14-004582 William T. Mahan, Jr. vs. Uf Ifas Extension Program Status: Closed Recommended Order on Thursday, February 4, 2016.

Summary: Although Petitioner's treatment may have been unfair, his supervisor unkind, and the management inept, Petitioner did not prove unlawful discrimination based upon either his age or in retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. MAHAN , JR.,

Petitioner,

vs. Case No. 14 - 4582

UF IFAS EXTENSION PROGRAM ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in thi s matter before Suzanne Van

Wyk , Administrative Law Judge with the Division of

Administrative Hearings (D ivision ), on April 17, June 10, and

June 12, 2015 , via video teleconference in Gainesville and

Tallahassee, Florida, and on July 1, 2015, in Tallahasse e ,

Florida.

APPEARANCES

For Petitioner: Judith A. Stokowski, Qualified Representative

Post O ffice Box 10

19 Eighth Street

Apalachicola, Florida 32329 - 0010

For Respondent: Jamie Marie Ito, Esquire

Audrey Moore , Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Ryan Fuller, Esquire

University of Flori da

123 Tigert Hall

Post Office Box 113125

Gainesville, Florida 32611 - 3125

STATEMENT OF THE ISSUE

W hether Respondent discriminated against Petitioner based

on either his age or in retaliation for engaging in a protected

activity, in violation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

On February 21, 2014, Petitioner , William T. Mahan, Jr. ,

filed a n Employment Complaint of Discrimination with the Florida

Commission on Human Relations (F CHR) against the University of

Florida IFAS Extension Program (UF IFAS) , alleging he was

disc riminated against based upon his age and in retaliation for

engaging in a protected activity . On August 25, 2014 , fo llowing

its investigation, FCHR issued a D eter mination finding

reasonable cause to believe that an unlawful di scriminatory

practice occurred.

On September 25, 2014, Petitioner filed with FCHR a

Petition for Relief from an unlawful employment practice . The

petition was forwarded to the Division on Oc tober 2, 2014 .

Petitioner requested leave to be represented by a Qualified

Representative, which request was granted on October 23, 2014.

The final hearing in this case was originally scheduled to

commence on December 17 and 18, 2014 , but was later resc heduled

to January 14 and 15, 2015, at the request of the parties .

Petitioner requested a second continuance on January 8,

201 5 , representing that the parties were working o n a resolution

of the matter and required additional time to obtain and review

cert ain of PetitionerÓs financial and retirement information.

On January 9, 2015, the undersigned granted the continuance,

placed the case in abeyance, and ordered the parties to jointly

file a status report on or before February 16, 2015. The

parties did no t timely file a status report.

On February 23, 2015, Petitioner moved for an order

extending the abeyance until March 16, 2015, to which Respondent

filed a motion in opposition and a Motion to Enforce the Prior

Order requiring the status report (Motions) . Followi ng a

telephonic hearing on the m otions, the undersigned granted , in

part , Petitioner Ós motion, denied RespondentÓs M otion s , and

requested dates of availability in April 2015 to reschedule the

matter for hearing. The final hearing was rescheduled t o, and

commenced on, April 17, 2015.

Presentation of the evidence in this matter proved

laborious. The hearing to ok place on four separate dates:

April 17, June 10, June 12, and July 1, 2015. At the final

hearing, Petitioner testified on his own behal f and the parties

jointly presented the testimony of Dr. Pete Vergot, III, UF IFAS

District Extension Director for the Northwest District ( and

PetitionerÓs supervisor at the time the alleged discriminatory

acts occurred ) ; Mary Ann Morgan, UF IFAS Director of Human

Resources; Kevin Clark, UF IFAS Assistant Director of Human

Resources; Dr. Thomas Obreza , UF IFAS Senior Associate Dean ;

Dr. Nick Place, UF IFAS Dean and Director; Dr. Angel Kwolek -

Fol l and , University of Florida Associate Provost for Academic

and Faculty Affairs ; Alan Pierce , Franklin County Director of

Administrative Services; and John Sink , a member of the Franklin

County Extension Advisory Committee .

PetitionerÓs E xhibits P1 through P14, P16, P18 through P46,

P48, P49, P51, P52, P54, P61 , and P62 were admit ted in evidence.

RespondentÓs E xhibits R1 through R20 were also admitted.

A one - volume Transcript of the proceedings on July 1, 2015,

was filed on July 16, 2015. A four - volume Transcript of the

proceedings on June 10 and 12, 2015, was filed on August 26,

2015. A one - volume T ranscript of the proceedings on April 17,

2015, was filed on August 28, 2015. The parties filed Proposed

Recommended Orders on September 11, 2015.

Unless otherwise noted herein, all references to the

Florida Statutes ar e to the 2013 version.

FINDING S OF FACT

1 . Petitioner , William T. Mahan, Jr., who was at all times

relevant hereto an employee of the University of Florida

Institute of Food and Agricultural Sciences (UF IFAS or IFAS )

Extension Program, was 59 years old w hen his age discrimination

complaint was initiated.

2 . Respondent, UF IFAS Extension Program, is a state - wide

program run by the Uni versity of Florida that places extension

a gents in each of FloridaÓs 67 coun ties. The core mission of

the p rogram is to t ransfer knowledge that is generated through

research at the U niversity to the clientele the extension a gent

serves, thereby turning research information into practical

solutions.

3 . Petitioner became a permanent faculty member of UF IFAS

in June 1993. P etitioner ha d permanent status as an Extension

Agent IV, with an administrative appointment as County Extension

Director (CED) for Franklin County.

4 . A CED is an Extension Agent with educational

responsibilities; however, a CED also has the administrativ e

task of running the local office, working with an advisory

committee, and serving as liaison between UF IFAS and the county

government. There is no permanent status in a CED

administrative appointment.

5 . Petitioner was the CED in Franklin County, Flor ida ,

with an office in Apalachicola from June 1993 until October 28,

2013.

6 . An IFAS extension office is funded in part by the local

board of county commissioners. In Franklin County, at all times

relevant hereto, the c ounty paid 20 percent of Petitione rÓs

salary , as well as the salary of an administrative secretary and

expenses of the physical office.

7 . The Franklin County Extension Office was a single - agent

office. Unlike other CEDs in the northwest district, Petitioner

was solely responsible for ru nning the office, working with an

advisory committee, serving as liaison to the county, as well as

all educational programming and client services.

