14-005350 Sheila Annette Cunningham vs. Florida Credit Union Status: Closed Recommended Order on Wednesday, May 6, 2015.

Summary: Petitioner failed to prove that Respondent discriminated against her on the basis of her race, or as retaliation for her opposition to acts of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA A NNETTE CUNNINGHAM ,

Petitioner ,

vs. Case No . 1 4 - 5 350

FLORIDA CREDIT UNION ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case w as heard on March 12, 2015 ,

in Gainesville , Florida, before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sheila A. Cunningham , pro se

1835 Northwest 27th Avenue

O cala, Florida 3 4475

For Respondent: R. Michelle Tatum , Esquire

John E. Duvall, Esquire

Ford & Harrison , LLP

225 Water Street , Suite 710

Jacksonville, Florida 322 02

STATEMENT OF THE ISSUE

Whether the Petitioner , Sheila A. Cunning ham , was subject

to an unlawful employment practice by Respondent, Florida Credit

Union , on account of h er r ace or due to retaliation for her

opposition to an unlawful employment practice in violation of

s ection 760.10, Florida Statutes.

PRELIMINARY STATEM ENT

On May 15 , 2014 , Petitioner filed a complaint of

discrimination w ith the Florida Commission on Human Relations

(FCHR) which alleged that Respondent violated s ection 760.10, by

discriminating against h er on the basis of h er r ace or as

retaliation .

O n October 6, 2014 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On November 1 0 ,

2014 , Petiti oner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was s cheduled for January 1 2 , 2015 . The

hearing was continued, and reset for hearing b y video

teleconference in Tallahassee, Florida , and Gainesville,

Florida , on February 19, 2015 , and was convened as scheduled.

Due to a scheduling problem at the Gainesville location, the

hearing had to be adjourned before any substantive issues could

be taken up. As a result, the hearing was rescheduled for

March 12 , 2015 , in Gainesville, Florida , and was held on that

date as scheduled.

At the final hearing, Petitioner testified on her own

behal f , and presented the testimony of Courtney Gerard

Cunning ham, her son; and Cynthia Lucille Littles Reaves, an

employee of Service Master . Petitioner offered no exhibits in

evidence. Respondent presented the testimony of Wesley Garrett

Colson, its Vice - President of Risk Management . R espondentÓs

Exhibits 1 , 4 - 1 5, 15a, and 16 - 19 were received into evidence.

A one - volume Transcript was filed on April 1 6 , 201 5 .

T wenty days from the date of the filing of the Transcript was

established as the time for filing post - hearing submittals . On

March 18, 2015, Petitioner filed a document entitled ÐCopies of

PetitionerÓs RebuttalÑ that consisted of a cover letter and 15

pages of correspondence submitted to the FCHR investigator. The

evidentiary record of this proceeding having closed at the

conclusion of the final hearing, the undersigned cannot consider

th at additional correspondence . On March 27 , 2015, Petitioner

filed a Proposed Recommended Order Summary that included , along

with three non - consecutive pages of summation and requests for

relief, 17 pages of additional ex hibits . The evidentiary record

of this proceeding having closed at the conclusion of the final

hearing, the undersigned cannot consider those additional

exhibits . Respondent filed its Proposed Recommended Order on

April 17, 2015 . On April 2 7 , 2015, Peti tioner filed a Final

Proposed Recommended Order that included 4 pages of additional

exhibits. The evidentiary record of this proceeding having

closed at the conclusion of the final hearing, the undersigned

cannot consider those additional exhibits. The p ost - hearing

submittals of the parties, exclusive of additional

correspondence and exhibits, have been conside red in the

preparation of this Recommended O rder.

References to statutes are to Florida Statutes (201 4 )

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, who was at all times relevant to this

matter an employee of Respondent, is African - American.

2 . There was no direct testimony as to the number of

persons employed by Respondent. However, given the testimony

describing a large financial i nstitution with multiple

departments, including a data scanning department and a call

center, there is sufficient competent, substantial evidence to

establish an inference that Respondent employs more than 15

full - time employees at any given time.

3 . Peti tioner was first hired by Respondent on

November 20, 2007. On February 2, 2008, she was transferred to

the position of Courtesy Pay Credit Advisor (CPCA), a position

held until her termination on March 21, 2014.

4 . From 2012 through the time of her term ination, Jennifer

Perez was PetitionerÓs direct supervisor. Ms. Perez reported to

Mr. Colson, who supervised the credit advisor department.

5 . Over the years, Petitioner received a number of

certificates and awards for good performance in her position.

6 . CPCAs are responsible for collections on delinquent

accounts of members by bringing the account to a positive

balance within 60 days of delinquency.

7 . If a credit union memberÓs account is delinquent for

more than 60 days, it must be written off, resulting in a loss

to Respondent. Failure to timely write - off a negative account

can subject Respondent to fines and negative audit ratings.

8 . A common way of bringing an account current is to

arrange a loan with Respondent to pay the delinquent bala nce.

Loan types include a Ðbounce - freeÑ loan and a Ðwork - out loan.Ñ

Both are designed to allow for payment of the negative account

in installment payments. The bounce - free loan has only the

negative account balance involved, while the work - out loan

comb ines the negative balance with another existing loan. CPCAs

receive additional compensation for such loans, known as

Ðincentives,Ñ of $10 to $15, though the record suggests that a

dispute over an incentive of $40 was a triggering cause of the

adverse empl oyment action in this case.

