16-007489 Arthur J. Chris-Tensen vs. Earthlink Shared Services, Llc Status: Closed Recommended Order on Thursday, June 1, 2017.

Summary: Petitioner failed to meet his burden of proving his termination from employment was based on his sex or as retaliation for opposing acts of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR J. CHRIS - TENSEN ,

Petitioner ,

vs. Case No. 16 - 7489

EARTHLINK SHARED SERVICES, LLC ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a fi nal hearing was held on March 21

and 22 , 2017, in Tampa , Florida, before Yolonda Y. Green, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ).

APPEARANCES

For Petitioner: Alvin Mark Gomez, Esquire

(Qualifi ed Representative)

Gomez Law Group, PC

Suite 7

2725 Jefferson Street

Carlsbad, California 92008

For Respondent: Alex Drummond, Esquire

Seyfarth Shaw, LLP

Suite 2500

1075 Peachtree Street, Northe ast

Atlanta, Georgia 30309

STATEMENT OF THE ISSUE

The i ssue is whether Petitioner was subjected to a hostile

work environment based on his gender in violation of section

760.10(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On Februar y 4, 2016, Petitioner, Arthur J. Chris - Tensen

(ÐMr. TensenÑ or ÐPetitionerÑ), filed a Complaint of Employment

Discrimination with the Florida Commission on Human Relations

(ÐCommissionÑ). The complaint alleged that Respondent,

EarthLink Shared Services, L LC (Ð EarthLink Ñ or ÐRespondentÑ),

violat ed the Civil Rights A ct of 1964 and the Florida Civil

Rights Act of 1992 (ÐFCRAÑ) , as amended, by discriminating

against him on the basis of gender (hostile work environment).

On November 14, 2016, following its inv estigation of the

allegations in the complaint, the Commission issued a

determination of ÐNo Reasonable CauseÑ to support PetitionerÓs

complaint.

On December 16, 2016, Petitioner filed a Petition for

Relief requesting an administrative hearing regarding t he

CommissionÓs ÐNo Reasonable CauseÑ determination pursuant to

section 760.11(7).

The Commission referred the matter to the Division on

December 19, 2016, and on December 20, 2016 , this matter was

assigned to the undersigned. The undersigned issued a Not ice of

Hearing, scheduling the final hearing for February 16 an d 17,

2017. The parties filed a Joint Motion for Continuance of

Hearing Date on January 11, 2017. The undersigned granted the

motion and rescheduled the hearing for March 21 and 22, 2017.

O n March 21, 2017, the hearing commenced as scheduled and

continued unt il conclusion on March 22, 2017 . The parties filed

a pre - hearing stipulation wherein they stipulated to certain

facts which, to the extent relevant, have been incorporated in

the Findin gs of Fact below.

Petitioner testified on his own behalf and offered the

testimony of four witnesses: Stephanie Bouras, former director

of s ales for Earthlink ; James Patrick Dunn, former director of

s ales (south east r egion) for EarthLink ; Ashley Stratton Powell,

former director of s ales (south east r egion) for EarthLink ; and

Chris George Risse, former Channel m anager (south east r egion)

for EarthLink . Petitioner offered Exhibits P - 8 through P - 19,

wh ich were admitted. Petitioner p roferred P - 6 (Affidavit of Ed

Mehdi Benchannof) , but the exhibit was not admitted into

evidence. Respondent offered the testimony of three wit nesses:

Sherri Turpin, former vice president of partner p rograms of

EarthLink ; Michael Toplisek, former chief revenue o fficer of

EarthLink ; and Erin Shma lo, director of talent a cquisition of

Windstream (formerly EarthLink ). Respondent offered Exhibits

R - 2 through R - 8, R - 11 through R - 21, R - 23 , and R - 25 , which were

admitted. The proceeding was recorded by a court reporter and

the parties ord ered a transcript of the final hearing. The

three - volume Transcript was filed on May 1, 2017. Petitioner

timely filed a Proposed Recommended Order (ÐPROÑ) . Respondent

filed its PRO untimely and did not request an extension of time

before the applicable deadline. 1 / Petitioner filed an objection

to RespondentÓs PRO for being untimely. However, Petitioner has

not shown any prejudice caused by the late filing, and , thus,

both PROs have been carefully considered in preparation of this

Recommended Order.

All statutory references are to Florida Statutes ( 2014 )

when the alleged discriminatory act occurred, unless otherwise

indicated.

