14-002617 Lou Armentrout vs. Florida Department Of Corrections Status: Closed Recommended Order on Friday, July 31, 2015.

Summary: Respondent constructively discharged Petitioner by subjecting her to a hostile work environment on account of Petitioner's race in violation of the Act and is entitled to relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOU ARMENTROUT ,

Petitioner,

vs. Case No. 14 - 2617

FLORIDA DEPARTMENT OF

CORRECTIONS ,

Respondent.

/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

January 16, 2015, in Clermont, Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jamison Jessup

557 Noremac Avenue

Deltona, Flor ida 32738

For Respondent: Todd Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE

Whether Respondent Department of Corrections (Respondent or

the Department) constructively discharged Petitioner Lou

Armentrout (Petitioner) in violation of the Florida Civil Rights

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

Statutes , 1/ by su bjecting Petitioner to a hostile work

environment because of PetitionerÓs race, age, or gender.

PRELIMINARY STATEMENT

On November 19, 2013, Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

(FCHR or the Commission), which was assigned FCHR No. 201301998

(Charge of Discrimination). The Charge of Discrimination

alleges that the Department discriminated against Petitioner in

employment by subjecting her to a hostile work environment based

upon Petitioner's race, age, a nd gender, and in retaliation of

Petitioner's complaint to management about the hostile work

environment, resulting in Petitioner's constructive discharge.

After investigating PetitionerÓs allegations, the Commission's

executive director issued a Determin ation of Cause on May 21,

2014, finding that "reasonable cause exists to believe that an

unlawful employment discrimination practice occurred." An

accompanying Notice of Determination notified Petitioner of her

right to file a Petition for Relief for an a dministrative

proceeding within 35 days of the Notice. On June 2, 2014,

Petitioner timely filed a Petition for Relief and, on June 3,

2014, the Commission forwarded the petition to the Division of

Administrative Hearings for the assignment of an administr ative

law judge to condu ct an administrative hearing. The case was

originally assigned to Administrative Law Judge Suzanne Van Wyk,

who entered O rders dated July 2 and 3, 2014, respectively ,

scheduling this case for a fin al hearing to be held

September 17 , 2014, and accepting Jamison Jessup as Petitioner's

Qualified Representative. After Petitioner's Unopposed Motion

to Continue Final Hearing was granted, the final hearing was

rescheduled for January 16, 2015. The case was subsequently

transferred to the undersigned to conduct the administrative

hearing.

At the beginning of the administrative hearing held in this

case, Petitioner withdrew her claim based upon retaliation.

During the administrative hearing, Petitioner testified,

called two witnesses, and introduced five exhibits received into

evidence as Exhibits P - 1, P - 2, P - 3, P - 5, and P - 6. In addition,

pages 12 - 13, 14 - 30, 57 - 58, 129, 132 - 136, 137 - 138, and 148 - 149 of

Petitioner's pre - marked Exhibit P - 4 were received into evidence.

Respondent presented the testimony of one witness and introduced

four exhibits into evidence as Exhibits R - 1 through R - 4.

The p roceedings were recorded and a t ranscript was ordered.

The parties were given 30 days from the filing of the Transcript

within which to submit their respective Proposed Recommended

Orders. The one - volume Transcript of the hearing was filed on

February 5, 2015. Thereafter, the parties timely filed their

Proposed Recommended Orders which were considered in the

preparation of this Recommended Order.

FIN DINGS OF FACT

1. Petitioner is an Asian female born February 25, 1970 .

Petitioner speaks Chinese and English. Petitioner speaks with a

Chinese accent. She does not speak or understand Spanish.

2. Respondent is a state agency responsible for Ð the

incarceration and supervision of offenders through the

application of work, programs, and services." See § 20.315(1),

Fla. Stat.

3. At all material times, Respondent employed more than 15

persons.

4. Petitioner was employed by Respondent at its Lake

Correctional Institution (Institution) from September 16, 2011,

until October 12, 2012, as a Senior Registered Nursing

Supervisor.

