16-003609 J. L. Nieman vs. Carolina Casualty Insurance Company (W.R. Berkley) Status: Closed Recommended Order on Tuesday, November 1, 2016.

Summary: Petitioner failed to prove that Respondent's failure to interview him was in retaliation for past protected activities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. L. NIEMAN,

Petitioner,

vs. Case No. 16 - 3609

CAROLINA CASUALTY INSURANCE

COMPANY (W.R. BERKLEY), 1/

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hear ing was conducted in this case on August 17,

2016, in Jacksonville, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jason Nieman, pro se

832 Chanterelle Way

Fruit Cove, Florida 32259

For Respondent: Kevin E. Hyde, Esquire

Leonard V. Feigel, Esquire

Foley & Lardner, LLP

One Independent Driv e, Suite 1300

Jacksonville, Florida 32202 - 5017

STATEMENT OF THE ISSUE

The issue is whether Respondent, Carolina Casualty

Insurance Group (ÐCarolinaÑ), retaliated against Petitioner for

his exercise of protected rights, in violation of section

760.10, Florida Statutes (2015). 2 /

PRELIMINARY STATEMENT

On or about November 24, 2015, Petitioner , J.L. Nieman

("Petitioner") , filed with the Flori da Commission on Human

Relations ("FCHR") a Charge of Discrimination against Carolina.

Petitioner alleged that he had been discriminated and/or

retaliated against pursuant to chapter 760, Florida Statutes,

Title VII of the Federal Civil Rights Act, and/or the Federal

Age Discrimination Act, based upon race, sex, and/or age, as

follows:

I applied for a position (Vice President

Claims) on or about 10/2/2015 and

10/23/2015. While the application was

acknowledged both times I was refused

interview or hire whi le similar or lesser

qualified candidates have been sought and/or

granted more favorable treatment. On

11/23/2015, after the posting was refreshed,

I inquired as to status and was told that

(by James R. Moody) I was disqualified

because I lacked sufficien t experience.

This is clearly false based upon my

objective qualifications, I have corrected

employer as to this fact, but they have

refused to alter their stance. Good

evidence and/or good faith suggests that I

have suffered illegal discrimination and/o r

retaliation by this employer and its

employees and/or executive officers.

Petitioner attached a three - page letter with exhibits to

his Charge of Discrimination. The letter provided more detail

as to PetitionerÓs factual allegations and concluded as fol lows:

What is not known is the exact unlawful

basis for my disqualification. It is easily

discernible by employers and decision

makers, most of whom use the Internet or

background searches on candidates, that I

have taken part in protected employment

cond uct in the past. This has been used as

a basis to blacklist me on numerous

occasions and is one of the reasons I do not

current [sic] use my full legal name (Jason

Lee Nieman) in applications or in

professional settings. However, I believe

that the emplo yer and/or decision - makers

became aware of this and used it as an

illegal basis to blacklist me as well.

Similarly or separately we know that

discrimination based upon age, gender and

race is somewhat common, despite state and

federal prohibitions. Becau se I must claim

these illegal bases or forever waive them, I

am including such items as the basis for my

charge, but will plan to amend the charge to

remove any inappropriate items if I am

granted sufficient access to the records

and/or communications of t he employer (or if

the administrative bodies are and can

provide me with credible information) as to

the exact nature of the unlawful

discrimination that has occurred in this

case.

The FCHR investigated Petitioner's Charge. In a letter

dated May 20, 2016 , the FCHR issued its determination that there

was no reasonable cause to believe that an unlawful practice had

occurred . The letter stated as follows, in relevant part:

Complainant was unable to establish that

Respondent discriminated against him due to

his sex, age, or race. Respondent was not

aware of ComplainantÓs age or race when he

applied for the position in question.

Evidence presented shows that Complainant

was not hired for the position because he

was not the most qualified candidate.

Responde nt filled the position in question

during the course of this investigation with

an applicant that was only three years

younger than Complainant and is the same

sex. Insufficient evidence was provided to

demonstrate that Complainant engaged in a

protected activity that could lead to

unlawful retaliation, or that Respondent was

aware of any such activity.

On June 20, 2016, Petitioner timely filed a Petition for

Relief with the FCHR. On June 27, 2016, the FCHR referred the

case to the Division of Administra tive Hearings ("DOAH"). The

case was scheduled for hearing on August 16 and 17, 2016.

On July 29, 2016, Petitioner filed two motions: a Motion

to Compel Proper Interrogatory Responses, Verification Thereof,

Production Responses from Respondent, and to Co mpel Attendance

of Certain Material Witnesses and/or Decision - Makers at DOAH

Hearing of August 17/18, 2016 (ÐMotion to CompelÑ) ; and a Motion

in Limine and/or Protective Order (ÐMotion in LimineÑ).

Respondent filed written responses in opposition to both

motions. On August 11, 2016, a telephonic hearing was convened

on the pending motions. On August 12, 2016, the undersigned

entered an order memorializing the rulings made at the hearing.

The Motion in Limine requested that: (1) Respondent be

prohibited from presenting evidence regarding PetitionerÓs

previous unrelated employment discrimination cases , and

(2) Respondent be prohibited from seeking discovery or testimony

from PetitionerÓs current employer. As to issue (2), the

parties agreed that no discov ery from PetitionerÓs current

employer would be taken. As to issue (1), the undersigned

withheld ruling prior to the taking of evidence at the hearing.

The undersigned ruled that evidence regarding previous

litigation is not admissible to demonstrate pro pensity, but may

be admitted to show a plan or scheme or to attack credibility.

