15-002640 Christy Miller vs. Florida Department Of Corrections Status: Closed Recommended Order on Friday, December 11, 2015.

Summary: Evidence fails to establish claims of discrimination and retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTY MILLER,

Petitioner,

vs. Case No. 15 - 2640

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 5, 2015, an admini strative hearing in this case

was held by video teleconference in Sarasota and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christy Michelle Miller

3351 Mayflower St reet

Sarasota, Florida 34231

For Respondent: M. Lilja Dandelake, Esquire

Department of Corrections

501 South Calhoun Street

Tallahasse e, Florida 32399 - 2500

STATEMENT OF THE ISSUE

The issue in the case is whether Christy Miller

(Petitioner) was the subject of unlawful discrimination by the

Florida Department of Corrections (Respondent) on the basis of

sex or marital status, or i n retali ation, in violation of

c hapter 760, Florida Statutes (2015) 1/ .

PRELIMINARY STATEMENT

By Complaint of Discrimination filed with the Florida

Commission on Human Relations (FCHR) on October 21, 2013, the

Petitioner alleged that the Respondent committed unla wful

discrimination against her on the basis of sex or marital

status, or in retaliation.

By Notice of Determination dated February 15, 2015, the

FCHR determined that there was Ðno reasonable cause to believe

that an unlawful employment practice occurred .Ñ

On March 19, 2015, the Petitioner filed a Petition for

Relief with the FCHR. On May 12, 2015, the FCHR forwarded the

Petition for Relief to the Division of Administrative Hearings,

which scheduled and conducted the proceeding.

At the hearing, the P etitioner testified on her own behalf,

presented the testimony of four witnesses, and had Exhib its

numbered 1 through 5 and 8 admitted into evidence. The

Respondent presented no testimony or exhibits.

No transcript of the hearing was filed. Both partie s filed

proposed recommended orders that have been revie wed in the

preparation of this O rder.

FINDING S OF FACT

1. At all times material to this case, the Petitioner was

employed by the Respondent as a Correctional Probation Senior

Officer in Winter Have n, Florida.

2. The Respondent is a state agency as defined in

chapter 110, Florida Statutes.

3. At various times prior to April 2012, Don Parrish,

another employee of Respondent, had served as an ÐactingÑ

supervisor in the RespondentÓs office.

4. The Petitioner testified that Mr. Parrish, during a

period when he was the acting supervisor, inquired as to her

marital status, and suggested they could Ðget togetherÑ if the

marriage was not successful. Mr. ParrishÓs comment made the

Petitioner uncomfo rtable.

5. In April 2012, Mr. Parrish became a Correctional

Probation Senior Supervisor and was the PetitionerÓs direct

supervisor until she t erminated employment in January 2013.

6. The Petitioner testified that, as her supervisor,

Mr. Parish Ðmicr omanagedÑ her schedule and ÐharassedÑ her.

7. While the Petitioner worked under Mr. ParrishÓs

supervision, the two engaged in repeated verbal altercations

primarily directed towards matters of work scheduling and the

PetitionerÓs attendance.

8. The P etitioner testified that Mr. Parrish routinely

denied her requests to alter or adjust her work schedule to

accommodate personal matters.

9. Some female employees in the office, including the

Petitioner, were of the opinion that Mr. Parrish gave

preferen tial treatment to another female who worked in the

office by routinely approving her requests related to her work

schedule.

10. The Petitioner also asserted that other employees

received preferential treatment from Mr. Parrish in matters of

case assignm ents.

11. The evidence fails to establish that decisions made by

Mr. Parrish as to the PetitionerÓs work schedule included

consideration of the PetitionerÓs gender or marital status, or

were retaliatory.

12. On occasion, Mr. Parr ish made remarks in t he office

that made the Petitioner uncomfortable. The Petitioner

testified at the hearing that Mr. Parrish comment ed on the

physical appearance of other female employees, or of offenders

who were present in the office, in a manner that the Petitioner

foun d offensive.

13. At all times material to this case, Brian Wynns was

the RespondentÓs ÐCircuit AdministratorÑ responsible for

operation of the Winter Haven Probation Office. Mr. Wynns was

Mr. ParrishÓs supervisor.

14. At some point prior to August 2 012, Lou Bland, another

female employee in the RespondentÓs Winter Haven office, filed a

formal complaint against Mr. Parrish. According to Ms. Bland,

she filed the complaint after Mr. Parrish yelled at her in a

ÐthreateningÑ manner. Ms. Bland testified that her complaint

was resolved by Mr. Wynns, that Mr. Parrish apologized to

Ms. Bland, and that she had no further problems with

Mr. Parrish.

