13-001642 Georgie Breville vs. Florida Department Of Economic Opportunity Status: Closed Recommended Order on Thursday, September 26, 2013.

Summary: Petitioner's claim of employment discrimination was untimely. Petitioner did not present competent, substantial evidence of any act of discrimination which occurred within 365 days of filing her Complaint of Discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGIE BREVILLE ,

Petitioner ,

vs. Case No. 13 - 1642

FLORIDA DEPARTMENT OF ECONOMIC

OPPORTUNITY ,

Respondent .

/

RECOMMENDED ORDER

An administrative h earing was conducted in this case on

July 25, 2013, via video teleconference with sites in

Gainesville and Tallahassee, Florida, before Suzanne Van Wyk, an

administrative law j udge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Georgie Breville, pro se

2678 Southwest 14th Drive

Gainesville, Florida 32608

For Respondent: Michael Golen, Esquire

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whet her Respondent, Department of Economic Opportunity (DEO

or Department ) , discriminated against Petitioner, Georgie

Breville, in violation of the Florida Civil Rights Act of 1992

(the Act), sections 760.01 Î 760.11 and 509.092, Florida Statutes,

based upon her national origin, age, d isability, or in

retaliation.

PRELIMINARY STATEMENT

This matter was initially transmitted to the Division of

Administrative Hearings (DOAH) on January 7, 2013, and assigned

to t he undersigned as DOAH Case No. 13 - 0027. On February 6,

2013, the undersigned relinquished jurisdiction in that case to

the Florida Commission on Human Relations (Commission) , finding

that PetitionerÓs claim of employme nt discrimination was

untimely.

PetitionerÓs Complaint of Discrimination was filed on

Sept ember 29, 2011, and states that the last act of

discrimination occurred on October 1, 2010. The undersigned

granted RespondentÓs Motion to Relinquish Jurisdiction, finding

that PetitionerÓs claim was untimely, having been filed more than

365 days after th e last alleged act of discrimination, which was

her notice of termination on September 20, 2010, rather than the

effective date of her termination on October 1, 2010.

The Commission entered an Order remanding the case to D OAH

on May 1, 2013, interpreting t he undersignedÓs Order

Relinquishing Jurisdiction as having reached only PetitionerÓs

claim for unlawful discharge. The Commission sought resolution

of PetitionerÓs claim of hostile work environment and discrete

acts of discrimination other than unlawful discharge.

On May 10, 2013, Respondent filed a Motion for Clarification

seeking that the undersigned either (1) find that no timely

allegation of employment discrimination was filed by Petitioner

and enter an Order Rel inquishing Jurisdiction; or

(2) altern atively, clarify the specific issues and time periods

on which evidence would be heard at the final hearing in this

matter. Petitioner filed no r esponse to the Motion for

Clarification .

On July 17, 2013, the undersigned granted RespondentÓs

Motion for Cla rification and entered an Order limiting the scope

of the final hearing in this case to the issue of whether

Respondent is liable to Petitioner for any act of discrimination,

other than termination, between September 29 and October 1, 2010 .

On July 22, 201 3, Petitioner filed both a Motion to Compel

Discovery Against Respondent and an Amended Motion to Compel

Against [sic] Respondent ( the Motions). The Department filed a

Response to the Motions on July 23, 2013. Following a telephonic

hearing on the Motion s, th e undersigned entered an Order d enying

the Motions.

At the final hearing on July 25, 2013, Petitioner testified

on her own behalf and offered 15 exhibits, most of which were

received into evidence over objection. 1/ Respondent offered no

witness es 2/ a nd offered RespondentÓs Exhibits RA - 2, R - 8, and R - 11

through R - 14, which were received into evidence.

The proceedings were recorded and a Transcript was ordered.

On August 7, 2013, Respondent filed an unopposed Motion for

Extension of Time to File its Pro posed Recommended Order (PRO),

anticipating filing of the Transcript on or about August 13,

2013. The Motion for Extension of Time was granted, giving the

parties an additional seven days, or until August 30, 2013, to

file PROs.

The one - volume Transcript was filed on August 26, 2013, and

the undersigned entered an Order on Post - h earing Submissions

clarifying that PROs were due on or before September 5, 2 013,

notwithstanding the prior O rder Granting Extension of Time to

August 30, 2013. Respondent filed it s PRO on August 30, 2013.