The undersigned determined that a ruling prior to the taking of

evidence could also constitute a premature ruling on

PetitionerÓs credibility.

The Motion to Compel requested : (1) that RespondentÓs

interrogatory responses be stricken because they were not

verified under oath; (2) that Respondent be required to produce

Nelson Tavares, Senior Vice President for RespondentÓs parent

company, W.R. Berkley Corporation, to testify at the hearing ,

despite the facts that Mr. Tavares does not work for the

corporate entity named in this proceeding and that Mr. Tavares

lives and works in Connecticut; (3) that RespondentÓs claims of

attorney/client privilege and work product be overruled , an d

Respondent be required to produce all documents created during

the initial investigation of Peti tionerÓs claim by the FCHR;

(4) that Respondent be required to produce information regarding

everyone in the applicant pool for the position for which

Petitio ner applied, particularly persons alleged to have been

granted a telephone interview; and (5) that Respondent be

required to produce electronic items in their native form,

including metadata.

As to issue (1), the parties agreed that Respondent had

cured an y alleged deficiency in its interrogatory responses

prior to the motion hearing.

As to issue (2), the undersigned stated that the reach of

any subpoena issued by this tribunal would fall short of

requiring the attendance of Mr. Tavares. The undersigned

in dicated his willingness to grant a continuance of the hearing

to allow Petitioner time to attempt service on Mr. Tavares in

Connecticut for the purpose of taking his deposition.

Petitioner considered but declined the offer, opting instead to

request sanct ions against Respondent should it ultimately be

determined that Mr. Tavares was a necessary witness , and to

request that any testimony by other witnesses as to statements

purportedly made by Mr. Tavares be disallowed as hearsay. 3 /

As to issue (3), the unde rsigned denied PetitionerÓs motion

without prejudice to PetitionerÓs ability to make a more defined

request for specific documents allegedly being withheld by

Respondent and not subject to privilege. However, Petitioner

was cautioned that the undersigned would not be inclined to

order Respondent to turn over documents that included

communications between RespondentÓs employees and its attorneys

during the FCHR investigation.

As to issue (4), Petitioner stated that the only theory of

discrimination he inten ded to pursue at the final hearing was

the retaliatory failure to hire based on RespondentÓs knowledge

of PetitionerÓs past protected conduct. Having thus limited his

theory of discrimination, Petitioner agreed that he no longer

required access to informa tion regarding the entire applicant

pool. Petitioner indicated that he would be satisfied with

information regarding the person whom Carolina hired to fill the

position at issue , and regarding Michael Bellomo, an applicant

who Petitioner contended had rec eived a telephone interview.

Respondent indicated that it would provide Petitioner with this

information.

As to issue (5), the parties agreed that Respondent would

attempt to bring to the hearing a computer that would allow

Petitioner to see the CATS (can didate tracking system) data in

the same format as that seen and used by RespondentÓs employees.

Counsel for Respondent was able at the hearing to satisfy

PetitionerÓs request to see the CATS data in its native form.

The hearing was convened and compl eted on August 17, 2016.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Catherine Steckner, CarolinaÓs Vi ce

President of Human Resources; and of James Moody, a former

recruiting and training coordinator for Carolina. PetitionerÓs

Exhibits 1 through 14 and 16 were entered into evidence.

Respondent separately presented no witnesses, having been given

greater scope during the cross - examination of Ms. Steckner and

Mr. Moody to establish its case. RespondentÓs Exhibits 1

through 3, 8, 11, 14, 15, 20, 23, and 28 were admitted into

evidence.

The one - volume Transcript of the hearing was filed at DOAH

on August 31, 2016. Both parties timely filed their Proposed

Recommended Orders.

FINDING S OF FACT

1. Carolina is an empl oyer as that term is defined in

section 760.02(7). Carolina is an insurance company that deals

exclusively with commercial transportation, more specifically

the trucking industry. Carolina is an operating unit of the

Berkley Insurance Company, which in t urn is a sub sidiary of

W.R. Berkley Corporation, which owns roughly 50 niche property

lines casualty insurance companies. Carolina has its own

management team and is responsible for its own financial

results, although there is some interaction at the exec utive

level with Berkley Insurance Company and W.R. Berkley

Corporation.

2. Catherine Steckner has been the Vice President of Human

Resources for Carolina since August 2000.

3. Josephine Raimondi is an in - house attorney for the

W.R. Berkley Corporation and in that role provides legal counsel

to Carolina.

4. Nelson Tavares is Senior Vice President of Claims for

W.R. Berkley Corporation.

5. On October 1, 2015, Carolina posted a notice that it

was accepting applications for its Vice President of Claims

po sition, hereinafter referenced as ÐVP ClaimsÑ. The position

had been open since September 2015, when the incumbent employee

resigned. The job posting was done by way of CarolinaÓs

electronic applications system called ÐCATS,Ñ 4 / which forwards

the notice to career sites such as Indeed, Juju, Career

Builders, and LinkedIn , and through which applications are

received and evaluated by Carolina. The posting summarized the

VP Claims position as follows:

Oversee the Claims department; responsible

for leading th e development, implementation

and execution of claims strategies,

initiatives and processes. Lead and direct

department leadership and personnel in

achieving high standards of productivity,

efficiency and alignment of organizational

goals. Ensure complia nce with all local,

federal and state regulations related to

claims while minimizing risk/exposure to the

organization.

6. The posting stated that a bachelorÓs degree was

preferred, and that a juris doctor degree and/or CPCU would be

Ða plus.Ñ ÐCPCUÑ is an insurance industry professional

certification called Chartered Property Casualty Underwriter.