9 . CPCAs are also responsible for ÐpackingÑ loans, which

includes taking the loan paperwork to the optical department to

input and image the documents into RespondentÓs system. The

optical department periodically provides r eports on loans for

which documentation has not been submitted for input and

imaging. Petitioner testified credibly that the optical

department would occasionally neglect to scan loans that were

submitted. However, there was no evidence to suggest that t o be

a frequent or pervasive problem.

10 . Respondent routinely employs one or two CPCAs at any

given time. The CPCAs are assigned a Ðqueue,Ñ which is an

alphabetical assignment of member accounts. The evidence

suggests that Petitioner served as the CPC A for all delinquent

member accounts for a period of almost one year, a practice that

ended when Vikki Martello was hired as a CPCA on February 27,

2012. Upon her hiring, Ms. Martello was assigned the accounts

of members with last names beginning with the letters A through

K, and Petitioner was assigned the accounts of members with last

names beginning with the letters L through Z. Ms. Martello was

transferred to another position on July 11, 2013. Jennifer

Munyan was hired as a CPCA on May 20, 2013, and was assigned the

A through K queue. Since PetitionerÓs termination, Ms. Munyan

has handled all delinquent accounts.

11 . Petitioner mentioned several incidents over the course

of her employment that she believed to be evidence of her poor

treatment by Res pondent. These incidents appear to have

occurred more than one year before Petitioner filed her

employment complaint of discrimination. They are cited here for

purposes of background.

12 . Petitioner testified that starting in 2010 or 2011,

Respondent be gan to hire younger credit advisors on the basis of

their fr iendship with management. The new employees eng aged in

childish activities such as throwing paper clips and blowing

bubbles. Petitioner indicated that they were Ðwritten upÑ for

those activities . There was no suggestion that either the

hiring or the write - ups were based on race.

13 . For a period of time, Petitioner was assigned what she

believed to be a disproportionate share of holiday weekend

shifts. Mr. Colson Ðcorrected that and then that was okay.Ñ

There was no suggestion that the issues with scheduling were

based on race.

14 . Shortly after Ms. Martello was hired on February 27,

2012, she was asked to accompany Mr. Colson and Ms. Perez to a

branch office to train employees. Petitioner f elt Ðthat was not

right,Ñ and that she was being excluded from performing certain

job tasks. She testified that RespondentÓs assignment of

training and other duties to persons other than herself led to a

sympathetic nick - name of Ðinvisible credit advisor. Ñ Petitioner

admitted that, in her opinion, Ms. Martello was an excellent

employee. Mr. Colson testified credibly that Petitioner was not

asked to assist in the new hire training since she was already

behind on managing her accounts, and that Ð[t]hereÓs no

compensation or award or anything for training another employee,

it's just additional work.Ñ There was no suggestion that the

decision to have Ms. Martello assist with training was based on

race.

15 . Petitioner alleged that despite her requests, she was

not allowed to shadow other employees, particularly in the call

center, so that she could learn the responsibilities of the

member service representative position. She testified that in

response to her requests, Ms. Perez would say Ðokay, we'll see

ab out it, but nothing never happened. And I asked like three or

four times and it was always we'll see about it.Ñ Petitioner

did not claim in her testimony that she was denied these

opportunities because of her race.

16 . Petitioner generally claimed she was denied

promotional opportunities because she was not allowed to train

as a back - up. However, she failed to present any evidence of an

open and available position for which she had applied, or for

which she was denied. Furthermore, there was no sugge stion that

race played a role in any such denial.

17 . RespondentÓs employees are informed of work

performance issues in several ways, including informal

discussions, e - mail communication, individual or group meetings,

coaching reports, and annual evalua tions.

18 . On March 19, 2012, Petitioner received her annual

performance review. Although Respondent was complementary of

PetitionerÓs improvements in her work, and spoke favorably of

her interpersonal relationships and work ethic, the review noted

a nu mber of Ðimprovement opportunities and development areasÑ to

be implemented over the course of the following year.

Deficiencies in job performance included PetitionerÓs practice

of making initial contact with a delinquent member by letter,

rather than the more effective practice of a phone call; the

failure to provide sufficiently descriptive account notations;

the failure to Ðcharge offÑ loans correctly resulting in errors

for others to correct; the failure to close checking accounts

after workout options or loans were complete resulting in

further delinquencies; and the failure to set up loan

distributions correctly, resulting in unwarranted loan

delinquencies and resultant customer complaints. The

performance review also cited issues with PetitionerÓs n egative

accounts extending beyond the required time frame, which was

noted in RespondentÓs quarterly audit report. The deficiencies

noted in the performance review resulted in higher than normal

charge - offs, and losses to Respondent.

19 . Petitioner impro ved her performance in some areas, but

only for short periods of time. Mr. Colson did not issue

Petitioner any coa ching reports in 2012 because he believed that

PetitionerÓs mistakes were not intentional, that she had a

positive attitude, that she had no attendance issues, and that

Ðshe seemed to l ike her job a lot.Ñ It was Mr. ColsonÓs belief

that with additional training and a cooperative approach,

PetitionerÓs performance issues could be corrected.