8 . Dr. Pete Vergot , III , is the UF IFAS District Extension

Director (DED) for the northwest extension dis trict,

encompassing 16 counties in the panhandle of Florida. He was

appointed DED in 1997 and supervised all UF IFAS E xtension

employees in that district. Dr. Vergot was PetitionerÓs direct

s upervisor until December 2013.

9 . Dr. Vergot was an ineffecti ve supervisor. During his

tenure as DED, Dr. Vergot was counseled by his superiors, and

required to take management training courses, in response to

complaints from other IFAS faculty about his management and

communication style. At one point, Dr. Vergot was required to

undergo a Ð360 performance reviewÑ during which administrators

interviewed not only employees supervised by Dr. Vergot, but

also community members and cliente le of the program with whom

Dr. Vergot came into contact.

10 . Extension Agents are evaluated yearly by their DED

through the submission of a Report of Accomplishment s (ROA). An

ROA is written by the employee and summarizes what the employee

has accomplished during the prior calendar year. An ROA often

includes an employeeÓs job dut ies, number of publications,

number of programs conducted for clientele in their district ,

and any other accomplishments of note.

11. CEDs have two components to their evaluation: their

performance as an agent and their performance in the ir

administrati ve positi on .

12 . PetitionerÓs employment with UF IFAS was reportedly

without incident until 2010. In PetitionerÓs annual performance

appraisals for program years 2007, 2008, and 2009, Dr. Vergot

gave Petitioner an overall rating of ÐExemplary . Ñ 1/

13 . During an August 2010 Franklin County Commission

budget hearing, the c ounty voted to eliminate funding for

PetitionerÓs position. Petitioner was informed about the

decision via media reports the following morning.

14 . Petitioner and Dr. Verg ot personal ly met with several

county c ommissioners following the August budget hearing .

c ounty funding of the extension office was restored at the final

budget hearing on September 20, 2010.

15 . The evidence conflict ed as to whether the c ountyÓs

August decision t o cut funding of the extension office was

related, in any respect, to PetitionerÓs performance in the

County. However, the record clearly established that , as a

result of this incident, Dr. Vergot lost confidence in

PetitionerÓs ability to perform.

16 . On September 24, 2010, Dr. Vergot sent Petitioner an

email requesting that he start developing and implementing a new

plan of work (POW) . The email lists a number of specific ideas

to expand and enhance program offerings, including offering

additional ÐLi fe SkillÑ areas for youth through 4H programming

and volunteer development and support, increasing the master

gardener program, and restarting a previously - successful family

nutrition program.

17 . In the email, Dr. Vergot also asked Petitioner to

become part of the 4H PIT team, increase day camping for 4H

youth, enhance his presence with the natural resource PIT team,

increase teaching in natural resource areas, and enhance

reporting to local officials and cli entele. The email concluded

by requesting Pet itioner to review each item and email

Dr. Vergot a plan by October 18 , 2010 .

18 . Dr. Vergot did not issue Petitioner his 2010 annual

performance appraisal until June 1, 2011 . On this appraisal,

Dr. Vergot rated Petitioner ÐImprovement Required (IR). Ñ Of the

various categories in the appraisal, Petitioner was rated IR on

ÐFinancial Support,Ñ wherein Dr. Vergot noted Petitioner needed

to Ðfind continued financial support Ñ and that Ðyour internal

and external funding is lacking.Ñ Dr. Vergot also rated

Peti tioner IR in ÐDelivery/Contacts and Statistical Report Ñ

noting Ðwe need you to increase your Extension teaching in all

of your program areas, just attending meetings is not Extension

programming.Ñ In ÐCED Program Leadership and Coordination,Ñ on

which Pet itioner also received an IR rating, Dr. Vergot noted,

Ðyou had a severe issue with commissioners supporting your

program this year, we need for you to work on communications and

relationship with all commissioners and county government to

reverse this issu e.Ñ

19 . IFAS maintains a Sustained Performance Evaluation

Program (SPEP) to evaluate long - term performance of tenured and

permanent status faculty. In addition to annual performance

evaluations, tenured and permanent status faculty members are

evaluated every seven years on their previous six yearsÓ

performance. According to IFAS regulations, the purpose of SPEP

is to document adequacy of sustained performance and encourage

continued professional growth and development of faculty.

20 . The SPEP review is conducted by the faculty memberÓs

administrator and is based on the performance evaluations from

the prior six years and Ðany related evaluative or other

information relative to the faculty member during this period of

time.Ñ The administrator must rate the faculty member as either

ÐsatisfactoryÑ or Ðbelow satisfactory.Ñ

21 . A f aculty member receiving a Ðbelow satisfactoryÑ

rating receive s a written reprimand, and is required to submit a

summary of accomplishments (SOA) to the administrator within two

mo nths to be reviewed by a peer advisory committee (PAC). Two

members of the PAC are selected by the administrator and one by

the faculty member. If, after an in - depth review of the SOA,

the PAC agrees that the faculty memberÓs performance requires

improve ment, the faculty member is required to submit a

performance improvement plan (PIP) within two months.

22 . On July 25, 2011, Petitioner received a letter

entitled ÐPIP/Written ReprimandÑ from Dr. Vergot Ðfor your

Òimprovement requiredÓ annual work perform anc e review dated

June 1, 2011.Ñ T he letter informed Petitioner that his

accomplishments over the last six years would be reviewed by a

PAC and that he may be asked to submit a PIP .

23 . The letter reiterated many of the issues raised in

Dr. Vergot Ós 2010 evaluation of Petitioner Ï need for more

educational programming rather than meetings, as well as

maintaining and increasing funding sources. Other specific

requests included increasing creative works and publications,

redesigning reporting to commissioner s, and de - clutter ing and

ma naging his office in a professional manner.

24 . The lett er raised two programming issues in specific

areas of the County: (1) a youth program in the minority area

of Apalachicola which Ð[y]our County Commissioners requested,Ñ

a nd (2) extension and educational p rogramming for clientele on

St. George Island. With re spect to the youth program,

Dr. Vergot stated Ðwe need to see a major positive program

developed before the budget year of the county begins for 2012.Ñ

With respect t o the St. George Island programming, Dr. Vergot

requested Petitioner meet with the commissioner for that

district , as well as PetitionerÓs advisory committee

representatives, determine the type of programming appropriate,

and develop, implement and report to Dr. Vergot on the plan and

progress.

