15-005381 Kalisha Eagle vs. Alachua County Board Of County Commissioners Status: Closed Recommended Order on Friday, August 26, 2016.

Summary: Amended--Petitioner failed to prove her allegations of disparate treatment and retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KALISHA EAGLE ,

Petitioner ,

vs. Case No. 15 - 5381

ALACHUA COUNTY BOARD OF COUNTY *AMENDED TO NOTE

COMMISSIONERS , PETITIONERÓS PROPOSED

RECOMMENDED ORDER

Respondent .

/

AMENDED RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 4, 2015, December 21, 2015, January 28, 2016,

February 23, 2016, March 17, 2016, and May 18, 2016, in

G ainesville, Florida, before Garnett W. Chisenhall, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Kalisha Eagle, pro se

Post O ffice Box 708

Ne wberry, Florida 32669

For Respondent: William E. Harlan, Jr., Esquire

Alachua County AttorneyÓs Office

12 Southeast 1 st Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE S

Th e issues are whether Respondent (Ðthe Alachua County

Board of County CommissionersÑ or ÐAlachua CountyÑ) committed

one or more unlawful employment practices and/or retaliated

against Petitioner (ÐKalisha EagleÑ) after she repor ted

allegations of disparate treatment to Alachua CountyÓs Equal

Employment Opportunity Office.

PRELIMINARY STATEMENT

Ms. Eagle filed a Charge of Discrimination with the Florida

Commission on Human Relations (Ðthe Commission Ñ) on

approximately September 26, 2014 , alleging that she was

subjected to disp arate treatment during her employment with

Alachua County. In support thereof , Ms. Eagle alleged the

following:

On or about August 4, 2008, I was hired by

the above named employer as a Support

Technician. I currently hold the position

of Network Speciali st. I am being subjected

to different treatment by my immediate

supervisor Virgillio Vensamoye because I am

female. Mr. Vensamoye has taken my

equipment which impairs my ability to

perform tasks and gives them to newer

employees (all males). Mr. Vensamo ye does

not assign me certain projects because they

require [me] to work after hours and

weekends and I am a single parent. I am

being passed over for certain jobs and

projects that could lead to on the job

training, experience and promotions. On

June 9, 2014, I went to my local EEO since

the concerns I reported in January 2012 were

not addressed. Subsequently, in

retaliation, I was issued a counseling memo

addressing performance issues.

My employer gave me no reason for the above

treatment.

I believe [ Alachua County] discriminated

against me because of my sex, female, in

violation of Title VII of the Civil Rights

Act of 1964, as amended. I also believe

that [Alachua County] retaliated against me

for reporting discrimination in violation of

Section 704( a) of Titl e VII.

The Commission conducted an investigation and issued a

Determination on August 19, 2015, concluding that there was no

reasonable cause to believe that an unlawful employment practic e

had occurred:

[Ms. Eagle] alleged that she had been

s ubjected to different terms and conditions

in her employment in an information

technology department due to sex - based

discrimination. [Ms. Eagle] established a

prima facie case for discrimination because

[Ms. Eagle] showed she was assigned less

complex w ork than all 11 - 12 men in her

department. [Alachua County], however,

provided a legitimate, nondiscriminatory

reason for assigning her less complex work:

(1) [Ms. Eagle] works part - time and is

assigned work that can be completed during a

shorter workday and (2) the men have a

different job title than [Ms. Eagle] and

have, by function of that title, autonomous

responsibilities over the servers and other

higher - level equipment, while [Ms. Eagle]Ós

position does not. Additionally, [Alachua

County] noted tha t, as an office policy,

many complex or interesting projects have an

open invitation for all unit members to

voluntarily a ssist to gain experience.

[Ms. Eagle] did not establish that [Alachua

County]Ós reason was a pretext for

discrimination. [Ms. Eagle] also alleged,

but did not establish a prima facie case

for, retaliation. [Ms. Eagle] engaged in

protected activity after she incurred the

sole complained - of adverse employment

action.

Ms. Eagle responded by fil ing a Petition for Relief on

September 24 , 2015 , substantially expand ing upon the allegations

set forth in her Charge of Discrimination.

On September 24, 2015 , the Commission referred this matter

to DOAH for a formal administrative hearing.

The final hearing was commenced as scheduled on Dece mber 4 ,

201 5 . While the Parties stated in their separate r espons es to

the Initial Order that the final hearing could be completed in

one to two day s , it became apparent by the end of the

December 4 , 2015, hearing that much more time would be required

to c omplete the evidentiary portion of this matter.

Accordingly, the undersigned conducted additional proceedings on

December 21, 2015, January 28, 2016, February 23, 2016,

March 17, 2016, and May 18, 2016 .

