14-002527 Markeith Daniels vs. Franklin Correctional Institution Status: Closed Recommended Order on Wednesday, November 26, 2014.

Summary: Petitioner did not prove a prima facie case of employment discrimination. Petitioner proved a prima facie case of retaliation, but Respondent demonstrated legitimate non-discriminatory reasons for dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARKEITH DANIELS,

Petitioner,

vs. Case No. 14 - 2527

FRANKLIN CORRECTIONAL

INSTITUTION,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case on

July 22, 2014, and October 6, 2014, in Tallahassee, Florida,

before Suzanne Van Wyk, an Administrative Law Judge assigned by

the Division of Administrative Hearings (Division) .

APPEARANCES

For Petitioner: Cortney Hodgen, Esquire

9 25 East Magnolia Drive, Suite B - 2

Tallahassee, Florida 32301

For Respondent: Kambria Anderson, Esquire

Sena Bailes, Esquire

Todd Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

STATEMENT OF T HE ISSUE

Whether Respondent is liable to Petitioner for

discrimination in employment on the basis of race, or in

retaliation, in violation of the Florida Civil Rights Act of

1992.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination (Compla int)

with the Florida Commission on Human Relations (Commission) on

October 31, 2013, alleging unlawful employment discrimination by

Respondent on the basis of his race and in retaliation. The

Commission investigated the Complaint, and, on April 21, 2014,

determined there was no reasonable cause to believe that an

unlawful employment practice occurred.

Petitioner timely filed with the Commission a Petition for

Relief on May 23, 2014 , which was forwarded to the Division for

assignment of an Administrative L aw Judge . The final hearing

was initially set for July 1, 2014, in Tallahassee, Florida, but

was rescheduled to July 22, 2014, due to unspecified scheduling

conflicts.

The final hearing commenced as scheduled on July 22, 2014 ,

but the parties did not com plete the presentation of the case on

that date . The hearing was continued to, and completed on ,

October 6, 2014.

Petitioner testified on his own behalf and offered the

testimony of Willie Brown, Col onel Perez Bellelis, Capt ain Cory

Fletcher , and Tammy E dwards . Petitioner offered Exhibits P1,

P9, P11, P14 , and P16, which were admitted into evidence.

Respondent of fered the testimony of Warden Christopher At kins

and Erica McFarland - Williams. Respondent introduced Exhibits R1

through R18, which were admit ted into evidence.

The proceedings were recorded, but the parties did not

order a transcript. Respondent filed a Proposed Recommended

Order on October 16, 2014 . Petitioner filed a Proposed

Recommended Order on October 23, 2014 . The undersigned has

consi dered both Proposed Recommended Orders in preparation of

this Recommended Order.

FINDING S OF FACT

1 . Petitioner is a black male who was employed by the

Respondent as a Correctional Officer at the Franklin County

Correctional Institution (FCI) , in Carrabel le, Florida, from

July 13, 2007 , until his dismissal effective October 24 , 201 3 .

2 . Respondent, Department of Corrections, 1 / is a state

agency whose purpose is to protect the public through the

incarceration and supervision of offenders and to rehabilitat e

offenders through the application of work, programs, and

services. See § 20.315, Fla. Stat. (2014) .

3 . Petitioner alleges he was unlawfully terminated by

Warden A tkins based upon his race and in retaliation for

opposing an employment practice prohibite d by the Florida Civil

Rights Act of 1992. In support of his allegations, Petitioner

recounts the following series of events .

Leave for Aunt Ó s Funeral

4 . The first incident occurred on July 12, 2013, while

Petitioner was on duty in Bravo Dormitory (B Dor m). Petitioner

notified Captain Casey Goff, the Officer in Charge (OIC) on

Petitioner Ó s shift, that there had been a death in Petitioner Ó s

family and that the funeral ser vice was that afternoon at

2:00 p.m. in Apalachicola. Petitioner requested permissio n for

leave to attend the funeral.

5 . Capt. Goff stated he would approve annual leave for

P etitioner to attend the funeral.

6 . Petitioner testified that, shortly after 1:00 p.m., he

attempted to exit the facility to travel to the funeral, but was

prevent ed from doing so by Sergeant Crosby, who was in the

control room. Allegedly, Sgt. Crosby told Petitioner that he

did not have permission to leave until 2:00 p.m.