25 . In February 2012 , the PAC issued its review of

PetitionerÓs six year ROA. Excerpts from the PAC Ðcomment formÑ

were a mix ture of positive and negative feedback. The overall

feedback on PetitionerÓs creative wo rks was negative Ï PAC members

indicated that PetitionerÓs attendance at county commission

meetings and reports to the county commission were not

considered creative works, that he needed to develop creative

works and publications that are used in teaching, and that he

was Ðweak in this area.Ñ As for publications, the PAC noted

that Petitioner submitted Ðlots of newspaper columnsÑ but had

only published two abstracts in six years, was a junior author

on one peer - reviewed article, and Ðneed [ed] improvement in this

area.Ñ Under extension programming, PAC members commented that

PetitionerÓs speaking engagements and use of media is not a

concise program of adult environmental education with objectives

and outcomes, and that Petitioner did not have enough work in

this program to constitute 25 percent of his job. An overall

comment notes, Ð[n]eed to keep balance with meetings and

teaching. Seem to be off balance, and need to remember primary

job is to teach.Ñ

26 . The PAC comments also noted a disconnect between the

six - year record of PetitionerÓs works and Dr. VergotÓs

ÐExemplaryÑ evaluations during the same time period. The PAC

noted, Ð[p] revious appraisal ratings by DED conflict with the

total picture presented to the committee.Ñ

27 . Dr. Thomas Obreza is the Senior Associate Dean for

Extension, to whom Dr. Vergot reports. Dr. Obreza first became

involved in review of PetitionerÓs performance when Petitioner

contacted him to complain of the 2010 ÐImprovement RequiredÑ

rating. At PetitionerÓs request, Dr. Obre za reviewed

PetitionerÓs previous POWs and ROAs, as well as some of his

prior performance evaluations. Dr. Obreza concluded that not

only was Dr. VergotÓs criticism of PetitionerÓs 2010 performance

justified, but also that Dr. Vergot had been Ðreally leni entÑ in

prior evaluations and may have engaged in Ðgrade inflation.Ñ

28 . On December 16, 2011, Dr. Obreza wrote Petitioner a

three - page letter in respons e to his concerns with his

2010 evaluation. Dr. Obreza concluded that Petitioner Ðshould

have never r eceived ÒExemplariesÓÑ for 2007, 2008, and 2009.

29 . On February 20, 2012, Dr. Vergot issued Petitioner a

PIP request Ðin response to your 6 - yr. Summary of

Accomplishments . . . and the subsequent [PAC] review.Ñ The

letter r equired Petitioner to submit a PIP within two months

detailing his Ðplans, paths and timeline for overcoming

deficiencies identified in the July 25, 2011 letter of

reprimand.Ñ The letter listed 14 deficiencies, many of which

reiterate d items noted in PetitionerÓs June 1, 2011 perfor mance

evaluation and July 25, 2011 letter of reprimand.

30 . On March 9, 2012, Petitioner submitted a revised POW

to Dr. Vergot for review and comment. Petitioner submitted his

PIP on April 19, 2012. The PI P referenced each one of the

14 issue areas outl ined in the February 20, 2012 PIP request and

included a response thereto.

31 . On the first three issue areas, all of which related

to planning educational programs and teaching activities , rather

than meetings, Petitioner indicated they were addressed in his

revised POW on which he was awaiting comments before finalizing.

32 . On some of the issue areas, Petitioner provided a mix

of excuses and updates. For example, in response to the need to

increase creative works, Petitioner responded that closure of

one of the local newspapers and sale of another had Ð reduced my

newspaper publications. Ñ Petitioner reported that he was

planning new Ðfact sheetsÑ for 2012, was working to obtain

column space in the monthly ÐCoastlinesÑ publication , and had

developed sev eral Powerpoint presentations.

33 . In response to the direction to develop programming

for clientele on St. George Island, Petitioner noted that he had

met with the district commissioner, that she had no programming

recommendations, and that he Ðplan[ned] to regularly check with

her on my programming efforts.Ñ

34 . In response to efforts to obtain new funding,

Petitioner expressed some frustration (ÐYou say my internal and

external funding is very low. What exactly does that mean?Ñ),

but reported having r ecently jointly applied for $300,000 in

funding for an oyster - related project , of which Petitioner could

be awarded $60,000 for Ðeducational components of the proposal.Ñ

35 . In response to the request to redesign his reports to

the county commission, Peti tioner noted:

This is an issue that came up a few years

ago when Alan Pierce and one former

Commissioner felt that my reports to the

Board were getting a little long. When

notified, I immediately made my reports

shorter and it hasnÓt been an issue since.

As requested, I spoke with Alan about my

reports and he stated that my current report

format and length is good and nobody has a

problem. He recommended that I continue to

use my current reporting format.

36 . In February 2011, all the northwest region CEDs were

instructed to undertake Ðlistening sessionsÑ in their respective

counties as part of a 10 - year long - range planning process. At a

district CED meeting, the CEDs were given instructions regarding

conducting listening sessions to gather input from their

communities on strengths and weaknesses, as well as where

extension could provide new services. The listening sessions

had to be conducted within a particular timeframe as an initial

step in the long - range planning process.

37 . Petitioner planned a series of listening sessions, the

first at a Rotary Club meeting and another at an upcoming

chamber of commerce meeting. When Petitioner reported to

Dr. Vergot the plan for community sessions, Dr. Vergot was upset

and instructed Petitioner not to hold th e sessions at civic

clubs, but to solicit information from a broader community base.

38 . Petitioner described his situation as ÐscramblingÑ to

put together additional session s within a short timeframe.

Petitioner was unable to reschedule the listening se ssions in a

timely manner, in part because of preexisting plans to visit his

son in the military.

39 . Petitioner attended the May 13, 2011 northwest

district extension meeting at which he presented the results of

his listening sessions. Petitioner presen ted the input he

received from a meeting with the Franklin Promise Coalition and

a group in the City of Carabelle, as well as input he received

from Ðone - on - oneÑ communication with individuals.

40 . On July 25, 2011, the same day Petitioner received the

PI P/Written Reprimand for his 2010 annual performance

evaluation, Dr. Vergot issued Petitioner a Written Reprimand for

failure to hold the required public ex tension listening session.

Dr. VergotÓs letter referred to PetitionerÓs May 13, 2011 report

to the n orthwest extension directors as Ðdeceiving,Ñ chastised

Petitioner for failure to follow directives, and ordered

Petitioner to Ðrefrain from attempting to cover up [his]

misdeeds through deceptive behavior.Ñ The letter instructed

Petitioner to complete the listening session process by

August 26, 2011.