Exhibits 1 - 3, 4A, 5, 7 - 9, 12 - 13, 15, 20A, 20B, 21 - 2 7, A,

and B from Alachua County were a ccepted into evidence.

Exhibits 0, A - Z, AA - ZZ, ZZ 1 - ZZ 3 , 1, and 1A from Ms. Eagle were

accepted into evidence with the caveat that the undersigned

would not consider handwritten comments that Ms. Eagle added to

the doc uments after their creation.

Transcripts from the aforementioned hearing dates were

filed with DOAH on the following dates: (1) two volumes from

the December 4, 2015, hearing were filed on January 12, 2016 ;

(2) two volumes from the December 21, 2015, h earing were filed

on January 19, 2016; (3) one volume from the January 28, 2016,

hearing was filed on February 22, 2016; (4) two volumes from the

February 23, 2016, hearing were f iled on March 10, 2016; ( 5) two

volumes from the March 17, 2016, hearing were filed on March 31,

2016; and (6) two volumes from the May 18, 2016, final hearing

were filed on June 23 , 2016.

After receiving two extension s , Alachua County and

Ms. Eagle filed t imely Proposed Recommended Order s on July 20 ,

2016.

On August 11 , 2016 , Ms. Eagle filed a m otion ask ing the

undersigned to accept approximately 129 pages of documents into

evidence . Alachua County filed a r esponse on August 15, 2016,

stating that it had no objection. Via a separately issued

Order, the undersigned granted M s. EagleÓs m otion.

FINDING S OF FACT

Findings Adduced from Testimony and Evidence Presented during

the Final Hearing

1. The Alachua County Board of County Commissioners has

adopted a policy mandating that Ð[d]iscrimination against any

person in recruitmen t, examination, appointment, training,

promotion or any other employee action because of political

opinions or affiliations or because of race, color, age, sex,

religion, national origin, marital status, disability, sexual

orientation, gender identify or e xpression is prohibited.Ñ

2. That same policy statement also prohibits

Ð[r]etaliation against any person for brin g ing an allegation

forward, filing a complaint or participating in an investigation

of alleged unlawful discrimination.Ñ

3 . Alachua Count yÓs governmental offices are served by an

Information Technology Department (Ðt he IT Department Ñ) which

consists of five teams: the help desk, applications, security,

telecommunications, and networking.

4 . The network team handles infrastructure or har dware -

related requests that require someone to go into the field in

order to resolve a problem.

5. The network specialist position is an entry level

position for the network team, and there is only one network

specialist position in the IT Department.

6 . The network specialistÓs duties include desktop support

and assisting network analysts in projects and tasks involving

server support and network infrastructure . Also, the network

specialist is the Ðfirst responderÑ to any help desk calls that

cannot be resolved within 30 minutes over the phone. In

addition, the network specialist installs software and ensures

that devices such as printers and scanners are operating

properly.

7 . The network team al so consists of network analysts who

handle more com plex tasks than the network specialist and

perform high - level work on servers.

8 . There are five to seven network analysts in the IT

Department. During the time period relevant to the instant

case, Virgilio Vensamoye managed the network team.

9 . Muc h like the information technology field as a whole,

Alachua CountyÓs IT Department predominantly consists of males.

Of the 44 employees in the IT Department, approximately 34 are

males and 10 are females. T here are no females currently

working on the net work team.

1 0 . The IT Department hired Ms. Eagle (an African - American

female) on August 4, 2008, to work on the help desk as a support

technician.

1 1 . Ms. Eagle had a substantial amount of experience with

and/or knowledge of information technology prior to beginning

her employment with Alachua County. For instance, s he earned a

certificate in PC Support Services from Santa Fe Community

College in 2001 and an associate of science degree in c omputer

information systems a nalysis from Santa Fe Community Col lege in

2002. Ms. Eagle has also earned several certifications related

to computer science.

1 2 . Ms. EagleÓs performance evaluations and the testimony

given at the final hearing ind icate that she was performing w ell

at the help desk.

1 3 . Following an i ntervie w , 1 / during which she outperformed

two other internal candidates, Ms. Eagle was promoted to the

network specialist position o n February 1, 2010.

1 4 . The network specialist position paid Ms. Eagle

$22.33 an hour and was a 59 - percent increase over he r previous

compensation rate .

1 5 . In the two years following her promotion, Ms. Eagle

continued to perform well. For example, Mr. V ensamoye wrote a

performance evaluation covering the period between October 1,

2010, and September 30, 2011, stating the f ollowing: ÐKalisha

has an exceptional attitude for helping us to resolve any

problem we may have. She has taken over the tasks to assist the

help desk as a first responder to help desk calls and ISRÓs.