5. Petitioner's duties as a Senior Registered Nursing

Supervisor included the supervision of approximately 80 n urses

at the Institution.

6. While employed at the Ins titu tion, Petitioner worked

directly under the supervision of the Institution's Chief Health

Officer.

7. When Petitioner was hired, the Chief Health Officer was

Dr. Moreno. Dr. MorenoÓs annual performance evaluation of

Petitioner for the period ending February 29, 201 2 , gave

Petitioner an overall 3 .51 performance rating score , indicating

that Petitioner Ðconsistently meets and may occasionally exceed

the performa nce expectation of the position.Ñ Petitioner never

received an evaluation score below a 3, indicating that the

employee at least Ðmeets expectation,Ñ on any written evaluation

of her performance while she was employed by the Institution.

8. After Dr. Mor eno resi gned in April or May 2012,

Dr. Virginia Mesa was hired as Chief Health Officer of the

Institution in May of 2012 . Dr. Mesa is Hispanic.

9. Dr. MesaÓs supervision was often harsh. Dr. Mesa had a

bad temper and would raise her voice and repriman d employees in

the presence of others, including inmates.

10 . Dr. Mesa described her supervisory style as the Ðteam

approach.Ñ She advised that, instead of meeting with employees

individually, she would meet them as a Ðteam.Ñ

11 . She would meet every morning with the nurses in the

medical unit and once a week in the psych unit. Petitioner

attended these meetings. During the meetings, Dr. Mesa would

often address the group, many of whom were Hispanic , in Spanish

instead of Engl ish. Many of the discussions were regarding

Dr. MesaÓs medical direction and discussion about patientsÓ

cases.

12 . Dr. Mesa knew that Petitioner did not speak Spanish.

On more than one occasion, Petitioner asked Dr. Mesa what was

being said, and Dr. Mes a would reply, ÐAsk one of the nurses.Ñ

13 . Although Dr. Mesa never specifically mentioned

PetitionerÓs race, ag e, or gender, she treated Petitioner

harshly and made fun of PetitionerÓs Asian accent behind her

back. On one occasion, while Petitioner was not present,

Dr. Mesa made a joke of PetitionerÓs pronunciation of a word by

substituting PetitionerÓs mispronunciation with a vulgar term,

repeating the word a number of times in the presence of other

employees and laughing with those employees while poki ng fun at

Petitioner . While not mentioning PetitionerÓs race, it is

evident that the joke was designed to ridicule Petitioner on

account of Petitioner Ós race . 2/

14 . Petitioner was made aware by others that Dr. Mesa

belittled her behind her back. Dr. Mes aÓs contempt for

Petitioner was overt. Dr. Mesa would raise her voice and glare

at her, and challenge PetitionerÓs competence as a supervisor

and medical professional in front of others in a bullying way.

Dr. Mesa would humiliate Petitioner by testing Pe titionerÓs

bedside nursing skills in front of other nurses and inmates,

knowing that Petitioner had not been working as a nurse for a

number of years, primarily because Petitioner had been working

in an administrative position.

15 . Feeling as though her a uthority was being undermined

by Dr. Mesa, and wanting to improve her business relationship

and obtain some direction from Dr. Mesa, Petitioner asked for

private meetings with Dr. Mesa on numerous occasions. Dr. Mesa

refused. In addition, despite PetitionerÓs continued requests

that she use English, Dr. Mesa continued to address Hispanic

staff in Spanish during morning staff meetings.

16 . Dr. Mesa did , however, meet privately with Gary

Assante, a white male, who , although not licen sed in a medica l

profession, was an administrator with the Institution with

lateral authority to that of Petitioner. Instead of giving

directions directly to Petitioner, Dr. Mesa would give

directions through Mr. Assante to Petitioner. Some of the

directions were of a medical nature. Dr. M esa would also use

nurses supervised by Petitioner to deliver directions to

Petitioner.