41 . Notably, Dr. Vergot included the following:

This is yet another example of why Franklin

County would rather withdraw funding and

close Extension the office [sic] than

continue with an ineffective CED. Al though

we were able to convince them last year not

to withdraw their support, our ability to do

so again is now greatly compromised. Only a

change in your attitude and performance will

make a difference moving forward. I expect

you to comply with the dir ectives that I

have presented above, and I will be closely

monitoring your performance during the next

3 months.

42 . PetitionerÓs 2011 Performance Appraisal, completed by

Dr. Vergot and dated June 1, 2012, showed an overall rating of

ÐStandard Professio nal Performance,Ñ suggesting that Petitioner

had cured any perceived deficiencies in his work product by the

end of the calendar year 2011.

43 . On January 31, 2013, Petitioner received a draft of

his 2012 annual performance appraisal from Dr. Vergot in person

with an overall rating of ÐStandard Professional Performance . Ñ

44 . On June 12, 2013 , Petitioner received through e - mail a

final copy of his 2012 annual performance appraisal from

Dr. Vergot with an overall rating of ÐImprovement Required.Ñ

Dr. V ergot did not contact or in any way discuss a change in the

overall rating with Petitioner prior to issuing the final

performance appraisal.

45 . On October 28, 2013 , Dr. Vergot personally delivered

Petitioner a Notice of Non - Reappointment informing Petit ioner

that his CED appointment to Franklin County would not be renewed

the fo llowing year. This notice informed Petitioner that

October 29, 2014 , would be the last day of his employment. The

letter further instructed Petitioner to report the following da y

to Marjorie Moore, CED for the Bay County Extension Office, and

perform the duties assigned to him by Ms. Moore.

46 . During this meeting with Petitioner, Dr. Vergot

mentioned to Petitioner that if he was considering early

retirement, he would not be el igible for me dical insurance until

he was 59 and one half years old, and that Ðyou ainÓt there

yet.Ñ Dr. VergotÓs tone was sarcastic. Petitioner inferred

that his job may be further jeopardized prior to the purported

October 2014 Ðlast day of employment. Ñ

47 . Dr. Vergot admitted making the statement about early

retirement and eligibility for medical benefits. However, the

statement was made at the request of an HR employee , who asked

Dr. Vergot to advise Petitioner of the age requirement to obtain

cont inued medical benefits in the event Petitioner chose early

retirement.

48 . Although Petitioner was removed from his

administrative position as CED , he remained an Extension

Agent IV and neither his pay nor his benefits were reduced.

49 . To effect the is suance of the Notice of Non -

re appointment and the involuntary reassignment of Petitioner,

Dr. Vergot and UF IFAS relied on UF Regulation 6C1 - 7.013,

entitled ÐRules of University of Florida 7.013 Non - Renewal of

Non - Tenured and Non - Permanent Status Faculty A ppointments:

Notice of Ending of Employment of Non - Tenured and Non - Permanent

Status Faculty.Ñ

50 . Petitioner was surp r ised by the non - reappoinment and

reassignment. On November 18, 2013 , Petitioner met informally

with Dean Nick Place, UF IFAS Dean and D irector , to discuss

PetitionerÓs reassignment. During that meeting, Petitioner

brough t to Dean PlaceÓs attention that 6C1 - 7.013 did not provide

a basis for reassigning Petitioner, who was a tenured, permanent

faculty member.

51 . UF Regulation 6C1 - 7.048 governs disciplinary actions

against tenured, permanent faculty members. The regulation

authorizes reassignment, among other disciplinary actions, for

Ðjust cause,Ñ which is defined as Ð incompetence or misconduct Ñ

and includes specific examples thereof. The regulation requires

written notice by hand delivery or certified mail/return receipt

of the proposed discipline to the faculty member, specifying the

reasons therefor. Further, t he regulation provides for a 10 - day

response period and an opportunity t o meet with the individual

issuing the notice, and for filing a grievance. The Notice on

Non - Reappointment did not cite this regulation.

52 . Dr. Place advised Petitioner to file a written formal

Step 1 grievance if Petitioner disagreed with his reassignm ent.

Grievance Procedure s

53 . UF Regulation 7.042 governs the faculty grievance

procedure. Pursuant to the regulation , a ÐgrievanceÑ is Ða

dispute or complaint alleging a violation of the regulations of

the University or the Board of Governors concernin g tenure,

promotion, non - renewal, and termination of employment contracts,

salary, work assignments, annual evaluation . . . and other

benefits or rights accruing to a faculty member . . . .Ñ The

purpose of the grievance procedures is to Ðprovide a prompt and

efficient collegial method for the review and resolution ofÑ

faculty grievances.

54 . Under the general procedure , a grievance must be filed

with the chief administrative officer (CAO) within 30 days of

the act or omission complained of , a Step 1 mee ting with the CAO

held within 7 to 15 days, and the CAOÓs written decision issued

no more than 30 days after the Step 1 meeting. At the Step 1

meeting, the grievant may present evidence in support of the

grievance. After the Step 1 meeting, the CAO Ðshal l establish

through conferences and review of the appropriate documentationÑ

the facts giving rise to the grievance.

55 . For grievants holding IFAS appointments, the Step 1

review may include two levels: one by the dean and one by the

appropriate vice p resident. Under that procedure, if a grievant

is dissatisfied with the deanÓs review, he or she may request

review by the vice president no later than 15 days after receipt

of the deanÓs decision. The vice president shall review the

grievance and issue a written decision with findings of fact and

the reasons for the decision reached, within 30 days.

56 . If the grievant is not satisfied with the decision in

Step 1, the grievant may file a written request with the Office

of the Provost for a Step II griev ance review within 15 days

after the date the grievant receives the Step 1 decision. The

provost shall meet with the grievant (and his or her

representative) in an effort to resolve the grievance no later

than 15 days following receipt of the request for review. The

provost shall issue a written decision with respect to the

grievance, giving findings of fact and the reasons for

conclusions reached, within 30 days of the meeting.

PetitionerÓs Step 1 Grievances

57 . On November 27, 2013, Petitioner filed a Step 1

grievance against UF IFAS (PV 131127) , alleging that the

October 28, 2013 Notice of N on - reappointment was issued in

violation of university regulations and that Petitioner was

being discriminated against by his supervisor, Dr. Vergot, on

the basis o f his age. The grievance suggested that Dr. Vergot

intentionally issued the non - renewal to interfere with

PetitionerÓs eligibility for early retirement.