FINDING S OF FACT

1 . Respondent, EarthLink , is a nationwide

t elecommunications company that employed more than 15 employees

a t al l times relevant to this matter. EarthLink provided

managed network, security, and cloud solutions to individual and

multi - location business es located nationwide, including Florida.

2 . EarthLink is an employer as that term is defined by the

FCRA , as ame nded .

3 . At all times material to the complaint of

discrimination, Petitioner, Mr. Tensen, worked at EarthLink .

Mr. Tensen worked at EarthLink from Nov ember 2013 until his

position was eliminated on March 20, 2015.

4 . Mr. Tensen began his employment a t EarthLink as a m a jor

Channel m anager in 2013 and he was then promoted to senior

director of partner d evelopment in 2014.

5 . Mr. Tensen is a male.

6 . Mr. Tensen was an employee of EarthLink as that term is

defined by the FCRA . Petitioner is a member of a protected

class.

7 . Mr. Tensen filed a complaint with the Commission

alleging EarthLink , through Ms. Turpin , created a hostile work

environment and had bias against men; promoted a woman despite

his being qualified for the position; and retaliated against him

for complaining about the alleged hostile work environment.

8 . The Commission issued a no cause determination and

Mr. Tensen filed a Petition for Relief, which is the matter

before the undersigned.

9 . By way of background, Mr. Tensen applied for a position

with EarthLink in or around October 2013 based on encouragement

of J.R. Cook, who was then leading the EarthLink C hannel

(Ð Channel Ñ) organization. At the suggestion of Mr. Cook,

Mr. Tensen listed Sherri Turpin as a professional reference. At

that time, Ms. Turpin was the vice p resident of t he master agent

program , and she ran the Channel in partnership with Mr. Cook .

10 . Mr. Cook asked Ms . Turpin to interview Mr. Tensen for a

Channel m anager position, a junior position in the Channel

orga nization. Mr. Tensen was more than qualified for and

perhaps, over - qualified for the position. Ms. Turpin interviewed

Mr. Tensen by phone and then, participated in the decision to

hire him . EarthLink hired Mr. Tensen as a senior Channel manager

for the s outheast region, and he reported to James Dunn

(southeast regional d irector ) .

EarthLink Organizational Structure

11 . EarthLink had a model for the Channel team that was

based on a sell - through model , where the goal is to motivate

partners and brokers t o sell EarthLinkÓs products to their

customers. The Channel team leverages relationships with

consultants or partners, pitching EarthLinkÓs services to them ,

and differentiating EarthLinkÓs services to the consumer.

12 . The Channel team is comprised of Channel manager s, who

rep ort directly to regional d irectors. Channel manager s are

tasked wit h the primary responsibility of working directly with

partners to manage sales of EarthLinkÓs products and services.

At the time Mr. Tensen was hired, the regiona l d irectors were

Mr. Dunn , Randy Landers, and Paul Keefe, all males. They

reported to Ms. Turpin who, in turn, reported to Mr. Cook .

13 . A separa te group of employees , known as partner

development d irectors or P DD s , work with the Channel manager s to

f ocus on the largest partners, identified as Ðmaster agents.Ñ

Master agents have ties to national or regional carriers. The

PDD s offer additional support to Channel m anagers to facilitate

sales with partners. The PDD s are in an overlay role, meaning

thei r primary task is to assist the direct contributors ( Channel

managers and regional d irectors) in making their quota.

14 . In 2013 through 2014, EarthLink experienced

difficulti es with retaining some accounts after th e initial sale,

a problem commonly know n as Ðchurn.Ñ Mike Toplisek, the then

executive vice president and chief revenue o fficer , decided that

EarthLink should create an organization dedicated to the

retention of existing customers and he selected Ms. Turpin to

develop, implemen t, and lead the organization. In the new churn

organization, Ms. Turpin worked with, among others, Ashley

Powell.

15 . After Ms. Turpin left the Channel t eam in January 2014,

Mr. Tensen was promoted to a PDD position in the Channel team,

reporting directly to Mr. Cook . PDDs have responsibilities for

overseeing rel ationships with three to seven master agents , and

they are charged with business develop ment, hosting marketing

events, and developing collaboration and alignment between the

consul tant and Channel m anagers. I n essence, the PDD role is a

marketing role in a trian gular relationship between the Channel

managers, the master a gents, and the PDD.