7 . Petitioner spoke with Capt. Goff via telephone shortly

there after , and confirmed that ano ther officer, S ergeant Stubbs,

was present in B Dorm and available to relieve Petitioner.

8 . Petitioner introduced some evidence that he was again

prevented from leaving the facility , and that he again contacted

Capt. Goff around 1:30 p.m. and confirmed t hat Petitioner had

been properly relieved in B D orm.

9 . Petitioner finally departed the facility at

approximately 2:30 p.m., after writing up an incident report to

document this event. The incident report was reviewed by

Col onel Perez Bellelis and Assist ant Warden Watson.

Col. Bellelis requested incident reports from the other staff

implicated by Petitioner in the report.

10 . Both Sgt. Stubbs and Capt. Goff submitted written

incident reports.

11 . Petitioner Ó s written incident report does not name

Sgt. Crosby as the individual who prevented Petitioner from

leaving the facility on July 12, 2013, instead referring to

unidentified Ð control room staff. Ñ

12 . Petitioner did attend his aunt Ó s funeral , although he

was late .

13 . Petitioner presented no evidence that this incident

was anything other than a miscommunication between the OIC and

Sgt. Crosby.

14 . An incident report is not a disciplinary action.

The Notebook Event and Disciplinary Meeting

15 . The next event occurred on August 5, 2013 , while

Petition er was on security detail in B Dorm . The OIC, S er g eant

Mata u tia , had previously witnessed an inmate passing a notebook

to another inmate in the recreation yard and directed Petitioner

to take the notebook from the inmate and search it for

contraband and g ang - related materials.

16 . Petitioner inspected the notebook and reported to

Sgt. Mata u tia that the notebook contained only religious

materials. Sgt. Matautia instructed P etitioner to return t he

notebook to the inmate.

17 . Before Petitioner had a chan ce to return the notebook,

he was called away to assist with movement of inmate s to the

Ð blacktop , Ñ a paved inmate recreation area.

18 . When Petitioner returned to B Dorm , Sgt. Mata u tia was

no longer there, and Sgt. Rickards was on duty in the officer Ó s

s tation . Petitioner picked up the notebook to return it to the

inmate, but Sgt. Rickards instructed Petitioner not to return

the notebook until Sgt. Rickards had determined whether it was

gang - related .

19 . Rather than leaving the notebook in the officer Ó s

station, Petitioner left the station with the notebook , had a

discussion with the inmate from whom the notebook had been

confiscated, then reentered the officer Ó s station, and return ed

the notebook to Sgt. Rickards.

20 . Petitioner maintains he was not in subordinate to

Sgt. Rickards because he was given conflicting orders and

followed the direction of the officer with the most seniority ,

Sgt. Mata u tia.

21 . While Sgt. Mata u tia and Sgt. Rickards have the same

rank, Petitioner maintains Sgt. Rickards was a n ew employee on

probation at the time of the incident, thus junior to

Sgt. Mata u tia.

22 . Almost every witness questioned about this incident

testified that Petitioner Ó s act of taking the notebook out of

the officer Ó s station , rather than leaving it with Sg t. Rickards

when directed to, was insubordinat e .

23 . The one correctional officer who se testi mony was most

sympathetic to Petitioner, former Assistant Warden Willie Brown,

admitted that Petitioner Ó s actions were a violation of policy

and Ð subject to some discipline. Ñ

24 . On August 15, 2013, Petitioner received a pre -

determination letter informing him that the Department intended

to dismiss him effective August 29, 2013. The letter cited the

notebook incident of August 5, 2013, and charged Petitioner wit h

insubordination in connection with the incident.

25 . The letter gave him an opportunity to request a pre -

determination conference, which he did. A pre - determination

conference is an informal conference in which an employee facing

disciplinary charges i s afforded an opportunity to present

information relevant to the charge s, including witness

statements .

26 . The pre - determination conference was held on a weekday

evening in an office of the FCI administration building ,

apparently without incident .

27 . On August 23, 2013, Petitioner was called to a

disciplinary meeting in Warden Atkins Ó office. Present at the

meeting were Petitioner, Warden Atkins , and then - Assistant

Warden Willie Brown.