58 . Petitioner testified that Dr. Vergot called him a

Ð dinosaur Ñ sometime while they were outside of a meeting, either

a district faculty meeting or a CED meeting, but was unable to

recall the timeframe or any other details. Dr. Vergot denied

ever having called Petitioner a dinosaur.

59 . On November 27, 2013, Dean Place issued a letter to

Petitioner res cind ing the October 28 , 2013 Notice of Non -

reappointment Ðdue to an administrative error . Ñ At final

hearing, Mary Ann Morgan , D irector of IFAS Human Resources (HR) ,

confirmed that the regulation did not apply to Petitioner, and

accepted responsibility for the error.

60 . T he letter of rescission reiterated that Petitioner

was to conti nue reporting to the Bay County CED . Thus, the

November 27, 2013 rescission reversed PetitionerÓs non -

reappointment, but not his involuntary reassignment to

Bay County .

61 . Petitioner met with Dr. Place again on December 16,

2013, formally regarding his Step 1 grievance of the October 28 ,

2013 Notice of Non - Reappointment. In attendance were

Petitioner, Dean Place, Ms. Morgan, and Kevin Clarke, then -

Employee Relations Manag er/EEO Investigator . Mr. Clarke was

asked to join the grievance meeting concerning PetitionerÓs

allegation of age discrimination.

62 . On December 24, 2013, Petitioner filed a second formal

grievance (PV 140102) of the October 28, 2013 involuntary

reassig nment to Bay County, which was unresolved by rescission

of the non - renewal letter .

Internal EEO Investigation

63 . Mr. ClarkeÓs investigation of PetitionerÓs complaint

consisted of interviewing both Petitioner and Dr. Vergot, and

reviewing PetitionerÓs e mployment file. Mr. Clarke counted the

December 16, 2013 meeting as his interview of Petitioner.

64 . On January 10, 2014, Mr. Clarke issued an

investigative report of his findings in which he concluded that

PetitionerÓs claim of age discrimination was un substantiated.

The report concludes as follows:

The allegations of discrimination based on

age could not be substantiated. Annual

evaluations and documents related to ongoing

efforts to establish a Performance

Improvement Plan for the Grievant provide

ev idence that the GrievantÓs job performance

has been unsatisfactory and an issue for

some time prior to the non - renewal and

relocation.

65 . Petitioner faults Mr. Clarke for failing to interview

him separately from the Step 1 meeting which included other

faculty and HR employees. No evidence was offered to establish

the University EEO procedures. Thus, the undersigned has no

evidence on which to base a finding that Mr. ClarkeÓs

investigation was contrary to University policy.

Step 1 Grievance Review

66 . On January 13, 2014, Dean Place issued his Step 1

review letter to Petitioner regarding grievance PV 131127 . As

to PetitionerÓs first contention, that his non - reappointment was

based on an inapplicable regulation, Dean Place concluded that

the ÐUniversi ty acted in error Ñ in issuing the October 28

letter, but that the issue had been corrected by rescission of

the letter. As to PetitionerÓs claim of age discrimination,

Dean Place concluded, based upon his review of Mr. ClarkeÓs

Investigative Report and Ðd iscussing the findings with the

investigator,Ñ there was no basis for the allegation.

67 . Dean PlaceÓ s Step 1 review letter did not directly

address PetitionerÓs complaint regarding his involuntary

transfer to Bay County. The letter offer ed , as if in pa ssing,

ÐFurther, University Regulation 7.042(2)(c) enables the

reassignment of employees.Ñ

68 . In closing, Dean Place informed Petitioner that the

University Ði s exercising its discretion to Ò forward this Step 1

review and all grievance materials to IFA S Senior Vice President

Dr. Jack Payne for review as part of the Step 1 process[.] Ó Ñ

69 . University regulation 7.042(2)(c) sets for th the

applicable burden of proof for faculty grievances . This rule,

cited by Dean Place as Ðenabling the reassignment of employees,Ñ

has no bearing on reassignment of , or for that matter, any

disciplinary action against , faculty members.

70 . Petitioner responded to Dean Place in writing on

January 22, 2014 , noting that Dean PlaceÓs letter failed to

address PetitionerÓs con tinued involuntary transfer to Bay

County, and pointing out that University Regulation 7.042 does

not authorize the Ðreassignment of employees.Ñ In his response,

Petitioner requested that this grievance (PV 131127) be combined

with PV 140102 f or purposes of review by the vice president.

71 . After the December 16, 2013 , meeting with Dean Place

for a formal grievance discussion concerning his complaint of

involuntary reassignment and age discrimination, Petitioner

discovered that UF IFAS ha d posted a notice for the position of

CED for Franklin County that same date .

72 . Petitioner filed a formal grievance (PV 14011A )

alleging the posting was a continuation of discrimination and

retaliation against him.

73 . On December 23, 2013, one day before UFÓs Christm as

break, Dr. Vergot issued Petitioner a Notice of Proposed

Suspension citing PetitionerÓs lack of participation in previous

PIP processes. Petitioner filed a formal grievance ( PV 140100B )

in response to this notice, but was subsequently notified that

bec ause the suspension was a ÐproposedÑ action , it was not

grievable.

74 . On January 27, 2014, Petitioner was issued a PIP

entitled ÐBoat anchorage/mooring mapping and ranking for the

Florida panhandle (Bay county and west) , Ñ outlining specific

tasks to be completed within six months. The PIP purports to

take into account PetitionerÓs Ðexperience, professional

expertise, contacts and academic credentials,Ñ but Petitioner

has no experience in boat anchorage mapping.

75 . According to the UniversityÓs polic ies, the purpose of

a PIP is to address deficiencies and weaknesses identified in a

faculty memberÓs annual performance evaluation or SPEP process .

A PIP should identify particular deficiencies and lay out a plan

and timeline s to address the deficiencies.

76 . The PIP presented to Petitioner bears little, if any,

relationship to any individual deficiency noted in the various

performance evaluations or PetitionerÓs SPEP. The plan directs

Petitioner to prepare a publication rating mooring sites in the

Flori da Panhandle by various qualities (safety, bottom type,

etc.) and provide boater maps to those sites, which is important

to both recreation and safety during storm events. It is an

assignment to develop a publication for the Panhandle similar to

one exist ing for southwest Florida.