17 . Dr. MesaÓs tactics undermined PetitionerÓs supervisory

authority. Petitioner became frustrated because Dr. MesaÓs

tactics were interfering with PetitionerÓs ability to do her

job.

18 . Petitioner complained to the assistant warden of the

Institution, Assistant Warden Young, of Dr. MesaÓs intimidation

and behavior. In particular, Petitioner complained that, i n

addition to her intimidation of Petitioner, Dr. Mesa threatened

nursing staff members with termination on several occasions.

Assistant Warden Young set up a meeting between Petitioner,

Mr. Assante, and Dr. Mes a to discuss the issues in July 2012.

During the meeting, Dr. Mesa stated that she is paid too much to

listen to the allegations.

19 . Despite PetitionerÓs complaints, Dr. MesaÓs

intimidating behavior continued.

20 . On August 22, 2012 , without any prior warning of

disciplinary action, Dr. Mesa brought Michelle Hanson to

Petitio nerÓs office. Michelle Hanson was the Regional Nursing

Director of the DepartmentÓs Region 3 Office, which included the

Institution.

21 . During the meeting, Dr. Mesa questioned PetitionerÓs

competency as a nurse and told Petitioner that she wanted to

demote her. Petitioner told Dr. Mesa that she did not want a

demotion and asked Dr. Mesa to specify the problems with

PetitionerÓs performance. Dr. Mesa never did. In fact, t here

is no evidence of verbal counseling or reprimands from Dr. Mesa

in Petiti onerÓs personnel file. Dr. Mesa never provided a

written evaluation of PetitionerÓs performance while Petitioner

was employed by the Institution.

22 . Near the end of August or early September, Petitioner

verbally complained to the InstitutionÓs warden, W arden Jennifer

Folsom, about Dr. MesaÓs behavior. Dr. MesaÓs intimidation

continued.

23 . On September 16, 2012, Petitioner provided Warden

Folsom with a letter explaining how Dr. MesaÓs Ðworkplace

bullyingÑ was adversely affecting Petitioner and the workplace

environment, asking Ðhigher level management for assistance and

to make a reasonable working environment , Ñ and advising that

Dr. Mesa had asked Petitioner to take a demotion . PetitionerÓs

letter explained, in part:

I strongly feel workplace bu llying is

linked to a host of physical, psychological,

organizational and social costs. Stress is

the most predominant health effect

associated with bullying in the workplace.

My experience with workplace bullying is

developed poor mental health and poor

physical health, inability to be productive

and loss of memory and fear of making key

decisions. Recently, I also turn to other

organizations for job opportunities and I

have been asked by Dr. Mesa and Mr. Assante

where do I go for interview and how long

will this last by asking for days and hours

for interviewing. My fearful of retaliation

even made me so scared to ask for job

interviewing.

24 . Petitioner met with Warden Folsom the next day,

September 17, 2012. During the meeting, Warden Folsom assur ed

Petitioner that Dr. Mesa did not have the authority to demote

her , and gave Petitioner someone to contact in Employee

Relations regarding her concerns. Warden Folsom followed up the

meeting with a letter dated September 17, 2012, stating:

It has come t o my attention that you have

alleged harassment by your supervisor. You

are being provided the name and contact

number for the Intake Officer at the

Regional Service Center.

Norma Johnson

(407)521 - 2526 ext. 150

Please be aware the Department does not

t olerate inappropriate behavior in the

workplace. Your allegations will be looked

into and any appropriate action taken.

25 . The letter was signed by Warden Folsom and a witness ,

as well as by Pe titioner, acknowledging receipt. It was copied

to Norma Jo hnson, Employee Relations.