28 . A t the meeting , Warden Atkins presented Petitioner

with two o ptions: accept a Supervisory Counseling Memorandum

(SCM) or be terminated.

29 . An SCM is the lowest form of discipline in

RespondentÓs progressive disciplinary process.

30 . Attached to the SCM was a written agreement titled

Ð Pre - Disciplinary Settleme nt Agreement Ñ (PSA) by which

Petitioner would agree to waive his right to grieve the

discipline pursuant to Career Service Rules. 2 /

31 . What ensued can best be described as a fiasco .

Petitioner refused to sign the SCM and agreement without

consulting his attorney. Petitioner left the Warden Ó s office at

least three separate times to contact his attorney, but was

un successful. According to Mr. Brown, Petitioner became visibly

frustrated. At some point, Warden Atkins demanded Petitioner

place his I.D. and badge on the table. Petitioner put his badge

down, but picked it back up again. At that point, Warden Atkins

threatened to call the police, and picked up the phone on his

desk, but did not complete the call. The meeting lasted longer

than an hour, whic h Mr. Brown described as unprecedented in his

20 years with the Department. In the end, Warden A tkins gave

Petitioner until the following day to make a decision.

3 2 . The following morning, Petitioner still refused to

sign.

3 3 . Warden Atkins issued an SC M to Petitioner for the

August 5, 2013 , Ð notebook incident. Ñ The SCM is dated

August 28, 2013 , and signed by Warden Atkins. In the space

provided for the employee Ó s signature, Warden Atkins noted,

Ð refused to sign. Ñ

3 4 . In explanation for the length of the disciplinary

meeting on August 23, 2013 , Warden Atkins testified that he

thought he was required to obtain Petitioner Ó s signature on the

SCM, and that if Petitioner did not sign, Petitioner would be

dismissed. He explained that he misunderstood the pr ocess at

the time.

3 5 . Warden Atkins Ó explanation is not credible. Warden

Atkins has been employed by the Department for 25 years. It is

improbable that he could have risen to the level of Warden in

the correctional system and not have known that an emp loyee Ó s

signature on an SCM is only an acknowledgment of the discipline

given, and refusal to sign is not a matter for further

discipline.

Ð Car Tag Ñ Discussion

3 6 . The next incident occurred on September 16, 2013 .

Col. Bellelis and Capt. Fletcher entere d the B Dorm infirmary

where Petitioner was on security duty. Col. Bellelis had a

conversation with Petitioner regarding his fitness for service

with the Department. While the specifics of the conversation

were contested, the evidence established that Co l. Bellelis

questioned Petitioner Ó s car tag, which read Ð Porn Star, Ñ as an

inappropriate image for the institution, questioned Petitioner Ó s

ability to follow orders, as demonstrated by the notebook

incident, and talked with him about staying alert on the j ob.

3 7 . Col. Bellelis also accused Petitioner of talking and

laughing with an inmate in the infirmary on Ð Self - Harm

Observation Status Ñ (SHOS), formerly known as Ð Suicide Watch. Ñ

3 8 . However, Col. Bellelis did not witness Petitioner

laughing or talking with an SHOS inmate. On cross - examination,

Col. Bellelis admitted that his information to that affect Ð may

have been second hand. Ñ

3 9 . Capt. Fletcher testified that he observed Petitioner

talking to an SHOS inmate at the inmate Ó s cell. Capt. Fletcher

d id not hear any specific s of the conversation.

40 . Col. Bellelis maintains that his conversation with

Petitioner was in the nature of an informal counseling and that

his purpose was Ð to point Petitioner in a professional

direction . Ñ

41 . Petitioner spoke to then - Assistant Warden Brown

following the conversation with Col. Bellelis in the infirmary.

Petitioner told Asst. Warden Brown that he felt he was being

subject to a hostile work environment . Asst. Warden Brown

encouraged Petitioner to file an incide nt report documenting the

incident.

4 2 . Petitioner filed an incident report on September 16,

2013 , regarding the conversation with Col. Bellelis in which he

expressed his concern with a hostile work environment.

4 3 . Neither Col. Bellelis nor Capt. Fle tch er filed an

incident report following the conversation with Petitioner in

the infirmary. However, Col. Be llelis reported to Warden Atkins

that Petitioner had been observed in Ð casual conversation Ñ with

an SHOS inmate in the infirmary.