20 . On February 27, 2013, Petitioner received her next

annual performance review. Petitioner was again complemented on

her interaction with members, her teamwork, and her general

positive work ethic. It was noted that Petitioner had responded

well to coaching such that she rarely made mistakes in settin g

up automatic loan payments. The review noted, however, a number

of areas for improvement, including some that had not been

resolved from the previous yearÓs review. Of particular concern

was the high number of missing loan packets, some of which were

m onths past due; the failure to meet consecutive deadlines for

submitting completed work; and the failure to begin work on

accounts in an appropriate and timely manner. Petitioner was

again instructed to make initial contact with delinquent members

by phon e or email, rather than by letter; and was advised of

several of her accounts that were charged - off after missing the

60 - day deadline. Finally, Petitioner was provided with a

printout of the 142 overdrawn checking accounts in her queue,

only 40 of which ( 28 percent), had been worked in the previous

60 days. Although some early - stage overdraft accounts carried a

Ðhigh self - cure rate,Ñ the low number of accounts worked was

deemed unacceptably low.

21 . After receiving her 2013 performance review,

Petitione r improved in some areas of her performance, but again

only for a short period of time.

22 . Beginning on July 15, 2013, Petitioner, Ms. Martello

(until she completed her transfer from the collections

department), and Ms. Munyan (upon her assignment to t he

collections department) were provided with periodic email

updates from Ms. Perez on the number of loan packets for which

each was responsible that had not been submitted to the optical

department. The updates and related correspondence between

Petition er and Ms. Perez revealed the following:

July 15, 2013

Petitioner - 37 missing loan packets

Ms. Martello - 4 missing loan packets

July 19, 2013

Petitioner - 36 missing loan packets

Ms. Martello - 6 missing loan packets

July 30, 2013

Petitioner - 34 missi ng loan packets

Ms. Martello - 5 missing loan packets

August 5, 2013

Petitioner - 29 missing loan packets

Ms. Martello - 2 missing loan packets

Ms. Munyan - 1 missing loan packet

August 14, 2013

Petitioner - 31 missing loan packets

Ms. Munyan - 2 missing loan packets

August 19, 2013

Petitioner - 38 missing loan packets

Ms. Munyan - 5 missing loan packets

August 27, 2013

Petitioner - 42 missing loan packets

Ms. Munyan - 4 missing loan packets

September 3, 2013

Petitioner - 38 missing loan packets

Ms. Mun yan - 5 missing loan packets

September 10, 2013

Petitioner - 42 missing loan packets

Ms. Munyan - 5 missing loan packets

September 16, 2013

Petitioner - 32 missing loan packets

Ms. Munyan - 4 missing loan packets

On September 18, 2013, Ms. Perez sent an email to Petitioner and

Ms. Munyan advising them that credit union auditors were

scheduled to arrive on September 30, 2013. Thus, Petitioner and

Ms. Munyan were instructed to Ð[m]ake sure all of your loan

packets are up to date, so that no one comes to u s requesting

something that cannot be located.Ñ

October 1, 2013 (for loan packets through September 27)

Petitioner - 38 missing loan packets

Ms. Munyan - 3 missing loan packets

The October 1, 2013, update fur ther advised Petitioner and

Ms. Munyan that Ð[ t]he auditors are here for the next three

weeks. If they review any of these loans, it will be a problem

that we do not have them scanned yet and if we are missing

documents. Please get these tu rned in this week!Ñ On

October 12, 2013, Petitioner sent Ms . Perez an email stating

that ÐI worked on some loan packets on 10/12. Please donÓt send

email until I turn my loan packets in on 10/16.Ñ

October 25, 2013

Petitioner - 20 missing loan packets

Ms. Munyan - 7 missing loan packets

November 4, 2013

Petitione r - 28 missing loan packets

Ms. Munyan - 4 missing loan packets

November 12, 2013

Petitioner - 33 missing loan packets

Ms. Munyan - 5 missing loan packets

On November 15, 2013, Petitioner sent Ms. Perez an email stating

that ÐOptical have some loan packe ts that were turned in today,

please donÓt send out list until after 11/18/13.Ñ

November 22, 2013

Petitioner - 35 missing loan packets

Ms. Munyan - 7 missing loan packets

December 11, 2013

Petitioner - 41 missing loan packets

Ms. Munyan - 1 missing loan p acket

December 18, 2013

Petitioner - 32 missing loan packets

Ms. Munyan - 2 missing loan packets

23 . On October 9, 2013, Mr. Colson met with Petitioner and

Ms. Munyan to discuss the results of an attorney audit that was

critical of several collections pr actices. In particular, too

many accounts were not being worked until the later stage of

delinquency; too much time was allowed to elapse between

contacts with the members; and workflow notations were not

properly completed. A spreadsh eet provided during the

October 9, 2013 , meeting revealed that Petitioner had 92

accounts in her queue, 57 of wh ich had never been worked.

Ms. Munyan had 90 accounts in her queue, 25 of which had never

been worked.

24 . In November of 2013, Petitioner spoke with Ms. Perez

regarding an incident in which Petitioner alleged th at

Ms. Munyan claimed one of her incentive credits. Ms. Perez

advised Petitioner to come back to her if it occurred again.

25 . Ms. Perez discuss ed the incentive issue with

Mr. Colson. They determined that, due to a high volume of

negative accounts anticipated over the upcoming holidays, and in

recognition of the priority on not missing an opportunity to

resolve negative accounts, a policy for incentives when a CPCA

had to handle incoming calls and loan requests from members who

were not in th e CPCAÓs queue was warranted.

26 . On November 19, 2013, Ms. Perez sent an e - mail to

Petitioner and Ms. Munyan setting out the policy for handling

calls when the other CPCA was not available. Outgoi ng calls and

loan initiation were limited to customers within the CPCAÓs

queue. However, if a CPCA was not in the office or was

unavailable to handle a customer request, the other CPCA was

instructed to accept incoming calls from members not in their

queue. The CPCA who first entered notes of a customer contact

prior to a loan being booked was to receive the incentive.

