16-006584 Veronica Bell Ogbeifun vs. One Hope United Status: Closed Recommended Order on Thursday, June 1, 2017.

Summary: No direct evidence that discharge was because of race or retaliation for earlier discrimination complaint. No persuasive indirect evidence of discrimination or retaliation. Law does not forbid irrational or unfair employment actions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA BELL OGBEIFUN,

Petitioner,

vs. Case No. 16 - 6584

ONE HOPE UNITED,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newt on, II, of the

Division of Administrative Hearings (DOAH), conducted the final

hearing in this matter on April 4, 2017, by video conference at

sites in Tallahassee and Lakeland, Florida.

APPEARANCES

For Petitioner: Veronica Bell Ogbeifun , p ro s e

1012 Kentucky Street

Haines City, Florida 33844

For Respondent: Andrew R. Lincoln, Esquire

Jackson Lewis

Suite 2200

100 South Ashley Drive

T ampa, Florida 33602

STATEMENT OF THE ISSUE S

A. Did Respondent, One Hope United (One Hope), discriminate

against Petitioner, Veronica Bell Ogbeifun, on account of her

race?

B. Did One Hope retaliate against Ms. Ogbeifun for filing a

complaint of discrim ination with the Florida Commission on Human

R elations ( Commission)?

PRELIMINARY STATEMENT

By Charge of Discrimination dated January 13, 2016, and

amended March 14, 2016, Ms. Ogbeifun charged One Hope with

discriminating against her in employment on accoun t of her race

and sex. She also charged One Hope with retaliating aga inst her

for filing an earlier C harge of D iscrimination with the

Commission. The Commission issued a Determination of No Cause.

Ms. Ogbeifun filed a Petition for Relief from an Unlawfu l

Employment Practice . The petition claimed One Hope discriminated

against her on account of her race and retaliated against her for

filing an earlier charge. The petition did not claim sex

discrimination. The Commission transmitted the petition to DOAH

to conduct a final hearing. The undersigned conducted the final

hearing on April 4, 2017.

Ms. Ogbeifun testified on her own behalf. She presented no

other witnesses. Ms. OgbeifunÓs Exhibits 1 through 4,

6 through 11, part of Exhibit 12, and Exhibit 13 were admitted

into evidence. One Hope presented the testimony of Muriah

Davis - Deuth, Rebecca Kampman, Michelle Ramirez, Gail Werley, and

Cristina Villazan. One HopeÓs Exhibits 9, 10, and 12 through 23

were admitted into evidence. The parties timely fi led proposed

recommended orders. They have been considered in the preparation

of this R ecommended O rder.

FINDING S OF FACT

Ms. OgbeifunÓs Employment w ith One Hope

1. One Hope provides a variety of community - based services

for families and children. They include: early childhood

education, intervention, child development programs, child

placement and residential care. One Hope has several offices in

Florida and operates in many states. Its headquarters are in

Chicago , Illinois.

2. Ms. Ogbeifun began working for One Hope as a Program

Specialist on July 6, 2009. At the time she began work ,

Ms. Ogbeifun went by the name Veronica Bryan Bell. One Hope

records identified her by that name. Ms. Ogbeifun worked in

Circuit 10, which consists of Highland s an d Hardee c ount ies in

Florida.

3. The services that One HopeÓs Circuit 10 office provides

include foster care; in - home services for abused, abandoned and

neglected childre n; and other services for families and children.

Ms. Ogbeifun was responsible for st affing cases and implementing

permanency planning for the families and children in the system

of care. She was a salaried employee, paid for an entire day if

she worked at least one hour per day.

4. Ms. Ramirez, the Director of Programs for Circuit 10,

w as Ms. OgbeifunÓs supervisor. Ms. Ogbeifun reported directly to

Ms. Ramirez. Ms. OgbeifunÓs employment obligations included

providing her schedule to Ms. Ramirez each week and advising

Ms. Ramirez if she was going to deviate from th e schedule. This

dut y included advising Ms. Ramirez if she was leaving work before

the scheduled quitting time of 5:00 p.m. or not coming to work.