On September 5, 2013, Petitioner filed a timely Motion for

Extension of Time to File Her PRO, which was granted, extending

the deadline for filing PROs to September 9, 2013. Petitioner

timely filed a PRO on September 9, 2013. T he partiesÓ PROs have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1 . Petitioner is a 64 - year - old female from Mauritius, a

French island nation off the coast of Africa. As such, she falls

within a protected class based o n age and national origin.

2 . Respondent, DEO , is the successor State a gency to the

former Agency for Workforce Innovation (AWI) with the

responsibility to implement the FloridaWorks program.

FloridaWorks is organized into Regional Workforce Boards which

oversee the delivery of employment services in their local

jurisdictions. Employment services delivered at local One - Stop

Centers include job searches , job counsel ing , and resume

drafting, among others .

3 . Petitioner was employed at the FloridaWorks Ala chua

County One - Stop Career Service Center in Gainesville, Florida,

from 2001 through 2010. At all times relevant hereto, Petitioner

was an employee of AWI in the position of Customer Service

S pecialist.

4 . In her capacity as C ustomer S ervice S pecialist,

Petitioner met with job seekers, assessed their needs, and

referred them for assessment testing and community services. She

also conducted workshops on resume writing, interviewing skills ,

and job search skills.

5 . In February 2009, Betty H olmes, an AWI employee , became

PetitionerÓs supervisor.

6 . By letter dated September 17, 2010, Petitioner was

terminated from her employment with AWI effective October 1,

2010. The termination letter was hand delivered to Petitioner on

September 20, 2010, by Ms. Holm es in her office at the One - Stop

Center. The letter stated that PetitionerÓs termination wa s due

to loss of funding for the R egional W orkforce B oard.

7 . On October 22, 2010, Petitioner filed a Charge of

Discrimination with the Commission alleging that Fl orida

Management Solutions, Inc. (FMS) , had discriminated against her

on the basis of her national origin, age, and in retaliation by

giving her unfair negative evaluations, harassing and demeaning

her, assigning her a larger workload than other employees , and

ultimately unfairly terminating her . 3/

8 . The Commission issued a Determination of No Cause on

May 16, 2011, finding there was no cause to find that Respondent

had committed an unlawful employment action. Petitioner timely

filed with the Commission a Petition for Relief against FMS,

which was forwarded to DOAH for assignment of an a dministrative

l aw j udge (ALJ) to conduct a fact - finding hearing.

9 . Following an evidentiary hearing on the matter, the ALJ

entered a Recommended Order finding that FMS w as not PetitionerÓs

employer during the time period in which the alleged acts of

discrimination occurred. Rather, the ALJ found that AWI was

PetitionerÓs employer. The Recommended Order was entered on

September 14, 2011.

10 . On September 29, 2011, Petit ioner filed a Complaint of

Discrimination against AWI alleging unlawful employment

discrimination on the basis of her race, national origin, age ,

and in retaliation. Again, the Commission issued a D etermination

of N o Cause and Petitioner filed a Petition for Relief, which was

forwarded to DOAH and assigned to the undersigned for conduct of

an evidentiary hearing.

11 . PetitionerÓs Complaint of Discrimination alleges that

she was discriminated against by being assigned a larger caseload

and being held to di f ferent performance standards than similarly

situated non - classified employees; denied training; given

unmerited negative performance evaluations; harassed, demeaned,

and threatened, resulting in negative health issues; and

unlawfully terminated, resulting in loss of benefits and future

employment opportunities. As such, PetitionerÓs complaint raises

both individual discrete acts of discrimination, as well as an

ongoing hostile work environment.

12 . PetitionerÓs complaint and testimony are largely

focused on the treatment sh e received from Ms. Holmes, he r

supervisor from February 2009 to October 1, 2010.

13 . Petitioner alleges that when Ms. Holmes became her

supervisor, Ms. Holmes removed Petitioner from her usual duties

and assigned Petitioner a caseload of 150 cases in a program with

which she was not familiar. Petitioner argues that the

assignments were unreasonable and, perhaps, even unauthorized by

the agency. Petitioner further alleges that Ms. Holmes was

critical of PetitionerÓs inability to compl ete the cases in a

timely manner, and that Petitioner was denied the training she

requested to better perform on the job.

14 . Ms. HolmesÓ assignment of job duties to Petitioner, as

well as PetitionerÓs request for training, occurred more than 365

days pri or to the date on which Petitioner filed her Complaint of

Discrimination.

15 . Petitioner alleges th at the employee evaluations

Ms. Holmes performed, comp leted, and signed in April 2009 and

April 2010 were unmerited. 4 / The evaluations complained of were

c ompleted more than 365 days prior to the date on which

Petitioner filed her Complaint of Discrimination.

