerships.

49. Mr. Rajasekhar was n otified by letter signed by

Mr. Kevin Claridge, Director of CAMA, that his employment was

being terminated for failure to satisfactorily complete his

probationary period, effective at close of busines s on June 29,

2012. This was a form letter used whenever it was found

necessary to terminate the employment of a probationary employee.

50. On October 5, 2012, Petitioner filed a complaint with

the Commission, alleging that the Department had discriminat ed

against him based upon his national origin, an d had retaliated

against him.

51. In a November 7, 2012, Affidavit, Dr. Shirley set forth

reasons for Mr. RajasekharÓs termination for submission to the

Commission in response to Mr. RajasekharÓs complaint. It stated

that Mr. Rajasekhar demonstrated Ðinconsistent work performance

and unacceptabl e behavior.Ñ It noted that Mr. Rajasekhar had

been counseled on occasions prior to his termination. It gave

three reasons for Mr. RajasekharÓs dismissal: that his abilities

were not consistent with the skills that had been reported on his

job application , that Mr. Rajasekhar exhibited a defensive and

negative attitude when confronted with expectations that were

clearly within the scope of hi s job, and that on occas ion

Mr. Rajasekhar did not interact positively with other employees

who depended on GIS support for their job functions.

52. The Commission issued its Notice of Determination of No

Cause on March 25 , 2013, advising Petitioner of his right to file

a Petiti on for Relief within 35 days.

53. Petitioner filed his Petition for Relief on April 23,

2013.

54. Mr. Rajasekhar was an excellent high - end geospatial

analyst, but he had difficulty accepting any assignments not

directly involving such analysis even thoug h they were part of

his job description. It is not entirely clear if this was

because he was simply uncomfortable with some tasks, or unable

to easily perform them, as appeared to be the case with some

analyses involving hydrology or the calculation of Ka ppa

statistics; or , alternatively , whether he simply felt such tasks

were inappropriate for his position, which appeared to be the

case with the preparation of burn maps and some tasks involving

basic computer skills. In any event, his narrow definition o f

his job responsibilities adversely affected the work flow and

made his work performance inconsistent. This affected te am

productivity at the Reserve.

55. Mr. Rajasekhar never seemed to understand his role as

part of the Reserve team. He made a request for a raise while

still on probationary status, he mad e an inappr opriate request

for co - principal i nvestigator standing directly to Dr. Frank

without even notifying his superiors, and he indicated on more

than one occasion that he believed he was being im properly

excluded from events or activities at which his presence was not

actually needed to support the Reserve mission. His

relationship with other members of the Reserve team, including

his superiors, was awkward, and at times his conduct was

unaccepta ble and embarrassing to the Reserve.

56. Mr. Rajasekhar was extremely sensitive to any comments

about his performance. He became defensive and hostile at any

suggestion that his performance was lacking in any way, and

sometimes interpreted questions or c omments that were not

intended to questio n his performance as doing so.

57. No evidence was presented to show that there were

other probationary employees of the DEP who had received an oral

reprimand and then continued to exhibit unsatisfactory behavior

during the time tha t Mr. Rajasekhar was employed.

58. Mr. Rajasekhar believed that h e had been ÐexcludedÑ

from the S ecretaryÓs visit and that there was a connection

between his comments at the UF meeting, his natio nal origin, and

the reprimand.

59. The c omments Mr. Rajasekhar made in his oral and

written responses to the reprimand to the effect that he had

been discriminated against were statutorily protected activity.

60. The actions of the Department toward Mr. Rajasekhar,

and those of its employees, w ere not motivated in whole or in

part by Mr. RajasekharÓs national origin.

61. Mr. RajasekharÓs dismissal was not an act of

discrimination or retaliation.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the subject m atter and the parties to this

action in accordance with sections 760.11(4), 120.569 , and

120.57(1), Florida Statutes (2013).

63. Section 760.11(1), Florida Statutes (2011), 1/ provides

that an aggrieved person may file a complaint with the

Commission with in 365 days of the alleged violation. Petitioner

timely filed his complaint. The Notice of Determination of No

Cause advised Petitioner of his right to file a Petition for

Relief within 35 days. Petitioner timely filed his Pet ition

requesting this heari ng.