27 . On December 9, 2013, Ms. Munyan received a

communication from a member with a negative account, entered the

first notes of contact with the memb er into the workflow

history, and sent loan paperwork for a bounce - free loan to the

member.

28 . On December 10, 2013, Petitioner spoke with the

customer and took additional application information over the

phone. Later that same day, Petitioner went to Mr. Colson to

approve a refinance loan for the customer. Mr. Colson approved

Petitioner to proceed with the refinance loan based on the

customerÓs income, but did not know at the time that Ms. Munyan

had already started the loan process.

29 . Since Ms. Munyan made the first contact with the

customer, the incentive was credited to Ms. Munyan. Petitioner

proceeded to make several entries on the workflow history

asserting her claim to the incentive. Petitioner apparently

discussed the matter within the o ffice, leading to her testimony

that Ð[t]he department was upset about it because I showed it to

them.Ñ

30 . In D ecember 2013, having been made aware of the

workflow history comments regarding the disputed incentive ;

having received complaints regarding Pe titioner from the manager

of RespondentÓs contact center; and having continuing issues

with PetitionerÓs failure to submit loan documents to the

optical department, Mr. Colson prepared a series of coaching

reports to individually address the issues. It wa s decided to

issue separate coaching reports for each issue of concern,

rather than a single lengthy report, in order to keep the issues

separate. Respondent has previously issued multiple coaching

reports to employees under comparable circumstances.

31 . On December 20, 2013, Petitioner was called into a

meeting with Mr. Colson. She thought the meeting was to discuss

the disputed incentive. Instead, she was presented with the

coaching reports.

32 . The first coaching report was issued for PetitionerÓ s

notations into the workflow system related to her intent to

claim the disputed incentive credit.

33 . Petitioner had previously received training on the

information to be entered in the workflow system. During the

training sessions, which were conduct ed periodically, and which

included the distribution of printed materials, it was stressed

that the workflow notes should not be editorial or contain side

comments.

34 . Mr. Colson explained that, in the event of a legal

dispute with a member regarding t heir account, the collection

record, including the notations entered into the workflow

system, would be made part of a court record. As applied to

PetitionerÓs notations, Mr. Colson was concerned about having to

testify about notations in the collection r ecord regarding

i ncentive s or commission s for working on a work - out request.

35 . Petitioner alleged that Ms. Martello and other

unidentified credit advisors made similar notations in the

workflow system without being written up, but provided no

evidence to support her assertion. Mr. Colson knew of no other

instance of a CPCA making notations in the workflow system

related to an incentive dispute or other internal employee

dispute.

36 . Mr. Colson believed that the notations made by

Petitioner regardin g the incentive dispute were not pertinent to

the collection record, thus violating RespondentÓs policy and

warranting the issuance of the coaching report.

37 . Petitioner signed the first coaching report, with the

comment that ÐI thought that I was doin g the right thing on this

acct.Ñ

38 . The second coaching report addressed PetitionerÓs act

of taking a fee refund voucher to RespondentÓs contact center

department for approval. The contact center has staff on duty

beyond RespondentÓs normal 8:30 a.m. to 5:00 p.m. business

hours. The fee refund had to be done on November 25, 2013,

since that was the 60th day of the negative account, after which

the account would have to be written off. The fee refund was

for an amount that exceeded PetitionerÓs approval authority.

Despite the time frame involved, Petitioner did not get the fee

refund voucher approved by the clerk of the collections

department, which would be the normal course, before the

5:00 p.m. close of business.

39 . During the December 20, 2013 , meeting, Mr. Colson

discussed the practice of taking vouchers to the call center for

processing after 5:00 p.m. Mr. Colson had been approached by

the assistant vice president of the contact center regarding

PetitionerÓs multiple visits after 5:00 p.m. to his department

Ðto have transactions done, fees refunded, things of that nature

on members' accounts.Ñ As a result, call center employees were

being pulled away from their normal tasks to do transactions

that were not a normal function of their job.

40 . Petitioner alleged that other credit advisors went to

the call center to have such transactions processed, including

Ms. Martello, Melonice Lindsey, and Howard Miller, but provided

no evidence to support her assertion. Mr. Colson had no

knowledge of ot her credit advisors who engaged in this activity,

or any other improprieties regarding the processing of fee

refunds.

41 . The second coaching report addressed additional issues

related to the November 25, 2013 , fee refund transaction,

including the fact that Petit ioner did not work on the sixty - day

negative account when she arrived to work that morning, and that

she did not enter any notation in the workflow history regarding

the fee refund.

42 . Mr. Colson believed that the issues regarding the fee

ref und transaction warranted the issuance of the coaching

report.

43 . Petitioner signed the second coaching report, with the

comment that ÐI didnÓt do this intentionally. I forgot to get

voucher back from Katie to give to [Mr. Colson] to sign.Ñ

44 . The third coaching report addressed the ongoing

problem of PetitionerÓs failure to provide loan documentation to

the optical department for input and scanning, the details of

whic h are set forth in paragraph 22 above. Petitioner signed

the report with the co mment that Ð[s]ome of these loans have

been turned into optical. I will review this matter.Ñ

45 . Petitioner alleged that other employees had fallen

behind on submitting paperwork, but were not written up or

terminated. Petitioner did not identify, by name or race , any

of the allegedly comparable employees, or establish that they

had a comparable history of failing to submit loan

documentation. The only evidence adduced at the hearing

established that Ms. Martello and Ms. Munyan were not comparable

to Petitioner in the number or frequency of late - submitted loan

packets.