Claimed Violation of Conflict of Interest Agreement

5. Ms. Ogbeifun also owned and operated a business called

Restoration Family Services. The business conducted adoption

home studies. Restoration Family Services and One Hope provided

related services and served similar clients. One Hope permitted

Ms. Ogbeifun to operate her business.

6. To protect against conflicts of interest , Ms. Ogbeifun

and One Hope executed a c onflict of interest agreement. The

conditions included : (1) Ms. Ogbeifun would not provide services

to prospective adoptive parents in Circuit 10 or for children or

parents outside of Circuit 10 but served by One H ope or Kids Hope

United 1/ ; (2) referral sources could not be generated from

business relationships o f One Hope or KidÓs Hope United ; and

(3) Ms. Ogbeifun could not perform work for her business during

her One Hope working hours or use One Hope equipment.

7. The specific requirements about One Hope's equipment and

performing Restoration Family Services work during One Hope work

hours are:

Work or [sic] on behalf of Restoration Family

Services, Inc., cannot be done during hours

required of your employment w ith Kids Hope

United, which could include non - traditional

hours as needed.

Work for or on behalf of Restoration Family

Services, Inc. cannot be done during time in

which you are also compensated by Kids Hope

United.

[Ms. Ogbeifun may not] [u]tilize Kids Hope

United equipment for or on behalf of

Restoration Family Services, Inc.

8. One Hope claims that Ms. Ogbeifun performed Restoration

Family Services work while compensated by One Hope or using One

Hope equipment for Restoration Family Services. It cla ims this

was one reason for terminating Ms. Ogbeifun. The evidence to

support this claim is too flimsy to be persuasive.

9. Ms. Davis - Deuth says she saw what she thought were

Restoration Family Services files on Ms. OgbeifunÓs desk. If the

witness was correct that the files she saw were Restoration

Family Services file s , there is no evidence that Ms. Ogbeifun was

working on them.

10. On February 18, 2016, Ms. Ogbeifun filed corporate

papers for her business while on leave. Interpreting the

agreement to prohibit working on Restoration Family Services

business while on leave is not a reasonable interpretation of the

agreement.

11. A witness testified that Ms. Ogbeifun had files for

some of her permitted work for clients from another circuit in

One Hope Ós statewide data base with a time stamp showin g entry in

the data base during what should have been Ms. OgbeifunÓs work

hours. The testimony does not indicate that the witness actually

saw the information. It begins ÐThere was a time that there were

some home studies found in our statewide database . . . . Ñ The

testimony is hearsay. The evidence does not prove that

Ms. Ogbeifun entered the files in the system.

12. This fact would have been easy enough to prove if One

Hope had presented copies of the d ate - stamped documents in its

database. The failure to do so is significant.

13. One Hope relies on testimony of Ms. Ramirez that

other employees reported to her that they saw Ms. Ogbeifun

completing home studies at the One Hope office. The hearsay

te stimony, short on details, cannot support a finding of fact.

The people who alleged ly made the reports were One Hope

employees who One Hope could easily have produced to testify.

One, Ms. Davis - Deuth, did testify. And she did not testify that

s he saw M s. Ogbeifun working on the files.

14. On February 3 and 17, 2016, Ms. Ogbeifun took leave.

Each time she e - mailed Ms. Ramirez before 7:00 a.m. to advise her

that we could not make it in because of family matters. One Hope

argues that these facts suppo rt an inference that Ms. Ogbeifun

was taking off to work on her other business. The evidence does

not support the inference.

15. The claim that One Hope terminated Ms. Ogbeifun for

violating the conflict of interest agreement is not credible. It

relies upon uncorroborated hearsay. It advances alleged facts

that One Hope could easily have proved through its own documents

and employees. Failure to do so undermines the credibility of

the claims.

16. The claim that violation of the conflict of interest

agreement had something to do with Ms. OgbeifunÓs termination is

recently crafted for this proceeding. One HopeÓs statement of

position submitted to the Commission makes no mention of this

claim. Perhaps this explains the fact that One Hope did not

inclu de in its exhibits the termination documents to which the

statement of position refers. This contributes to finding the

evidence does not support the claim.