15. At the hearing, Ms. Bland testified that she never

observed Mr. Parrish engage in what she would describ e as sexual

harassment.

16. Following a verbal altercation between the Petitioner

and Mr. Parrish in August 2012, the Petitioner contacted

Mr. Wynns by telephone to complain about Mr. Parrish.

17. The Petitioner did not file a formal written complai nt

against Mr. Parrish. The Petitioner testified that she was

aware the Respondent had a formal procedure related to

submission and resolution of complaints of discrimination. The

RespondentÓs formal procedures were not offered into evidence at

the heari ng.

18. There is no evidence as to what transpired between

Mr. Wynns and Mr. Parrish regarding the PetitionerÓs verbal

complaint. The Petitioner testified that she presumed

Mr. Parrish was aware of her conversation with Mr. Wynns,

because she perceiv ed his behavior to be more hostile after the

conversation occurred.

19. After August 2012, the Petitioner and some of her co -

workers discussed collectively meeting with Mr. Wynns to voice

their dissatisfaction with Mr. Parrish. The PetitionerÓs

co - wor kers eventually decided not to participate in such a

meeting, so it did not occur. Instead, the Petitioner met with

Mr. Wynns on December 12, 2012, and submitted a letter of

resignation from her position, effective January 31, 2013.

20. Although the Pe titioner testified that she resigned

because she could no longer tolerate Mr. Parrish, the

PetitionerÓs letter of resignation referenced personal issues

unrelated to Mr. Parrish as the primary basis for her decision

to leave.

21. The evidence fails to e stablish that, prior to

December 12, 2012, the Petitioner advised Mr. Wynns that her

problems with Mr. Parrish had not been resolved by their

August 2012 telephone conversation.

22. Following another verbal altercation with Mr. Parrish,

the Petitioner accelerated the effective date of her resignation

and terminated her employment on January 8, 2013.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and subj ect matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

24. The Petitioner has alleged that she was subjected to

unlawful discrimination by the Respondent on the basis of sex or

marital status, or in reta liation , in violation of c hapter 760,

Florida Statutes. The Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. Fla. DepÓt of Transp. v. J.W.C.

Co. , 396 So.2d 778 (Fla. 11st DCA 1981). The burden has not

been met.

25. Chapter 760, Part I, Florida Statut es, sets forth the

Florida Civil Rights Act of 1992 (the "Act"). The Respondent is

an ÐemployerÑ as defined in section 760.02(7). Section 760.10

provides in relevant part as follows:

(1) It is an unlawful employment

practice for an employer:

(a) To di scharge or to fail or refuse

to hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms,

conditions, or privileges of employment,

because of such individualÓs race,

color, religion, sex, national origin,

age, handicap, or marital status.

* * *

(7) It is an unlawful employment

practice for an employer, an employment

agency, a joint labor - management

committee, or a labor organization to

discriminate against any person because

that person has opposed a ny practice

which is an unlawful employment practice

under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner

in an investigation, proceeding, or

hearing under this section.

26. Florida courts hav e determined that Title VII federal

discrimination law should be used as guidance when applying the

provisions of the Act. Fl a . Dept. of Comm. Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991); Sch. Bd. of Leon Co. v. Hargis ,

400 So. 2d 103 (Fla. 1st DC A 1981).

27. The Petitioner has asserted that she was subjected to

a hostile work environment on the basis of sexual harassment by

her supervisor. The Act does not specifically include the

phrase Ðsexual harassment , Ñ but courts have held that the phras e

"terms, conditions, or privileges of employment" includes issues

of disparate treatment and hostile or abusive work environment.

Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993).

28. In order to substantiate a claim of hostile work

environment un der Title VII based on sexual harassment by a

supervisor, an employee must establish the following elements:

(1) that the employee belongs to a protected group; (2) that the

employee has been subject to sexual harassment, such as

unwelcome sexual advances , requests for sexual favors, and other

conduct of a sexual nature; (3) that the harassment must have

been based on the sex of the employee; (4) that the harassment

was sufficiently severe or pervasive to alter the terms and

conditions of employment and cr eate a discriminatorily abusive

working environment; and (5) a basis for holding the employer

liable. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir.

1999).

29. The evidence establishes that only the first element

has been met. The Petitioner belong s to a protected group.