Ms. Steckner testified that a CPCU is generally expected of a

manager or senior management employee and represented the level

of mastery or career advancemen t that Carolina was seeking in

its VP Claims.

7. Under the heading ÐExperience Required,Ñ the posting

stated: Ð10+ years of liability and bodily injury claims

experience; 5 years management experience; P&C, bodily injury

claims, and transportation/truck ing experience preferred.Ñ

8. Ms. Steckner testified that Carolina was in no hurry to

fill the VP Claims position. The critical factor was to hire

the right person with the best qualifications because Carolina

was a struggling business that was undergoin g downsizing.

9. Ms. Steckner testified that she and Carolina President ,

Gerald Bushey , were involved in the planning phase for filling

the VP Claims post. Because there was no incumbent VP Claims at

Carolina, they looked up the corporate chain for add itional

assistance. Nelson Tavares, Senior Vice President at

W.R. Berkley, stepped in to assist Ms. Steckner and Mr. Bushey

at this stage of the process.

10. Ms. Steckner testifie d that she, Mr. Bushey, and

Mr. Tavares determined that Carolina would pref er a candidate

with a juris doctor degree and/or litigation experience because

the company was about to revamp its litigation guidelines. The

company would obviously prefer trucking/transportation

experience because that is the niche industry in which Car olina

operates. Ms. Steckner testified that their preference was also

for someone already in a senio r executive position because

VP Claims is solely responsible for leading, implementing , and

executing CarolinaÓs claims strategies. Carolina has no

A ssist ant V ice P resident of C laims position to share the

strategic load.

11. On October 2, 2015, at 6:35 a.m., Petitioner

electronically submitted his resume and a cover letter ,

summarizing his experience and interest in the VP Claims

position. PetitionerÓs se lf - description in his resume was as

follows:

Mid - level insurance claims executive with

extensive knowledge and experience in the

insurance industry. Highly developed

exposure analysis and claims/litigation

management abilities have led to favorable

claims resolutions and have prevented

adverse verdict situations against insureds,

clients and carriers.

Solid team building and motivational skills

proved by formation of two claim teams from

ground up, and steady improvement in results

of all groups managed t hroughout career.

Excellent written and verbal communication

skills complement analytical capabilities.

12. PetitionerÓs professional experience was listed as

follows: Senior Manager, Claims for Southeastern Grocers from

June 15, 2015 to present; Claim s and Litigation Manager for the

Illinois Municipal League from August 2009 , to April 22, 2015

(Petitioner noted that this position was eliminated Ðin a broad

cost cutting actionÑ); Claims Director, Commercial Casualty and

Litigation for Nationwide Insuran ce Company from September 2005 ,

to June 21, 2009 (Petitioner noted that this position, too, was

eliminated in a broad cost - cutting action); Commercial Claims

Consultant for Nationwide Insurance Company from October 2004

until his promotion in September 200 5; Excess and Surplus Claim

Manager for K&K Insurance Group from January 2004 to

October 2004; Litigation Specialist for K&K Insurance Group from

2001 to 2004; Litigation Specialist for Zurich North America

from April 2000 to May 2001; and several position s, culminating

in Claim Manager/Supervisor, for St. Paul Companies/Metlife from

August 1995 through April 2000. The Zurich North America

position is the only one where Petitioner noted direct

experience in the trucking industry.

13. PetitionerÓs educatio n included a bachelorÓs degree in

finance from Washington State University and a master of

business administration from the University of Illinois.

Petitioner had the preferred CPCU designation in addition to

several other industry certifications.

14. Pe titionerÓs submission was first reviewed by

James Moody, then the recruiting and training coordinator for

Carolina, who was tasked with screening the applications and

forwarding any promising ones to Ms. Steckner for further

review. Ms. Steckner would the n determine whether the

application should be sent up the line to Mr. Bushey for

feedback and possible approval of scheduling a telephone

interview with the candidate. If Carolina remained interested

in the candidate after the telephone interview, it woul d arrange

for an in - person interview.

15. Mr. Moody testified that PetitionerÓs was one of the

first applications submitted and that he decided to send it on

to Ms. Steckner. He estim ated that he reviewed about

120 applications for the VP Claims position from October through

December 2015 and that he se nt about ten of those on to

Ms. Steckner. Mr. Moody further stated that, in hindsight,

PetitionerÓs was not one of the ten best applications he

reviewed because the quality of the applicants improved as th e

process moved forward, with several candidates who had the

senior executive level experience that Petitioner lacked.

16. Mr. MoodyÓs practice was to search online to see if a

candidate had a LinkedIn profile. He would compare the profile

to the resum e submitted by the candidate to make sure they

matched. Mr. Moody testified that he never located a LinkedIn

profile for Petitioner and that he did not bother with any

further online research because he had already decided to

forward PetitionerÓs applicat ion to Ms. Steckner.

17. Ms. Steckner reviewed PetitionerÓs resume and cover

letter and forwarded them to Mr. Bushey via email at 1:20 p.m.

on October 2, 2015. In her email to Mr. Bushey, Ms. Steckner

noted that PetitionerÓs cover letter was Ðrather leng thyÑ and

that he had a Ðcouple of quick in and out roles in a few

places.Ñ

18. Ms. Steckner testified that she sent the resume and

cover letter on to Mr. Bushey because it showed that Petitioner

had Ða touchÑ of experience in the trucking industry. She

stated that she did not do a point - by - point comparison between

PetitionerÓs application and the requirements of the job

description because she knew what Carolina was looking for.

19. Mr. Bushey never responded to the email or followed up

with her regard ing PetitionerÓs application.

