14-006127 Janet J. Lewis vs. Royal American Management, Inc. Status: Closed Recommended Order on Wednesday, March 16, 2016.

Summary: Petitioner failed to meet her burden of proving that Respondent committed an unlawful employment practice on the basis of race or sex.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET J. LEWIS ,

Petitioner ,

vs. Case No . 1 4 - 6127

ROYAL AMERICAN MANAGEMENT,

INC. ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case w as heard on December 15

and 16, 2015 , and January 12, 2016, in Tallahassee, Florida ,

before E. Gary Early, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven R. Andrews, Esquire

Brian O. Finnerty, Esquire

The Law Offices of Steven R. Andrews, P.A.

822 North Monroe Street

Tallahassee, Florida 32303

For Respondent: Ryan B. Hobbs, Esquire

Brooks LeBoeuf Bennett Foster

and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner , Janet J. Lewis , was subject to an

unlawful employment practice by Respondent, Royal American

Management, Inc. , on account of h er r ace or h er age in violation

of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On May 23, 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,

Florida Statu tes, by discriminatin g against her on the basis of

h er r ace or h er age .

On November 19, 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 emp loyment practice occurred. On December 23,

2014 , Petitioner filed a Petition for Relief from Unlawful

Employment Practices and Request for Administrative Hearing with

the FCHR . The Petition was transmitted to the Division of

Admini strative Hearings to co nduct a final h earing.

T he final hearing was set for April 22, 2015, and was

continued several times, being finally rescheduled for

December 15 and 16, 2015 . The hearing was convened as

scheduled. Having not been completed within the scheduled

period, the hearing was adjourned until January 12, 2016, and

completed on that date.

The parties filed a Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no further proof

would be necessary. The stipulated facts have been accept ed and

considered in the preparation of this Recommended Order.

At the final hearing, Petitioner testified on her own

behalf, and presented the testimony of Teresa Dykes, who was, at

all times relevant hereto, an employee of Respondent; Denise

Ost, Respo ndentÓs senior vice - president of operations; Judith

Williams, RespondentÓs regional vice - president; and Jennifer

Anderson , RespondentÓs human resource manager. PetitionerÓs

Exhibits 1 - 12, 14, 16, 18 - 34, 36 - 38, 40, 43 (pages 540 and 543

only) , 47 - 52, 56, 5 8, 61, and 62, were received into evidence.

In addition, Petitioner proffered Petitioner Proffer Exhibit 1,

which is not being received in evidence or considered by the

undersigned, but will accompany the record of this proceeding.

Respondent presented the testimony of Ms. Williams in its

case - in - chief. RespondentÓs Exhibit 1 was received into

evidence.

Ms. Williams was recalled by Petitioner in rebuttal.

A five - volume Transcript of the fin al hearing was filed on

January 26, 2016. The parties request ed 20 days from the filing

of the T ranscript to file their post - hearing submittals. Two

consented motions to extend the filing deadline were granted,

which served to extend the filing deadline to February 29, 2016.

The parties timely filed Proposed Recom mended Orders, which have

been considered in the preparation of this Recommended Order.

On March 7, 2016, Respondent filed a Motion to Strike

directed at Answers to Interrogatories attached as an exhibit to

PetitionerÓs Proposed Recommended Order. The ex hibit had not

been offered in evidence at the hearing. The Motion to Strike

is granted, and the undersigned has not given the exhibit any

consideration.

References to statutes are to Florida Statutes (201 5 ),

unless otherwise noted.

FINDINGS OF FACT

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

matter an employee of Respondent , is C aucasian . She was, at the

time of her termination from employment, 54 years of age.

2 . Respondent is a property management company based in

Panama City, Florida. Re spondent owns and manages numerous

rental properties in the southeastern United States. Respondent

owned and managed the Spinnaker Reach apartment complex in

Jacksonville, Florida , during the entire duration of

PetitionerÓs employment with Respondent. Re spondent, at all

times material to this matter, employed more than 15 full - time

employees.

3 . Spinnaker Reach is a Ðtax creditÑ property. In

exchange for federal tax credits, Respondent is required to

offer apartments at below - market rate rents for mode rate to l ow -

income tenants. Tenants qualifying for reduced rent apartments

must meet certain income and eligibility requirements. Not all

applicants for housing meet the requirements, and therefore not

all applications ultimately result in apartment occu pancy.

4 . Kerri Toth is RespondentÓs p resident, and held that

position during the entire period of PetitionerÓs employment

with Respondent. Ms. Toth is Caucasian and over the age of 40.

5 . Denise Ost is RespondentÓs s enior v ice - p resident of

o perations , and held that position during the entire period of

PetitionerÓs employment with Respondent. Ms. Ost is Caucasian

and over the age of 40.

6 . Judith Williams is RespondentÓs r egional v ice -

p resident, and held that position during the entire period of

Pet itionerÓs employment with Respondent. Ms. Williams is

Caucasian and over the age of 40.

7 . Teresa Dykes was RespondentÓs r egional m anager for the

region that included Spinnaker Reach from the date upon which

PetitionerÓs employment began until April 30, 2013.

8 . Petitioner was hired by Respondent on June 19, 2012 , as

the property manager at Spinnaker Reach , a position that she

held for the full period of her employment . Petitioner had

property management experience, though none was at tax - credit

pro perties. PetitionerÓs base salary was $42,000.00 per year,

plus benefits and the rent - free use of an apartment at Spinnaker

Reach.

9 . The decision to hire Petitioner came at the

recommendation of Ms. Dykes, who was a close friend of

PetitionerÓs sister. T he interview was done through

RespondentÓs Orlando office due to the relationship between

Ms. Dykes and Petitioner . Ms. Dykes testified that she actually

did the hiring.

10 . When Petitioner was hired as property manager at

Spinnaker Reach, occupancy stood at 94 percent. 1 /

11 . When Petitioner was hired, Spinnaker Reach was short -

staffed. In addition to the property manager position which was

filled by Petitioner, vacant positions included the leasing

agent , assistant manager , and several maintenan ce positions.