Housing Log and Obse rvation Checklist

4 4 . That same day, Warden Atkins entered the B Dorm

infirmary to speak with Petitioner. The Warden reviewed the

housing log (a time log of security checks conducted by the

officer on duty) and noted that Petitioner had made an entry at

10:00 a.m., but the Warden Ó s watch showed 9:50. Warden Atkins

instructed Petitioner not to post - time the log.

4 5 . During this visit, the Warden also noted that the

observation checklist was not up - to - date (the security officer

on duty must observe each S HOS every fifteen minutes and record

his or her observations on a checklist known as a form DC4 - 650 ).

The Warden told Petitioner he would not be disciplined for the

incomplete observation checklist.

4 6 . Petitioner testified that, at the time he made this

ent ry, the control room clock read Ð 9:57 Ñ and he posted the time

log as 10:00 before he made rounds to check the dorm, which

would have taken three minutes.

4 7 . After Warden A tkins left the infirmary, he called

Petitioner in the infirmary and instructed him to file an

incident report regarding the post - timed housing log.

4 8 . The following day, September 17, 2013, Petitioner was

instructed to report to Warden Atkins regarding the incident

report he had filed the previous day regarding Col. Bellelis .

4 9 . Petitioner met with Warden Atkins regarding the

incident report. Warden Atkins noted Petitioner Ó s claim of a

hostile work environment. The Warden attempted to contact Tammy

Edwards, the personnel officer who handled employee discipline

cases and hostile workplace complaints.

50 . Warden Atkins did not reach Ms. Edwards by phone

during that meeting. Warden Atkins suggested Petitioner contact

her regarding his claim and suggested that Ms. Edwards would

mail him a complaint form he could use to make a form al

complaint.

51 . Petitioner testified he never received the form from

Ms. Edwards.

5 2 . Before the meeting ended, Warden Atkins inquired about

the incident report he requested Petitioner to submit regarding

the post - timed housing log. He further instruc ted Petitioner to

submit an incident report regarding the incomplete observation

checklist from the previous day.

5 3 . On September 17, 2013, Petitioner submitted the

incident report regarding the post - timed housing log .

5 4 . On September 20, 2013, Warden Atkins entered Echo

Dormitory (E Dorm), the dormitory to which Petitioner was

assigned . He discussed with Petitioner the recent incidents and

incident reports. During this visit, Warden Atkins noted that

t he E Dorm housing log was not up - to - date.

5 5 . A fter Warden Atkins left the dormitory , he called

Petitioner and instructed him to complete an incident report

regarding the incomplete E Dorm housing log.

5 6 . Before Petitioner left the facility on September 20,

2013, he submitted to Warden Atkins an inc ident report regarding

the E Dorm housing log . Warden Atkins asked for the incident

report from the 16th. Petitioner explained that he had not

completed the report , but would do so directly . Warden Atkins

instructed Petitioner to submit the incident rep ort the

following day so he would not accrue overtime .

5 7 . On September 20, 201 3, Warden Atkins prepared Incident

Report Number 113 - 2013 - 1180, documenting his conversation with

Petitioner regarding the incident report on the E Dorm housing

log and the out standing incident report regarding the B Dorm

observation checklist from September 16, 2013. At the bottom of

the report, Warden Atkins noted the report was being forwarded

to Ms. Edwards for preparation of a pre - determination hearing

letter.

5 8 . On Sept ember 20, 2013, Petitioner completed Incident

Report number 113 - 2013 - 1180 - A , documenting the same conversation

with the Warden. At the bottom of the report, Warden Atkins

noted Ð Recommend written reprimand. Ñ

5 9 . On September 20, 2013, Capt. Goff prepared Incident

Report number 113 - 2013 - 1180 - B, documenting his observations of

the conversation between Warden Atkins and Petitioner on that

date.

60 . Petitioner did not submit an incident report regarding

missing entries on the observation checklist on Septem ber 16,

2013.