16 . Petitioner alleges that Ms. Holmes unnecessarily

contacted 9 - 1 - 1 on May 18, 2010, when Petitioner fainted in

Ms. HolmesÓ office, and allegedly tol d the paramedics that

Petitioner was acting erratically prior to fainting, allegations

which Petitioner denies.

17 . The incident during which Petitioner fainted and was

taken to the hospital by the paramedics occurred more than 365

days prior to the date on which Petitioner filed her Compliant of

Discrimination.

18 . Petitioner alleges that Ms. Holmes spoke harshly to

her, yelled at her, told her to Ðshut up,Ñ and made demeaning

comments about PetitionerÓs French accent. Petitioner testified

that Ms. Holm es made P etitioner repeat after her, and on at least

one occasion said, ÐThis is how Americans speak.Ñ

19 . All the statements a lleged to have been made by

Ms. Holmes occurred more than 365 days prior to the date on which

Petitioner filed her Complaint of Discrimination.

20 . On May 26, 2010, Petitioner filed a grievance with AWI

Human Resources regarding Ms. Holmes Ó alleged harassment of

Petitioner as well as her unmerited negative evaluation. After

filing the grievance, Petitioner met with Ms. Holmes and her

direct supervisor, Arelis Rosario, to discuss her performance

evaluation and other issues raised in PetitionerÓs grievance. A

written summary of the meeting was made and signed by Petitioner,

Ms. Rosario , and Ms. Holmes on June 2, 2010. Petitioner

d isagrees with the substance of the summary and maintains that

her grievance was not satisfactorily resolved.

21 . Petitioner alleges that she was terminated, in part, in

retaliation for filing the grievance against Ms. Holmes.

22 . The grievance filed agai nst Ms. Holmes, as well as the

resolution meeting between Petitioner, Ms. Holmes , and

Ms. Rosario, occurred more than 365 days prior to PetitionerÓs

Complaint of Discrimination.

23 . Petitioner was notified of her termination on

September 20, 2010, which w as a Monday. At hearing, Petitioner

did not testify with certainty whether, or on which days, she was

absent from work following notice of her termina tion.

24 . Petitioner had enough accumulated leave to take the two

weeks off between termination and effe ctive date. However,

Petitioner chose not to.

25 . Petitioner was uncertain about the days that Ms. Holmes

was in the office during either the week of her ter mination or

the following week.

26 . At final hearing, Petitioner seemed confused about

various e vents she related. On the whole, PetitionerÓs testimony

was inconsistent and equivocal.

27 . The evidence was clear that Petitioner was assigned no

work during the period of September 20, 2010 , through October 1,

2010. Petitioner had little, if any, inte raction with Ms. Holmes

during that same time period. She testified that her co - workers

avoided her and barely spoke to her. Petitioner spent most of

her time cleaning out her office and packing her belongings. In

what must have been an awkward situatio n, Petitioner gave away

many of her personal belongings to her co - workers during the time

period between September 20, 2010 , and October 1, 2010.

Petitioner gave Ms. Holmes a vase from her office as a gift,

although the exact date was not established.

28 . Petitioner introduced no evidence of any discrete acts

of discrimination by Ms. Holmes, or any other AWI employee,

between September 29, 2010 , and October 1, 2010.

29 . Petitioner has been diagnosed with breast cancer and

has been under treatment for sev eral years. Petitioner did not

take sick leave when employed at AWI. Instead , she took annual

leave for her treatments or attended doctorÓs visits during her

lunch hour . The evidence did not support a finding that her

employer knew of either her diagnos is or treatment.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Statutes (2012), and Flori da Administrative Code Rule 60Y -

4.016(1).

3 1 . The State of Florida, under the Florida Civil Rights

Act of 1992, sections 760.01 Î 760.11 and 509.092 , incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Rights Act of 1964, as amended. 42

U.S.C. § § 2000e, et seq .

3 2 . Pursuant to subsect ion 760.10(1), it is an unlawful

employment practice for an employer:

(a) To discharge or to fail or refuse to

hire any individual , or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

33 . Section 76 0.11 sets forth the procedures for filing a

complaint against an employer for an unlawful employment

practice, as follows:

(1) Any person aggrieved by a violation of

ss. 760.01 - 760.10 may file a complaint with

the commission within 365 days of the

alleged violation, naming the employer,

employment agency, labor organization, or

joint labor - management committee, or, in the

case of an alleged violation of

s. 760.10 (5), the person responsible for the

violation and describing the violation.