64. Petitioner has standing to bring this proceeding.

65. Respondent is an employer as that term is defined in

section 760.02(7).

Post - Hearing Exhibits

66. Before addressing PetitionerÓs claims of unlawful

employment practices, RespondentÓs Objecti ons and Motion to

Strike the post - hearing exhibits filed by Petitioner must be

considered. Petitioner indicated at hearing that he had some

documents -- which had earlier been provided to him by

Respondent in response to public records requests -- that he

wished to introduce into evidence, but he had them only in

electronic form on a Ðthumb drive.Ñ Without objection,

permission was granted for Petitioner to submit these documents

as post - hearing exhibits, even though it was not clear whether

copies had be en provided to Respondent in accordance with the

Order of Pre - Hearing Instructions. Respondent was then given

seven days after these post - hearing exhibits were submitted to

file any objections to them, and Petitioner was given seven days

after that to res pond to objections. This procedure was set up

in light of the fact that Petitioner was proceeding pro se and

may not have fully understood the possible consequences of

failure to provide the documents to Respondent prior to hearing,

and because no prejudi ce could be seen to Respondent, which had

originally provided all of the documents to Petitioner.

67. On July 5, 2013, Petitioner filed about 200 pages of

documents, many of which he had already introduced at hearing.

Respondent filed objections on July 17, 2013, and Petitioner

filed a response to RespondentÓs objections on July 29, 2013,

both of which were accepted under the Order Granting Extension

of Time. Full consideration was given to the partiesÓ arguments

as to the admissibility of these document s. The references

below to page numbers are to the Bate - stamp numbers helpfully

provided by Respondent.

68. RespondentÓs objections to pages 1 - 43, 51 - 70, 78 - 82,

90 - 94, 97 - 101, 102, 103 - 104, 112, 117, 125, the bottom half of

page 131, pages 132, 141 - 142, and 165 - 167 are sustained. These

pages are irrelevant to the issues in this proceeding.

69. RespondentÓs objections to pages 44 - 46, 47, 71 - 75, 83 -

87, 88, 95 - 96, 105 - 111, 113, 114, 118, 120, 122 - 124, 126, 127 -

129, 130, the top half of page 131, pages 133 , 134, 135, 138,

139, 140, 143, 144, 147, 148, 149 - 150, 151, 152 - 153, 154, 155,

156 - 157, 160 - 161, 162, 163, 164, 165, 168, 169, 170, 171 - 172,

173, 174 - 176, 177 - 178, 179, 180 - 181, 182 - 183, 184 - 185, 186 - 187,

188 - 189, 190, 194, 195 - 196, 197 - 198, and 199 - 200 a re sustained.

These pages are duplicative of exhibits already admitted.

70. RespondentÓs objection that pages 136 - 137 have not

been properly authenticated is sustained. The e - mail string as

offered by Petitioner contains on its face circumstantial

evid ence in the form of date and time information indicating

that it does not constitute a continuous e - mail chain as

represented. Petitioner responded: ÐSeries of e - mails supplied

to me electronic formats. Some of forwardings & response.Ñ

PetitionerÓs res ponse failed to demonstrate the authen ticity of

the e - mail string.

71. RespondentÓs objection to pages 76 - 77 as irrelevant is

overruled and they are admitted as PetitionerÓs Exhibit P - 66.

RespondentÓs objection to page 191 as irrelevant is overruled

and it is admitted as PetitionerÓs Exhibit P - 67. RespondentÓs

objection to pages 201 - 202 as irrelevant is overruled and they

are admitted as PetitionerÓs Exhibit P - 68.

72. RespondentÓs objection to pages 192 - 193 is overruled

with respect to those portions of the letter which pertain to

PetitionerÓs allegations of discrimination and the handling of

those allegations by the Department. These pages are admitted

as PetitionerÓs Exhibit P - 69. RespondentÓs objections as to the

portions of this letter perta ining t o alleged conduct of

Ms. Zimmerman and Mr. Burg ess and those portions pertaining to

Re - employment Assistance are sustained; those portions will not

be considered.