61 . When questioned why Warden Atkins instructed

Petitioner , on September 17 , to go back and complete an incident

report on the observation checklist from September 16, Warden

Atkins stated that, because of Petitioner Ó s hostile work

environm ent complaint, Warden Atkins wanted to Ð document

everything. Ñ

6 2 . In later testimony on the date the hearing was

continued , Warden Atkins denied that his request was related in

any way to Petitioner Ó s hostile work environment complaint. 3 /

The undersigned finds that Warden Atkins Ó original testimony was

the truthful answer and is accepted as credible and reliable .

Petitioner Ó s Termination

6 3 . On September 30, 2013, Petitioner received a pre -

determination letter informing him the Department intended to

di smiss him effective October 14, 2013.

6 4 . In the letter, Respondent alleged Ð [t]he basis for

these charges is contained in Franklin County Correctional

Institution Ó s Incident Report Numbers 113 - 2013 - 1180 through 113 -

2013 - 1180B; copies previously furnishe d to you. Ñ The cited

incident reports relate solely to the September 16 observation

checklist incident report and the September 20, 2013, E Dorm

housing log.

6 5 . The letter reads further, as follows:

In arriving at the decision to dismiss you,

I have als o considered your employment

record. Specifically, the fact that you

received a supervisory counseling memorandum

on March 17, 2008, for failure to report

criminal activity; a written reprimand on

July 21, 2008, and a supervisory counseling

memorandum on August 9, 2013, for conduct

unbecoming a public employee; supervisory

counseling memorandums [sic] on

September 22, 2008; and August 28, 2013, for

failure to follow oral and/or written

instructions; and a written reprimand on

January 17, 2013, for failure to follow oral

and/or written instructions.

6 6 . Petitioner introduced no evidence contesting the

legitimacy of discipline he received on any of those dates

except the August 28, 2013 , SCM for the Ð notebook incident. Ñ

6 7 . Based on the findings of fact regarding that incident,

the undersigned finds that Petitioner Ó s conduct constituted

insubordination under the Department Ó s rules.

6 8 . Petitioner requested a pre - determination conference

with respect to the charges, which was conducted on October 15,

201 3 . During the conference , Warden Atkins presented Petitioner

with two disciplinary options: 40 - hour suspension (with

mandatory PSA waiving his right to grieve) or dismissal.

6 9 . Petitioner refused to sign the PSA.

70 . On October 24, 2013, Petitioner r eceived written

notice he was being dismissed the same date. The notice cites

both the failure to submit the incident report on the missing

observation checklist (Form DC4 - 650) from September 16, and the

missing entries on the housing log from September 2 0.

Similarly - Situated Employees

71 . In an effort to make his case, Petitioner introduced

evidence intended to prove that similarly - situated white

correctional officers were treated more favorably than

Petitioner . 4 /

7 2 . Petitioner asserted that two mar ried white officers

with the surname Crosby, were disciplined less harshly ( i.e.,

not dismissed) for more severe offenses. Mrs. Crosby was

disciplined for carrying on a personal relationship with an

inmate, while Mr. Crosby was disciplined for excessive u se of

force against said inmate.

7 3 . Petitioner also offered testimony regarding discipline

of his brother, also a correctional officer , who was suspended

for losing keys to the facility. Petitioner compared the

suspension his brother received to the dis cipline received by a

white female officer , a n SCM, for a similar incident. In the

case of the white female officer, she left the facility with the

keys, but returned them.

CONCLUS IONS OF LAW

7 4 . The Division of Administrative Hearings has

jurisdiction o ver the parties to and the subject matter of this

proceeding . §§ 120.569 and 120.57(1), Fl a. Stat . (201 4) .

7 5 . The Florida Civil Rights Act of 1992 (the Act),

chapter 760, Florida Statutes, prohibit s discrimination in the

workplace.

7 6 . S ubsection 760. 10(1), Florida Statutes, (2013), reads ,

in relevant part:

(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 comp ensation, terms, conditions,

or privileges of employment, because of such

individual Ó s race, color, religion, sex,

national origin, age, handicap, or marital

status.

7 7 . The Department is an Ð employer Ñ as defined in

subsection 760.02(7), which provides t he following:

(7) Ð Employer Ñ means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such person.

7 8 . Florida courts have determined that feder al case law

construing Title VII of the Civil Rights Act of 1964 (Title VII)

applies to claims arising under the Act , because the Act is

patterned after Title VII , as amended . See Paraohao v. Bankers

Club, Inc . , 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002) ; Fla.