She is always willing to help at a momentÓs notice like she did

when the Guardia n a d Litem moved to their new offices.Ñ

1 6 . Ms. Eagle made it known to several of her co - workers

that she was looking to be challenged through her work and to

use those challenges to grow as an IT professional.

1 7 . That d esire was also set forth in her performance

evaluations. In the performance evaluation mentioned above ,

Ms. Eagle wrote that , ÐI want to learn and have more

participation during new server installations, setup and

administration of Active Directory.Ñ

1 8 . When their work schedules allow, IT Department

employees have opportunities to work with more experienced co -

workers and learn through on - the - job training. The testimony

presented at the final hearing strongly suggests that network

analysts within the IT Department are willing to assist those

with less knowledge to improve their skills through on - the - job -

training .

19 . In October of 2011 , David Velez (a network analyst )

left the IT Department . While his position w as vacant,

Mr. V ensamoye assigned som e of Mr. VelezÓs network analyst

duties to Ms. Eagle. That decision was set forth in a

November 7, 2011, e - mail stating that Ms. Eagle Ðwill be taking

over Animal Services and Community Services but during this

transition, please keep Ken n y and me informe d of any help desk

calls assigned to Nikki 2 / for these two depts. I want her to

have a successful take over in responsibilities.Ñ

2 0 . Ms. Eagle testified during the final hearing that the

aforementioned e - mail led her to believe that she would be hired

to fill one of the vacant network analyst positions.

2 1 . That belief may have been r einforced by a November 28,

2011, e - mail from Mr. Vensamoye which described special

circumstances under which the network analysts (who are salaried

employees) could be paid for working an amount of hours beyond

what is considered usual and customary. Mr. Vensamoye began his

November 28, 2011, e - mail by stating the following: ÐTo all,

(Except Nikki because this does not apply to you at least not

yet but you need to kno w too).Ñ

2 2 . Ms. Eagle also believed that a promotion to network

analyst was imminent because of her understanding that two

people who previously held the network specialist position

(Chris Johnson and Ian Van Kirk) had bec o me network analyst s

approxima tely 18 months after they were hired as the net work

specialist.

2 3 . A committee interviewed Ms. Eagle for the network

analyst positions , but her inability to answer certain questions

demonstrated that she was not ready to a ssume that role .

2 4 . The IT Department ultimately hired two external

applicants to fill the vacant positions. Mr. V ensamoye

testified that the successful candidates had prior experience as

network analysts and gave good interviews. In addition, one of

the applicants had a veteranÓs preference.

2 5 . Ms. Eagle was very upset that she was not hired to

fill one of the vacancies and felt that the questions asked

during her interview were unfair.

2 6 . There was no testimony or documentary evidence

indicating whether any other network analyst positions came open

during Ms. EagleÓs t enure in the IT Department. Mr. Vensamoye

testified that vacancies at the network analyst level are

infrequent.

27 . Ms. Eagle became even more upset when one or more of

her co - workers asked for the equip ment she had been using to

handle the network analyst duties that Mr. V ensamoye had

assigned to her via the November 7, 2011, e - mail.

28 . Ms. Eagle asserts that no one told her that she would

no longer be handling network analyst duties once the vacant

positions were filled.

29 . Because of the unsuccessful interview and the

equipment issue mentioned above , Ms. Eagle visited Alachua

CountyÓs Equal Employment Opportunity Office (ÐEEO OfficeÑ) on

January 12, 2012.

3 0 . Up to this point, Ms. Eagle claims that she was

receiving enough opportunities to acquire the skills necessary

to become a network analyst.

3 1 . Ms. Eagle did not file a formal complaint on

January 12, 2012 , but she did meet with an intake specialist

within th e EEO Office.

3 2 . The intak e specialist made the following entr ies in

the EEO OfficeÓs computer system describing Ms. EagleÓs

allegations :

[Ms. Eagle] is upset that she is being

unfairly treated. She says she is being

passed over for certain jobs & projects that

could lead to on th e job training &

experience & promotions. [Ms. Eagle] says

her supr. [sic] Ken H., takes her equip.

[sic] which impairs her ability to perform

tasks and gives it to news emps. [sic].

[Ms. Eagle] says she interviewed for a

position w/ i [sic] her area and the position

was given to two newer ext. [sic] emps.

[sic]. [Ms. Eagle] says Ken said to her

that she is not given certain projects becuz

[sic] they require the tech to Ðget under

desksÑ or work after hours/weekends becuz

[sic] she is a single parent. [M s. Eagle]

says she never suggested that daycare was a

problem and it prevents her from recd [sic]

overtime. [Ms. Eagle] spoke with mgr. [sic]

Vensamoye who says he will address the

issue.