73. RespondentÓs objections to PetitionerÓs Exhibits P - 9,

P - 17, P - 42, P - 44, and P - 65, which were already admitted at

hearing, are overruled.

74. Respondent did not object to pages 115 - 116, which are

admitted as PetitionerÓs Exhibit P - 70; pages 145 - 146, which are

admitted as PetitionerÓs Exhibit P - 71; or pages 158 - 159, which

are admitted as Peti tionerÓs Exhibit P - 72.

75. At hearing , Petitioner also requested that he be

provided with e - mails regarding monthly progress reports

submitted by Ms. Small and Mr. Gary Swenk, which he had

requested in a public records request to the Department prior to

h earing. Although Petitioner did not comply with applicable

rules of discovery, Respondent was asked to provide the e - mails

to Petitioner post - hearing. These 24 pages of e - mails have been

compiled as a composite exh ibit and are admitted as P - 73.

76. All exhibits, whether admitted during hearing or post -

hearing, were given full consideration in the preparation of

this order.

PetitionerÓs Request for Water Flow Records

77. Another matter preliminary to discussion of

PetitionerÓs discrimination claims is Pe titionerÓs pending

Motion requesting Respondent to provide copies of certain

records and datasets from which he generated water flow lines on

a map referred to by Respondent at hearing. The Motion, which

was filed on August 20, 2013, nearly 60 days after hearing, is

denied. 2/ The information was requested for the express purpose

of rebutting evidence presented by Respondent at hearing and to

Ðdispel any and all inaccurate testimonyÑ against Petitioner.

While recognizing that Petitioner appeared pro se an d may be

unfamiliar with hearing procedures, evidence is presented at the

final hearing, and the time for discovery of evidence in this

case has long passed. Arguments on the merits of this case

presented in PetitionerÓs Motion were not considered in the

prepara tion of this Recommended Order.

National Origin Discrimination Claim

78. The Florida Civil Rights Act, sect ions 760.01 Î 760.11

and 509.092 , is patterned after federal law contained in

Title VII of the Civil Rights Acts of 1964, and Florida courts

ha ve determined that federal discrimination law should be used

as guidance when construing its provisions. See Joshua v. City

of Gainesville , 768 So. 2d 432, 435 (Fla. 2000) (Florida ActÓs

Ðstated purpose and statutory construction directive are modeled

aft er Title VIIÑ); Valenzuela v. Glo beGround N. Am . , LLC , 18

So. 3d 17, 21 (Fla. 3d DCA 2009); Fla. State Univ. v. Sondel ,

685 So. 2d 923 (Fla. 1st DCA 1996).

79. Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to "di scharge or to fail or

refuse to hire any individual, or otherwise to discriminate

against any individual with respect to compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, national origin, age,

handicap, or marital status."

80. Petitioners alleging unlawful discrimination may prove

their case using direct evidence of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent wi thout resort to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); Holifield v. Reno , 115 F. 3d 15555, 1561 (11th

Cir. 1997).

81. Generally, direct evidence relates to the actions,

statements, or bias of the person m aking the challenged

employment decision. See Trotter v. Bd. of Trustees of Univ. of

Alabama , 91 F.3d 1449, 1453 - 1454 (11th Cir. 1996). If, however,

the evidence presented is by inference subject to more than one

possible meaning, it is not direct eviden ce of discrimination

and must be considered circumstantial evidence. Carter v. Three

Springs Residential Treatment , 132 F.3d at 635, 642 (11th Cir.

1998)(citing Harris v. Shelby C nty . Bd. of Educ. , 99 F.3d 1078,

1082 - 1083 n. 2 (11th Cir. 1996)). Courts h ave held that "only

the most blatant remarks, whose intent could be nothing other

than to discriminate," satisfy this definition. Damon v.

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

Cir. 1999)(internal quotations omitted), cert. deni ed , 529 U.S.

1109 (2000). Often, such direct evidence is unavailable, and in

this case, Petitioner presented none.