46 . Petitioner stated that she had previously advised

Ms. Perez of her intent to work on Saturday, December 21, 2013 ,

to catch up on her loan paperwork. Mr. Colson was not aware of

P etitionerÓs intent to do so but, given the length of time that

the problem continued to exist, would still have issued the

coaching report to Petitioner.

47 . At some point af ter January 2, 2014, during

Mr. ColsonÓs daily review of compliance reports, he noted an

account that was over 60 days, requiring that it be written off.

The account was assigned to Petitioner, and Mr. Colson saw from

the workflow history that Petitioner did not begin work on the

account until it was 58 days past due. Working her ac counts

earlier in the delinquency stage had been previously addressed

with Petitioner.

48 . On January 6, 2014, Petitioner was given a coach ing

report and placed on a 60 - day probation for deficient work

performance related to the written - off account .

49 . Petitioner signed the January 6, 2014 , coaching report

with the comment that Ðvoucher was paperclip to another voucher

by mistake. I usually check these daily.Ñ

50 . Petitioner testified that other employees failed to

timely charge - off accounts but w ere not counseled, but provided

no evidence to support her assertion. The only comparator for

whom evidence was received was Khrissy Adams, a Caucasian woman,

who was given a coachi ng report and placed on a 30 - day probation

for failing to timely write - off an account. There was no

evidence of Ms. Adams having received previous coaching reports

so as to warrant a lengthier period of probation, as was given

to Petitioner.

51 . As part of the process established after the

December 20, 2013 , meeting and co aching reports, Petitioner was

to submit her loan packets to either Ms. Perez or Mr. Colson for

review before they were sent to be scanned. That review

revealed that a large number of the loan packets contained

significant errors in the consumer lending p lan, which is the

contract a member signs to obtain a loan. Many of the consumer

lending plans had missing signatures, and some packets had no

consumer lending plan at all. Furthermore, Petitioner indicated

that some members elected to purchase loan insu rance when the

member had, in fact, declined insurance, resulting in unapproved

charges to a member.

52 . The erro rs noted by Respondent were serious,

potentially result ing in the loan contracts being invalid and

unenforceable. The errors could have bee n violative of

Regulation Z, which governs fair lending practices and, if there

were a sufficient number of instances, resulted in a class

action lawsuit against Respondent, exposing it to considerable

cost.

53 . Due to the ongoing performance issues, as w ell as the

severity of the issues related to PetitionerÓs completed loan

packets, the decision was made that termination of PetitionerÓs

employment was appropriate. Petitioner was thereafter

terminated from employment on March 21, 2014.

54 . Petitioner id entif ied no instance of any racially -

disparaging comments directed at herself or any other employee

by anyone affiliated with Respondent.

55 . There was no non - hearsay evidence of any employee

outside of PetitionerÓs protected class who engaged in condu ct

similar to that of Petitioner, but without consequence, upon

which to support a finding that the employee was treated more

favorably.

56 . Mr. Colson testified credibly that PetitionerÓs race

had no bearing on the decision to terminate her employment.

Rather, Mr. Colson testified convincingly that the decision was

based solely on PetitionerÓs continuing and increasingly poor

job performance. Mr. Colson felt PetitionerÓs poor performance

was not due to a lack of trying on PetitionerÓs part; it was

simp ly the result of a lack of ability on her part.

57 . Petitioner asserted that she was written up, placed on

probation, and subsequently terminated from employment in

retaliation for complaining that Ms. Munyan improperly claimed

her incentive. In that re gard, she testified that:

I know that by me going to management . . .

it really started all this, I think, because

IÓm thinking to myself, if I would have just

kept my mouth shut, maybe I would have had

my job, but o ther employees have went to

Mr. Colson b efore with problems like that

. . . . But my thing is, after I went to

management I get written up out of

retaliation. I got blind - sided. I didnÓt

know that was going to happen. And, to me,

thatÓs retaliation.

58 . Petitioner does not claim that she was denied the

incentive credit because or her race.

59 . Finally, Petitioner complained that some of her

personal belonging were damaged or not returned to her after her

employment was terminated, testifying that Ð[t]hey broke up all

of my things and, t o me, that was not right. To me, that was

discriminative.Ñ Even if there were some evidence that

PetitionerÓs belongings had been damaged on purpose -- which

there was not -- there was no evidence that such damage was the

result of racial animus.

6 0 . A review of the entire record of this proceeding

reveals not a shred of evidence that any of the employment

actions of which Petitioner complains were the result of racial

bias or discrimination. The only testimony that can be

reasonably read as suggestin g some racial bias behind the

employment actions at issue are PetitionerÓs testimony as

follows:

I know that discrimination do exist. I do

know thatÓs a problem all across the board

in America . . . [a]nd if I did not feel

that I was discriminated against I would

never have did all this . . . but my thing

is I know thereÓs favorites at that credit

union. I know that certain people get away

with things.

and

To me, I was discriminated against, I'm

gonna say for the record, because of my

race, because if I think that I know within

my heart if the tables were turned, if I was

white and went to management, I would still

had a job because to me it just got blown

out of proportion by me going to management.

And as everyone can clearly see, it all

started from t here, because if it wasn't

started from there, why would I have gotten

written up in first place for my work that

happened prior to, you know, that -- you

know, that year? So, that's what started

that. So my point is, is that if I wouldn't

have never sai d anything, I would have

probably still been working there.

61 . In the absence of some corroborative evidence,

Pet itionerÓs statements alone cannot provide the support to

sustain a charge of racial discrimination.