20. Ms. Steckner testified that shortly after Petitioner

submitted his application, Mr. Bushey announced his retirement,

with a separation date of June 30, 2016. After this

announcement, Mr. Bushey began to phase himself out of the

companyÓs activities and took no further part in the recruitment

process for the VP Claims position. As President and CEO of

Carolina, Mr. Bushey would have been the person to interview and

hire the VP Claims. Mr. Tavares stepped in to fill the v oid

left by Mr. Bushey in the recruitment process , as well as to

fill the role of acting VP Claims for Carolina.

21. Ms. Steckner testified that after she received no

response from Mr. Bushey , she engaged in a closer review of

PetitionerÓs experience and qualifications. She conceded that

Petitioner met the basic education and experience requirements

set forth in the job description, but that he lacked many of the

preferred qualities Carolina sought in its VP Claims.

Petitioner lacked experience at the s trategic, senior executive

level of a company. Ms. Steckner noted that Petitioner

described himself as a Ðmid - level insurance claims executiveÑ

and that he had no recent trucking experience. Ms. Steckner

stated that she saw Petitioner as a possibility ea rly in the

recruiting process, but that stronger resumes came in later and

she eliminated Petitioner from consideration.

22. Ms. Steckner testified that during her close review of

PetitionerÓs resume, she recalled that Carolina had recently

hired a claims adjustor from Southeastern Grocers, PetitionerÓs

current employer. Ms. Steckn er phoned the adjustor, Katelyn

Linville, to inquire about Petitioner. She asked Ms. Linville

whether Petitioner was an employee worth pursuing. Ms. Linville

responded, ÐNo, n ot in my opinion.Ñ Ms. Steckner thanked her

and said that was all she needed. Ms. Steckner testified that

the entire conversation lasted approximately 45 seconds.

23. Ms. Steckner testified that this conversation with

Ms. Linville was not decisive but Ð solidified and cementedÑ her

own conclusion that Petitioner was not an appropriate candidate

for the VP Claims position. Ms. Steckner testified that it is

common in recruiting to speak to employees about job applicants

whom they know. She did not expect Ms. Linville to provide

detailed information about PetitionerÓs executive or trucking

experience. She only wanted Ms. LinvilleÓs opinion as to

whether Petitioner was worth bringing in for an interview.

24. Petitioner testified that Ms. Linville had worke d for

him at Southeastern Grocers and that they have maintained a

friendly relationship since she left the company. Petitioner

testified that in an Augu st 2015 office conversation ,

Ms. Linville told him that she had searched the internet and

learned of hi s various discrimination lawsuits and

administrative proceedings against previous employers and

prospective employers. She told him with some admiration that

this was an indication Petitioner knew how to take care of

himself and not be bullied in the work place. Petitioner

testified that Ms. Linville agreed not to spread word of his

litigation around the Southeastern Grocers workplace.

25. Petitioner testified that after he learned through

discovery that Ms. Linville had spoken to Ms. Steckner, he

phoned Ms. Linville and asked her about the conversation.

Ms. Linville told him that she had never spoken to Ms. Steckner

about Petitioner.

26. Carolina has urged that PetitionerÓs recollection of

his conversation with Ms. Linville be disregarded as unreliable

hearsay. However, PetitionerÓs recollection is no more or less

a hearsay statement than is Ms. StecknerÓs recollection of her

conversation with Ms. Linville. The undersigned finds that both

Ms. Steckner and Petitioner are truthfully and accurately

recall ing conversations they had with Ms. Linville. The

undersigned finds that Ms. Linville was in all likelihood being

deceptive when she denied to Petitioner that she had discussed

him with Ms. Steckner. Thr ough her internet research,

Ms. Linville was well a ware of how Petitioner tended to react

when crossed.

27. Petitioner argues that Ms. Linville has always spoken

of him as a great manager who treated her well and for whom she

would work again Ðin a second.Ñ Petitioner contends that, even

if the convers ation with Ms. Steckner occurred, the only reason

Ms. Linville would have for fail ing to recommend him for the

VP Claims position at Carolina is her knowledge of his prior

litigation.

28. PetitionerÓs argument on this point is rejected as

unsupported by any credible evidence. Having failed to secure

Ms. LinvilleÓs presence as a witness in this proceeding,

Petitioner may not offer unfounded theories regarding her motive

in telling Ms. Steckner that Petitioner was not worth

interviewing.

29. In any eve nt, Ms. LinvilleÓs role in the decision not

to interview Petitioner was vanishingly minor. Her ÐnoÑ simply

confirmed the conclusion that Ms. Steckner had already reached.

The fact that Ms. Steckner saw no need to inquire further of

Ms. Linville indicates that her mind was more or less made up

before she placed the phone call.

30. Ms. Steckner testified that she has never conducted an

internet search on Petitioner. At the time she eliminated him

from consideration for the position of VP Claims, Ms. Steck ner

had no knowledge of PetitionerÓs litigation history.

31. The first round of applications did not yield any

satisfactory candidates for the position. On October 23, 2015,

Ms. Steckner re - posted the advertisement for the open VP Claims

position.

32. O n October 25, 2015, Petitioner resubmitted his resume

and cover letter, without changes to either.

33. No candidate was hired as a result of the October 23,

2015, posting.

34. Michael Bellomo was one of the applicants who

responded to the October 23 post ing. At one time, Mr. Bellomo

had been PetitionerÓs superior at Southeastern Groceries.