82. In the absence of direct evidence, the law permits an

inference of discriminatory intent if complainants can produce

sufficient circums tantial evidence of discriminatory animus.

Discriminatory animus may consist of proof that the charged

party treated persons outside of the protected class (who were

otherwise similarly situated) more favorably than the

complainant was treated. Such circ umstantial evidence may

constitute a prima facie case.

83. In McDonnell - Douglas Corporation v. Green , 411 U.S.

792 (1973), the Supreme Court of the United States established

the analysis to be used in cases alleging claims under Title VII

that rely on cir cumstantial evidence to establish

discrimination. This analysis was later refined in St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993).

84. Under McDonnell - Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non -

discriminatory reason for the action taken against Petitioner.

It is a burden of production, not persuasion. If a non -

discrimina tory reason is offered by Respondent, the burden of

production then shifts back to Petitioner to demonstrate that

the offered reason is merely pretext for discrimination. As the

Supreme Court stated, before finding discrimination "[t]he

factfinder must be lieve the plaintiff's explanation of

intentional discrimination." Hicks , 509 U.S. at 519. See also

EEOC v. JoeÓs Stone Crabs, Inc. , 296 F. 3d 1265, 1273 (11th Cir.

2002)(while the intermediate burdens of production shift back

and forth, the ultimate burde n of persuasion remains with

Petitioner).

85 . In order to establish a prima facie case of national

origin discrimination, Petitioner must prove that: (1) he is a

member of a protected class; (2) he was subjected to an adverse

employment action; (3) his employer treated similarly situated

employees, who were not members of the same protected class,

more favorably; and (4) he was qualified to do his job.

Faucette v. NatÓl Hockey League , 2006 U.S. Dist. LEXIS 5188, 18 -

19 (M.D. Fla. Jan. 27, 2006); Mora v. Univ. of Miami , 15 F.

Supp. 2d 1324, 1335 (S.D. Fla. 1998).

86. Respondent concedes that , as a person with national

origin from India, Petitioner is a member of a protected class.

87. The second element is also met, as RespondentÓs

intended action to d ismiss Petitioner from his probationary

employment is an adverse employment action.

88. Petitioner also established the fourth element, that

he was qualified to do his job. PetitionerÓs demonstration that

he possessed excellent geospatial analysis skill s went beyond

that minimal showing of the basic job qualification that is

required to prove a prima facie case. Int'l B hd. of Teamsters

v. U.S. , 431 U.S. 324, 358 n. 44 (1977)( McDonnell - Douglas formula

demands only that plaintiff demonstrate that his rejec tion did

not result from an absolute or relative lack of qualifications

or the absence of a vacancy); Gregory v. Daly , 243 F.3d 687, 696

(2d Cir. 2001)(qualification prong must not be interpreted in

such a way as to shift into petitionerÓs prima facie case an

obligation to anticipate or disprove an employer's proffer of a

legitimate, non - discriminatory basis for its decision).

89. Respondent maintains that Petitioner failed to prove

the third element, that Respondent treated similarly situated

employees n ot of his protected class more favorably. In order

to make a valid comparison, Petitioner must show that he and the

comparators he identifies are similarly situated in all relevant

respects. Conner v. Bell Microproducts - Future Tech, Inc. , 492

Fed. Appx. 963, 965 (11th Cir. 2012). See also Wilson v. B/E

Aero., Inc. , 376 F.3d 1079, 1091 (11th Cir. 2004)(comparator

must be nearly identical to petitioner to prevent courts from

second - guessing reason able decisions by an employer).

90. Petitioner presented sc ant argument as to similarly

situated employees not of his national origin. He acknowledged

at hearing that Ðsimilarly sit uatedÑ is a difficult concept.

91. PetitionerÓs argu ment that Ms. Zimmerman and

Mr. Burgess were similarly situated to him was rejec ted at

hearing. Evidence of any alleged misconduct on their part that

was unrelated to Petitioner was therefore excluded.

PetitionerÓs allegations against Ms. Zimmerman and Mr. Burgess

were not at all similar to PetitionerÓs conduct or performance.

In a ddition, neither of them was in probationary status. Both

of them outranked Petitioner, and were in fact his supervisors.