Ultimate Findings of Fact

62 . There was no competent, substantial evidence adduced

at the hearing to support a finding that the decision to

terminate Petitioner from employment was made due to

P etitionerÓs race . Rather, the decision was based on

PetitionerÓs performance in her job as reflected in the employee

coaching reports. Furthermore, there was no competent,

substantial evidence adduced at the hearing that persons who

were not African - American were treated differently from

Petitioner, or were subject to dis similar personnel policies and

p ractices.

63 . There was no competent, substantial evidence adduced

at the hearing to support a finding that the decision to

terminate Petitioner from employment was made in retaliation for

PetitionerÓs opposition to an unlawful employment practice .

Rathe r, to the extent there was some retaliation involved, it

was for bringing an internal employee complaint over a disputed

incentive to management, a complaint that had no implication of

race.

CONCLUSIONS OF LAW

64 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant the Division of Administrative Hearings jurisdiction over

the subject matter of thi s proceeding and of the parties.

Discrimination

65 . With regard to PetitionerÓs claim of discrimination on

the basis of race, s ection 760.10 (1) provides, in pertinent

part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privile ges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

66 . With regard to PetitionerÓs claim of retaliation,

section 760.10(7) provides, in pertinent part:

(7 ) It is an unlawful em ployment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participa ted in any

manner in an investigation, proceeding, or

hearing under this section. (emphasis

added ) .

Thus, the alleged retaliation must be for a reason that is

subject to protection under the Act, i.e. , race, color,

religion, sex, national origin, age, ha ndicap, or marital

status.

67 . Section 760.11(1) provides , in pertinent part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [FCHR] within 365 days of the alleged

violation.Ñ Petitioner timely filed her c omplaint.

68 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearin g

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable

cause. Ñ Following the FCHR determination of no cause,

Petitioner filed her Petition for Relief requesting this

hearing.

Constructio n of the Civil Rights Act

69 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructio ns as placed on

its federal prototype.Ñ Brand v. Fla . Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

N . Am . , LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); F la. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

70 . Petitioner ha s the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3 rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Means of Proving Discrimination

71 . Employees may prove discrimination on the basis of

race or as a result of retaliation by direct, statistical, or

circums tantial evidence. Valenzuela v . GlobeGround N . Am . , LLC ,

18 So. 3d at 22.

72 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

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

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discriminati on.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

7 3 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence of such inten t. In McDonnell Douglas Corp oration v.

Green , 411 U.S. 792 (1973), and as refined in Texas Dep artmen t

of C om m uni ty Aff airs v. Burdine , 450 U.S. 248 (1981) and

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993), the

United States Supreme Court establish ed the procedure for

determining whether employment discrimination has occurred when

employees rely upon circumstantial evidence of discriminatory

intent.

74 . Under the three - part test, Petitioner has the initial

burden of establishing a prima facie case of unlawful

retaliation resulting from her opposition to discrimination

prohibited under the Florida Civil Rights Act. McDonnell

Douglas Corp. v. Green , at 802; Texas DepÓt of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 253; Burke - Fowler v. Orange Cnty.,

Fla. , 447 F.3d 1319, 1323 (11th Cir. 2006); Valenzuela v

GlobeGround N. Am. , LLC , 18 So. 3d at 22. ÐThe elements of a

prima facie case are flexible and should be tailored, on a case -

by - case basis, to differing factual circumstances." Boykin v.

Bank of Americ a Corp. , 162 Fed. Appx. 837, 838 - 839 (11th Cir.

2005) (citing Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1123

(11th Cir. 1993)).

7 5 . If Petitioner is able to prove her prima facie case by

a preponderance of the evidence, the burden shifts to Respondent

t o articulate a legitimate, non - discriminatory reason for its

employment decision. Tex . DepÓt of Cm ty . Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d 1183

(Fla. 1 st DCA 1991). An employer has the burden of production,

not persuas ion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Corr. v. Chandler ,

supra . This burden of production is "exceedingly light."

Holifield v. Reno , 115 F.3d at 1564; Turnes v. Amsouth Bank,

N.A. , 36 F.3d 1057, 106 1 (11 th Cir. 1994).

76 . 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. St. Mary's Honor C tr. v. H icks ,

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

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex. Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256 ) . Petitioner would have to prove

not only that the employerÓs stated reason for the employment

decision wa s false, but also that discrimination was the real

reason for the decision. Jiminez v. Mary Washington Coll . ,

57 F.3d 369, 378 (4th Cir. 1995). The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intent ionally discriminated against the plaintiff.Ñ

Holifield v. Reno , 115 F.3d at 1565.

77 . In a proceeding under the Civil Rights Act, Ð[w]e 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

decision.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d at 1361. As set forth by the Eleventh Circuit Court of

Appeals, Ð[t]he employer may fire an employee for a good reas on,

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

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

reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738 F.2d 1181, 1187

(11th Cir. 1984). Moreover, Ð[t]he employerÓs stated legitimat e

reason . . . does not have to be a reason that the judge or

jurors would act on or approve.Ñ DepÓt of Corr. v. Chandler ,

582 So. 2d at 1187.

Racial Discrimination

Prima Facie Case

7 8 . The record of this proceeding contains no direct

evidence of any r acial animus or bias on the part of Respondent

at any level.

79 . Petitioner presented no statistical evidence of

discrimination by Respondent in its personnel decisions

affecting Petitioner.