26 . After that, Petitioner spoke a couple of times by

telephone with Norma Johnson. She told her that Dr. Mesa was

continuing to harass and bully her in the workplace, and that

Dr. Mesa was causing a hostile work environment. Despite

PetitionerÓs complaints, nothing changed. It is apparent that

PetitionerÓs complaints were ignored. In fact, Dr. Mesa claimed

that she never heard about complaints that she treated

individuals that are Hispanic differently than she treated

Petitioner, and could not recall if the Warden ever approached

her regarding PetitionerÓs complaints. Incredibly, Dr. Mesa

testified that she was not made aware of PetitionerÓs complaint

that she was speaking Spanish and Petitioner could not

understand un til after Petitioner left her employment with the

Institution.

27 . After PetitionerÓs meeting with the Warden and

conversations with Norma Johnson, Dr. Mesa continued to speak

Spanish at meetings with staff and Petitioner could not

understand. Dr. Mesa c ontinued to direct Petitioner through

other employees. And Dr. Mesa continued to raise her voice and

challenge PetitionerÓs competence in front of other employees.

28 . The evidence supports PetitionerÓ s claim that the way

she was treated was discriminati on , based upon PetitionerÓs

race. The evidence does not, however, support PetitionerÓs

claims that she was discriminated against based upon

PetitionerÓs age or gender.

29 . The harsh treatment Petitioner received, based upon

her race, undermined Petitione rÓs supervisory authority and

interfered with PetitionerÓs ability to do her job. The

discrimination was overt, continuous, and created a hostile work

environment that was intolerable. Petitioner, in essence, was

forced to leave the employ of the Institu tion.

30 . Approximately two weeks later, on September 28 th or

29 th , 2012, after deciding that she could no longer endure the

situation, Petitioner sent the following letter to Dr. Mesa and

Warden Folsom:

Dear DOC:

Please accept this letter as my formal

notice of resignation from Senior Registered

Nurse Superviso r effective 10/12/12.

This is the most difficult decision I have

ever made throughout my career; however, my

time her e at Lake Corr e ctional Institution

has been some of the most rewarding and

mem or able years of my professional life. I

sincerely appreciate the opportunities that

I have been given to contribute to the

o r ganizat i on Ó s success, while growing

professionally and personally.

Sincerely,

Lou Armentrout

Cc Human Resource:

Please leave al l my lea v e times (annual and

sick leaves) in people first until receiving

notification from me.

Thank you for your assistance.

31 . In the year following PetitionerÓs resignation, the

health care services were privatized and provided by Corizon

Health, Inc. Most employees kept their jobs that they held

prior to privatization. Had Petitioner remained with the

Institution, it is likely that she would have transitioned over

to an equivalent position with Corizon Health, Inc.

32 . After leaving the Institution on October 12, 2012,

Petitioner obtained a job with the Department of Health on

October 26, 2012. Petition er suffered a loss of pay in the

amount of $2,222.40 during the period of her unemployment

between October 12, 2012 , and October 26, 2012.

33 . PetitionerÓs pay at her new job with the Department of

Health is $299.32 less per two - week pay period than her job at

the Institution. $299.32 per two - wee k pay period equals $648.53

less each month ($299.32 X 26 weeks = $7,782.32/year ÷ 12 months

= $648.53/month ÷ 30 = approximately $21.62/day ). The time

period between the date Petitioner began her new job with the

Department of Health on October 26, 2012, and the final hearing

held January 16, 2015, equals 26 months and 21 days. The loss

in pay that Petitioner experienced in that time period totals

$17,315.80 ( (26 month x $648.53/month ) ( $21 . 62/day x 21 days )

= $17,315.80). The total loss in pay ( $2,22 2.40 $17,315.80)

that Petition er experienced from her resignation until the final

hearing is $19,538.20.

34 . Petitioner also drives 92 miles further each work day

to her new position with the Department of Health. The extra

cost that Petitioner incurs to get to her new job , calculated at

the State rate of $0.445 per mile , equals $40.94 per day.