The evidence was not clear regarding the extent to which those

vacancies overlapped. However, Respondent sent property

managers from its other facilities in Jacksonville to Spinnaker

Reach to assist Petitioner in the performance of her task s until

replacements could be hired. Though not full - time, the other

property managers were on - site for at least two days per week

for several hours each day.

12 . On August 20, 2012, Ms. Dykes pr ovided Petitioner with

her 90 Day Performance Review . 2 / The Performance Review was

intended to correspond to PetitionerÓs probationary period.

Ms. Dykes gave Petitioner high marks, with the only area needing

improvement being PetitionerÓs knowledge of the tax credit

program. Respondent was having difficulty understanding the tax

credit concept because she had not worked with tax credit

housing when she was hired. Ms. Dykes indicated that

Ðcompliance is offering trainingÑ regarding the program.

13 . By December 2012, occupancy at Spinnaker Reach had

fallen t o 81 percent.

14 . On December 18, 2012, Ms. Dykes sent an email to

Petitioner describing a number of perceived deficiencies in

PetitionerÓs job performance. On December 19, 2012, Petitioner

responded to the email, denying some statements and explaining

others. Ms. Dykes testified that as of the date of her email,

Petitioner did not know all aspects of her job.

15 . By the week ending on February 3, 2013, occupancy at

Spinnaker Reach had fallen to 79 percent , a rate duplicated for

the weeks ending on M arch 3 and March 10, 2013 .

16 . At some time prior to March 18, 2013, Ms. Williams

asked Ðthe propertyÑ to conduct a market survey of apartment

complexes that were comparable to Spinnaker Reach. Ms. Williams

could not recall whether the request was mad e directly to

Petitioner, or was channeled through Ms. Dykes. Although

Petitioner identified Kim Tompkins, the Spinnaker Reach leasing

agent as hav ing been delegated the responsibility to prepare the

survey, Petitioner, as property manager, was ultimately

responsible for accurately providing the requested information.

The purpose of the survey was to get an up - to - date analysis of

occupancy rates and information about the comparable properties.

17 . The market survey report submitted on March 18, 2013 ,

bore an incorrect date of October 2012 . Ms. Williams then

audited the properties identified in the market survey report to

determine the accuracy of the information . Her verification

audit included calling the comparator properties to verify

apartment fe atures, and reviewing apartment features from the

comparatorÓs websites. Ms. Williams discovered numerous errors

in the market survey report, which indicated that co mparable

apartment complexes were not contacted to get the accurate

information. Ms. Will iams had never reviewed a market survey

with the number of errors that were contained in the March 18,

2013 , report.

18 . Ms. Williams di d not forward her notes to Petitioner

with a request that Petitioner input the correct information

gathered by Ms. Wil liams . Rather, Ms. Williams advised

Petitioner to call the properties , get the correct information ,

and submit an accurate report.

19 . The market survey was sent to Ms. Williams on several

subsequent occasions with incorrect information . Finally,

Ms. W illiams contacted Ms. Dykes to advise her of the errors .

On the third or fourth revision of the report, errors were

corrected , and Petitioner provided a correct survey to

Respondent .

20 . Effective April 30, 2013, Ms. Dykes was transferred to

another pos ition with Respondent. As of that date, Ms. Dykes

was no longer responsible for Spinnaker Reach, and no longer

supervised Petitioner .

21 . On May 1, 2013, Sheena Reeves, an existing employee of

Respondent, replaced Ms. Dykes as r egional m anager. Ms. R eeves

is African - American.

22 . Petitioner , having been hired on June 19, 2012, w as

due for her annual evaluation on June 19, 2013.

23 . On May 10, 2013, after Ms. Dykes had resigned her

position as RespondentÓs regiona l manager, she was asked by

Ms. W illiams to prepare PetitionerÓs annual evaluation, since

she was most familiar with Petitioner during her evaluation

period . Ms. Dykes would not have done PetitionerÓs annual

evaluation had she not been asked to do so.

24 . Ms. Williams considered hers elf to be PetitionerÓs

supervisor, though not her direct supervisor. She wanted to be

included in PetitionerÓs evaluation since Ms. Reeves was new to

Respondent and to Spinnaker Reach. Ms. Williams was heavily

involved with Spinnaker Reach due to the per formance of the

property. She considers herself to be heavily involved in

monitoring properties, which gave her sufficient knowledge of

PetitionerÓs performance to provide direct input into her

evaluation. Thus , she believed it to be important for her to

have direct input and direction on the evaluation.

25 . The annual evaluation consists of 15 items requiring

numeric scores from 1 to 4, with space for written comments and

recommendations for improvement. Ms. Dykes awarded numeric

scores with an averag e rating of 2.87, a score based on how she

perceived PetitionerÓs work. Ms. Dykes identified tax credit

compliance and Timberscan as areas requiring improvement.

Timberscan is the software program used by Respondent for

logging invoices into the system t o be paid. The ÐEvaluation

DateÑ was not provided, though Ms. Dykes signed the evaluation

as the regional manager , a nd dated her signature as May 10,

2013.

26 . Ms. Dykes could not recall whether her evaluation was

to be PetitionerÓs final evaluation or a draft evaluation.

Though asked by Respondent to do so, Ms. Dykes understood that

she did not have authority to evaluate Petitioner, who was no

longer under her supervision. She could not recall whether she

ever discussed her evaluation with Ms. Willia ms or Ms. Ost. She

did not discuss it with Ms. Reeves.

27 . After she had completed the evaluation, Ms. Dykes

emailed a copy to Petitioner and Ms. Reeves.

28 . Petitioner testified that she received Ms. DykesÓ

evaluation, printed it, took it home, an d signed it. The date

on which she signed Ms. DykesÓ evaluation was unclear.

Petitioner did not send a copy of the signed evaluation to

Respondent.

29 . Petitioner argued that section 8.15 of RespondentÓs

employee manual required that an employeeÓs annu al evaluation

should be performed Ðtwo to three weeks before the employeeÓs

anniversary,Ñ thus leading her to believe that the May 10, 2013 ,

evaluation sent by Ms. Dykes was her ÐofficialÑ evaluation.

Since Ms. Dykes Ó evaluation was emailed to Petitioner almost six

weeks prior to her anniversary date, the employee manual does

not warrant such a belief.