3 3 . Soon thereafter, Jacqueline Chung (the lead person in

the EEO Office) learned of Ms. EagleÓs allegations and spoke to

her. However, Ms. Eagle stated that she did not want to file a

formal complaint. Instead, her visit to the EEO Office was

merely a way for her to explore her options.

3 4 . Ms. Chung discussed Ms. EagleÓs concerns with the IT

DepartmentÓs management.

35. Because of her visit to the EEO Office, Ms. Eagle

asserts that the IT Department began to retaliate against her by

not assigning her to work on high - level projects. According to

Ms. Eagle, her work for the remainder of 2012 was limited to

desktop support and only one Ðproject.Ñ

3 6 . On or about Christmas of 2012, Ms. Eagle was seriously

injured in a car accident and did not return to work until

March 10, 2013 .

3 7 . According to Mr. Vensamoye , Ms. Eagle had not

completely recovered from the car accident upon her return to

work. As a result, Mr. Vensamoye assigned Ms. Eagle to Ðlight

dutyÑ tasks which would not require her to lift heavy objects or

walk long distances.

38 . At the beginning o f 2013, Ms. Eagle began to feel

isolated at work . She alleges that her work orders decreased

and that she was only allowed to observe others doing high - level

work. Ms. Eagle would have preferred that she be allowed to do

that work with someone watchi ng a nd providing feedback.

Ms. Eagle further alleges that she was slowly being removed from

field work.

39 . Another issue arose when Ms. Eagle was allegedly asked

to ÐgroomÑ William Martinez. This was supposedly communicated

to her via an e - mail dated May 14, 2013, in which Kenny Shore

(the person who usually assigned work to Ms. Eagle and others in

the IT Department) asked Ms. Eagle to rebuild a computer from

scratch. Along with other instructions, Mr. Shore stated that

Ðwe want Billy Martinez to observe/ assist with this project.

Use him as much as you can to assist you with things like

updates, backing up the data, whatever you think. Want to get

Billy up to date with this kind of a project.Ñ

40 . T he IT Department was not providing any preferential

t reatment to Mr. Martinez.

4 1 . Mr. Martinez began working for the IT Department

19 years ago as a support technician on the help desk.

4 2 . At some point after he was unsuccessful in obtaining

the network specialist position tha t was ultimately offered to

Ms. Eagle, Mr. Martinez concluded that he would have to take

matters into his own hands in order to earn a promotion.

4 3 . Mr. MartinezÓs first step in earning a promotion

involved handling help desk calls that could not be handled over

the phone. A s mentioned above, the help desk personnel

typically forwarded such calls to the network team, and a member

of the network team then went out into the field in order to

resolve the problem. However, rather than forwarding such

calls, Mr. Martinez handled them himself, and he was doing so

based on his own initiative.

4 4 . M embers of the n etwork team came to respect

Mr. MartinezÓs abilities. They allowed Mr. Martinez to watch

them perform high - level network tasks, and they eventually

allowed him to perfor m such task s . He ultimately earned a

promotion to senior suppo rt technician.

4 5 . As a result of the issues described above, Ms. Eagle

asserts that she visited Mr. VensamoyeÓs office on September 30,

2013, and was ready to immediately tender her resigna tion.

According to Ms. Eagle, Mr. Vensamoye responded to her concerns

by offering her a part - time schedule.

4 6 . Ms. Eagle signed and submitted a letter to

Mr. Vensamoye on September 30, 2013, stating the following:

Due to extenuating circumstances dealin g

with the daily care of my children, I am

formally requesting a reduction of my work

schedule in order to accommodate the needs

of my family. Upon approval, I am

requestin g to change my schedule to 8:30 am -

12:30pm, Monday through Friday effective at

the e arliest convenience. I understand my

salary will be adjusted accordingly to this

reduced working schedule.

I certainly appreciate all the assistance

you may provide to this request.

4 7 . A memorandum dated Oct ober 1, 2013, and signed by

Mr. Vensamoye an d Ms. Eagle indicates that her request to work

part - time was approved , and she began working 20 hours a week on

October 7, 2013 .

4 8 . The IT Department prides itself on resolving its

clientsÓ pr oblems as quickly as possible and providing prompt

customer service. W itnesses from the IT Department persuasively

testified that it is efficient to have a single person or group

of persons working continuous ly to resolve a problem . Under

such circumstances, the problem is typically solved much faster

1 5

than it wou ld be if assigned to someone working a part - time

schedule.

49 . Therefore, the IT Department did not assign any

complex tasks to Ms. Eagle while she was on a part - time

schedule. Her tasks were limited to those that could be handled

relatively quickly.

5 0 . At some point in 2014, Mr. Vensamoye became concerned

with certain aspects of Ms. EagleÓs behavior at work.