16 . In early 2014, Mr. Cook informed Mr. Toplisek of his

intention of leaving the Company, prompting a need to find a ne w

Channel c hief. Mr. Toplisek interviewed two or three internal

candi dates, including Petitioner and Ms. Turpin . In the

meantime, Mr. Toplisek a ppointed Ms. Turpin as the interim

Channel c hief based on Mr. CookÓs recommendation.

17 . Ms. Turpin worked in telecommunications her entire

caree r. In fact, Ms. Turpin worked for XO Communications for

17 years before working at EarthLink . At XO, s he was responsible

for a direct sale s course and she ran a Channel as a sales

executive. Similar to the Channel at EarthLink , she also worked

on a sell - through - model. Ms. Turpin testified that she had

approximately seven to eight years of experience working in the

Channel when she applied for the Channel chief position.

EarthLink Ós then CEO recruited Ms. Turpin away from her position

to work with Mr. Cook, who was the Channel chief at that time.

Ms. Turpin and Mr. Co o k created the national master agent program

at EarthLink .

18 . Ultimately, Mr. Toplisek selected Ms. Turpin based on

her prior experience running the Channel with Mr. Cook and

Mr. Cook supported Mr. ToplisekÓs decision.

19 . Mr. Tensen disagreed with the decision to hire

Ms. Turpin as Channel chief because he believed that he should

have been selected. He believed that he had the necessary

qualificat ions and experience and that Ms. Turpin was lacking in

experience as purportedly indicated in Ms. TurpinÓs 360

assessment review.

20 . Ms. Turpin did have negative comments on her 360

assessment review. However, those comments were a small fraction

of t he overall assessment. In the 360 assessment review, she was

described as an extreme asset to EarthLink with the ability to

problem - solve, bu ild relationships , and motivate her team for

success. Ms. TurpinÓs rating in each category of assessment and

over al l rating was Ðfully productive.Ñ Ms. Shmalo ( EarthlinkÓs

former human resources partner) testified that Ms. TurpinÓs

rating was positive. The preponderance of evidence presented at

the hearing establishes that Ms. Turpin had the necessary

qualification s and experience to be the Channel chief. Mr. Cook

and Mr. Top lisek agreed that Ms. Turpin was the best candidate

for the position.

21 . Mr. Cook believed that Mr. Tensen might be disappointed

in not being selected to lead the Channel and he suggested t hat

Mr. Toplisek ensure that Mr. Tensen did not feel slighted and was

made to feel important . Accordingly, Mr. Toplisek reached out to

Petitioner and invited him to have confidential discussions from

time to time so that Mr. Toplisek co uld get his perspec tive on

the Channel , employee morale, and messaging. Mr. Toplisek

credibly testified that he never claimed he was forced to select

Ms. Turpin over Mr. Tensen as the Channel c hief, nor did he

promise that Petitioner would replace Ms. Turpin in the future .

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

EarthLink Ós decision to promote Ms. Turpin , who was qualified for

the position, to replace Mr. Cook as the Channel chief absent

evidence that the decision was based on a discriminatory

practice. T he fact that Mr. Tensen met the qualification for the

position did not give him the exclusive right to being hired for

the position.

23 . Petitioner failed to establish that the decision to

select Ms. Turpin as the Channel chief was based on bias against

m ales or any other discriminatory practice.

Ms. TurpinÓs Actions

24 . In May 2014, shortly after as suming the position of

Channel c hief, Ms. Turpin initiated a meeting w ith all her new

Channel employees in Dallas, Texas. The two purposes of the

meeting wer e to better understand the Channel organization that

Mr. Cook had assembled in Ms. TurpinÓs absence and to transition

Ms. TurpinÓs churn duties to other members of the churn

organization. Ms. Turpin allowed some members of the churn

team, including Ms. Po well , to sit in on the meetings with the

Channel team.

25 . Ms. Powell di d not have prior experience in Channel

s ales , but she was intere sted in learning about it. Ms. Powell

testified that Ms. Turpin took her to the meeting to meet the new

team and to get an idea about the Channel . Ms. Powell claimed

that Ms. Turpin had informed her that she would have a position

in the Channel sales t eam.

26 . At the Dallas meeting, Ms. Turpin conducted a review

of all of the regions, Channel m anagers, and master agen ts. In

the meeting, each of the regional d irectors , including Mr. Dunn ,

presented on their respective teams and Channel m anager s .

27 . During Mr. DunnÓs presentation, Ms. Turpin ra ised

concerns about one of his Channel managers, Andrew Butts.