Petitioner testified that he asked Mr. Bellomo whether he had

gotten an interview at Carolina. Mr. Bellomo responded, ÐYeah,

I got kind of -- some kind of phone thing, but I havenÓt heard

anything back.Ñ Petitioner contended that his qualifications

were at least the equal of Mr. BellomoÓs and that CarolinaÓs

giving a phone interview to Mr. Bellomo but not to him indicated

that Carolina was discriminating against him.

3 5. Mr. Moody forwarded Mr. Bellomo's resume and cover

letter to Ms. Steckner but she felt he was not a good fit for

the position. She testified that Mr. Bellomo was in risk

management, not claims. His previous experience was in a

financial services role . She saw nothing on his resume

regarding the trucking industry.

36. Ms. Steckner never spoke to Mr. Bellomo. Mr. Moody

testified that he did not interview Mr. Bellomo. On November 6,

2015, Mr. Moody sent Mr. Bellomo a ÐDear JohnÑ email declining

his application for lack of trucking experience and Ða heavy

casualty claims background.Ñ Mr. Bellomo responded on the same

day with a supplement to his resume that Mr. Moody promised to

forward to the hiring manager.

37. Ms. Steckner had no re collection of reconsidering

Mr. BellomoÓs resume. On November 18, 2015, Mr. Bellomo emailed

Mr. Moody to inquire as to the status of his application.

Mr. Moody responded that he sent all of Mr. BellomoÓs

information Ðto the next levelÑ but that no interest had been

expressed in pursuing the application further. Mr. Moody

testified that at some point du ring these email exchanges,

Mr. Bellomo phoned his office to confirm receipt of information.

Mr. Moody stated that this wa s the only time he spoke to

Mr. Bellomo on the phone. Mr. MoodyÓs testimony on this point

is credited. There was no phone interview with Mr. Bellomo.

38. On November 20, 2015, Ms. Steckner posted the job

opening for the VP Claims position a third time. The third wave

of responses included the r esume of Bryan Fortay, the person who

was ultimately hired for the position.

39. On November 23, 2015, at 7:02 a.m., Petitioner sent

the following email to Mr. Moody:

Good morning,

I just noticed that this position was

recently refreshed or reposted.

I was curious if I might be given the

opportunity to interview for this particular

role, or if not, if there is a specific

reason that I have been declined the

opportunity to interview?

40. At 7:43 a.m., Mr. Moody responded as follows:

Jay, your informatio n was reviewed and the

decision was made not to move forward in the

process. They are looking for someone with

a lot of carrier experience, heavy casualty

background, and not Workers Comp or General

Liability.

Thanks again for your interest.

41. At 9:01 a.m., Petition er emailed the following to

Mr. Moody:

Thank you. As my resume and cover letter

show, I have extensive carrier, commercial

auto, and trucking background and meet all

objective requirements on the advertisement

(posting). Despite this, I wa s denied

interview while candidates with similar or

lesser qualifications are still being

sought. Please advise your general counsel

that I am requesting preservation of all

evidence as I will be initiating formal EEOC

and FHRC charges immediately.

42. At 8:55 p.m. on November 23, 2015, Petitioner emailed

to Mr. Moody a letter addressed to Ms. Steckner that read as

follows, in relevant part:

Good evening,

As you are likely aware, I recently applied

for the position of Vice President of

Claims, which has been seeking applicants on

media such as Indeed.com since approximately

October 2, 2015. I applied initially, on or

about October 2, 2015 and refreshed my

posting on or about October 23, 2015 when

the position was reposted. I received

acknowledgements b oth times from Mr. James

Moody. Despite this fact, I was never

offered [an] interview in any way for the

position.

I noted that the position was again

refreshed over the weekend and reached out

to Mr. Moody. He responded on this date,

stating:

ÐJay, yo ur information was reviewed and the

decision was made not to move forward in the

process. They are looking for someone with

a lot of carrier experience, heavy casualty

background, and not Workers Comp or General

Liability.Ñ

Respectfully, such an assertio n does not

appear to be credible in the least. A

simple review of my qualifications shows

that they exceed the minimum qualifications

and match or exceed the preferred

qualifications sought for the role. My

resume and cover letter also make it clear

that I have extensive carrier and trucking

experience. Despite this, I was denied

interview for the role.

If I am correct, I have suffered unlawful

discrimination by your organization as to

the refusal to even consider me for this

role which I am objectively qualified for,

while other candidates of similar or lesser

qualifications have been sought. This is

clearly unlawful and I have already

established a prima facie case of

discrimination and/or retaliation under

federal law and/or the Florida Human Rights

Act. See, e.g., Smith v. Lockheed - Martin

Corporation , 644 F.3d 1321 (11th Cir.2011),

Vessels v. Atlanta Indep. Sch. Sys. , 408

F.3d 763, 769 (11th Cir.2005). As such, I

am moving to initiate charges with the U.S.

EEOC and Florida Human Rights Commission

i mmediately.

43. The letter concluded with three single - spaced pages of

instructions regarding CarolinaÓs responsibilities as regards

the preservation of evidence, including electronically stored

information.

44. On November 24, 2015, Petitioner dual - fil ed his Charge

of Discrimination with the Equal Employment Opportunity

Commission and the FCHR.

45. Ms. Steckner contacted Ms. Raimondi regarding

PetitionerÓs charge. Ms. Steckner testified that she spoke to

no one else within Carolina or any other W.R. B erkley entity

about PetitionerÓs charge prior to the hiring of outside

counsel.

46. The law firm of Foley & Lardner, LLP, was retained by

Carolina to defend the company against PetitionerÓs charge. As

noted in the Preliminary Statement, supra , Petitioner Ós letter

to the FCHR included the following:

[ I ] t is easily discernible by employers and

decision makers, most of whom use the

Internet or background searches on

candidates, that I have taken part in

protected employment conduct in the past.