T aking into account 260 work days per year (5 work days per

week), from beginning of PetitionerÓs new job through the date

of the hearing equals a total of $23 , 663.32 (57 8 days x

$40.94/day), without subtracting State holidays or vacation

days. Subtracting nine State holidays and two weeks for

vacation each year results in a to tal of $21,943.84 to reimburse

Petitioner for the extra miles driven each work day th rough the

day of the final hearing (536 days x $40.94/day).

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to section s 120.569 and 120.57(1), Florida

Statutes , and Florida Administrative Code Rule 60Y - 4.016(1).

36 . The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, Florida

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

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

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

3 7 . The Florida law prohibiting unlawful employment

practices is found in section 760.10. This section prohibits

discrimination Ðagainst 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.Ñ

§ 760.10(1)(a), Fla. Stat.

38 . 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).

39 . As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of di rect

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 3/ Usually,

however, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory i ntent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

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

(11th Cir. 1997).

40 . Under the shifting burden pattern developed in

McDonnell Douglas :

Fir st, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nond iscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext. U.S. Dep't of Hous. and Urban

Dev. v. Blackwell , 908 F.2d 864, 870 (11th

Cir. 1990)(housing discrimination claim);

accord Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 22 (Fla. 3d DCA

2009)(gender discrimination claim)("Under

the McDonnell Douglas framework, a plaintiff

must first establish, by a preponderance of

the evidence, a prima facie case of

discrimination.").

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

the Department , Petitioner must first establish a prima facie

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

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

preponderance of the evidence, except in penal or licensure

proceedings or except as otherwise provided by statute and shall

be based exclusively on the evidence of record and on mat ters

officially recognized.").

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

requires only that the plaintiff establish facts adequate to

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

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

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

the evidence,' [citation omitted] or evidence that 'more likely

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

43 . Petitioner's Charge of Discrimination against the

Depart ment alleges that Petitioner was subjected to a hostile

work environment because of her race , age and gender.

Petitioner failed to show a prima facie case of age or gender

discrimination . Petitioner did, however, establish a prima

facie case that she was subjected to a hostile work environment

based upon her race.

44 . A hostile work environment claim is established upon

proof that Ðthe workplace is permeated with discriminatory

inti midation, ridicule, and insult that is sufficiently severe

or pervasive to alter the conditions of the victimÓs employment

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

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

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

45 . In order to establish a prima facie case under the

hostile work environment theory, Petitioner must show: (1) that

s he belongs to a protected group; (2) that s he has been subject

to unwelcome harassment; (3) that the harassment must have been

based on a protected characteristic of the employee, such as

race; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and

create a discriminatorily abusive working environment; and

(5) that the employer is res ponsible for such environment under

a theory of vicarious or of direct liability. Id.

46 . Petitioner establish ed all of the elements required to

establish a prima facie case. Petitioner is Asian, she was

subject to unwelcomed intimidation, intentional e mbarrassment,

ridicule and exclusion based upon her race, and the

transgressions against Petitioner , as described in the Findings

of Fact above, were sufficiently severe and pervasive to alter

the terms and conditions of her employment and create a hostile

work environment.

47 . Factors relevant in determining whether conduct is

sufficiently severe and pervasive to show a hostile work

environment include, among others: (a) the frequency of the

conduct, (b) the severity of the conduct, (c) whether the

condu ct is physically threatening or humiliating, or a mere

offensive utterance, and (d) whether the conduct unreasonably

interferes with the employee's job performance. Miller , 277

F.3d at 1276.

48 . Dr. MesaÓs disrespect, intimidation, and exclusion of

Petit ioner from meaningful participation in team meetings by

addressing PetitionerÓs subordinates in another language

occurred on a daily basis. The conduct was severe in that it

undermined PetitionerÓs supervisory authority, interfered with

PetitionerÓs ability to do her job, and intentionally humiliated

Petitioner. Despite PetitionerÓs efforts and complaints, the

offensive and discriminatory conduct continued and unreasonably

interfered with PetitionerÓs job performance.