Earlier Complaint

17. Ms. Ogbeifun filed a complaint of discrimination with

the Commission on Jan uary 13, 2016. It described a number of

ways in which she believed that Ms. Ramirez had discriminated

against her and other African - American employees. The complaint

identifies Veronica Ogbeifun as the complainant.

18. The Commission forwarded the com plaint to One HopeÓs

corporate offices in Chicago. At the time of the discharge that

is the subject of this proceeding, the managers in One HopeÓs

District 10 office did not know of the complaint.

Confrontation with Ms. Kampman

19. One Hope employees in the Highlands County office often

hold interoffice events that included food and beverages. The

employees prepare and serve some items in the breakroom, which is

also a kitchen. The employees conduct the events in a conference

room or the break room. Emp loyees are suppo sed to clean up after

an event.

20. Ms. Ogbeifun organized an event in the Highlands County

office to celebrate Valen tineÓs Day and ÐCultural Day . Ñ

Ms. Ogbeifun organized Cultural Day as part of Black History

month. She and fellow employe es held the combination ValentineÓs

and Cultural Day event on Monday, February 15, 2016. They did

not clean the breakroom.

21. On February 18, 2016, Ms. Davis - Deuth, a fellow

employee, sent an e - mail to all employees in Circuit 10 about the

messy, unclea n condition of the breakroom. The e - mail stated

that dishes had been left in the sink since Monday, the day of

the Cultural Day event, and were causing the building to smell.

Ms. Davis - DeuthÓs e - mail asked the people who left the dishes in

the sink to t ake care of them. It observed that all participants

in an event have a responsibility to clean up.

22. Employees held a baby shower in the breakroom on

February 23, 2016. The participants did not clean up.

23. February 25, 2016, Ms. Kampman, a Case Man ager

Supervisor, sent an e - mail to all Circuit 10 employees about the

dirty breakroom. The first paragraph described the dirty dishes

and food left in the breakroom after the shower and the Valentine

Day/Cultural Day event. The e - mail described the clean ing event

participants should conduct and describe d the reasons pe ople

should fulfill their clean - up responsibilities. It concluded by

reminding employees that the cleaning crew did not clean up food

and that she or Ð Rebecca B. Ñ would make sure dish soap and other

cleaning items were available in the breakroom.

24. Ms. Ogbeifun was one of 40 employees to whom the e - mail

was addressed. Nonetheless Ms. Ogbeifun concluded that the

e - mail singled her out and got upset. She decided to confront

Ms. Kamp m an .

25. Shortly after receiving the e - mail, Ms. Ogbeifun went

to Ms. KampmanÓs office. Ms. Ogbeifun was visibly agitated and

stood in the doorway. She spoke loudly enough that at least one

nearby employee heard her. But she was not yelling. She

repeatedly accused Ms. Kampman of singling her out. Ms. Kampman

explained several times that she sent the e - mail to all

employees, mentioned two events, and addressed a repeating

office - wide problem. She asked Ms. Ogbeifun to re - read the

e - mail. After a while, M s. Kampman told Ms. Ogbeifun she was not

going to discuss the matter further. Ms. Ogbeifun left the

door way and returned to her office.

26. After returning to her office, Ms. Ogbeifun packed some

personal belongings and left the office around 3:00 p.m. o r 3:30

p.m. In the preceding days , she had removed other personal

belongings , such as photographs , from her office.

27. Ms. Ogbeifun did not advise her supervisor,

Ms. Ramirez, that she was leaving. She did not activ ate her

out - of - office message.

28 . Later that afternoon , the office s ent Ms. Ogbeifun five

e - mails.

29. The first e - mail, sent to all employees from

Ms. Ramirez at 3:17 p.m., was one of three about a meeting with

the new Chief Human Resource Officer and the Florida Executive

Director. It reminded employees of the meeting and stated that

the meeting was mandatory.