30 . Ms. Reeves visit ed Spinnaker R each on June 27, 2013 .

Upon her arrival, PetitionerÓs first question to her was Ð[a] re

you here to do my evaluation? Ñ Petitioner reminded Ms. Reeves

that June 19 was her anniversary date and, Ðaccording to the

handbook , [the evaluation] would be done before or, you know, up

to that time. Ñ Ms. Reeves advised Petitioner that her

evaluation had not yet been done.

31 . U nder the circumstances, it is most plausible that the

May 10, 2013 , evaluation, having been prepared by a person who

was no longer in RespondentÓs employ, was to be a draft

evaluation, subject to review and approval by Respondent. The

evidence also suppor ts a finding that , despite her efforts to

make it appear to be Ðofficial,Ñ Petitioner knew that the

May 10, 2013 , evaluation emailed to her by Ms. Dykes was not her

final annual evaluation.

32 . Ms. Reeves returned to her office after the June 27,

2013, t rip to Spinnaker Reach prepared to address the matter of

PetitionerÓs annual evaluation. In late June or July 1, 201 3 ,

Ms. Williams reviewed Ms. DykesÓ draft evaluation , line - by - line ,

and revised the scores based on her experience and knowledge of

Petitio ner and the performance of Spinnaker Reach. Although

Ms. Reeves was in Ms. WilliamsÓ office during the review, and

offered input based on occupancy and financial reports,

Timberscan inputs, and property maintenance reports, the

preponderance of the eviden ce indicates that Ms. Williams, who

Ðwas aware of any issues that were going on on that site,Ñ was

responsible for the revisions to Ms. Dykes Ó draft evaluation.

As a result of her review, Ms. Williams directed that changes be

made in the evaluation scores , such that the numeric scores had

an average rating of 2.06.

33 . A fter Ms. WilliamsÓ review, a revised evaluation was

prepared. Ms. DykesÓ comments were retained, with Ms. Reeves

adding additional areas for improvement, including her handling

of res ident issues and complaints.

34 . Ms. DykesÓ dated signature was retained on the second

page of the evaluation. Since Ms. Dykes was involved in the

process, retaining her signature does not seem to be

unwarranted. However, keeping her signature was confusing, and

gave the implication that she agreed with the revised scores.

Regardless of whether the revised evaluation was misleading as

to Ms. DykesÓ participation in the development of the final

scores, it provides no evidence of racial or age discri m in ation

towards Petitioner.

35 . On or about July 2, 2013, Ms. Reeves called Petitioner

to advise that her final annual evaluation was being emailed to

her. Ms. Reeves remained on the telephone while Petitioner

retrieved the evaluation, and the two o f them went over it.

36 . Also on July 2, 2013, Petitioner was provided with a

written counseling form . The counseling form was prepared by

Ms. Reeves at the instruction of Ms. Williams and Ms. Ost and

reviewed by RespondentÓs human resources departme nt before being

presented to Petitioner.

37 . The counseling form identified a number of issues ,

including occupancy and housing application processing,

responsiveness to resident concerns, and a lack of teamwork and

professionalism with staff. That port ion of the counseling form

was prepared by Ms. Reeves in conjunction with Ms. Williams, and

was based on information provided to Ms. Reeves by employees,

review of company records, and telephone calls from Spinnaker

Reach residents.

38 . At the time t he counseling form was prepared, the most

recent data available to Respondent, i.e. , the occupancy report

for the week ending June 30, 2013, indicated that occupancy

stood at 84 percent. Among items identified in the specific

plan for improvement was ÐI w ould like to see the occupancy

increase to 93% occupancy by August 1, 2013.Ñ The selection of

a 93 - percent occupancy rate as part of PetitionerÓs performance

plan was made by Ms. Williams with guidance from Ms. Ost. The

counseling form concluded with Ð[i ]f these goals listed above

are not met, this will lead to immediate termination.Ñ

39 . Petitioner was understandably upset by the counseling

form , believing it to be Ðcompletely fabricated.Ñ She believed

it to be discriminatory because of Ð information [ Ms. Reeves]

could had [sic ] gotten from speaking to my d isgruntled

maintenance man that I had just gotten onto for not doing his

work, and she would have no knowledge of anything that Ó s in this

email or in this write - up. Because as she said, she didn't kn ow

me, and she didn Ó t .Ñ The fact that Re spondent, and in

particular Ms. Williams, would have believed the word of the

ÐdisgruntledÑ Caucasian maintenance man provides no foundation

for a finding of discriminatory intent.

40 . On July 2, 2013, Ms. Ost sen t an email to Joey

Chapman, RespondentÓs CEO and owner of Spinnaker Reach,

providing an update on Spinnaker R each residential applications.

The email concluded that Ð[w]e are also running a blind ad for

manager, I donÓt feel Jan is the right fit so we are taking

steps to make the change.Ñ Ms. Ost testified credibly that her

concerns expressed in the email were related solely to

occupancy, delinquency, and the condition of the property, and

had nothing to do with PetitionerÓs race or age .

41 . It is evi dent that by July 2, 2013, Respondent was

primed to move forward with terminating Petitioner. However,

Ms. Ost testified that had Petitioner managed to increase

occupancy to the 93 percent specified in the July 2, 2013 ,

written counseling form, Respondent would not have followed

through with replacing her. Ms. OstÓs testimony was credible,

and is accepted.

42 . On July 30, 2013, Petitioner advised Respondent of her

expectation that by the end of the day, Spinnaker Reach would be

at 90 - percent occupancy . For the week ending on August 4, 2013,

occupancy at Spinnaker Reach stood at 89 percent.

43 . Petitioner argued at length that it was unreasonable,

if not unprecedented for Respondent to require what she

calculated to be the rental of 20 apartments, wi thout attrition,

in the month between July 2, 2013 and August 1, 2013 .