49 . The evidence also demonst rated that the Department was

responsible for a hostile work environmen t under the theory of

direct and vicarious liability. Dr. Mesa, who was responsible

for the hostile work environment was the Medical Director of the

Institution. Despite numerous effo rts and attempts by

Petitioner to persuade Dr. Mesa to stop, the hostile work

environment continued. PetitionerÓs complaints, both written

and oral, to the Assistant Warden, Warden, and Human Resources,

were to no avail.

50 . The Department failed to offe r a non - discriminatory

reason for Dr. MesaÓs conduct toward Petitioner. There was no

excuse for the hostile work environment or discrimination

against Petitioner.

51 . The hostile work environment caused the constructive

discharge of Petitioner. Consider ing the daily exclusion,

intimidation, and refusal to address PetitionerÓs numerous

requests to alleviate the situation, under an objective

standard, a reasonable person would feel compelled to resign.

See Steel v. Offshore Shipbuilding Inc. , 867 F.2d 131 1, 1317

(11 th Cir. 1989); McCaw Cellular Comm c Ón of Fla., Inc. v.

Kwiatek , 763 So. 2d 1063, 1063 (Fla. 4th DCA 1999 ) .

52 . In sum, Petitioner carried her burden of persuasion

necessary to state a prima facie case for her claim of a hostile

work environment based on PetitionerÓs race and that she was

thereby constructively discharged. The Department failed to

offer or prove a legitimate, nondiscriminatory reason for its

actions. And, Petitioner proved that the Department violate d

the Act and is liable to Petitioner for discrimination in

employment .

53 . As Petitioner brought this action as an administrative

proceeding pursuant to section 760.11(4)(b), Florida Statutes,

as opposed to a civil action in court pursuant to section

760.11(4)(a), the relief under the Act to which s he is entitled

is authorized in section 760.11(6), which provides in pertinent

part:

I f the administrative law judge, after the

hearing, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practic e and providing affirmative relief

from the effects of the practice, including

back pay . . . .

54 . In accordance with section 760.11(6) and federal case

law, Petitioner is Ðpresumptively entitled to back pay.Ñ Weaver

v. Casa Gallardo, Inc. , 922 F.2d 15 15, 1526 (11th Cir.

1991)(superseded by statute on other grounds).

55 . A s noted in the Findings of Fact above, Petitioner

experienced a loss in pay totaling $19,538.20, from the date of

her resignation until the final hearing. 4/ In addition, $21.62

per d iem should be added to this amount from the date of the

hearing, January 16, 2015, through the date that the Commission

enters a final o rder in this case. See Nord v. U.S. Steel

Corp. , 758 F .2d 1462, 1473 (11th Cir. 1985) ("make whole" purpose

of Title VII requires back pay period to be extended through

date of judgment) .

56 . P etitioner is also entitled to recover $23,663.32 for

additional travel costs that she would not have incurred if she

had stayed at her original employment , calculated at the State

rate of 44.5 cents per mile as set forth in section

112.61(7)(d)1.a., Florida Statutes, through the date of the

final hearing, plus an additional $40.94 for each work day

Petitioner drives to her job at the Department of Health between

this Recommended Or der and the CommissionÓ s final o rder in this

case.

57 . In addition, as the evidence showed that Petitioner

was, in effect, forced to leave the employ of the Department,

she should be entitled to reinstatement. See § 760.11(6), Fla.

Stat.; cf. OÓLoughlin v. Pinchback , 579 So. 2d 788, 795 (Fla.

1st DCA 1991)(Ðprevailing plaintiff in a wrongful discharge case

is entitled to reinstatement absent unusual circumstancesÑ)

(citations omitted). In this regard, although, because of

privatization, the De partment no longer has the position that

Petitioner occupied, the evidence indicated that she would have

transitioned over to an equivalent position with Corizon Health,

Inc. Therefore, the Department should make arrangements with

Corizon Health, Inc. , to employ Petitioner in an equivalent

position.