This has bee n used as a basis to blacklist

me on numerous occasions and is one of the

reasons I do not current [sic] use my full

legal name (Jason Lee Nieman) in

applications or in professional settings.

47. Based on those statements, Foley & Lardner searched

court records and found that Petitioner has filed numerous

actions against other insurance companies for failure to hire

him. He has also filed suits against internet services that

provided the public with information about his prior litigation.

The investigat ion by outside counsel, conducted after Petitioner

filed his charge against the company and during the FCHRÓs

investigation of the charge, was the first time Ms. Steckner or

any other employee of Carolina learned of PetitionerÓs past

litigation.

48. Ms. S teckner credibly testified that she was solely

responsible for the decision not to interview Petitioner for the

VP Claims position and that her reasons for the decision had to

do with PetitionerÓs qualifications for the job, not with past

litigation.

49. Bryan Fortay applied for the VP Claims position in

response to the November 20, 2015 , posting. Mr. FortayÓs resume

indicated senior executive experience with claims, including

responsibility for more than $650 million in annual claims, and

16 years of exp erience in the claims business. His most recent

claims experience was in a v ice p resident position in which he

handled trucking claims, a match for CarolinaÓs desired

qualifications. Mr. Fortay had extensive experience in the

trucking and transportation industry, had led a sensitive two -

year reorganization of a national claims department, and had

completely turned around an underachieving litigation unit. He

had a j uris d octor degree and had practiced law for four years

with a national law firm, with a c ase load that included

trucking and transportation insurance defense.

50. Ms. Steckner conducted a telephone screening and then

recommended Mr. Fortay for an in - person interview. Mr. Tavares

conducted the interview and hired Mr. Fortay for the VP Claims

position in March 2016. Mr. Fortay began working for Carolina

in April 2016.

51. At the hearing, Petitioner conceded that Mr. Fortay

was qualified for the VP Claims position, though he refused to

concede that Mr. Fortay was more qualified than he. Peti tioner

noted that Carolina is a struggling company and that it could

have had him for much less money than it was paying Mr. Fortay.

Carolina would not have had to pay moving expenses for

Petitioner, who was already in Jacksonville, whereas it was

paying to relocate Mr. Fortay and his family from Pennsylvania.

Petitioner also contended that he would have accepted a smaller

salary than the $230,000 that Carolina offered Mr. Fortay.

52. The undersigned is not in a position to second - guess

CarolinaÓs decisi on to interview and hire a management - level

employee who was manifestly qualified for the position, absent

evidence that the decision was rooted in retaliation against

Petitioner.

53. The fact that Petitioner met the minimum posted

qualifications for the VP Claims position did not give him a

justiciable right to be interviewed or hired for the position,

absent any evidence of a retaliatory reason for CarolinaÓs

decision not to interview him.

54. Petitioner failed to establish that Ms. Steckner or

anyone else at Carolina was aware of his past protected conduct

at the time Ms. Steckner made the decision not to interview him.

PetitionerÓs resume was not such an overwhelming match for the

VP Claims position as to render Ms. StecknerÓs action irrationa l

or to allow an inference that a retaliatory reason must have

lain behind her decision.

55. Petitioner made much of the fact that his application

was initially forwarded to Mr. Bushey for consideration. Both

Ms. Steckner and Mr. Moody testified that Pet itionerÓs was one

of the better resumes to arr ive during the first wave of

46 applications received in response to the October 1, 2015,

posting. However, Carolina received 42 applications in response

to the October 23, 2015, posting and another 41 in resp onse to

the November 20, 2015 , posting. Both Ms. Steckner and Mr. Moody

credibly testified that as the process went forward ,

PetitionerÓs qualifications paled in comparison to the executive

level managers who were apply ing. It is also noted that

Mr. Bush ey had nothing to say about PetitionerÓs application.

56. Mr. Moody's employment with Carolina ended on

December 31, 2015. His position was eliminated as part of a

workforce reduction at Carolina. Ms. Steckner testified that

Mr. MoodyÓs dismissal was un related to his job performance. She

stated that high - level discussions about job cuts had gone on

for at least six months prior to Mr. MoodyÓs position being cut.

Mr. Moody himself testified that he had known for some months

that his job was likely to be eliminated because Carolina was

not doing much hiring and thus had little immediate need for a

recruiting and training person in the human resources

department. Mr. Moody was given a severance package similar to

those provided to other Carolina employees who were laid off

during that phase of workforce reduction.

57. Petitioner alleged that Mr. MoodyÓs dismissal was

somehow tied to his actions during the recruitment process for

the VP Claims position. Petitioner also implied that Carolina

provided an es pecially generous severance package to Mr. Moody

in exchange for his favorable testimony in this proceeding.

Petitioner offered no credible evidence to support either claim.

58. Finally, Petitioner argued at the hearing that because

Carolina had not fill ed the VP Claims position at the time it

learned, through its outside counsel, of PetitionerÓs past

protected activities, the company should have changed its mind

and interviewed him. Further, CarolinaÓs failure to change its

mind and interview Petitioner constituted retaliation, given

that Carolina now knew of PetitionerÓs past protected

activities.

59. The undersigned places to one side the obvious

question of why Carolina would change its mind and consider

hiring someone who had already brought spuriou s charges against

it at the EEOC and the FCHR. Nothing about PetitionerÓs

qualifications for the VP Clai ms position changed between

Ms. StecknerÓs decision in October 2015 and the completion of

Foley & LardnerÓs investigation. The only new information in

CarolinaÓs possession was the knowledge of PetitionerÓs prior

litigation against other insurance companies. PetitionerÓs

notion, apparently, is that subsequently learning of his past

protected activities obligated Carolina to rescind its initial

decision to disqualify him from consideration for the VP Claims

position. PetitionerÓs argument on this point is rejected.