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1 st DCA

1996); Fla. Dep Ó t of Cmty. Aff. v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

7 9 . Under the Act, Petitioner has the burden to establish

by a preponderance of the evidence that h e was the subject of

discrimination. In order to carry his burden of proof,

Petitioner can establish a case of discrimination through direct

or circumstantial evidence. See Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997) ; Schoenfeld v. Babbitt , 1 68 F.3d

1257, 1266 (11th Cir. 1999) . Direct evidence of discrimination

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Maynard v. Bd. of Regents , 342 F.3d

1 281, 1289 (11th Cir. 2003). Direct evidence is composed of

Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of some impermissible

factor. Evidence that only suggests discrimination, or that is

subject to more than one interpretation, is not direct evidence.

See Schoenfeld , 168 F.3d at 1266.

80 . Usually direct evidence of discrimination 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 v. Green , 411 U.S. 792 (1973) , and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981) .

81 . Under th is well - established model of proof, the

complainant bears th e initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e.,

Petitioner, is able to make out a prima facie case, the burden

to go forward with evidence shifts to the employer to articulate

a legitimate, non - discrim inatory explanation for the employment

action. See DepÓt of Corr. v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991). Importantly, the employer has the burden of

production, not persuasion, and need only present the finder of

fact with evidence that the de cision was non - discriminatory.

Id. See also Alexander v. Fulton Cnty. , 207 F.3d 1303 ( 11th

Cir. 2000). The employee must then come forward with specific

evidence demonstrating that the reasons given by the employer

are pretexts for discrimination. Scho enfeld , 168 F.3d at 1267.

8 2 . Notably, Ðalthough the intermediate burdens of

production shift back and forth, the ultimate burden of

persuading the trier of fact that the employer intentionally

discriminated against the [Petitioner] remains at all times w ith

the [Petitioner ] .Ñ EEOC v. JoeÓs Stone Crabs, Inc. , 296 F.3d

1265, 1273 (11th Cir. 2002); see also Byrd v. RT Foods, Inc. ,

948 So. 2d 921, 927 (Fla. 4th DCA 2007) (ÐThe ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times . Ñ)

Racial Discrimination

8 3 . Petitioner presented no direct evidence of racial

discriminatory intent on the part of Respondent.

8 4 . To establish a prima facie case of discrimination

based on Petitioner Ó s race through ci rcumstantial evidence , he

must prove that: (1) he bel ongs to a protected class; (2) he

was subjected to an adverse employm ent action; (3) other

similarly - situated employees outside h is protected

classification were treated more favorably ; and (4) he was

q ualified to perform his job. See Holifield , 115 F.3d at 1562.

8 5 . The first and second element of a prima facie case

ha ve been proven by Petitioner : h e is black and he was

dismissed from his position as a correction al officer.

8 6 . Petitioner did not pr ove the third element , that other

similarly - situated non - classified employees were treated more

favorably.

87 . An adequate comparator for Petitioner must be

ÐÒsimilarly - situatedÓ in all relevant respects.Ñ Valenzuela v.

GlobeGround N . Am . , 18 So. 3d 17, 23 (Fla. 3d DCA 2009)( internal

citations omitted); Johnson v. Great Expressions Dental Ctrs. of

Fla. , 132 So. 3d 1174 (Fla. 3d DCA 2014). O ne Florida court has

explained the exacting nature of the similarly - situated

comparator , as follows :

Similarly sit uated employees must have

reported to the same supervisor as the

plaintiff, must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to plaintiffÓs,

without such differentiating conduct that

would distinguish their conduct of the

appropriate discipline for it.

Id . at 1176.

8 8 . Florida Administrative Code Rule 33 - 208.002 provides

the Rules of Conduct for Department employees. Subsection (10)

provides, Ð [n]o employee shall be ins ubordinate , neglectful, or

unwilling to follow lawful orders or perform officially

designated duties. Ñ

8 9 . Petitioner did not introduce evidence of the

discipline given to non - classified correction al officers charged

with violation of subsection (10) .

90 . Petitioner introduced evidence regarding the

discipline given to non - classified correctional officers charged

with failure to protect and safeguard Department property,

required by section 33 - 208.002(24); having a personal

relationship with an inmate, p rohibited by section 33 -

208.002(26); and using excessive force against an inmate,

prohibited by section 33 - 208.002(14).