58 . Section 760.11(6) further provides:

In any action or proceeding under this

subsection, the commission in its

discretion, may allow the prevailing party a

reasonable attorneyÓs fee as part of the

costs. It is the intent of the Legislature

that this provision for attorneyÓs fees be

interpreted in a manner consistent with

federal case law involving a Title VII

action.

59 . As Petitioner was represented by a Qualified

Representative, and not an attorney, she is not entitled to an

award of attorneyÓs fees. 5/ I t is , however, recommended that the

Commission award Petitioner her costs , and, to the extent

necessary, remand the case for issuance of a recommended order

regarding the amount of costs owed to Petitioner. See e.g. ,

Caiminti v. The Furniture Enterprises, LLC , DOAH No. 09 - 3961

(Fla. DOAH Dec. 16, 2009; FCHR Feb. 26, 2010).

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order :

1. Finding that the Department constructively discharged

Petitioner Lou Armentrout by subjecting her to a hos tile work

environment on account of PetitionerÓs race in violation of the

Act ;

2. Ordering the Department to pay Petitioner $19,538.20 in

back pay through the date of the final hearing, January 16,

2015, plus $21.62 per diem thereafter through the date of the

Commission's final order, with interest accruing on the total

amount at the applicable statutory rate from the date of the

Commission's final order;

3. Ordering the Department to pay Petitioner $23,663.32 ,

as an additional aspect of back pay, for extra daily travel

expenses incurred to get to and from her new job through the

date of the final hearing , plus $ 40.94 for each work day

thereafter that Petitioner drives to her new job through the

date of the Commission's final order, with interest accruing on

the total amount at the applicable statutory rate from the date

of the Commission's final order;

4. Ordering the Department to make arrangements to

reinstate Petit ioner to a n equivalent position with Corizon

Health, Inc. , for service at the Institution;

5 . Prohibiting any future acts of discrimination by the

Department ; and

6 . Awarding Petitioner her costs incurred in this case .

DONE AND ENTERED this 29th day of A pril, 2015 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April , 201 5 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes , Florida Administrative Code, and federal laws are to

the current version s which have not substantively changed since

the time of the alleged discrimination .

2/ While Dr. MesaÓs ridicule of PetitionerÓs accent may

implicate a claim based on national origin, see e.g. , Raad v.

Fairbanks North Star Borough Sch ool Dist rict , 323 1185, 1194 - 95

(9th Cir. 2003)(ÐAccent and national origin are obviously

inextricably intertwined in many cases.Ñ), Petitioner did not

make that claim.

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

discrimination case would be th e employer's memorandum stating,

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

evincing that the plaintiff was terminated based on his age.

See Early v. Champion Int'l Corp. , 907 F.2d 107 7, 1081 (11th

Cir. 1990) .

4/ This figure takes into account the fact that Petitioner

appropriately minimized the amount owed for back pay by securing

other employment. Champion Intern. Corp. v. Wideman , 733 So. 2d

559, 562 (Fla. 1st DCA 1999)(plaintiff in employment

discrimination su it required to minimize damages by attempting

to find suitable employment).

5/ Here, as in the CommissionÓs Interlocutory Order in Lugo v.

Haynes , DOAH Case No. 11 - 1116 (Fla. DOAH Jan. 28, 2013, ¶ 61;

FCHR Apr. 4, 2013), adopting Judge WatkinsÓ Conclusions of Law,

it is concluded that n othing in section 760.35(3) authorizes the

award of attorneysÓ fees to non - attorneys. The Florida Supreme

Court tells us that: ÐWhen the words of a statute are plain and

unambiguous and convey a definite meaning, courts . . . must

read the statute as written, for to do otherwise would

constitute an abrogation of legislative power.Ñ Nicoll v.

Baker , 668 So. 2d 989, 990 - 91 (Fla. 1996). See also DepÓt of

Ins. v. Fla. Bankers AssÓn , 764 So. 2d 660 (Fla. 1st DCA 2000 ).

COPIES FURNISHED :

Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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.