60. In summary, Petitioner offered no credible evidence

that CarolinaÓs failure to call him back for an interview was in

retaliation for an y complaint of discriminatory employment

practices that he made in the past. Carolina had no knowledge

of PetitionerÓs past protected activities at the time it decided

not to interview Petitioner.

CONCLUSIONS OF LAW

61. The Division of Administrative Hea rings has

jurisdiction of the subject matter and of the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

62. The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), chapter 760 , prohibits employer

retaliation f or engaging in protected activity.

63. Section 760.10 states the following, in relevant part:

(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 any

practice which is an unlawful employment

pract ice 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.

64. Carolina is an "employer" a s defined in section

760.02(7) , w hich p rovides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

65. Florida courts have determined that federal case law

applies to claims arising under the Florida Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under section 760.10, absent

direct evidence of discrimination or retaliation. 5 / See Harper

v. Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir.

1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 13 53,

1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d

923, 925 n.1 (Fla. 1st DCA 1996); Fla. DepÓt of Cm ty . Aff. v.

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

66. Under the McDonnell analysis, in employment

retaliation cases, Petitioner has the burden of establishing by

a preponderance of evidence a prima facie case of unlawful

retaliation. See, e.g. , Burlington Northern & Santa Fe v.

White , 548 U.S. 53 (2006). If the prima facie case is

established, the burden shifts to the employer to reb ut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non - retaliatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

the employer's offered reasons for its adverse employment

decision were pretextual. See Texas DepÓt of Cm ty . Aff. v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

67. In order to prove a prima facie case of unlawful

employment retaliat ion under chapter 760, Petitioner must

establish that: (1) he engaged in protected activity; (2) he

suffered an adverse employment action; and (3) there was a

causal relationship between (1) and (2). See Pennington v. City

of Huntsville , 261 F.3d 1262, 1 266 (11th Cir. 2001). 6 / To

establish this causal relationship, Petitioner must prove Ðthat

the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.Ñ

Univ. of Tex. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2533 (2013).

This standard has also been called Ðbut - for causation.Ñ See ,

e.g. , Frazier - White v. Gee , 818 F.3d 1249, 1258 (11th Cir.

2016) .

68. Petitioner established that he engaged in protected

activity by participating in prior employmen t discrimination

litigation.

69. Petitioner established that he suffered an adverse

employment action by not being interviewed or hired by Carolina

for the VP Claims position.

70. Petitioner has failed to establish the element of

causation. Petitioner o ffered no credible evidence that

Catherine Steckner, CarolinaÓs Vice President of Human Resources

and the person who made the decision not to interview

Petitioner, had any knowledge of his past litigation at the time

she eliminated him as a candidate for t he VP Claims position.

Petitioner offered only his speculation that someone at Carolina

must have performed an internet search of his full name, despite

the credible denials of Ms. Steckner and of James Moody, the

only Carolina employees involved in proce ssing his application.

71. The courts recognize a Ðcommon senseÑ requirement that

Ð[a] decision maker cannot have been motivated to retaliate by

something unknown to him.Ñ Brungart v. BellSouth Telecomms.,

Inc. , 231 F.3d 791, 799 (11th Cir. 2000). 7 / Ð[T ]emporal

proximity alone is insufficient to create a genuine issue of

fact as to causal connection where there is unrebutted evidence

that the decision maker did not have knowledge that the employee

engaged in protected conduct.Ñ Corbitt v. Home Depot U.S .A.,

Inc. , 589 F.3d 1136 (11th Cir. 2009), quoting Brungart , 231 F.3d

at 799. PetitionerÓs unsupported contention that Ms. Steckner

and/or Mr. Moody were lying does not constitute a rebuttal of

their testimonial evidence.

72. Even if Petitioner had met h is burden and established

a prima facie case of retaliation, he failed to show that

CarolinaÓs legitimate business reasons for not selecting him for

an interview were false and a pretext for retaliation. To

establish pretext, Petitioner must Ðcast suffici ent doubtÑ on

CarolinaÓs proffered nondiscriminatory reasons Ðto permit a

reasonable factfinder to conclude that the [employerÓs]

proffered legitimate reasons were not what actually motivated

its conduct.Ñ Murphree v. CommÓr , 644 Fed. Appx. 962, 968 (11th

Cir. 2016), quoting Combs v. Plantation Patterns , 106 F.3d 1519,

1538 (11th Cir. 1997). If the proffered reason is one that

might motivate a reasonable employer, Ðan employee must meet

that reason head on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom of that reason.Ñ

Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000) (en

banc). Pretext must be established with Ðconcrete evidence in

the form of specific factsÑ showing that the proffered reason

was pretext; Ðm ere conclusory allegations and assertionsÑ are

insufficient. Bryant v. Jones , 575 F.3d 1281, 1308 (11th Cir.

2009), quoting Earley v. Champion IntÓl Corp. , 907 F.2d 1077,

1081 (11th Cir. 1990).