30. The second e - mail was Ms. KampmanÓs reply to

Ms. Ramirez advising her that Ð849Ñ was scheduled for staffings

at the same day and time as the meetings with the resource

officer and the executive director. The reply asked if the

staffings would be set for a new day. Ms. Kampman copied

Ms. Ogbeifun with that e - mail.

31. The third e - mail, sent by Ms. Ramirez, replied to

Ms. KampmanÓs e - mail. Ms. Ramirez said that the s taffingsÓ times

would have to be changed. Ms. Kamp m an copied Ms. Ogbeifun. The

three e - mails only provided information. None requested a

response or was the sort of communication that called for a

response.

32. The fourth e - mail, sent at 4:19 p.m. by M s. Ramirez, to

Ms. Ogbeifun and two other employees, asked them to submit

overdue time sheets. The e - mail did not request a response and

was not of the sort that called for an immediate response.

33. Ms. Ogbeifun did not respond to the four e - mails. She

also did not communicate with the office after leaving on

February 25, 2016.

34. Ms. Ramirez sent the fifth e - mail. It sought

suggestions about a Permanency Staffing Form. Ms. Werley sent an

earlier elated e - mail at 10:22 a.m., February 25, 2016 , to

M s. Ogbeifun, Ms. Davis - Deuth, and Ms. Ramirez advising that the

form was ÐFINALLY ready for review, Ñ a t 4:31 p.m. Ms. Ramirez

sent the fi fth e - mail of the day, a follow - up on the morning

staffing form e - mail from Ms. Werley. It provided Ms. RamirezÓs

tho ughts on the form and asked for Ms. OgbeifunÓs thoughts.

Neither e - mail expressed any urgency about responding.

Ms. Ogbeifun did not respond.

35. Near the end of February 25, 2016, Ms. Ramirez called

Ms. Villazan, Chief Human Resource Officer for One Hope. She

also contacted Eva Horner, One HopeÓs Executive Director for

Circuit 10. The three discussed the afternoonÓs events.

36. The three did not mention the January discrimination

complaint during their discussions. Ms. Ramirez and Ms. Horne

were n ot aware of it because it went to the Chicago office.

Ms. Villazan was not aware that the Veronica Ogbeifun who filed

the complaint was the Veronica B ell whom they were discussing.

37. The three decided that Ms. OgbeifunÓs loud

confrontation of Ms. Kamp man supported termination.

Job Abandonment

38. They also decided that Ms. Ogbeifun had abandoned her

job because she was upset and left an hour and half early , h ad

not responded to the four e - mails that did not call for a

response , and did not respond wit hin six working hours to the

fifth e - mail , which did not call for an immediate response.

39. The facts do not support this conclusion. Ms. Ogbeifun

left work one and half hours early after an emotional

confrontation. She took some perso nal belongings home. And she

did not respond to e - mails that did not require an immediate

response. Concluding Ms. Ogbeifun abandoned her job from those

facts is unreasonable.

40. Ms. Ogbeifun returned to work on February 26, 2016.

She was informed that she had been terminated.

No Signs of Discrimination on Account of Race

41. The record does not contain evidence of racial

epithets, use of racial stereotypes, comments about racial

features, or any other direct evidence indicating that One Hope

considered Ms. Ogbeifu nÓs race in deciding to terminate her.

42. Ms. Ogbeifun advanced a theory that One Hope treated

African - American employees differently and worse than it treated

Caucasian employees. There is no competent, persuasive evidence

in the record to support the theory.

CONCLUSIONS OF LAW

43. Ms. Ogbeifun advances two claims. First, she maintains

that One Hope discriminated against her on account of her race by

discharging her. Second, she claims that One Hope retaliated

against her for complaining of racial di scrimination.

44. Sections 120.569 and 120.57(1), Florida Statutes

(201 6), 2 / grant DOAH jurisdiction over the subject matter of this

proceeding and of the parties.

Discrimination on Account of Race

45. Section 760.10(1)(a), Florida Statutes , makes it

u nlawful for an employer to take adverse action against an

individual because of the individual's race. Section 760.10(7)

makes it unlawful for an employer to discriminate against any

person because that person has opposed a n unlawful employment

practice.