80 . To establish a prima facie case of racial

discrimination u n der McDonnell Douglas , Petitioner must

demonstrate by a preponderance of the evidence that 1) she is a

member of a protected class; 2) she was qualified for the

position; 3) she was subjected to an adverse employment action;

and 4) her employer treated sim ilarly - situated employees outside

of her protected class more favorably than s he was treated.

Burke - Fowler v. Orange Cnty. , 447 F.3d at 1323.

81 . When determining whether similarly - situated employees

have been treated differently in cases of discriminat ory

discipline, an evaluation must be made that the employees

engaged in similar conduct but were disciplined in different

ways. In making that determination, Ðthe quantity and quality

of the comparator's misconduct [must] be nearly identical to

prevent c ourts from second - guessing employersÓ reasonable

decisions and confusing apples with oranges.Ñ Burke - Fowler v.

Orange Cnty. , 447 F.3d at 1323 (citing Maniccia v. Brown , 171

F.3d 1364, 1368 (11th Cir. 1999)). As established by the Fifth

District Court of Appeal:

Ð [I] t is necessary to consider whether the

employees are involved in or accused of the

same or similar conduct and are disciplined

in different ways.Ñ The employee must show

that she and the employees outside her

protected class are similarly situ ated Ðin

all relevant respects.Ñ Thus, Ðthe quantity

and quality of the comparator's misconduct

[must] be nearly identical to prevent courts

from second - guessing employers' reasonable

decisions and confusing apples with

oranges.Ñ

Similarly situated emplo yees Ðmust have

reported to the same supervisor as the

plaintiff, must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to the

plaintiff's, without such differentiating

conduc t that would distinguish their conduct

or the appropriate discipline for it.Ñ If a

plaintiff fails to present sufficient

evidence that a non - protected, similarly

situated employee was treated more favorably

by the employer, the defendant is entitled

to su mmary judgment. (citations omitted).

Valenzuela v. GlobeGround N. Am. , LLC. , 18 So. 3d at 22 - 23.

82 . Petitioner demonstrated that s he is a member of a

protected class , that s he was qualified to hold her position

with Respondent , and that s h e was subject ed to an adverse

employment action, i.e., termination from employment.

83 . Where Petitioner ha s failed in the establishment of

her prima facie case is her failure to demonstrate that other

persons outside of her protected racial classification were

subje ct to personnel decisions that dif fered from those applied

to her .

84 . The only evidence of a similarly - situated employee

comparator produced by Petitioner was the allegation that

M s. Adams was disciplined less severely for failing to timely

provide her loan packets to the optical department, receiving a

probation of thirty days instead of PetitionerÓs sixty days.

However, the com parison was undermined by a lack of evidence of

previous coaching reports issued to Ms. Adams for violations of

RespondentÓs p olicies or mismanagement of workload, such as

those issued to Petitioner.

85 . In short, Petitioner failed to prove that RespondentÓs

decision to terminate h er was the result of any consideration of

or discriminatory intent based on race , or that her tre atment as

an employee differed in any material way from the treatment

afforded other employees, regardless of their r ace. Therefore,

Petitioner failed to prove a prima facie case of discrimination,

and her petition for relief should be dismissed.

Legitima te, Non - discriminatory Reason

86 . Assuming -- for the sake of argument -- that

Petitioner made a prima facie showing, the burden would shift to

Respondent to proffer a legitimate non - discriminatory reason for

its action.

87 . Respondent met its burden b y producing substantial

credible evidence that Petitioner was terminated solely for

deficiencies in her job performance, as detailed herein, and for

no other reason.

Pretext

88 . Assuming -- again, for the sake of argument -- that

Petitioner made a prima facie showing, then upon Respondent Ós

production of evidence of a legitimate non - discriminatory reason

for its action, the burden shifted back to Petitioner to prove

by a preponderance of the evidence that Respondent Ós stated

reasons were not its true reas ons, but were a pretext for

discrimination.

89 . T he record of this proceeding does not support a

finding or a conclusion that Respondent Ós proffered explanation

for its personnel decisions was false or not worthy of credence ,

nor does it support an infe rence that the explanation was

pretextual.

Retaliation

90 . ÐSection 760.10(7), Florida Statutes, is virtually

identical to its Federal Tit le VII counterpart, 42 U.S.C.

§ 2000e - 3(a). The FCRA [Florida Civil Rights Act] is patterned

after Title VII; federa l case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision Int'l, Inc. , 942 So. 2d 986,

989 (Fla. 5th DCA 2006) ( citing Guess v. City of Miramar , 889 So.

2d 840, 846, n.2 (Fla. 4th DCA 2005) ) .

91 . In construing 42 U.S.C. § 2000e - 3(a), the Elev enth

Circuit has held that:

[t]he statute's participation clause

Ð protects proceedings and activities which

occur in conjunction with or after the

filing of a formal charge with the EEOC .Ñ

. . . The opposition clause, on the other

hand, protects activ ity that occurs before

the filing of a formal charge with the EEOC,

such as submitting an internal complaint of

discrimination to an employer, or informally

complaining of discrimination to a

supervisor. (citations omitted) .

Muhammed v. Audio Visual Serv s. Group , 380 Fed. Appx. 864, 872

(11th Cir. 2010). The division of 760.10(7) into the

Ðopposition clauseÑ and the Ðparticipation clauseÑ is recognized

by Florida state courts. See Blizzard v. Appliance Direct,

Inc. , 16 So. 3d 922, 925 - 926 (Fla. 5th DCA, 2009). In

explaining the difference between the two clauses, the Second

District Court of Appeal has held that:

FCRA's Ð opposition clause [protects]

employees who have opposed unlawful

[employment practices]. Ñ . . . However,

opposition claims usually in volve

Ð activities such as Ò making complaints to

management, writing critical letters to

customers, protesting against discrimination

by industry or by society in general, and

expressing support of coworkers who have

filed formal charges. ÓÑ . . . Cases

inv olving retaliatory acts committed after

the employee has filed a charge with the

relevant administrative agency usually arise

under the participation clause.