Miller - Goodwin v. City of Panama City B ea ch , 385 Fed. Appx. 966,

971 (11th Cir. 2010)(male officer who was promoted was not

similarl y situated to plaintiff because he was of higher rank).

Ms. Zimmerman and Mr. Burgess were not similarly situated to

Petitioner.

92. The only other employee on probationary status about

whom any evidence was received was Ms. Small, and there was

nothing to suggest that her conduct or situation was otherwise

similar. There was no evide nce that she had been counseled, as

Petitioner h ad been for seeking co - principal investigator

status, o r that she had been reprimanded, as Petitioner had been

for conduct un becoming a public employee. While she had been

involved in an incident with Petitioner, the testimony was clear

that neither party had been disci plined for that encounter.

Dr. ShirleyÓs testimony that the resulting reorganization of

work procedures and d evelopment of the work plan were not

actions against Petitioner was persuasive. Ms. Small was not

similarly situated to Petitioner.

93. While Petitioner also suggested during the hearing

that Ms. Elizabeth Montgomery did not attend certain meetings

and t hat she was not disciplined for this, there was no evidence

presented to show that Ms. Montgomery was on probationary status

or was otherwise similarly situated to Petitioner. Lack of

attendance at meetings by Petitioner was never mentioned at

hearing as a basis for his dismissal and there was no indication

that Petitioner had ever bee n disciplined for this either.

94. Petitioner failed to demonstrate that Respondent

treated similarly situated employees who were not of Indian

national origin more favorab ly than he was treated, and so

failed to show a prima facie case of discrimination on t he basis

of national origin.

95. Even had Petitioner demonstrated a prima facie case,

however, Respondent articulated legitimate, non - discriminatory

reasons for Petitio nerÓs dismissal. Respondent alleged in

testimony that Petitioner had engaged in unacceptable behavior

embarrassing to the Department and possibly ultimately

detrimental to maintaining the ReserveÓs partnerships, and that

while highly skilled, Petitioner e xhibited inconsistent work

performance and lacked team - working skills.

96. Petitioner had the ultimate burden to show that the

allegations of unacceptable behavior embarrassing to the

Department, inconsistent work performance, and lack of team -

working ski lls were pretextual, and nothing but excuses for

discrimination against him. However, a reason is not pretext

for discrimination "unless it is shown both that the reason was

false, and that discrimination was the real reason." Hicks , 509

U.S. at 515. Pe titione r failed to meet this burden.

97. Petitioner did demonstrate that his high - end

geospatial analysis skills were exemplary, but the facts also

showed that Petitioner exhibited unacceptable behavior as well

as inconsistent performance and a lack of te am - working skills.

A different decision - maker might well have concluded that

additional oversight and direction to improve his work flow and

interaction with other employees and partners of the Reserve

would be preferable to t erminating Petitioner. But

D r. ShirleyÓs extensive earlier efforts to adjust structures and

operations at the Reserve solely for the purpose of better

integrating Petitioner into the work flow provided strong

evidence that the later decision to terminate him was simply a

legitimate b usiness decision. There is no basis to conclude

that the true motive for dismissal was actually discrimination

based upon PetitionerÓs national origin.

98. The law is not concerned with whether an employment

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

motivated by unlawful animus. As stated in Nix v. WLCY

Radio/Rahall CommcÓns , 738 F.2d 1181, 1187 (11th Cir. 1984),

"[t]he employer may fire an employee for a good reason, a bad

reason, a reason based on erroneous facts, or for no reason at

all, as long as its action is not for a discriminatory reason."

Retaliation Claim

99. Petitioner also alleged retaliation in his original

filing with the Commission. Scholz v. RDV Sports, Inc. , 710

So. 2d 618 (Fla. 5th DCA 1998)(Title VII plaintiff ca nnot bring

claims in a lawsuit that were not included in EEOC charge).

100. Section 760.10(7) provides in relevant part:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because that person has opposed any

pra ctice which is an unlawful employment

practice 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.