46. Section 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before DOAH . "If the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 [Chapter 760]

has occurred , he or she shall issue an appropriate recommended

order to the commission prohibiting the practice and recommending

affirmative relief from the effects of the practice, including

back pay." Id.

47. C hapter 760 is patterned after Title VII of the Civil

R ights Act of 1964, as amended. Consequently, Florida courts

look to federal case law when interpretin g c hapter 760 .

Valenzuela v . GlobeGround N . Amer . , LLC. , 18 So. 3d 17 (Fla. 3d

DCA 2009). Ms. Ogbeifun must prove her claims by a preponderance

of the e vidence. Id.

48. A party may prove unlawful discrimination through direct

evidence of discrimination. City of Hollywood v. Hogan ,

986 So. 2d 634, 641 (Fla. 4th DCA 2008 ) . Direct evidence is

something like a discriminatory statement by a supervisor tha t

requires no interpretation or inferences to manifest the

discrimination. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th

Cir. 1999).

49. The direct evidence does not prove that One Hope

discriminated against Ms. Ogbeifun because of her race.

50. An e mployee may also prove a claim of discrimination by

circumstantial evidence establishing that similarly situated

employees, who were not in her protected class, were treated more

favorably than she was. Wilson v. B/E Aerospace, Inc. , 376 F.3d

1079, 1087 ( 11th Cir. 2004).

51. Ms. Ogbeifun had theories about disparate treatment in

assignments and positions. Ms. Ogbeifun attempted to prove

disparate treatment based on her race by claiming that: (1) she

was not allowed to work with providers directly; (2) h er

supervisor sabotaged her character; (3) African - American

employees are required to hold higher education credentials

compared to Caucasian employees; and (4) she did not receive a

worksite transfer.

52. T he scant evidence did not support her theories. She

did not prove that similarly situated Caucasian employees were

treated differently than she or ot her African - American employees.

53. There was no evidence that non - minority employees had

not been discharged in circumstances similar to those in which

One Hope discharged Ms. Ogbeifun.

5 4 . Ms. Ogbeifun feels that she was unfairly treated. But

unfair, erroneous, or irrational treatment does not equate to

unlawful discrimination. Coutu v. Martin Cty. Bd. of Cty.

Comm'rs , 47 F.3d 1068 (11th Cir. 1995).

Retaliation

5 5 . The court in Blizzard v. Appliance Direct, Inc. ,

16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the analysis

required for a retaliation claim. The opinion says:

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 suffered adverse

employment action; and (3) that the adverse

employment action was causally related to the

protected activity. See Harper v.

Blo ckbuster Entm't Corp. , 139 F.3d 1385 (11th

Cir.), cert. denied, 525 U.S. 1000, 119 S.

Ct. 509, 142 L. Ed. 2d 422 (1998). Once the

plaintiff makes a prima facie showing, the

burden shifts and the defendant must

articulate a legitimate, nondiscriminatory

re ason 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.

5 6 . Ms. Ogb eifun established the first two elements. S he

did not prove the third. Her discharge could not have been

because of her January complaint to the Commission because the

three people who decided to discharge her did not know of the

complaint. The evidence and the facts found did not prove

Ms. Ogbeifun claim of retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order d ismissi ng the Petiti on for Relief

of Veronica Bell Ogbeifun.

DONE AND ENTERED this 1st day of June, 2017, in Tallahassee,

Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of J une, 2017 .

ENDNOTE S

1/ The document refers t o ÐKids Hope United . Ñ This is an earlier

name for One Hope.

2/ All references to the Florida Statutes are to the 2016

codification.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tall ahassee, Florida 32399

(eServed)

Laura E. Prather, Esquire

Jackson Lewis

Suite 2200

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

Veronica Bell Ogbeifun

1012 Kentucky Street

Haines City, Florida 33844

(eServed)

Andrew R. Lincoln, Esquire

Jack son Lewis

Suite 2200

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

Nicole Santamaria, Esquire

Jackson Lewis

Suite 2200

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relatio ns

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServerd)

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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.