Furthermore, Petitioner argued that her occupancy numbers were

ÐtrendingÑ towards 93 percent when she was terminated. Those

facts, even if true, which Respondent disputed, are not

suf ficient to establish a discriminatory animus that led to

PetitionerÓs termination. Rather, the evidence is persuasive

that RespondentÓs decision to set a 93 - percent occupancy goal,

and the ultimate decision to terminate Petitioner, was grounded

on a gener al dissatisfaction with Petitioner Ó s performance, and

a specific dissatisfaction with issues related to occupancy and

rent collection.

44 . On August 8, 2013, Ms. Reeves presented Petitioner

with another written counseling form. The gravamen of the

coun seling form was PetitionerÓs failure to enter invoices from

vendors and suppliers which were in excess of $16,000 into

RespondentÓs Timberscan vendor/vendee accounting system by the

end of July. As a result, the expenses for July were

artificially lowered , Ðwhich means itÓs going to hit the August

financials.Ñ Ms. Reeves testified credibly that the issue had

been raised with Petitioner in the past, without the issuance of

a counseling form, but had not previously been as bad. The

decision to proceed with the written counseling form was jointly

made by Ms. Reeves and Ms. Williams.

45 . Petitioner testified that any failure to timely submit

invoices would have been the fault of her assistant, John

Escobar. The position description for the assistant commun ity

manager included perform ing other related duties and

responsibilities as assigned by the community manager .

Petitioner was not told that she could not delegate invoice

submissions to her assistant, so she did so. Despite her

efforts to disclaim respo nsibility, Petitioner and Respondent

understood that, as the property manager, she had the

responsibility to ensure that invoices were properly inputted

and accounted for.

46 . The evidence is persuasive that, despite her job

description that she was to Ð s ubmit invoices daily, as

instructed, into the Timbers can manual ,Ñ Petitioner was not

well - versed in how she was to operate Timberscan, thus her

reliance on Mr. Escobar. Petitioner did not feel that the

training provided to her was sufficient, but did not ask for

additional training.

47 . Petitioner further argued that , in any event, the

failure to timely enter invoices into Timberscan was of no

consequence, since by the end of the year, the financial

statements for the property would be correct.

48 . That expenses may have been accounted for by the end

of the tax year does not diminish the impact of the failure to

timely enter data on RespondentÓs monthly reports. Respondent

believed monthly accounting to be important for reasons other

than annual ta x compliance, a belief that was unrelated to

PetitionerÓs race or age. More to the point, whether the

failure to make timely entries was of little or of great

consequence , the evidence established that Petitioner had

difficulty using Timberscan and, as a result, invoices were

inputted too late to be accurately reflected in the monthly

accounting system.

49 . Despite PetitionerÓs t estimony that she felt that

Ms. Reeves was acting in a discriminatory manner towards her by

virtue of her annual evaluation a nd the written counseling

forms, Petitioner did not contact RespondentÓs human resources

department as required by the employee handbook.

50 . By August 14, 2013, occupancy at Spinnaker Reach had

not reached 93 percent, with RespondentÓs business record s

indicating that occupancy was closer to 89 percent.

51 . On August 14, 2013, Petitioner was terminated from

employment with Respondent. Ms. Ost and Ms. Williams were

solely responsible for the decision to terminate Petitioner from

employment, with Ms . Toth giving final approval. By that time,

there had been too many issues going on for too long of a time,

and they were ready to make the change. Ms. Reeves , although

she signed the termination form as regional manager, did not

recommend PetitionerÓs t ermination, or play any part in that

decision other than messenger.

52 . Ms. Ost testified that the primary reasons behind the

decision to terminate Petitioner were the decline in occupancy,

the Ðout of controlÑ delinquency, and problems with the

conditio n of the property. She further testified that

PetitionerÓs race and age playe d no part in her decision.

Ms. OstÓs testimony was credible, and is accepted.

53 . Ms. Williams also testified that the decline in

occupancy and matters pertaining to delinquen cy of rent payments

drove her decision. Ms. Williams testified that Petitioner was

allowing tenants to remain on Ðpromises to pay,Ñ and allowed

partial payments to be accepted, which precluded Respondent from

filing for eviction. She further testified th at PetitionerÓs

race and age played no part in her decision . Ms. WilliamsÓ

testimony was credible, and is accepted.

54 . Ms. Reeves was tasked with the duty of informing

Petitioner of her termination. Petitioner testified that

Ms. Reeves appeared at her office and advised that ÐIÓm here to

let you go.Ñ She further testified that, upon being asked the

reason, Ms. Reeves said Ð[y]ou just donÓt fit in with the

property , Ñ giving no other reason.

55 . Ms. Reeves testified that she advised Petitioner that

sh e was being terminated for the reasons set forth in the

previous counseling forms, including occupancy and performance.

It is Ms. ReevesÓ practice when terminating employees to read to

them the information on the term i nation form , to not go into

detail, a nd to keep it as short as possible. While it is likely

that Ms. Reeves indicated that Petitioner did not Ðfit in with

the property,Ñ the most credible evidence indicates that she

also advised Petitioner of the more specific bases for the

decision.

56 . Ms. Reeves asked for the petty cash and the keys, and

at PetitionerÓs request, provided her with the number for the

human resources department. Ms. Reeves had no further

conversation with Petitioner.

57 . Petitioner testified that she took Ms. ReevesÓ

facially - innocuous statement that Petitioner did not Ðfit in

with the propertyÑ to mean that Ð I just wasn't a little, cute

black girl is the way I took it ,Ñ and that Ðimmediately it was

like my property 75 percent, I always say, African American. As

far a s age, the residents probably average around 30, 35 years

old . Ñ Petitioner believed that Ms. ReevesÓ statement meant that

Petitioner did not Ð fit in Ñ with the property because she was

different than the tenants. She further testified that Ð the

only thing she could have meant by that was the demographics of

the property being 75 percent African American there - about,

young, professionals .Ñ To the contrary, there is nothing in the

statement that is suggestive of any racial or age bias.

58 . G ive n the lac k of involvement on the part of

Ms. Reeves in the decision to terminate Petitioner, and in light

of Ms. Reeves Ó testimony as to her practice of delivering the

news of termination to an employee , it is more plausible that ,

instead of reflecting some discrim inatory animus, h er statement

was designed to end her unpleasant task in as perfunctory a

manner possible.