Accordingly, he met with her on June 9, 2014, and issued the

following Ðmemorandum of understandingÑ which stated:

As a follow up to our con versation today, we

have agreed to take the following actions:

ß Your sch edule will remain 8:30 to

12:30 Monday to Friday as we agreed on

October 7th , 2013.

ß You are expected to be on time for

assignments and meetings. Do not leave team

meetings with out express permission.

ß Every Monday morning you will meet with

Kenny Shore to review the list of tasks

assigned to you and to plan your assignments

for the week.

ß On a daily basis, Victor Paul will follow

up the progress of tasks assigned to you an d

he may make any necessary changes to your

work load as priorities change.

ß You must communicate immediately with

Victor or me if you have any type of

concerns that may affect your job

performance.

ß Limit the personal use of the phone calls

during y our assigned work schedule. Please

be sure your cell phone bill is in good

standing to avoid disruptions in service.

The County will not be able to reimburse you

for cell phone services for the month

disruption of services occurs.

ß Do not spend extend ed periods of time in

consultation with Orin Yaw during your work

day. You are disrupting his tasks and

yours. If you need to consult on any

technical issues, please refer to a member

of the network team.

5 1 . After receiving the m emorandum of understan ding,

Ms. Eagle returned to the EEO Office on June 17, 2014, to

complain about the memorandum. Ms. Eagle also reported that

nothing had changed since her last visit to the EEO Office in

January of 2012.

5 2 . Ms. Eagle believed that the counseling memora ndum was

further retaliation for her initial visit to the E E O office.

5 3 . Ms. Eagle also thought that the IT Department was

beginning to retaliate against her through other means. For

example, Ms. Eagle was supposed to begin taking the lead on

certain assignments in June or July of 2014. However, she had

to complete a background check before hand . Ms. Eagle saw no

need for a background check when she had spent the last six

years working for Alachua County.

5 4 . Ms. Eagle further claims that the IT De partment

retaliated against her by closely monitoring her time and

assigning her to work with interns.

5 5 . Ms. Chung met again with Ms. Eagle for about two hours

on July 21, 2014. In a July 22, 2014, e - mail, Ms. Chung

summarized Ms. EagleÓs concerns as follows:

- Process for work order assignments (not

being given work and hearing that others

are getting assignments)

- Departmental assignments (not given

certain depts [sic] even after being

trained on their system)

- Computer builds (part of your position

responsibilities, not given to interns)

- Being told to assist interns and others on

assignments instead of being given the

lead.

- The perception that others are being

groomed/their futures considered, but you

are not able to work on a full - time basis.

5 6 . On July 23, 2014, Ms. Chung sent an e - mail to

Ms. Eagle notifying her that she was going to me et with

Mr. Vensamoye that day about the concerns listed above.

Ms. Chung also stated that she intended to schedule a follow - up

meeting with herself, Ms. Eagl e, and the management of the IT

Department because it would Ðbe helpful to have all parties at

the table as we discuss a game plan to move forward.Ñ

5 7 . Ms. Eagle, Ms. Chung, the CountyÓs Human Resources

Department, and the IT Department met in September of 2014 , to

address Ms. EagleÓs concerns. However, Ms. Eagle became

frustrated with Ms. Chung and the Human Resources Department and

essentially dismissed them from the meeting. Ms. Eagle made it

known that she only wanted to deal with the IT Department fro m

that point forward.

58 . Toward the end of 2014, management within the IT

Department became concerned that Ms. EagleÓs position would be

eliminated or that it would be permanently converted into a

part - time position. Therefore, Ms. Eagle was asked to return to

full - time status, and she did so on January 12, 2015.

59 . Upon her reinstatement to full - time status ,

Ms. EagleÓs assignments were no longer limited to issues that

could be resolved in a short time frame.

60. Ms. Eagle asserts that the past pattern of retaliation

or disparate treatment continued after she returned to full - time

status. According to Ms. Eagle, she only received 24 work

orders for the entire year of 2015.

6 1 . Ms. Eagle resigned on October 2, 2015 , and her

r esignation le tter read as follows:

Please accept this letter as my formal

resignation from the Alachua County

Information Service Department Network

Specialist Position under the Network Team

Division effective October 2, 2015. It has

been a pleasure working with all of you the

last 8 years and I wish everyone here the

best in the years to come. I thank all of

you once again for this opportunity and I

give a special thanks to those who took the

time to make this opportunity special for

me.

Specific Findings Regard ing Ms. EagleÓs Allegations of Disparate

Treatment and Retaliation

6 2 . In her filings with the Commissio n and during the

course of the final h earing, Ms. Eagle made several allegations

about how she was the victim of disparate treatment during her

tenure with the IT Department. Furthermore, she alleges that

the IT DepartmentÓs management retaliated against her when it

learned that she had visited the EEO Office. The following

findings specifically address each of those allegations.