91 . Thu s, Petitioner did not introduce evidence to prove

that other similarly - situated non - classified employees were

treated more favor ably than Petitioner.

92 . Petitioner failed to prove a prima facie case of

unlawful employment discrimination based on his race under the

McDonnell Douglas standard.

Retaliation

93 . Section 760.10(7) prohibits retaliation in employment

as follows:

(7) I t is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section , or

because that person has made a charge,

testified, ass isted, or participated in any

manner in an investigation, proceeding, or

hearing under this section. (emphasis

added) .

9 4 . The burden of proving retaliation follows the general

rules enunciated for proving discrimination. Reed v. A.W.

Lawrence & Co. , 9 5 F.3d 1170, 1178 (2d Cir. 1996).

9 5 . Petitioner can meet his burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 135 4, 1358 (11 th Cir.

1999), cert. den. 529 U.S. 1109 (2000). Direct evide nce must

evince discrimination in retaliation w ithout the need for

inference or presumption. Standard v. A.B.E.L Svcs., Inc. , 161

F.3d 1318, 1330 (11 th Cir. 1998).

9 6 . Petitioner did not introduce direct evidence of

retaliation in this case.

9 7 . Thus, Petitioner must prove his allegation of

retaliation by circumstantial evidence. Circumstantial evidence

of retaliation is subject to the burden - shifting framework

established in McDonnell Douglas .

9 8 . To establish a prima facie case of discrimination in

retaliation, Petitioner must show: (1) that he was engaged in

statutorily - protected e xpression or conduct; (2) that he

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

some causal relationship between the two events. Holifield ,

115 F.3d at 1 566.

9 9 . Petitioner argues he opposed an unlawful employment

practice when he filed an incident report on September 16, 2013,

regarding his conversation with Col. Bellelis in the infirmary

and expressed his belief that he was being subjected to a

hostile work environment. 6 /

100 . Petitioner introduced no evidence identifying the

basis for his hostile work environment claim. The evidence did

not establish whether Petitioner alleged that the hostile work

environment was based on his race, his gender, or any protected

characteristic at all. Col. BellelisÓ comments were directed at

PetitionerÓs Ðfitness to be a correctional officerÑ in general,

at best.

101 . Petitioner failed to establish that he was engaged in

any protected activity. Thus, Petitioner faile d to satisfy the

first element of the three - part test to establish a prima facie

case of retaliation through circumstantial evidence.

102 . Assuming, arguendo, that PetitionerÓs generalized

complaint of a hostile work environment rose to the level of a

pro tected activity under the three - part test, Petitioner failed

to meet the third element of the test . 7/

103 . To prove t he third element , Petitioner must

demonstrate a causal connection between the protected activity

and the adverse employment decision. Th is causal link element

is construed broadly, and may be established by a demonstration

that t he employer was aware of the protected conduct and that

the protected activity and the adverse action were not Ð wholly

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

(11 th Circ. 1999) (internal citations omitted) ; Olmstead v. Taco

Bell Corp. , 141 F.3d 1457, 1460 (11 th Cir. 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.

o f Regents , 212 F . 3d 571, 590 (11th Cir. 2000).

10 4 . Warden Atkins Ó response to Petitioner Ó s hostile work

environment claim -- attempting to put Petitioner in contact

with the appropriate personnel officer and advising Petitioner

of his ri ght to file a formal complaint -- demonstrates

Respondent was aware of Petitioner Ó s alleged protected conduct.

10 5 . As to temporality, o nly four days elapsed between the

date Petitioner l odged his hostile work environment complaint

(September 1 6 , 2013) and the date on which Warden Atkins

recommended Petitioner for discipline (September 20, 201 3) .

Further, d espite the fact that Warden Atkins told Petitioner on

September 20, 2013 , that he c ould submit the incident report the

following day, Warden Atkins decided that same day to discipline

Petitioner for failure to submit the incident report.

10 6 . An additional 10 days elapsed before Warden Atkins

notified Petitioner of his impending termina tion and right to a

pre - determination conference (September 30, 2013). An

additional 24 days elapsed until Petitioner Ó s dismissal

(October 24 , 2013). The se facts do not dissuade the undersigned

from the conclusion that the alleged protected activity and

Petitioner Ó s dismissal are proximate in time .