101. To establish a prima faci e case of retaliation,

Petitioner must show that: (1) he engaged in statutorily

protected activity; (2) he suffered a materially adverse action;

and (3) there was a causal connection between the protected

activity and the adverse action. Howard v. Walgre en Co. , 605

F.3 d 1239, 1244 (11th Cir. 2010).

102. To establish statutorily protected conduct,

Petitioner must first show that he had a good faith, reasonable

belief that Respondent was engaged in an unlawful employment

practice. He must show not only th at he subjectively believed

that Respondent engaged in such conduct, but also that his

belief was objectively reasonable in light of the facts. Gant

v. Kash N' Karry Food Stores , 390 Fed. Appx. 943, 944 - 45 (11th

Cir. 2010); Little v. United Tech . , 103 F.3 d 956, 960 (11th Cir.

1997). At this stage, Petitioner need not prove that the

conduct he opposed was actually unlawful, but the reasonableness

of his belief that Respondent had engaged in an unlawful

employment practice must be measured against existing

substantive law. Ramirez v. Miami Dade C nty . , 509 Fed. Appx.

896, 896 (11th Cir. 2013); Howard v. Walgreen Co. , 605 F.3d

1239, 1244 (11th Cir. 2010).

103. Petitioner demonstrated that he subjectively believed

that Respondent engaged in unlawful discrimin ation against him

based upon his national origin. Even at the very early point in

his employment when Petitioner firmly stated that he wanted a

pay raise, PetitionerÓs actions suggested that he considered the

denial to be discrimination. While an objecti ve person would

not agree, and testimony would even support the conclusion that

Petitioner himself came to see that no discrimination was

involved, it is clear that Petitioner was quick to initially

perceive discrimination. Later events at the Reserve sim ilarly

raised concerns of discrimination in PetitionerÓs mind. It is

clear that Petitioner either actually perceived discrimination

on these occasions or alternatively was simply attempting to use

his national origin as a ÐweaponÑ to achieve his goals eve n when

he actually knew there had been no discrimination. There is no

evidence to support the latter conclusion. Petitioner

subjectively believed that he had been ÐexcludedÑ from the

SecretaryÓs visit and that there was a connection between his

comments at the UF meeting, his natio nal origin, and the

reprimand.

104. In order for PetitionerÓs oral or written responses

to the reprimand to constitute statutorily protected activity,

however, Petitioner must not only have believed that Respondent

had engaged in an unlawful employment practice, that belief must

also have been objectively reasonable, even if actually untrue.

It is difficult to determine Dr. ShirleyÓs true motives in

scheduling presenters for Deputy Secretary Munson and to

reconstruct exactly wh at Petitioner said at the UF meeting or

how his comments related, if at all, to PetitionerÓs ethnicity.

Given this difficulty, although the undersigned found no

discrimination in either Department action, it cannot be said

that a reasonable, objective per son confronted with these events

as Petitioner was might not believe that discrimination had

occurred. The comments about discrimination that Petitioner

made in his oral and written responses to the reprimand

therefore constituted statutorily protected ac tivity.

105. The Department indicated its intent to dismiss

Petitioner from his employment prior to completion of his

probationary period. This constitutes a materially adverse

action against him, and meets the second prong required for a

prima fac ie cas e of retaliation.

106. The third prong is also met. Petitioner must

demonstrate a causal connection between the protected activity

and the adverse decision. This casual link element is construed

broadly, and may be established by a demonstration that th e

employer was aware of the protected conduct and that the

protected activity and the adverse action were not "wholly

unrelated." Farley v. Nationwide Mut. Ins. , 197 F. 3d 1322, 1337

(11th Cir. 1999); Olmsted v. Taco Bell Corp. , 141 F.3d 1457,

1460 (11th C ir. 1998). Moreover, for purposes of demonstrating

a prima facie case, close temporal proximity may be sufficient

to show that the protected activity and adverse action were not

wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F. 3d 571,

590 (11th Cir. 2000).

107. Respondent was clearly aware of PetitionerÓs

allegation of discrimination made during his oral response to

the reprimand and of the more veiled, but still clear, inference

in his written response that there was a connection between his

commen ts at the UF meeting, his national origin, and the

reprimand. Less than one month later, Petitioner was presented

with his letter of termination. This close proximity is

sufficient circumstantial evidence of a causal connection for

purposes of esta blishi ng a prima facie case.