73. It is not the place of the court or tribunal to

determin e who is better qualified for the job, or to sit in

judgment of the employerÓs selection. Ð[D]isparities in

qualifications must be of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could

have chosen the cand idate selected over the plaintiff for the

job in question.Ñ Cooper v. Southern Co. , 390 F.3d 695, 732

(11th. Cir. 2004), quoting Lee v. GTE Fla., Inc. , 226 F.3d 1249,

1254 (11th Cir. 2000). 7/

74. A courtÓs role is not to sit as a Ðsuper - personnel

depar tmentÑ to re - examine a companyÓs business decisions. The

court does not ask whether the employer selected the most

qualified candidate, but whether the selection was based on an

unlawful motive. Denney v. City of Albany , 247 F.3d 1172, 1188

(11th Cir. 20 01). The mere fact that Petitioner met the minimum

qualifications for the VP Claims position did not entitle him to

an interview or to be hired.

7 5 . Petitioner presented no evidence beyond his own

speculations that his limited and dated experience in t he

trucking industry and his lack of senior executive level

experience were not the actual reasons why Carolina decided not

to interview him for the VP Claims position. In the absence of

evidence that CarolinaÓs action was retaliatory, the undersigned

is constrained to defer to the companyÓs business decision.

7 6 . Petitioner did not come close to showing that his

qualifications were so superior to Bryan FortayÓs that no

reasonable person could have chosen Mr. Fortay over Petitioner

for the VP Claims posi tion. The evidence demonstrated that

Mr. Fortay was eminently qualified for the position, more so

than Petitioner. When confronted with Mr. FortayÓs manifestly

superior resume, Petitioner could only respond that Carolina

could have had him cheaper.

7 7 . Petitioner also made a ÐcatÓs pawÑ argument that

Ms. Steckner followed the biased recommendation of Ms. Linville

in deciding to reject him for an interview. See Staub v.

Proctor Hosp . , 131 S. Ct. 1186 (2011). This argument is

unavailing. Petitioner fail ed to establish that Ms. LinvilleÓs

advice during a 45 - second telephone conversation was the reason

Ms. Steckner eliminated him as a candidate. See Crawford v.

Carroll , 529 F.3d 961, 979 (11th Cir. 2008)(evidence must

support that the subordinate exercise d Ðundue influenceÑ over

the decision - maker). No evidence was presented, aside from

PetitionerÓs speculation, as to Ms. LinvilleÓs motive in telling

Ms. Steckner that Petitioner was not worth an interview.

7 8 . In summary, Petitioner failed to establish that

CarolinaÓs reason for rejecting his application and failing to

interview him for the VP Claims position was for any other

reason than the business reasons proffered by Carolina.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Carolina Casualty Insurance

Group did not commit any unlawful employment practices and

dismissing the Petition for Relief filed in this case.

D ONE AND ENTERED this 1st day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 1st day of November , 2016 .

ENDNOTE S

1/ The style of the case has been amended to correct

RespondentÓs name.

2 / Citations shall be to Florida Statutes (2015) unless

otherwise specified. Section 760.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discrimi natory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

3 / By the end of the final hearing, it had been established that

Mr. Tavares had no involvement in the decision not to interview

Petitioner for the position at issue. Petitioner agreed that it

would not be necessary to continue the hearing in order to

schedule a deposition of Mr. Tavares.

4 / The record does not disclose what the ÐCATSÑ acronym stands

for.

5 / Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)).

ÐOnly the most blatant remarks, whose intent could be nothing

other than to discriminate on the basis of a protected

classification, constitute direct evidence.Ñ Kilpatrick v.

Tyson Foods, Inc. , 268 Fed. Appx. 860, 862 (11th Cir.

2008)(citation omitted). Direct testimony that a defendant

acted with a retaliatory motive, if credited by the finder o f

fact, would change the legal standard ÐdramaticallyÑ from the

McDonnell test. Bell v. Birmingham Linen Serv . , 715 F.2d 1552,

1557 (11th Cir. 1983). Petitioner offered no evidence that

would satisfy the stringent standard of direct evidence of

retaliati on.

6 / Florida courts have articulated an identical standard:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffere d

adverse employment action and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster EntmÓt Corp. , 139 F.3d

1385, 1388 (11th Cir.), cert. denied 525

U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422

(199 8) . Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id.

Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th

DCA 2009).

7 / Brungart was decided under the Family and Medi cal Leave Act,

but its reasoning as to the element of retaliation has been

repeatedly applied in cases involving Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e , et seq . See, e.g. ,

Mitchell v. Mercedes - Benz U.S. IntÓl, Inc. , 637 Fed. Appx. 53 5,

539 (11th Cir. 2015) ; and Willis v. Publix Super Mkts., Inc. ,

619 Fed. Appx. 960, 962 (11th Cir. 2015).

8 / In reviewing the cases of other circuits, the Lee court

fastened upon a decision from the 5th Circuit: "Disparities in

qualifications are not e nough in and of themselves to

demonstrate discriminatory intent unless those disparities are

so apparent as virtually to jump off the page and slap you in

the face." Lee , 226 F.3d at 1254, quoting Deines v. Tex . Dep't

of Prot. & Reg. Servs. , 164 F.3d 277, 280 (5th Cir. 1999).

However, in Ash v. Tyson Foods, Inc. , 546 U.S. 454 (2006), the

Supreme Court expressly disapproved the Ðslap you in the faceÑ

image as Ðunhelpful and imprecise as an elaboration of the

standard for inferring pretext from superior qua lifications.Ñ

546 U.S. at 457. The Supreme Court approved the Cooper

formulation quoted in the main text. Id.

COPIES FURNISHED:

Kevin E. Hyde, Esquire

Leonard V. Feigel, Esquire

Foley and Lardner, LLP

Suite 1300

One Independent Drive

Jackso nville, Florida 32202 - 5017

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Jason Nieman

832 Chanterelle Way

Fruit Cove, Florida 32259

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.