30. Hostile workplace sexual harassment occurs when an

employer's conduct "has the purpose or effect of unreasonably

interfering with an individual's work performance or creating an

intimidating, hostile, or offensive environment ." Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d 1311, 1315 (11th Cir.

1989). Courts must determine whether an environment is

sufficiently hostile or abusive by looking at all the

circumstances, including frequency of discriminatory conduct,

its severi ty, whether it is physically threatening or

humiliating or a mere offensive utterance, and whether it

unreasonably interferes with an employee's work performance.

Faragher v. C i ty of Boca Raton , 118 S. Ct. 2275 (U.S. 1998).

Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment is beyond Title

VII's purview. Onca le v. Sundowner Offshore Serv s . , Inc ., 118

S. Ct. 998 (U.S. 1998). The evidence presented in this case

fails to establish that Mr. ParrishÓs sexual comments were of

such frequency and severity to interfere with any individual's

work performance, including that of the Petitioner, or to create

an intimidating, hostile, or offensive environment. The

evidence also fails to establish that the alleg ed harassment was

based on the PetitionerÓs gender.

3 1 . Finally, the evidence fails to establish a basis for

holding the Respondent liable. The single formal complaint

filed against Mr. Parrish referenced a verbal altercation

between another employee a nd Mr. Parrish. According to the

complainant, the matter was handled promptly and effectively.

The evidence fails to establish that the Respondent knew or

should have known about Mr. ParrishÓs allegedly sexually -

offensive behavior, or that the Respondent failed to take prompt

action related to any report of such behavior. See Burlington

Indu s . , Inc. v. Ellerth , 524 U.S. 742 (1998).

3 2 . The Petitioner has asserted that she was discriminated

against on the basis of her marital status. In order to

subst antiate a prima facie case of marital discrimination, the

Petitioner must establish: (1) she was a member of a protected

class; (2) she was performing her duties in a satisfactory

manner and; (3) despite her satisfactory performance, she was

terminated. Again, only the first element has been met. The

evidence fails to establish that the Petitioner was performing

her job in a satisfactory manner, or that she suffered any type

of adverse employment action from the alleged discrimination.

3 3 . The Petitio ner has alleged that she was retaliated

against after complaining to Mr. Wynns about Mr. ParrishÓs

behavior. To substantiate a prima f acie case of retaliation

under s ection 760.10(7), the Petitioner must demonstrate:

(1) that she engaged in statutorily protected activity; (2) that

she suffered an adverse employment action; and (3) that the

adverse employment action was causally related to the protected

activity. Harper v. Blockbuster Entm't Corp ., 139 F.3d 1385

(11th Cir.), cert. denied , 525 U.S. 1000 ( 1998). Only the first

element has been met. The PetitionerÓs verbal complaint to

Mr. Wynns was a protected activity. The evidence fails to

establish that the Petitioner suffered an adverse employment

action for doing so. The disputes with Mr. Parrish, which were

the basis of her oral complaint to Mr. Wynns, continued, but the

Petitioner did not pursue a formal complaint against

Mr. Parrish. The Petitioner submitted a letter of resignation

citing a variety of personal reasons for the decision to leave .

3 4 . The Petitioner has implied that she was coerced to

resign from her employment by the conditions of the job, and

essentially was constructively discharged. In order to

substantiate a claim of constructive discharge in this case, the

Petitioner mus t show that the employer made working conditions

so difficult that a reasonable person would feel compelled to

resign. Pa. State Police v. Suders , 542 U.S. 129 (U.S. 2004).

The evidence fails to substantiate the claim of constructive

discharge.

3 5 . At the hearing, the PetitionerÓs exhibits identified

medical and personal concerns that are not further disclosed

herein. Because the PetitionerÓs complaint of discrimination

does not allege discrimination on the basis of disability or by

a failure to accomm odate disability, the information was not

relevant in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Peti tioner's

complaint of discrimination.

DONE AND ENTERED this 11th day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The De Soto 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 11th day of December, 2015 .

ENDNOTE

1/ All statuto ry references are to Florida Statutes (2015).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Christy Michelle Miller

3351 Mayflower St reet

Sarasota , Florida 34231

(eServed)

Pamela Leatrice Hatcher, Esquire

Department of Corrections

The Carlton Building

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

M. Lilja Dandelake, Esquire

Department of Corrections

501 South Calhoun Street

Tallah assee, Florida 32399 - 2500

(eServed)

Cheyanne Costilla, Gen. Co.

F lorida Commission of Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n 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.