Outcome of Second - Level Step 1 Review

77 . On February 27, 2014, Dr. Payne submitted his Step 1

review of PetitionerÓs grievance s. The letter again

acknowledged error in the Notice of Non - reassignment and

confirmed that Petitio nerÓs reassignment to Bay County was not

the result of age discrimination. Dr. Payne disagreed with

PetitionerÓs allegation that Dean PlaceÓs reference to

Regulation 7.042 as Ðallowing reassignment of employeesÑ was in

error. However, in order to rectify the situation, Dr. Payne

rescinded the November 27, 2013 Step 1 review letter, rescinded

the Notice of Proposed Suspension , and confirmed revocation of

the October 28, 2013 Notice of Non - r eappointment.

78 . Dr. Pa yne replaced the Notice of Non - r eappointm ent

with a letter stating that PetitionerÓs administrative

appointment as Franklin County CED was removed effective

October 28, 2013, pursuant to University Regulations 7.003(5)(b)

and 7.004(3)(e).

79 . Regulation 7.003(5)(b) provides that a faculty membe r

holding an administrative position may be moved or reassigned to

other institutional duties Ðat any time during the term of the

appointment.Ñ

80 . Regulation 7.004(3)(e) provides Ð[t]he administrator

directly responsible for the appointment and supervis ion of an

academic - administrative classification or an administrative

position may choose not to renew, to remove, or to reassign a

faculty member at any time during such an appointment.Ñ

81 . Thus, the University finally identified for Petitioner

a reg ulation authorizing his reassignment approximately four

months after he was reassigned.

82 . Petitioner exercised his right to a Step 2 grievance

review by the University Provost for Academic and Faculty

Affairs, Dr. Angel Kwolek - Folland. Dr. Kwolek - Foll and issued

her Step 2 review of PetitionerÓs grievance on June 18, 2014,

finding no merit in PetitionerÓs allegations that he was

reassigned based either on his age or in retaliation for

complaints of discrimination.

83 . Erik Lovestrand, who is younger th an Petitioner, was

eventually awarded the position of Franklin County CED . The

record does not support a finding of Mr. LovestrandÓs age at the

time of appointment.

84 . Petitioner filed his Complaint of Discrimination with

the FCHR on February 20, 2014.

CONCLUSIONS OF LAW

85 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569, 120.57(1), and

760.11(4)(b), Florida Statutes (2015) .

86 . Section 760.10(1)( a) states as follows:

(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 pri vileges of employment, because of such

individual Ó s race, color, religion, sex,

national origin, age, handicap, or marital

status.

87 . Petitioner is an Ð aggrieved person, Ñ and Respondent is

an Ð employer Ñ within the meaning of section 760.02(10) and (7),

respectively.

88 . The Florida Civil Rights Act (FCRA), sections 760.01

through 760.11, as amended, was patterned after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Federal case

law interpreting Title VII is applicable to cases ari sing under

the FCRA. See Green v. Burger King Corp. , 728 So. 2d 369, 370 -

71 (Fla. 3d DCA 1999); FSU v. Sondel , 685 So. 2d 923 (Fla. 1st

DCA 1996).

89 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against him . See Fla. Dep Ó t of Transp. v. J.W.C. Co. , 396 So.

2d 778 (Fla. 1st DCA 1981).

Age Discrimination

90 . The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination, includi ng claims of age discrimination. In

cases alleging discriminatory treatment, the p etitioner has the

initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. St. Mary Ó s

Honor Ctr. v. Hicks , 509 U.S. 502 (19 93); Combs v. Plantation

Patterns , 106 F.3d 1519 (11th Cir. 1997).

91 . Petitioner can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circumstantial

evidence under th e framework set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973); or (3) by establishing

statistical proof of a pattern of discriminatory conduct.

Carter v. City of Miami , 870 F.2d 578 (11th Cir. 1989). If

Petitioner cannot establish all of the elements necessary to

prove a prima facie case, Respondent is entitled to entry of

judgment in its favor. Earley v. Champion Int Ó l Corp. , 907 F.2d

1077 (11th Cir. 1990).

92 . Ð [N]ot every comment concerning a person Ó s age

presents direct evidence of discrimination. Ñ Young v. Gen .

Foods Corp. , 840 F.2d 825, 829 (11th Cir. 1988). Ð [D]irect

evidence is composed of Ò only the most blatant remarks, whose

intent could be nothing other than to discriminate Ó on the basis

of some impermissible factor . . . . If an alleged statement at

best merely suggests a discriminatory motive, then it is by

definition only circumstantial evidence. Ñ Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999). Likewise, a

statement Ð that is subject to more than one interp retation . . .

does not constitute direct evidence. Ñ Merritt v. Dillard Paper

Co. , 120 F.3d 1181, 1189 (11th Cir. 1997).

93 . Petitioner offered Dr. VergotÓs statement that

Petitioner was a ÐdinosaurÑ as direct evidence of discriminatory

intent. Petiti onerÓs testimony is admissible as an admission, a

hearsay exception pursuant to section 90.80 3(18)(a), Florida

Statutes (2014 ). However, an evidentiary admission is not

conclusive. The party who made the out - of - court statement may

offer evidence to dispu te the truth of the statement. 2 /

94 . In the case at hand, the admission was contradicted by

Dr. VergotÓs sworn testimony that he never made such a remark .

The undersigned must examine the credibility and reliability of

each witness and determine the we ight to give each.

95 . P etitionerÓs testimony on this point was imprecise and

Petitioner was unable to relate the timeframe or the context

during which the remark was made. However, Petitioner did

recall that the remark was mad e directly to Petitioner by

Dr. Vergot outside of a business meeting. Dr. Vergot had a

history as a poor manager, and was subject to counseling by

Deans Obreza and Place, required to attend management training

classes , and undergo a 360 performance review. On balance,

Petitioner Ós testimony on this issue is more credible and

reliable than Dr. VergotÓs.

96 . Nevertheless, Dr. VergotÓs single reference to

Petitioner as a dinosaur is insufficient to constitute direct

evidence of discrimination. That statement alone is not

blatantly discriminatory on the basis of age . The record is not

clear whether Dr. Vergot was remarking on PetitionerÓs age, his

thinking, or his methods. Without some context, the undersigned

cannot conclude otherwise.

97 . T he evidence does not support a finding that

Dr. VergotÓs remark regarding Petitioner was inte nded to

discriminate against him based upon his age .

98 . Petitioner also offered , as additional direct evidence

of discriminatory intent, Dr. VergotÓs statement that Petitioner

would need to attain ag e 59 and one half prior to obtaining

early retirement with medical benefits. The record does not

support a conclusion that the statement is direct evidence of

discrimination . Dr. VergotÓs statement was made at the

direction of an IFAS HR employee in an e ffort to ensure

Petitioner was informed of the options available to him. While

it may have been delivered in a sarcastic tone, the remark is

insufficient to establish discriminatory intent.