Ms. Turpi n criticized Mr. Butts based on his production,

pract ices, and/or work habits.

28 . Mr. Dunn noted that in the year 2013 , Mr. Butts

received an award for the top five percent performance in the

company. Mr. Tensen testified that Mr. Butts was the highest

achiever for multiple years. Although Mr. Butts had good past

performance, Ms. Turpin was concerned about his performance at

that time. 2/

29 . M r. Dunn believed that it was in appropriate to speak

about Channel managers in t he manner Ms. Turpin used. Mr. Dunn

asked Ms. Turpin to refrain from degrading Andrew Butts.

Although Mr. Dunn maintained that he raised his concerns in a

calm manner, several witnesse s, including Ms. Powell and

Ms. Bouras, contradicted tha t assessment. For example,

Ms. Powell sai d that Mr. Dunn was Ðvery emotionalÑ and that he

Ðraised his voiceÑ when he expressed his concerns. Stephanie

Bouras recalled that Mr. DunnÓs voice was Ð[e]levatedÑ and that

Ð[h]e was frust rated and angry.Ñ Ms. Turpin recalled that

Mr. Dunn stood up, scr eamed , and yelled , and that he refused to

follow her direction to manage Mr. ButtsÓ performance. Mr. Dunn

conceded that after he challenged Ms. Turpin, Ðthe room got

quiet, as quie t as it could get.Ñ Further, Mr. Dunn noted that

several people approached him after his comments and counseled

him to apologize to Ms. Turpin. Mr. Dunn did not apologize for

his actions.

30. Mr. Tensen claimed Ms. Turpin targeted Mr. Butts

because he was male. To the contrary, however, Ms. Bouras and

Ms. Turpin credibly te sti fie d that the discussion about

Mr. Butts was not because of his gender.

31 . Following Mr. Dunn Ós outburst, Ms. Turpin consulted

Mark Hopkins , the vice president of human r esources , to seek

gui dance. Based on the guidance from Mr. Hop kins, she

ultima tely spoke with two prior supervisors who described

separate incidents in which Mr. Dunn ÐexplodedÑ or Ðlost his

coolÑ at an off - site meeting.

3 2 . Based on the conduct she observed during the Dallas

meeting and the events relayed to her by Mr. DunnÓs pri or

supervisors , Ms. Turpin decided to terminate his employment for

insubordination.

33 . Mr. Dunn claimed that he was told his position was

eliminated and he received a severance package. Ms. Turpin

played no role in deciding whether Mr. Dunn should be offered a

severance package in exchange for a release. L ikewise,

Ms. Shmalo had no involvement in Mr. DunnÓs separation and has

no knowledge of whether he was offered a package in exchange for

a release. According to Ms. Shmalo, generally an employee who

is separated for cause, i.e. , insubordination, is not eligible

for a severance package. However, any individual offered a

severance package , even if for business reasons, would be

classified as having their position eliminated.

34 . Although Petitioner claimed that Ms. Turpin said,

ÐSometimes you have to throw one of the boys under the busÑ

after the Dallas meeting, that alleged statement is inconsistent

with the statement Petitioner provided in an email to Ms. Turpin

and Mr. Toplisek which noted, in pa rt, ÐSherri, thank you for

creating an environment where we could all have our own

breakthrough moments. Best off site I've ever attended!Ñ This

email makes no reference to Ms. Turpin making references to

throwing Ða boy under the bus,Ñ nor does the emai l make any

reference to discrimination, bias, or harassment.

35 . Based on the description of Mr. DunnÓs actions at the

meeting as related by Ms. Bouras, Ms. Powell, and Ms. Turpin,

the preponderance of the evidence supports that Mr. Dunn was

terminated for insubordination, rather than his position being

eliminated. Mr. Tensen failed to produce evidence to support a

finding that Mr. Dunn was terminated because he was male.

36 . Following Mr. Dunn Ós termination, Ms. Turpin

interviewed four can didates to replace him: Petitioner,

Ms. Powell , Rob Olson, and an e xternal candidate. Despite

Ms. PowellÓs claims, Ms. Turpin did not discuss or offer a

director position to Ms. Powell before the Dallas meeting or

prior to Mr. Dunn Ós termination. Ms. Turpin fir st gave

Mr. Tensen the opportunity to replace Mr. Dunn , but he deferred

to Ms. Turpin Ós judgme nt about his optimal role. Ms. Turpin

ultimately selected Ms. Powell for the role .