6 3 . Ms. EagleÓs prim ary allegation is that the IT

DepartmentÓs management did not assign her the type of work

assignments that would further her professional development and

prepare her for promotion to a network analyst position. In

support of this allegation, Ms. Eagle ass erted that Ian Van Kirk

(who held the network specialist position prior to Ms. Eagle)

had the opportunity to take the lead on projects and to work on

servers.

6 4 . However, Mr. Vensamoye testified Mr. Van Kirk was

always under supervision. Also, while conceding that Mr. Van

Kirk worked on servers during his tenure as a network

specialist, Mr. Vensamoye testified that the IT Department was

short - handed at the time. In addition, Mr. Vensamoye reiterated

that Mr. Van Kirk never made any final decisions.

6 5 . Ms. Eagle also alleged that the IT Department hampered

her professional development by not assigning her complex tasks

and by not invit ing her to participate in an adequate number of

high - level projects. When she was invited to participate on

such p rojects, her participation was allegedly limited to

observation with no Ðhands - onÑ work. While not expressly saying

so, Ms. Eagle clearly impl ies that observing others working on

high - level projects did nothing to further her knowledge and

professional de velopment.

6 6 . First of all, Ms. EagleÓs own testimony indicated that

she had been assisting network analysts prior to her

unsuccessful interview fo r a network analyst position.

According to Ms. Eagle, that work and her other work within the

IT Depart ment adequately prepared her to assume a network

analystÓs duties.

67 . Moreover , there wa s testimony indicating that

Ms. Eagle was assigned projects that were far more involved than

the help desk calls typically handled by a network specialist.

Those p rojects were opportunities for professional development.

68 . For example, Jim Bledsoe (a network analyst within the

IT Department) testified about a project in which the IT

Department enabled county commission meetings to be streamed

over the internet. Mr. Bledsoe was the leader of that project

and asked for Ms. Eagle to be assigned to it because she had

expressed a de sire to participate in a highly visible

assignment. During the course of this project, Ms. Eagle

assisted Mr. Bledsoe and was able to w atch him build a server.

69 . Ms. Eagle also assisted Mr. Bledsoe in connecting

computers in the Alachua County Transfer Station to the CountyÓs

main network via a radio frequency link.

7 0 . Mr. Bledsoe also testified that Ms. Eagle was the

point - of - contact between the IT Department and the Guardian a d

Litem office. While the Guardian a d Litem Office was a small

department in comparison to others, Ms. Eagle was completely

responsible for that officeÓs information technology needs.

7 1 . Ms. Eagle h ad an open invitation to participate in any

projects that interested her. Mr. Vensamoye testified that

employees within the IT Department are encouraged to confer with

more experienced co - workers and gain knowledge by assisting

those co - workers with certa in tasks. Chris Johnson testified

that when he was a support technician, network analysts were

very receptive to allowing him to watch or assist with projects.

7 2 . T estimony during the f inal hearing indicated that

Ms. EagleÓs desire to improve her ski lls dramatically decreased

at some point after she became a network specialist. For

example, Mr. Bledsoe testified that Ms. Eagle unexpectedly left

the transfer station project b efore it was completed, and

Mr. Johnson testified that Ms. Eagle was talking on her phone

during the entire duration of the project. Mr. Johnson also

testified that he stopped asking Ms. Eagle if she wanted to

accompany him on projects because she no longer seemed to be

interested and was difficult to locate. Finally, Victor Paul

(Ms. EagleÓs direct supervisor) testified that Ms. EagleÓs

interest in learning new skills disappeared during her final

two - and - a - half years in the IT Department.

7 3 . Also, the IT Department understandably avoided

assigning Ms. Eagle complex assignments when she was working a

part - time schedule. As noted above, the IT Department prides

itself on providing a high level of customer service and wanted

to avoid situations in which a clientÓs problem went unresolved

simply because an IT Department employee co uld only devote a

limited amount of time to the problem.

7 4 . Ms. Eagle also assert ed that her pr ofessional

development was hampered by the fact that she was not assigned

to cover on - call support.

7 5 . Mr. Vensamoye persuasively testified that the IT

Department was under strict budgetary constraints at the time in

question . Because Ms. Eagle was an hourly employee who would

have to be paid overtime, it was more economical for the IT

Department to assign salaried employees to on - call duty.

7 6 . Ms. E agle also alleges that Mr. Martinez was ÐgroomedÑ

for advancement and that a great deal of her network specialist

work was improperly diverted away from her and to Mr. Martinez.