59 . It is clear that Petitioner felt that she was treated

poorly by Respondent, and by Ms. Reeves in particular. She was

upset that Ms. Reeves Ðdi dnÓt give me the time of day,Ñ and did

not treat Petitioner with respect. When Ms. Reeves came to the

office, she Ð sat in my office, and did no interaction with

anyone, even when something was go ing on on the property, she

would just sit in that office . . . . She acted like she was

better tha n me and it wasnÓt her job.Ñ

60 . Petitioner asserted that Ms. Reeves treated her

differently than she did other people, based on Petitioner being

Ðan old white woman.Ñ Howeve r, Petitioner only observed

Ms. Reeves interact with Spinnaker Reach Ós two leasing agents ,

and Ðthat was in a group session when we were asking her to --

for information about getting the leases approved. Ñ When asked

about how Ms. Reeves acted around residents of Spinnaker Reach,

Petitioner te stified that Ð I didn't see her interact with

anybody else. Ñ Petitioner had no point of reference to support

her assertion, and offered no example of Ms. Reeves treating her

any differently than she treated anyone else. PetitionerÓs case

can be boiled dow n to her testimony that Ð I have my rights, and

I didn't like the way I was treated . I mean, that's just how

she treated me. Ñ

6 1 . In mid - July 2013, Ms. Williams was contacted by Debra

Sutton, who called to inquire about employment opportunities

with the company. Ms. Sutton is African - American and under the

age of 40.

62 . Ms. Sutton had previously worked for Respondent as a

property manager for the Good Bread Hills tax credit property in

Tallahassee, Florida. She resigned in good standing to move to

th e U.S. Virgin Islands. At the time of her resignation,

Ms. Sutton was deemed Ðeligible for rehire.Ñ

63 . Ms. Sutton had decided to return to the continental

United States and, having worked for Respondent in the past,

decided a call was worthwh ile. Ms. Williams recalled

Ms. Sutton, and her recollection of her performance was

favorable. Ms. Williams advised Ms. Sutton that there may be an

opening, but did not tell her a location.

64 . Although Ms. Sutton had been the subject of rumors of

improprieties with residents of Good Bread Hills, she had denied

those rumors during her previous employment. A record of the

discussions with Respondent and Ms. Sutton was retained, and

indicated that the issue was resolved . No action was taken with

regard to the un substantiated accusations, and Ms. Sutton

completed her term of employment without incident.

6 5 . After Petitioner was terminated, Ms. Reeves was tasked

with finding a replacement. The blind application published

during the first week of July had produ ced a number of

applications, and Ms. Reeves conducted interviews with six

applicants for the job, one of which was with Ms. Sutton.

6 6 . After the interviews for the Spinnaker Reach property

manager position were completed, and with approval from

Respo ndentÓs upper management, Ms. Reeves extended an offer to

Ms. Sutton to fill the position , which Ms. Sutton accepted .

Although Ms. Williams urged Ms. Reeves to hire Ms. Sutton,

Ms. Sutton was already Ms. ReevesÓ top candidate due to her

experience with ta x credit properties. T here is no competent,

substantial evidence that Ms. SuttonÓs race or age played any

role in RespondentÓs hiring decision .

6 7 . Ms. SuttonÓs starting salary was several thousand

dollars less than that of Petitioner.

6 8 . During he r employment as the Spinnaker Reach property

manager, Ms. Sutton had an incident of her failure to timely

enter invoices into Timberscan , resulting in late payment of

waste collection bills. Respondent issued a written counseling

form to Ms. Sutton, citin g her for the problem. The written

counseling form concluded by advising Ms. Sutton that further

problems would result in Ðfurther counseling or immediate

termination.Ñ The problem did not recur.

69 . The issues of occupancy and delinquency that plague d

Petitioner were largely resolved while Ms. Sutton was the

Spinnaker Reach property manager.

70 . Respondent sold Spinnaker Reach on June 19, 2014 .

Respondent continued to provide property management services for

Spinnaker Reach until November 4, 2014, when the property

management agreement between Respondent and Spinnaker ReachÓs

new owners was terminated.

Ultimate Findings of Fact

71 . Petitioner identified no instan ce of any racially -

disparaging comments or behavior directed at h erself, or at any

ot her employee , by anyone affiliated with Respondent. Although

Petitioner was replaced in her position by a person who was

African - American, there was no evidence of any other similar

employment decisions having been made at any of RespondentÓs

other proper ties from which a pattern of conduct could be

discerned, or an inference of racial discrimination could be

drawn.

72 . Petitioner identified no direct instance of any ill -

treatment directed at h er due to h er age. Although Petitioner

was replaced in he r position by a person who was younger , there

was no evidence of any other similar employment decisions having

been made at any of RespondentÓs other properties from which a

pattern of conduct could be discerned, or an inference of age

discrimination could be drawn.

73 . 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 or age. Rather, the decision was based on

dissatisfaction with PetitionerÓs job performance, and a

specific inability to bring Spinnaker Reach to a level of

occupancy deemed suitable and achievable by Respondent.

7 4 . There was no competent, substantial evidence adduced

at the hearing of persons of differen t races or ages than

Petitioner, but who were otherwise similar ly - situated to

Petitioner , who were treated differently from Petitioner, or

were subject to dis similar personnel policies and practices.

7 5 . R egardless of the perceived fairness of the sancti on

of termination , RespondentÓs decision to fire Petitioner was not

based on racial animus or age bias.

CONCLUSIONS OF LAW

7 6 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant the Division of Administrative Hearings jurisdiction over

the subject m atter of this proceeding and of the parties.

Discrimination

7 7 . Section 760.10 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

dis criminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

7 8 . Petitioner maintain s that Res pondent discriminated

against h er on account of h er race and h er age .

7 9 . 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 h er complaint.

80 . 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 hearing

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 h er Petition for Relief from Unlawful

Employment Practices and Request for Administrative Hearing

requesting this hearing.

81 . 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 feder al law on the same subject, the

Florida statute will take on the same constructions 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. 3d DCA 2009); Fla. State Univ.

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

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

82 . Petitioner ha s the burden of proving by a

preponderance of the evidence that Respondent committe d an

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

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

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

83 . Employees may prove discrimination by direct,

statistical, or circumsta ntial evidence. Valenzuela v .