99 . Ð [D]irect evidence of intent is often unavailable. Ñ

Shealy v . City of Albany Ga. , 89 F.3d 804, 806 (11th Cir. 1996).

For this reason, those who claim to be victims of discrimination

Ð are permitted to establish their cases through inferential and

circumstantial proof. Ñ Kline v. Tenn. Valley Auth. , 128 F.3d

337, 34 8 (6th Cir. 1997).

100 . In McDonnell Douglas , 411 U.S. at 800 - 803, the

Supreme Court articulated a burden of proof scheme for cases

involving allegations of discrimination under Title VII, where

the plaintiff relies upon circumstantial evidence. The

McD onnell Douglas decision is persuasive in this case, as is

Hicks , 509 U.S. at 506 - 07, in which the Court reiterated and

refined the McDonnell Douglas analysis. Pursuant to this

analysis, the plaintiff (Petitioner herein) has the initial

burden of establish ing by a preponderance of the evidence a

prima facie case of unlawful discrimination. Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA

1996), aff Ó d , 679 So. 2d 1183 (1996) (citing Arnold v. Burger

Queen Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)).

101 . If, however, the plaintiff (Petitioner herein)

succeeds in making a prima facie case, then the burden shifts to

the defendant (Respondent herein) to articulate some legi timate,

nondiscriminatory reason for its complained - of conduct. If the

defendant carries this burden of rebutting the plaintiff Ó s prima

facie case, then the plaintiff must demonstrate that the

proffered reason was not the true reason, but merely a pretext

for discrimination. McDonnell Douglas , 411 U.S. at 802 - 03;

Hicks , 509 U.S. at 506 - 07.

102 . In Hicks , the Court stressed that even if the trier -

of - fact were to reject as incredible the reason put forward by

the defendant in justification for its actions , the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. Ð It is not

enough, in other words, to disbelieve the employer; the fact

finder must believe the plaintiff Ó s explanation of intentional

discrimination. Ñ Id. at 519.

103 . In order to prove intentional discrimination,

Petitioner must prove that Respondent intentionally

discriminated against him . It is not the role of this t ribunal

to second - guess Respondent Ó s business judgment. As stated by

the court in Chapman v. AI Transp ortation , 229 F.3d 1012, 1030

(11th Cir. 2000) :

[C] ourts do not sit as a super - personnel

department that reexamines an entity Ó s

business decisions. No matter how mistaken

the firm Ó s managers, the [Civil Rights Act]

does not interfere. Rather, our inquiry is

limited to whether the employer gave an

honest explanation of its behavior. An

employer may fire an employee for a good

reason, a bad reason, a rea son based on

erroneous facts, or for no reason at all, as

long as its action is not for a

discriminatory reason. (citations omitted) .

104 . At the administrative hearing held in this case,

Petitioner had the burden of proving that he was t he victim of a

discriminatorily - motivated action. See Dep Ó t of Banking & Fin.,

Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d

932, 934 (Fla. 1996) ( Ð The general rule is that a party asserting

the affirmative of an issue has the burden of presenting

evid ence as to that issue. Ñ ); Fla. Dep Ó t of Health & Rehab.

Servs. v. Career Serv. Comm Ó n , 289 So. 2d 412, 414 (Fla. 4th DCA

1974) ( Ð The burden of proof is Ò on the party asserting the

affirmative of an issue before an administrative tribunal. ÓÑ ).

105 . To esta blish a prima facie case of unlawful

discrimination on circumstantial evidence, the McDonnell Douglas

framework requires Petitioner to prove that: (1) he was a

member of a protected class; (2) he was subject to a n adverse

employment action; (3) he was eit her replaced by , or treated

less favorably than, a substantially younger person ; and (4) he

was qualified to do the job . McQueen v. Wells Fargo , 2014 U.S.

App. LEXIS 14387 , at *7 (11th Cir. 2014); Horn v. UPS , 2011 U.S.

App. LEXIS 13973 , at *9 (11th Cir. 2011).

106 . Petitioner established the first two elements of a

prima facie case showing that due to his age, 59 , he wa s a

member of a protected class, 3 / and that he was subject to several

adverse employment action s , including the 2010 ÐImprovement

Require d performance evaluation,Ñ the July 25, 2011 PIP/Written

Reprimand, the July 25, 2011 Written Reprimand for Misconduct,

and the October 28, 2013 involunt ary reassignment to Bay

County. 4 /

107 . Petitioner failed to establish the third and fourth

element s . Although t he record clearly established Petitioner

was replaced as CED by a younger person, Mr. Lovestrand, there

is no record evidence of Mr. Lovestrand Ós age at the time he was

hired. Thus, a conclusion cannot be drawn that Mr. Lovestrand

was substant ially younger than Petitioner. While the Eleventh

Circuit has held that an age difference of a mere three years

suffices to establish this element of prima facie case,

Carter v. DecisionOne Corp. , 122 F.3d 997, 1003 (11th Cir.

1997), Petitioner failed to prove even that relative age

difference.

108 . Alternatively, to meet the third element, Petitioner

could have demonstrate d that he was treat ed less favorably than

other similarly - situated individuals in a non - protected class.

Petitioner offered no eviden ce of any comparators who were

treated more favorably .

109 . Assuming, arguendo, Petitioner had proven a prima

facie case by a preponderance of the evidence, the burden shift ed

to Respondent to articulate a legitimate, non - discriminatory

reason for its emp loyment decisions. Tex. DepÓt of Cmty. Affairs

v. Burdine , 450 U.S. 248, 255 ( 1981) ; DepÓt of Corr. v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991). An employer has the burden

of production, not persuasion, to demonstrate to the finder of

fact that the decision was non - discriminatory. Id. This burden

of production is "exceedingly light." Holifield v. Reno ,

115 F.3d 1555, 1564 (11th Cir. 1997) ; Turnes v. Amsouth Bank,

N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

110 . Respondent met its burden of product ion in the

numerous documents reflecting, and testimony corroborating,

PetitionerÓs poor performance as CED.

111 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a pretext

for discrimination. Hicks , 509 U.S. at 516 - 518. In order to

satisfy this final step of the process, Petitioner must Ðshow[]

directly that a discriminatory reason more likely than not

motivated the decision, or in directly by showing that the

proffered reason for the employment decision is not worthy of

belief.Ñ Chandler , 582 So. 2d at 1186 (citing Burdine , 450 U.S.

at 252 - 256).