108. Petitioner proved a prima facie case of retaliation.

109. Just as in other discrimination claims, once a prima

facie case of retaliation is established, the employer has an

opportunity to articulate a legitimate, non - retaliato ry reason

for the adverse employment action. Bryant v. Jones , 575 F.3d

1281, 1308 (11th Cir. 2009). Petitioner then bears the burden

of showing that the reason provided by the employer is a pretext

for prohibited retaliatory conduct, and the ultimate bur den of

proving retaliation by a preponderance of the evidence.

Goldsmith v. Bagby Elevator Co. , 513 F.3d 1261, 1277 (11th Cir.

Ala. 2008).

110. Respondent alleged at hearing that Petitioner was

dismissed because he exhibited unacceptable behavior as well as

inconsistent performance and a lack of team - working skills. The

presumption of retaliation disappears in light of the

articulation of this legitimate, non - retaliatory reason.

Entrekin v. City of Panama City , 376 Fed. Appx. 987, 997 (11th

Cir. 2010)(i f employer articulates a legitimate, non - retaliatory

reason for the challenged employment action, presumption

disappears and the burden is on petitioner to show that the

employer's reasons are only a prete xt for prohibited

retaliation).

111. Petitioner fa iled to show that these proffered

reasons for his dismissal were implausible, incoherent, or

contradictory in any way. Gant v. Kash'n Karry Food Stores,

Inc. , 390 Fed. Appx. 943, 945 (11th Cir. 2010); Silvera v.

Orange C nty . Sch. Bd . , 244 F.3d 1253, 1258 (11th Cir. 2001).

Petitioner suggested that the offered reasons were inconsistent,

as evidenced by the fact that no reasons had been given in his

letter of termination, but were only presented later to the

Commission or at hearing. However, this was full y explained by

Respondent as being due to PetitionerÓs probationary status,

which did not require Respondent to advance any reason in its

initial Ðform letterÑ advising Petitioner of his dismissal.

112. Petitioner vehemently maintained at hearing that

th ere was no evidence that his resume misrepresented his

qualifications, or that his skills were anything but exemplary.

While evidence on these points was slight, Respondent was not

required to prove it was correct in its assessment, but only to

state that its action was based on these legitimate concerns as

opposed to retaliatory ones. Respondent did so. Petitioner

failed in his burden to show that the reasons given by

Respondent were only pretext for discrimination.

113 . As to the other reasons given as grounds for

dismissal, Respondent was completely convincing in its

presentation. The record clearly showed, through the testimony

of several witnesses and the introduction of numerous documents,

many offered by Petitioner himself, that Petitioner did engage

in unacceptable behavior embarrassing to the Department which if

left unchecked might ultimately have been detrimental to

maintaining the ReserveÓs partnerships. While the record

unequivocally demonstrated Petitioner had excellent professional

skil ls, it also showed that he exhibited inconsistent work

performance and lacked team - working skills. The evidence did

not demonstrate that retaliation played any part in RespondentÓs

decision to terminate Petitioner.

114 . Petitioner failed to prove retali ation.

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Mr. Dasyam RajasekharÓs Petition for

Relief.

DONE AND EN T ERED this 11th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 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 11th day of September , 2013 .

ENDNOTES

1/ All references to statutes and administrative rules are to

the versio ns in effect during the employment of Mr. Rajasekhar

at the DEP , except as otherwise indicated. No relevant changes

to the applicable statutes or rules were identified during this

time period.

2/ PetitionerÓs Notice of public records request on August 2 6,

2013, does not request any action by DOAH, but to the extent it

could be considered as a Motion to Compel a response to

discovery, it appears to relate to the same information as

PetitionerÓs August 20, 2013 , Motion, and is denied for the same

reason.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, S uite 100

Tallahassee, Florida 32301

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Dasyam Samuel Rajasekhar

Carriage House, Room 43

2 297 Whitney Avenue

Hamden, Connecticut 06518

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.