37 . Shortly after Ms. Turpin became the Channel c hief, she

further restructur ed the partner development or ganization,

promoting Mr. Tensen to senior partner development d irector,

with the remaining P DD s reporting directly to him. Petitioner

received a raise of more than $20,000 per year in total

compensation.

38 . Ms. Turpin als o advocated for Petitioner to be

eligible t o receive stock options . Ms. Turpin succeeded in

obtaining stock options for Petitioner, an ex tremely valuable

benefit. I n arguing for extra money and stock options for

Mr. Tensen , Ms. Turpin referred to him as her Ðright hand guyÑ

and noted he would be vital for the growth of the business and

the plans for the Channel.

39 . Around the same time, Ms. Turpin received approval to

add a new PDD to her team. She selected Michael Brennan for the

position, resulting in a promotion and increase in compensation.

Ms. Turpin had promoted Mr. Brennan on other occasions and

advocated for several increases in compensation during her

tenure at EarthLink .

40 . In addition to the promotion and raises, d uring the

time Mr. Tense n reported to Ms. Turpin , she provided him with a

positive performance review, and she described him as an

Ðamazing employee.Ñ Though she noted some areas where

Petitioner could improve, she largely prais ed his contributions

to EarthLink . The review note s a Ðbilled revenueÑ number of

$3 6,062,382, which was 109.15 percent of the stated goal. The

billed revenue number in this review reflected all revenue

across all customers in the Channel , regardless of whether

Mr. Tensen drove or i mpacted the sales. The 109 - per cent figure

was largely driven by churn, reflecting that custom ers were not

leaving the EarthLink as rapidly.

41. In addition to Mr. Brennan and Mr. Tensen, Ms. Turpin

had a good working relationship with Travis OÓKeefe , who

consistently met his quotas.

42. There was some evide nce offered at hearing that

Ms. Turpin had a ÐgirlÓs club.Ñ Although Mr. Risse testified

there was a Ð womenÓs teamÑ in management, he admitted that all

of the leaders in the Channel organization, except Ms. Powell

and Ms. Turpin, were men. Further, he based his belief in part

on Jim DunnÓs termination a nd the mistaken belief that

Ms. Powell was selected to replace Mr. Dunn without

consideration of external candidates. In fact, the evidence

shows Mr. Dunn was terminated fo r insub ordination and four

candidates (two males , including Mr. Tensen, an external

candidate , and Ms. Powell ) were interviewed for the position.

The undersigned notes that Mr. Risse did not make any complaints

of discriminatory behavior regarding Ms. Tur pinÓs actions.

Reduction in Force

43 . In early 2015, EarthLink had a relatively new CEO who

shifted EarthLink Ós prior strategy and focused on providing the

greatest value to shareholders. Around that time, the teams

were also not consistently meeting the ir quotas. The strategy

focused on maximizing profits, which, based on the EarthLink Ós

core business, necessitated a grea ter emphasis on cost

reduction. Specifically, EarthLink focused o n reducing

operational expenses. Based on the nature of the busines s, the

biggest operational expense was employees. As such, EarthLink

would undergo a reduction - in - force (ÐRIFÑ) .

44 . To satisfy this directive, Mr. Toplisek directed his

direct reports, including Ms. Turpin, to reduce cost while

keeping revenue flow as high as possible. Upon receiving this

directive from Mr. Toplisek, Ms. Turpin considered several

options to comply with his directive . Ultimately, Ms. Turpin

decided to eliminate Mr. TensenÓs position. Because this was a

position (the only such position ) she had created, Ms. Turpin

believed she could absorb majority of the work being performed

by Mr. Tensen without significantly increasing the burden on the

rest of the Channel team.

45 . Ms. Turpin notified Mr. Toplisek of her decision and

explained th e basis for her selection. Mr. Toplisek supported

her decision.

46 . On March 9, 2015, Ms. Turpin (and a human resources

representative) notified Mr. Tensen by phone that h is position

was eliminated. Because Mr. TensenÓs position was eliminated as

part of the RIF , he was given a severance package. Ms. Turpin

testified that elimination of Mr. TensenÓs position was

unre lated to his job performance. Ms. Turpin settled on

eliminating PetitionerÓs role because she believed it had the

least amount of impact on sales, as he was in an overlay role

and, moreover, one step removed from the PDD s who worked

directly with the Channel managers. After Mr. TensenÓs position

was eliminated, Ms. Turpin absorbed his responsibilities. No

one replaced Mr. Tensen as the p osition was never refilled.