Carter v. Health Mgmt. Assoc. , 989 So. 2d 1258, 1263 (Fla. 2nd

DCA 2008).

92 . In order to establ ish a prima facie claim of

retaliation under the participation clause, a petitioner must,

Ðin addition to filing formal charges with the Equal Employment

Opportunity Commission (EEOC) or its designated representative,

she was required to demonstrate: (1) a statutorily protected

expression; (2) an adverse employment action; and, (3) a causal

connection between the participation in the protected expression

and the adverse action.Ñ Hinton v. Supervision IntÓl, Inc. ,

942 So. 2d at 990.

9 3 . RespondentÓs alleg ed acts of retaliation occurred

prior to Petitioner filing her Employment Claim of

Discrimination with the Florida Commission on Human Relations.

ÐThe participation clause includes activity done in connection

with proceedings conducted by the federal gove rnment and its

agencies: an employee has invoked the jurisdiction of the

federal government through its agency, the EEOC. And we have

held that expansive protection is available for these

adjudicative kinds of proceedings run by the government.Ñ EEOC

v. Total Sys. Servs. , 221 F.3d 1171, 1175 - 1176 (11th Cir. 2000) .

Therefore, PetitionerÓs claim does not fall under the

participation clause.

94 . Claims under the opposition clause are not subject to

the same degree of Ðexpansive protectionÑ that comes abou t after

a claim of discrimination is filed with the appropriate civil

rights agency. Rather:

Opposition clause acts, however, are taken

outside of the context of a government

review and, instead, are taken in the

context of the ordinary business environme nt

and involve employers and employees as

employers and employees. As in this case,

whether to fire an employee for lying to the

employer in the course of the business's

conduct of an important internal

investigation is basically a business

decision; this decision, as with most

business decisions, is not for the courts to

second - guess as a kind of super - personnel

department.

EEOC v. Total Sys. Servs. , 221 F.3d at 1176 ( citing Damon v.

Fleming Supermarkets of Fla., Inc. , 196 F.3d at 1361 ) .

95 . The record of this proceeding contains no direct or

statistical evidence of any retaliation on the part of

Respondent as a result of PetitionerÓs opposition to acts of

discrimination directed against others as a result of their

race, color, religion, sex, national o rigin, age, handicap, or

marital status.

96 . In order to establish a prima facie case of

retaliation under McDonnell Douglas , Petitioner must demonstrate

by a preponderance of the evidence Ð (1) that [she] engaged in

statutorily protected expression; (2) t hat [she] suffered an

adverse employment action; and (3) there is some causal

relationship between the two events.Ñ (citations omitted) .

Holifield v. Reno , 115 F.3d at 1566; see also Muhammed v. Audio

Visual Servs. Group , 380 Fed. Appx. at 872; Tipton v. Canadian

Imperial Bank , 872 F.2d 1491 (11th Cir. 1989).

97 . PetitionerÓs claim of retaliation is directed

exclusively to her allegation that she was retaliated against as

a result of her going to management to complain about a co -

workerÓs claim to an inc entive to which Petitioner believed she

was entitled. That is simply not statutorily - protected

expression . Her allegations have nothing to do with whether the

wrongful conduct was the result of her race, or as a result of

her opposition to acts of discri mination directed against

others.

98 . For the reasons set forth herein, Petitioner did not

meet her burden to establish a prima facie case of

discrimination by retaliation.

Conclusion

99 . Respondent put forth persuasive evidence that

Petitioner was term inated from employment as a result of her job

performance , and not as a result of race or retaliation.

10 0 . There was considerable evidence that Petitioner was a

friendly, well - liked, conscientious, and hard - working employee.

RespondentÓs members may hav e been ill - served as a result of

PetitionerÓs termination. It may have been unfair and unjust

for Respondent to fire Petitioner for bringing her concerns with

the disputed incentive to management. However, none of those

issues, even if true, suggest that Petitioner was fired due to

her race or that she was the subject of retaliation as a result

of her opposition to an unlawful employment practice as defined

in section 760.10.

101 . Section 760.10 is designed to eliminate workplace

discrimination, but it i s Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel

decisions . Ñ See Holland v. Washington Homes, Inc. , 487 F.3d

208, 220 (11th Cir. 2007) . Because Petitioner failed to put

forth sufficient evidence that Respondent had some

discriminatory reason for its personnel decision , her petition

must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final ord er finding that Respondent, Florida

Credit Union , did not commit any unlawful employment practice as

to Petitioner, Sheila A. Cunningham , and dismissing the Petition

for Relief filed in FCHR No. 201 4 - 00 645 .

DONE AND ENTERED this 6th day of May , 2015, in Ta llahassee,

Leon County, Florida.

S

E. GARY EARLY

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 6th day of May , 2015.

COPIES FURNISHED :

Sheila Annette Cunningham

1835 Northwest 27th Avenue

Ocala, Florida 34475

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

R. Michelle Tatum, Esquire

John E. Duvall, Esquire

Ford and Harrison , LLP

225 Water Street , Suite 710

Jacksonville, Florida 32202

(eServed)

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.