112 . IFAS and its administrative officials mishandled many

of its duties with respec t to Petitioner. Dr. Vergot was an

ineffective manager, and was not closely supervising (perhaps

not paying much attention) to the Franklin County programming

prior to the actions of the County Commission during its

2010 budget s essions. IFAS HR fumbled its obligations to

identify regulations applicable to PetitionerÓs tenured faculty

status and administrative assignment , causing IFAS

administration to rescind, at least t wice, its disciplinary

missives, and leave Petitioner questioning the regulatory basi s

for his reassignment until four months after it became

effective . The entire incident is no doubt embarrassing to the

program and its faculty. However, ineptitude in management does

not establish pretext for the adverse employment actions to

which Peti tioner was subjected.

113 . Petitioner may be correct that Dr. Vergot was harsh

with him. 5 / It was unfair to demand radical changes in both

PetitionerÓs faculty duties (scholarly research, publication,

and presentations) and administrative duties (educati onal

programming, funding, reporting , and listening sessions ) in a

short timeframe during one of the most difficult economic times

in recent history. The stress of those demands delivered by a

harsh, sarcastic, and unsympathetic supervisor was likely

unbe arable. Petitioner was drowning under the burden of

multiple disciplinary actions , given in a short timeframe ,

arising out of roughly the same course of action.

114 . In Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1361 (11th Cir. 1999), c ert. den. , 529 U.S. 1109

(2000) , the court noted that courts Ð are not in the business of

adjudging whether employment decisions are prudent or fair.

Instead our sole concern is whether unlawful discriminatory

animus motivates a challenged employment deci sion. Ñ The

demonstration of pretext Ðmerges with the plaintiff's ultimate

burden of showing that the defendant intentionally discriminated

against the plaintiff.Ñ Holifield , 115 F.3d at 1565. While, in

the present case Petitioner demonstrate d poor mana gement and

unfair treatment, he did not prove his treatment was pretext for

age discrimination.

115 . In an age discrimination cases, a complainant must

demonstrat e that his age was the Ðbut forÑ cause of adverse

employment actions against him. See McQuee n , 2014 U.S. App.

LEXIS 14387, at * 7. In the case at hand, the evidence does not

support such a conclusion . It is more likely that the Ðbut forÑ

cause of the adverse employment actions was the county

commission actions during the 2010 budget cycle. That event

drew Dr. VergotÓs attention to the programming and performance

issues in the Franklin County extension office.

Retaliation

116 . Section 760.10(7) prohibits retaliation in employment

as follows:

(7) It is an unlawful employment practice

for an empl oyer . . . 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, assisted, or participated in any

manner in an inves tigation, proceeding, or

hearing under this section. (emphasis

added).

117 . The burden of proving retaliation follows the general

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

Lawrence & Co. , 95 F.3d 1170, 1178 (2d Cir. 1996).

118 . Petitio ner can meet his burden of proof with either

direct or circumstantial evidence. Damon , 196 F.3d at 1358.

Direct evidence must evince discrimination in retaliation

without the need for inference or presumption. Standard v.

A.B.E.L S er vs., Inc. , 161 F.3d 1318, 1330 (11th Cir. 1998).

119 . Petitioner did not introduce direct evidence of

retaliation in this case.

120 . 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 .

121 . To establish a prima facie case of discrimination in

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

statutorily - protected expression 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 1566.

122 . Petitioner opposed an unlawful employment practice

when he filed his grievance alleging age discrimination as the

basis fo r the Notice of Non - Reappointment . Thus, Petitioner

satisfied the first two elements to establish a prima facie case

of retaliation.

123 . To prove the third element, Petitioner must

demonstrate a causal connection between the protected activity

and the a dverse employment decision. This causal link element

is construed broadly, and may be established by a demonstration

that the employer was aware of the protected conduct and that

the protected activity and the adverse action were not Ðwholly

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

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

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

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

124 . In the case at hand, Petitioner did not meet the

third element . PetitionerÓs grievance was filed on November 27,

2013, after the October 28, 2013 Notice of Non - Reappointment.

No causal connection can be established.

Conclusion

125 . Based upon the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case

against Respondent for either age discrimination or in

retaliation for opposing an unlawful employment practice .

Therefore, the employment discrimination charge should be

dismissed and none of the damages claimed by Pet itioner should

be awarded to him .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order dismissing FCHR Petition 201400215.

DONE AND ENTERED this 4th day of February , 2016 , in

Tall ahassee, 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 4th day of February , 2016 .

ENDNOTES

1 / The scale of overall ratings in ascending order is

Unacceptable, Improvement Required, Standard Professional

Perform ance, Commendable, and Exemplary.

2 / See Charles W. Ehrhardt, EhrhardtÓs Florida Evidence

§ 803.18, p. 984 (2013 Ed.).

3 / The federal ADEA, on which the FCRA is modeled, protects

employees aged 40 and older. The FCHR has determined that the

age Ð40Ñ h as no significance in the interpretation of the FCRA.

See Ellis v. Am. Aluminum , FCHR Order No. 15 - 059 (Sept. 17,

2015). Florida caselaw is silent on the matter.

4 / Ordinarily, a written reprimand or counseling that amounts to

no more than a mere scold ing, without any following disciplinary

action, does not rise to the level of adverse employment action.

Barnett v. Athens RegÓl Med. Ctr. , 2013 U.S. App. LEXIS *4 - 5

(11th Cir. 2013). Where, as here, a negative evaluation leads

to a material change in th e terms or conditions of employment,

it rises to the level of an adverse employment action. Id.

5 / Dr. VergotÓs harsh treatment of Petitioner was likely due, in

no small part, to the light this incident shed on Dr. VergotÓs

management shortcomings. Dr. VergotÓs superiors expected him to

correct the situation that he had enabled by engaging in Ðgrade

inflationÑ with respect to Petitioner.

COPIES FURNISHED:

William T. Mahan, Jr.

Post Office Box 63

Port St. Joe, Florida 32457 - 0063

(eServed)

Ryan Fulle r, Esquire

University of Florida

123 Tigert Hall

Post Office Box 113125

Gainesville, Florida 32611 - 3125

Jamie Marie Ito, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Audrey Moore, Esqu ire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Judith A. Stokowski, Qualified Representative

Post Office Box 10

19 Eighth Street

Apalachicola, Florida 32329 - 0010

(eServed)

Tammy S. Barton, Agenc y Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

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

will issue the Final Orde r in this case.