GlobeGround N . Am . , LLC , 18 So. 3d at 22.

8 4 . 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.3 d

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

1561 (11th Cir. 1997). It is well - established that ÐÒonly the

most blatant remarks, whose intent could be nothing other than

to discriminate . . .Ó will constitute direct evidence of

discrim ination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

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

8 5 . The statement that Petitioner did not Ðfit in with the

propertyÑ is far from the type of blatant discriminatory remark

that could cons titute direct evidence of discrimination. T he

record of this proceeding contains no t a scintilla of direct

evidence of any racial or age bias on the part of Respondent at

any level.

8 6 . Petitioner presented no statistical evidence of

discrimination by R espondent in its personnel decisions

affecting Petitioner .

8 7 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence of such intent. 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 established the procedure for

determining whether employmen t discrimination has occurred when

employees rely upon circumstantial evidence of discriminatory

intent.

8 8 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination.

8 9 . To establish a prima facie case of rac ial

discrimination, 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

similarly - situated employees outside of her protected class more

favorably than s he was treated. Burke - Fowler v. Orange Cnty. ,

447 F.3d 1319, 1323 (11th Cir. 2006).

90 . T o establish a prima facie case of age discrimination,

t he unders igned recognizes that Florida judicial case law on age

discrimination clearly establishes that:

The plaintiff must first make a prima facie

showing of discriminatory treatment . He or

she does that by proving: 1) the plaintiff

is a member of a protected c lass, i.e., at

least forty years of age ; 2) the plaintiff

is otherwise qualified for the positions

sought; 3) the plaintiff was rejected for

the position; 4) the position was filled by

a worker who was substantially younger than

the plaintiff . (emphasis a dded) .

City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla . 4th DCA

2008). Despite this seemingly clear instruction by a Florida

appellate court, the F CHR has determined, citing only its own

orders as authority, that:

With regard to element (1), Commiss ion

panels have concluded that one of the

elements for establishing a prima facie case

of age discrimination under the Florida

Civil Rights Act of 1992 is a showing that

individuals similarly - situated to Petitioner

of a Ð different Ñ age were treated more

fa vorably, and Commission panels have noted

that the age Ð 40 Ñ has no significance in the

interpretation of the Florida Civil Rights

Act of 1992 . See, e.g., Downs v. Shear

Express, Inc. , FCHR Order No. 06 - 036

(May 24, 2006), and cases and analysis set

out th erein; see also, Boles v. Santa Rosa

County Sheriff Ó s Office , FCHR Order No. 08 -

013 (February 8, 2008), and cases and

analysis set out therein.

Consequently, we yet again note that the age

Ð 40 Ñ has no significance in the

interpretation of the Florida Civ il Rights

Act of 1992 . Accord, e.g., Grasso v. Agency

for Health Care Administration , FCHR Order

No. 15 - 001 (January 14, 2015), Cox v. Gulf

Breeze Resorts Realty, Inc. , FCHR Order

No. 09 - 037 (April 13, 2009), Toms v. Marion

County School Board , FCHR Order No. 07 - 060

(November 7, 2007), and Stewart v. Pasco

County Board of County Commissioners, d/b/a

Pasco County Library System , FCHR Order

No. 07 - 050 (September 25, 2007) . But, cf,

City of Hollywood, Florida v. Hogan, et al ,

986 So. 2d 634 (4 th DCA 2008).

With regard to element (4), while we agree

that such a showing could be an element of a

prima facie case, we note that Commission

panels have long concluded that the Florida

Civil Rights Act of 1992 and its predecessor

law, the Human Rights Act of 1977, a s

amended, prohibited age discrimination in

employment on the basis of any age Ð birth to

death. Ñ See Green v. ATC/VANCOM Management,

Inc. , 20 F.A.L.R. 314 (1997), and Simms v.

Niagara Lockport Industries, Inc. , 8

F.A.L.R. 3588 (FCHR 1986) . A Commission

p anel has indicated that one of the elements

in determining a prima facie case of age

discrimination is that Petitioner is treated

differently than similarly situated

individuals of a Ð different Ñ age, as opposed

to a Ð younger Ñ age . See Musgrove v. Gator

Hu man Services, c/o Tiger Success Center, et

al. , 22 F.A.L.R. 355, at 356 (FCHR 1999);

accord Qualander v. Avante at Mt. Dora , FCHR

Order No. 13 - 016 (February 26, 2013),

Collins , supra, Lombardi v. Dade County

Circuit Court , FCHR Order No. 10 - 013

(February 1 6, 2010), Deschambault v. Town of

Eatonville , FCHR Order No. 09 - 039 (May 12,

2009), and Boles , supra . But, cf, Hogan ,

supra.

Johnny L. Torrence v. Hendrick Honda Daytona , Case No. 14 - 5506

(DOAH Feb. 26, 2015; FCHR May 21, 2015).

91 . Given that this Rec ommended Order will be subject to

the CommissionÓs Final Order authority , the undersigned will

apply the standard described in Johnny L. Torrence v. Hendrick

Honda Daytona, supra . Thus, 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 individuals similarly - situated to Petitioner of

a ÐdifferentÑ age more favorably than she was t reated.

92 . When determining whether similarly - situated employees

have been treated differently in cases of discriminatory

discipline, an evaluation must be made that the employees

engaged in similar conduct but were disciplined in different

ways. In ma king that determination, Ðthe quantity and quality

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

prevent courts 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) ) ; see also Reilly v.

Novartis Pharms. Corp. , 2008 U.S. Dist. LEXIS 23011 at *12

(M.D. Fla. 2008) ( Ð Furthermore, Ò In determining whether

employees are similarly situated for purposes of establishing a

prima facie case, it 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).

93 . If Petitioner is able to prove h er prima facie case by

a preponde rance of the evidence, the burden shifts to Respondent

to 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 persuasion, 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, 1061 (11 th Cir. 1994).

9 4 . 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. 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

indirectl y 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 ) . Ð[A] reason cannot be a pretext

for discriminat ion Ò unless it is shown both that the reason was

false, and that discrimination was the real reason. Ó Ñ Fla.