3 4 . Florida courts have held that 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. , Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1st DCA 1991).

PetitionerÓs Claims

3 5 . PetitionerÓs claims include both discrete

discriminatory act s and a hostile work environment. While some

o f the alleged discrete actions -- such as unlawful termination

and unmerited performance evaluat ions -- stand on their own,

other discrete acts -- such as derogator y remarks regarding her

accent -- may factor into a determinati on of hostile work

environment.

3 6 . The law is clear that claims for both discrete acts of

discrimination and hostile work environment necessarily end, at

the latest, on the date of the PetitionerÓs termination. See

Thompson v. Orange L ake Country Club , 224 F. Supp. 2d 1368, 1380

(M.D. Fla. 2002)(finding PetitionerÓs claims of both gender

discrimination and hostile work environment were time - barred when

filed more than 365 days afte r the date of her termination).

3 7 . The undersigned pre viously ruled that PetitionerÓs

claim o f unlawful termination was time - barred because her cause

of action for employment discrimination began to accrue on

September 20, 2010, the date she received notice of her

termination, rather than October 1, 2010, the effective date of

her termination. 5 /

38 . Based on the authority of Orange Lake , 224 F. Supp. at

1380, all of Petitioner Ós remaining claims for discrete acts of

discrimination are also time - barred because they occurred more

than 365 days before September 29, 2011, the date on which she

filed h er Complaint of Discrimination.

39 . The only claims cognizable in the instant case would be

for discriminatory acts occurring between September 29, 2010 , and

October 1, 2010, PetitionerÓs last day on the job. None o f the

acts complained of occurred on September 29 or 30, 2010 , or

October 1, 2010. Petitioner introduced no credible evidence of

any discrete act of discri mination on the relevant dates.

4 0 . As to PetitionerÓs claim of hostile work environment,

she likew ise presented no evidence relating to acts which

contributed to a hostile work environment on any of the relevant

dates. The undersigned infers from the testimony that the work

environment was awkward. Petitioner chose to come into the

office for most of the last two weeks after receiving her notice,

rather than taking her accrued leave. Petitioner had no cases to

work on and no applicants to meet with. She spent her time

packing up her office and giving away personal belongings. While

the situation wa s clearly awkward, Petitioner did not demonstrate

by a preponderance of the evidence that it was hostile.

4 1 . In ruling on hostile work environment claims the court

may consider the entire time period of the hostile environment

so long as an act contribut ing to the claim occurs within the

filing period. See Bradley v. Fla. DepÓt of Transp. , 2002 U.S.

Dist. LEXIS 27475 (D. Fla., Nov. 11, 2002); citing Passenger

Corp. v. Morgan , 536 U.S. 101, 114 ( 2002). Therefore, h ad

Petitioner presented some evidence of discrete acts of

discrimination occurring on the relevant dates, the acts

occurring prior to September 29, 2010, may have been relevant

and considered by the undersigned as supporti ng PetitionerÓs

claim of hostile work environment .

42. As Petitioner pres ented no evidence of any act of

discrimination which is cognizable in this proceeding , the

undersigned concludes that Respondent is not liable to

Petitioner for any violation of the Civil Rights Act of 1992 .

RECOMMENDATION

Based on the foregoing Findi ngs of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing PetitionerÓs Discrimination

Complaint and Petition for Relief consistent with the terms of

this Recommended Order.

D ON E AND ENTERED this 26th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September , 2013 .

ENDNOTES

1/ PetitionerÓs Exhibits 5, 6a, and 6b were admitted withou t

objection.

2/ Respondent did not comply with the undersignedÓs Order of

Pre - Hearing Instructions by providing the Petitioner with a list

of the names and addresses of persons it intended to call as

witnesses prior to hearing.

3/ FMS was the state con tractor which operated the FMS One - Stop

Center at the time Petitioner filed her first Charge of

Discrimination.

4 / The evidence shows that PetitionerÓs direct supervisor,

Arelis Rosario , completed PetitionerÓs 2010 evaluation, not

Ms. Holmes.

5 / See Br eville v. Florida DepÓt of Econ. Opportunity , Case

No. 13 - 00 27, Order on R espondentÓs Motion to Relinquish

Jurisdiction (Fla. DOAH Feb. 6, 2013).

COPIES FURNISHED :

Georgie Marie Breville

2678 Southwest 14th Drive

Gainesville, Florida 32608

Michael Bry an Golen, Esquire

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cheyanne Cos tilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.