This appears to be the primary basis for her repeated assertions

that she was getting Ðno work.Ñ

77 . Given that Mr. Martinez ha d worked in the IT

Department for 17 years prior to earning his promotion to senior

support technician, one can hardly say that the IT DepartmentÓs

management had singled him out and was ÐgroomingÑ him f or

promotion.

78 . Instead, the testimony indicates that Mr. Martinez

made a conscious decision to volunteer for extra work and earn

his promotion. In fact, Mr. Shore testified during the final

hearing that Mr. Martinez Ð worked his ass off and he was th ere

every day Ñ during the time period at issue .

79 . In order to reach his g oal of earning a promotion,

Mr. Martinez was handling help desk calls that would normally be

assigned to a network specialist such as Ms. Eagle. Therefore,

he appears to have bee n fillin g a void that resulted from

Ms. EagleÓs downtime following her accident and her subsequent

part - time status.

8 0 . Furthermore, while Mr. Shore vigorously disputed any

assertion that Ms. Eagle was not getting her fair share of work

assignments, he testified that Ms. Eagle was difficult to locate

in 2014 and 2015 . Theref ore, it is certainly understandable

that certain assignments were shifted to Mr. Martinez when

Ms. Eagle could not be located .

8 1 . Ms. Eagle also alleges that the IT DepartmentÓs

m anagement retaliated against her by subjecting her to increased

monitoring, requiring her to obtain a security clearance, and by

issuing the memorandum of understanding to her.

8 2 . Mr. Vensamoye and Mr. Paul testified that the same

amount of monitoring w as being applied to all of the IT

DepartmentÓs employees . Ms. Eag le was not being singled out ,

and there was no evidence to the contrary .

8 3 . With regard to the security clearance, Victor Paul

(Ms. EagleÓs direct supervisor) testified that obtaining su ch a

clearance is something that must be done periodically.

Therefore, asking her to do so was not an attempt at

retaliation.

8 4 . Mr. Vensamoye testified that Ms. Eagle wa s taking an

inordinate amount of time to complete assignments in the few

months p receding the memorandum of understandingÓs issuance .

Also, it became difficult to find her during working hours and,

when she was able to be located, she was often in the break room

or ta l king on her telephone. Accordingly, the memorandum of

understandin g was an effort to address those issues rather than

disciplinary action .

8 5 . Finally, Ms. Eagle alleges that she was subjected to

disparate treatment when certain equipment was taken from her

possession after the IT Department hired two network analysts in

2012. The equipment in question was related to the network

analyst duties that Ms. Eagle was covering after the incumbent

left the IT Department .

86 . Ms. Eagle was very upset when she was not hired for

one of the network analyst positions, and the retrieval of the

equipment appears to have been Ðsalt in the wound.Ñ However,

after the two network analyst positions were fi l led, it was

reasonable to expect that the persons hired would need that

equipment.

87 . As discussed below in the Conclusions o n Law section,

Ms. Eagle was required to prove her alleg ations of disparate

treatment and retaliation by a preponderance of the evidence.

T he greater weight of the evidence demonstrates that there was

no disparate treatment or retaliation.

88 . Specific ally, the greater weight of the evidence does

not establish that Alachua County took any action which led to a

serious and material change in the terms of Ms. EagleÓs

employment.

CONCLUSIONS OF LAW

89. The Division of Administrative Hearings has

jurisdi ction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida

Statutes (2015) 3/ , and Florida Administrative Code Rule 60Y -

4.016(1).

90. The State of Florida, under the legislative scheme

contained in sec tions 760.01 Î 760.11 and 509.092, Florida

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

incorporates and adopts the legal principles and precedents

established in the federal anti - discrimination laws specifically

set forth under Title VII of the Civil Rights Act of 1964, as

amended. 42 U.S.C. § 2000e, et seq .

91. S ection 760.10 prohibits discrimination Ðagainst any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's race,

color, r eligion, sex, national origin, age, handicap, or marital

status.Ñ § 760.10(1)(a), Fla. Stat.

92. Ms. Eagle alleges that she was the victim of disparate

treatment. See Reeves v. C.H. Robinson Worldwide, Inc. ,

594 F.3d 798, 808 n.2 (11th Cir. 2010)(en ba nc)(ÐWe reiterate

that disparate treatment under 42 U.S.C. § 2000e - 2(a)(1) is the

proper framework under which to evaluate hostile work

environment claims.Ñ). The United States Supreme Court has

noted that Ð [d]isparate treatment . . . is the most easily

u nderstood type of discrimination. The employer simply treats

some people less favorably than others because of their race,

color, religion, sex, or [other protected characteristic].Ñ

Teamsters v. U.S. , 431 U.S. 324, 335 n.15 (1977). Liability in

a dispa rate treatment case Ðdepends on whether the protected

trait . . . actually motivated the employer's decision.Ñ Hazen

Paper Co. v. Biggins , 507 U.S. 604, 610 (1993). ÐThe ultimate

question in every employment discrimination case involving a

claim of dispa rate treatment is whether the plaintiff was the

victim of intentional discrimination.Ñ Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 153 (2000).

93. Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfel d v. Babbitt ,

168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of

discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. Maynard v. Bd. of Rege nts ,

342 F.3d 1281, 1289 (11th Cir. 2003).

94. ÐDirect evidence is composed of 'only the most blatant

remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor.Ñ

Schoenfeld , supra .

95. Ð[D]irect evidenc e of intent is often unavailable.Ñ

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

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

discrimination Ðare permitted to establish their cases through

inferential and circumstantial pr oof.Ñ K line v. Tenn . Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

96. Those seeking to prove discriminatory intent via

circumstantial evidence us e the shifting burden of proof pattern

established in McDonnell Douglas Corp. v. Green , 411 U.S.

792 (197 3). See Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

97. Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportuni ty to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep't of Hous. and Urban Dev. v. Blackwell , 908 F.2d 864,

870 (11th Cir. 1990)(housing discrimination claim); accord ,

Valenzuela v. GlobeGr ound N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

98. Ms. Eagle did not present statistical or direct

evidence of discrimination. Therefore, in order to prevail in

her claim against Alachua County , Ms. Eagle must first establish

a prima facie case by a preponderance of the evidence. Id. ;

§ 120.57(1)(j), Fla. Stat. ("Finding s of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure proceedings or except as otherwise provided by statute

and shall be based exclusively on the evidence of record and on

matters officially recognized.").

99. "Demon strating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

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

1562; cf. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)

("A preponderance of t he evidence is 'the greater weight of the

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

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

100. Ms. Eagle Ós discrimination claims are based on

alleged disparate treatment. In order to establis h a prima

facie case for discrimination based on disparate treatment,

Petitioner must show that (a) she belongs to a protected class;

(b) she was subject to an adverse employment action; (c) her

employer treated similarly - situated employees outside her

pro tected class more favorably; and (d) she was qualified to do

the job. Holifield , 115 F.3d at 1562.

101. PetitionerÓs c omplaint also alleges retaliation.

102. In order to establish a prima facie case for

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

statutorily - protected expression or conduct; (2) she suffered an

a dverse employment action; and (3) there is some causal

relationship between the two events. Holifield , 115 F.3d at

1566.

103. While Ms. Eagle established that she belongs to a

protected class, she did not demonstrate that she suffered an

adverse employment action.

104. In order to demonstrate an adverse employment action,

a petitioner must establish that the action caused a serious and

material change in the terms of his o r her employment. Davis v.

Town of Lake Park, Florida , 245 F.3d 1232 , 1239 (11 th Cir.

2001).

105. Ms. Eagle failed to establish that Alachua County

took any action which led to a serious and material change in

the terms of her employment.

RECOMMENDAT ION

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 Ms. EagleÓs Petition

for Relief.

DONE AND ENTERED this 2 6 th day of August, 2016 , in

Tallaha ssee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of August , 2016 .

ENDNOTE S

1 / The committee that interviewed Ms. Eagle described the

interview as follows: ÐExcellent interview. Kalisha performed

excellent on the general questions showing deep knowledge on

almost all of the items, including showing a better

understanding of what the [active directory] was and the

relationship of the Schema. The one main term (jabbering) that

she did not know; she was able to solve by demonstrate[ing]

extraordinary reasoning in determining what would cause it and

how to detect or correct it. Her performance in the practical,

although not the most direct, was better than average and,

although she initially identifie d and corrected the external

connectivity problem by simply correcting the gateway address,

implemented DHCP when asked if there was a bett er solution. She

took the leas t time of all applicants in completing the

practical including verifying and correctin g connector problems

before initial boot (no POST errors). She quickly identified

visually [that] the network connection was invalid but needed to

go so far as using a third cable, probably because of impatience

in not waiting.Ñ Exhibit V .

2 / During t he time periods relevant to the instant case,

Ms. Eagle was referred to as ÐKalishaÑ or ÐNikki.Ñ

3/ Unless stated otherwise, all statutory references will be to

the 2015 version of the Florida Statutes.

COPIES FURNISHED:

Tammy S. Barton, A gency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way

Room 110

Tallahassee, Florida 32399

(eServed)

Kalisha Eagle

Post Office Box 708

Newberry, Florida 32669

(eServed)

Lee A. Niblock

Alachua County Board of County Commissioners

Second Floor

12 Southeast 1st Street

Gainesville, Florida 32601

William E. Harlan, Jr., Esquire

Alachua County Attorney's O ffice

12 Southeast 1st Street

Gainesville, Florida 32601

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.