State Univ. v. Sondel , 685 So. 2d at 927 , citing St. Mary's

Honor Ctr. v. Hicks , 509 U.S. at 515; see also Jiminez v. Mary

Washington Coll . , 57 F.3 d 369, 378 (4th Cir. 1995). The

demonstration of pretext Ðmerges with the plaintiff's ultimate

burden of showing that the defendant intentionally discriminated

against the plaintiff.Ñ Holifield v. Reno , 115 F.3d at 1565.

9 5 . In a proceeding under the C ivil 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 o f Fla., Inc. ,

196 F.3d at 1361. As established by the Eleventh Circuit Court

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

reason, a bad reason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

d iscriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns ,

738 F.2d 1181, 1187 (11th Cir. 1984). Moreover, Ð[t]he

employerÓs stated legitimate 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.

Prima Facie Case - Race

9 6 . Petitioner demonstrated that she is a member of a

protected class. Title VII prohibits racial discrimination

against all groups, including white employees. McDonald v.

Santa Fe Trail Transp. Co . , 427 U.S. 273, 278 - 280 (1976); Bates

v. Greyhound Lines, Inc. , 81 F. Supp. 2d 1292, 1299 (N.D. Fla.

2000); Bush v. Barnett Bank of Pinellas C nty . , 916 F. Supp.

1244, 1252 (M.D. Fla. 1996).

9 7 . Petitioner established that she met the qualifications

fo r the position of property manager. The dispute with

Respondent was not over whether Petitioner was qualified for

employment as a property manager, but was related to the quality

of her performance.

9 8 . Petitioner was terminated from employment, which i s an

adverse employment action .

9 9 . Where Petitioner has failed in the establishment of

her prima facie case is her failure to demonstrate that

similarly - situated employees outside of her protected class were

subject to personnel decisions that differed from those applied

to her.

100 . The only evidence of a similarly - situated employee

comparator produced by Petitioner was that Ms. Sutton, an

African - American female, had some of the same issues with

entering invoices into Timber s can that were experience d by

Petitioner , and that she was hired despite unsubstantiated , and

denied, rumors of misconduct during her previous period of

employment with Respondent.

101 . The evidence in this case establishes that the

primary bases for Petitioner Ó s termination wer e deficient

occupancy numbers, and problems with delinquency. Ms. Sutton,

during her first period of employment with Respondent as the

property manager of the Good Bread Hills tax credit apartment

complex, knew the tax c redit program , Ðdid a great job of

leasing that property up,Ñ and left RespondentÓs management with

a perception that she Ð had done an outstanding job. Ñ

Furthermore, t he issues of occupancy and delinquency that led to

PetitionerÓs termination were largely resolved during

Ms. SuttonÓs perio d of employment as the Spinnaker Reach

property manager.

102 . As to the issue with Timber s can, Ms. Sutton was , as

was Petitioner, subject to written counseling for that incident,

after which the problem was resolved and did not recur. Thus,

Ms. Sutton w as not subject to a personnel decision regarding

Timberscan that differed from that applied to Petitioner.

103 . For the reasons set forth herein, Ms. Sutton, despite

her being hired as PetitionerÓs replacement, did not have

problems with her performance similar to those that led to

PetitionerÓs termination, and is not a similarly - situated

employee comparator .

10 4 . In addition to the foregoing, Petitioner failed to

prove that the decision to replace a single Caucasian employee

with a single African - Ame rican employee constituted any sort of

pattern or practice of disparate treatment that might allow an

inference of discriminatory animus on the part of Respondent.

10 5 . In short, Petitioner failed to prove that

RespondentÓs decision to terminate h er w as the result of any

consideration of or discriminatory intent based on race, or that

h er treatment 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 race discrimination.

Prima Facie Case - Age

10 6 . Petitioner , age 54, is a member of a protected class .

10 7 . As established previously, Petitioner met the

qualifi cations for the position of property manager, with the

dispute being the quality of her performance.

10 8 . Petitioner was terminated from employment, which is

an adverse employment action.

10 9 . Where Petitioner has failed in the establishment of

h er prima facie case is h er failure to demonstrate that persons

of a differ ent age were subject to personnel decisions that

differed from those applied to h er .

1 10 . As with the analysis of race - based discrimination set

forth above, only Ms. Sutton was identified as a differently -

aged employee comparator . For the reasons set f orth in

paragraphs 100 through 10 3 above, Ms. Sutton is not a similarly -

situated employee comparator.

1 11 . In addition to the foregoing, Petitioner failed to

prove that the decision to replace a 54 year - old employee with a

significantly younger employee constituted any sort of pattern

or practice that might allow an inference of discriminatory

animus on the part of Respondent.

1 12 . In short, Petitioner failed to prove that

RespondentÓs decision to terminate her was the result of any

consideration of or discriminatory intent based on age , or that

her treatment as an employee differed in any material way from

the treatment afforded other employees, regardless of their age .

Therefore, Petitioner failed to prove a prima facie case of age

discrimination, and her petition for relief should be dismissed.

Legitimate, Non - discriminatory Reason

1 13 . Assuming -- for the sake of argument -- that Petitioner

made a prima facie showing of either race or age discrimination ,

the burden would shift to Respondent to prof fer a legitimate

non - discriminatory reason for its action.

11 4 . Respondent met its burden by producing credible

evidence that Petitioner was terminated solely on the basis of

what Respondent legitimately believed to be poor performance of

her job dutie s. Issues of occupancy and delinquency have been

discussed at length herein. Added to that was RespondentÓs

legitimate concern with PetitionerÓs propensity to delegate her

duties to subordinates without adequate oversight. Quite

simply, Respondent had a legitimate belief that Petitioner was

not performing at a level that was expected of its property

managers.

11 5 . Although Respondent Ós burden to refute PetitionerÓs

prima facie case of discrimination on the basis of both race and

age was light, the evid ence showing the reason for its personnel

decision to be legitimate and non - discriminatory was

substantial .

Pretext

11 6 . Assuming -- again, for the sake of argument -- that

Petitioner made a prima facie showing, then upon Respondent Ós

production of eviden ce 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 reasons, but were a pretext for

discrimination.