10 7 . Thus, the undersigned concludes there was a causal

connection between the alleged protected activity and the

adverse employment action.

10 8 . Having proven all three elements, Petitioner

established a pri ma facie case of discrimination in retaliation.

10 9 . If a prima facie case is established, Respondent must

articulate some legitimate, non - discriminatory reason for the

adverse employment action.

1 10 . The pre - determination letter included a list of prior

disciplinary actions against Petitioner which the Warden also

considered in reaching his recommendation for discipline.

Petitioner introduced no evidence challenging the legitimacy of

the se other disciplines, except the SCM for the Ð notebook

incident. Ñ Based on the evidence related to that incident, the

undersigned concludes that the discipline for insubordination

was legitimate. 8 /

1 11 . The range of disciplinary actions for violation of

Department rules is set forth in Florida Administrative Code

Rule 3 3 - 208.003. Subsections (26) and (32) govern

insubordination and failure to follow oral or written

instructions, respectively.

1 12 . Pursuant to the rule, Petitioner could have been

subject ed to written reprimand, up to 30 days suspension, or

dismissal, fo r the first incident of insubordination or failure

to follow oral or written instructions . Petitioner could have

been subject to dismissal for the second occurrence of either

incident.

1 13 . Respondent having introduced legitimate non -

discriminatory reas ons for Petitioner Ó s dismissal, the burden

shifts to Petitioner to demonstrate Respondent Ó s reasons were

mere pretext. Inasmuch as Petitioner stipulated to the

introduction of Petitioner Ó s personnel records documenting the

above - cited disciplinary actions , and introduced nothing to

contest those actions, h e did not prove pretext.

11 4 . In sum, Petitioner failed to prove h is Charge of

Discrimination and it is otherwise concluded, based upon the

evidence, that the Department of Corrections did not violate th e

Florida Civil Rights Act of 1992, and is not liable to

Petitioner for discrimination in employment based on either race

or retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that PetitionerÓs Pet ition for Relief

from an Unlawful Employment Action be dismissed.

DONE AND ENTERED this 26th day of November , 2014 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrati ve 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 November , 2014 .

ENDNO TE S

1 / Petitioner incorrectly named the Franklin County Correctional

Institution as the Respondent in this case. PetitionerÓs

employer is the Florida Department of Corrections.

2 / Neither party offered any evidence regarding whether

including a ÐPre - D isciplinary Settlement AgreementÑ with an SCM

was Department policy or an extraordinary event.

3 / Over two months elapsed between the date the hearing was

initiated and the date it was reconvened .

4 / Petitioner also sought to introduce evidence regardi ng the

discipline meted out to unnamed white correctional officers

accused of excessive use of force, among other accusations, in

the death of an inmate, or inmates, at FCI. The undersigned

excluded said evidence as irrelevant .

5 / Petitioner does not ar gue in his Proposed Recommended Order

that Warden AtkinsÓ statement that he required, on September 17,

2013, Petitioner to file an incident report regarding the

observation checklist on September 16, 2013, because Petitioner

complained of a hostile work en vironment, is direct evidence of

discrimination in retaliation. The undersigned notes that an

incident report is not a disciplinary action.

6/ At this stage, Petitioner need not prove that the conduct he

opposed was actually unlawful, but that he reason ably believed

that Respondent had engaged in an unlawful employment practice.

See Ramirez v. Miami Dade Cnty. , 509 Fed. Appx. 896 (11 th Cir.

2013); Howard v. Walgreen Co. , 605 F.3d 1239, 1244 (11 th Cir.

2010).

7/ There is no dispute that Petitioner was subject to an adverse

employment action Î dismissal effective October 24, 2013.

8 / This conclusion does not eliminate the undersignedÓs serious

concern with the procedure followed by the Warden in meting out

that discipline. However, the propriety of th e disciplinary

meeting is beyond the scope of this case.

COPIES FURNISHED :

Cortney Hodgen, Esquire

925 East Magnolia Drive , Suite B - 2

Tallahassee, Florida 32301

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Rela tions

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

(eServed)

Sena Marie Bailes, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

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

issues the Final Order in this case.