11 7 . In det ermining whether RespondentÓs actions were

pretextual, the undersigned Ð must evaluate whether the plaintiff

has demonstrated Ò such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reason s for its action that a

reasonable factfinder could find them unworthy of credence. ÓÑ

Combs v. Plantation Patterns, Meadowcraft, Inc. , 106 F.3d 1519 ,

1538 (11th Cir. 1997). Petitioner failed to make that requisite

demonstration.

11 8 . Petitioner ar gu ed at length that the July 2, 2013 ,

written counseling form, which established the August 1, 2013

deadline for achieving 93 - percent occupancy, was unrealistic ,

thus establishing that it was a pretext for the sanction of

termination. Her argument is subs tantially similar to the

argument advanced by the complainant in Reilly v. Novartis

Pharms. Corp. , 2008 U.S. Dist. LEXIS 23011 (M.D. Fla. 2008). In

that case, the employer placed the complainant on a Ðperformance

improvement planÑ (PIP) designed to addres s the complainantÓs

declining sales figures. The complainant argued that Ð unlike

her younger and male coworkers, she was placed on an unrealistic

PIP which ultimately led to her termination. Ñ Id. at *12. The

court noted that Ð[a]fter being placed on the PIP, Plaintiff did

improve in several areas, but continued to perform Òbelow

expectationsÓ in a number of other areas.Ñ Id. at *4. In its

analysis of the standard for establishing pretext, the court

held that:

Plaintiff's argument that the PIP was

unten able misses the point; Defendant had

legitimate, nondiscriminatory reasons for

terminating Plaintiff in October 2004.

Rather than immediately terminating

Plaintiff, however, Defendant gave Plaintiff

an opportunity to improve by placing her on

a PIP. Whil e Plaintiff argues that the

requirements under the PIP were unfair, the

PIP merely required Plaintiff to strictly

comply with the nominal requirements placed

on her coworkers. Further, the wisdom or

fairness of the PIP's requirements do not

negate the rea sons for placing Plaintiff on

the PIP. As the Eleventh Circuit has

stated, Ð Provided that the proffered reason

is one that might motivate a reasonable

employer, an employee must meet that reason

head on and rebut it, and the employee

cannot succeed by sim ply quarreling with the

wisdom of that reason. Ñ

Id. at *32, citing Chapman v. AI Transport , 229 F.3d 1012, 1030

(11th Cir. 2000).

11 9 . Much like the situation confronted by the court in

Reilly , Respondent had a legitimate, nondiscriminatory reason

for terminating P etitioner in July 2012, when occupancy at

Spinnaker Reach hovered at 84 percent. However, Respondent

elected to give Petitioner a final opportunity to achieve an

acceptable occupancy rate. Given that occupancy was at 94

percent when Petition er was hired, but had fallen to and

remained in the low 80s (and as low as 79 percent) since

December 2012, it was not an unreasonable employment decision

for Respondent to impose a requirement that occupancy be quickly

raised to a level comparable to that existing at PetitionerÓs

hiring.

1 20 . 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 inference tha t the explanation was

pretextual.

Conclusion

1 21 . Respondent put forth persuasive evidence that

Petitioner was terminated from employment as a result of her

inability to manage Spinnaker Reach at a level of effort and

competence that was expected of its property managers, and not

as a result of discrimination on the basis of race or age.

1 22 . Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary person nel

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

208, 220 (11th Cir. 2007) . As stated by the Eleventh Circuit

Court of Appeals:

Federal courts Ð do not sit as a super -

personnel department that reexamines an

entity's business decisions . No matter how

medieval a firm's practices, no matter how

high - handed its decisional process, no

matter how mistaken the firm's managers, the

[Civil Rights Act] does not interfere .

Rather, our inquiry is limited to whether

the employer gave an honest explana tion of

its behavior . Ñ Mechnig v. Sears, Roebuck &

Co. , 8 64 F.2d 1359, 1365 (7th Cir. 1988)

(citations omitted ). Ð For an employer to

prevail the jury need not determine that the

employer was correct in its assessment of

the employee's performance; it nee d only

determine that the defendant in good faith

believed plaintiff's performance to be

unsatisfactory . . . . Ñ Moore v. Sears,

Roebuck & Co. , 683 F.2d 1321, 1323 n. 4

(11th Cir. 1982) (emphasis in original).

Elrod v. Sears, Roebuck & Co. , 939 F.2d 146 6 , 1470 (11th Cir.

1991 ) .

1 23 . Because Petitioner failed to put forth sufficient

evidence that Respondent had some discriminatory reason for its

personnel decision , h er 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 order determining that Respondent, Royal

American Management, Inc. , did not commit any unlawful

employment practice as to Petitioner, J anet J. Lewis , and

dismissing the Petition for Relief filed in FCHR No. 201 4 - 00 937 .

DONE AND ENTERED this 16th day of March, 2016 , in

Tallahassee, 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 16th day of March, 2016 .

ENDNOTE S

1 / Petitioner testified that occup ancy was Ðan issueÑ before she

was hired. However, RespondentÓs occupancy reports reflect that

occupancy at Spinnaker Reach had been above 90 percent since

March 2012, and stood at 95 percent at the end of the week in

which she started employment. Occupa ncy then steadily declined

from that point, standing at 81 percent by the end of 2012, and

bottoming - out at 79 percent during the week ending on March 10,

2013. The suggestion that occupancy was an issue at the time of

PetitionerÓs employment is not suppo rted by the evidence.

2 / No explanation was given as to why the 90 Day Performance

Review was completed after only 6 2 days of employment .

COPIES FURNISHED :

Steven R. Andrews, Esquire

Brian O. Finnerty, Esquire

The Law Offices of Steven R. Andrews, P .A.

822 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Ryan B. Hobbs, Esquire

Brooks LeBoeuf Bennett Foster

and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

(eServed)

D. Andrew Byrne, Esquire

Andrew Byrne and Associates, P.A.

1111 Brickell Avenue, 11th Floor

Miami, Florida 33131

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, General Co unsel

Florida Commis sion 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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.