47 . Although Petitione r was the only employee eliminated

in the Channel organization, several other employees were also

downsized during the RIF . Ms. Shmalo testified that she

notified 21 employees in March 2015 that their p osition s were

being eliminated, including both male and female employees.

Moreover, in March 2015, EarthLink eliminated the positions of

40 to 50 employees in ToplisekÓs sales organization.

48 . The preponderance of the evidence supports that the

decision to eliminate Mr. TensenÓs position was based on the

directive to reduce op eration expenses by a RIF and not related

to his gender or retaliation.

Use of Profanity/Hostile Work Environment

49 . Mr. Tensen asserts that Ms. Turpin terminated him

because she had a bias against men and that she would use

profanity against and Ðverbally castrateÑ men.

50 . Several witnesses testified at hearing that Ms. Turpin

used profanity. Ms. Turpin admitted that she used profanity but

it was not in a derogatory or offensi ve manner. She also stated

that no one complained to her that they were offended by the use

of profanity.

51 . Mr. Toplisek testified that EarthLink employees (men

and women) used profanity. He considered the term Ðbitch(es)Ñ

as an endearing term and i t was used by Ms. Turpin and others at

EarthLink . The term was used for men and women. Ms. Turpin

testified that it was an acronym 3/ and that she "never referred

to a person directly as a bitch." While, this is contradicted

by the testimony of Stephani e Bouras , who testified that

Ms. Turpin used the term ÐbitchÑ as addr essed directly to a

person, Ms. Bouras noted that the term ÐbitchesÑ was directed

toward men and women, rather than only to men . Ms. Powell also

testified that Ms. Turpin called everyone Ðbitches.Ñ

52 . According to Ms. Shmalo, if an employee was

uncomfortable with the use of profanity, that individual would

be instructed to notify his or her direct supervisor that they

felt uncomfortable with the language. Ms. Shm alo also stated

that h ar assment or discrimination is based on conduct involving

an individual in a protected class.

53 . At all times material to this matter , EarthLink had a

policy which prohibits discriminatio n based on any protected

categories, including sex.

54 . EarthLink has policies which express its commitment to

a workplace free from discrimination. The EarthLink handbook

provides, Ð[w]e respect the individual and our business success

depends on employees being able to express their ideas and doing

their jobs without f ear of harassment or unlawful treatment.Ñ

Accordingly, EarthLink requires all employees to be given equal

opportunity in Ðevery aspect of employment, including

recruitment, hiring, training, promotions, transfers,

compensation, benefits, discipline, termi nations, and all other

privileges, terms and conditions of employment.Ñ Discrimination

or harassment on the basis of gender or any other protected

characteristic is prohibited. EarthLi nk provides employees with

detailed instructions for reporting any vio lation of EarthLink Ós

equal employment and anti - harassment policies, and retaliation

against employees who complain about harassment or

discrimination is also prohibited.

55 . Mr. Tensen claimed that he complained of Ms. Turpin

fostering a hostile work en vironment i n a letter to then CEO,

Mr. Eazor. Ms. Shmalo had no knowledge of the letter and thus,

was not aware of any complaints regarding Ms. Turpin maintaining

a hostile work environment.

56 . Ms. Shmalo did r eceive complaints regarding Ms. Turpin

from employees working in the Channel . Ms. Powell and

Mr. Brennan complained about Ms. TurpinÓs leadership style and

communication practices . However, they did not complain o f

discrimination, harassment, a hostile work environment , or bias

in favor of women (also known as the girlÓs club) .

57 . Mr. Tensen spoke to Ms. Shmalo after his position was

eliminated , but he did not complain to her that he believed his

separation was based on discrimination against him because he

was male or due to bias against male s.

58 . Mr. TensenÓs exit interview questionnaire complained

of dissatisfaction with Ms. TurpinÓs leadership and managemen t

style but did not mention any complaints of discrimination or

bias against males.

59 . EarthLink 's Anti - Harassment Policy provides that an

employee who is subject to or a witness of harassment must

report it to any manager or member of management. Mr. Tensen

never complained that he felt uncomfortable with the use of

profanity. He never complained that he felt discriminated

against. He also never complained to anyone at EarthLink that

he believed there was a bias ag ainst men before his position

elimination . Moreover, he had confidential meetings with

Mr. Toplisek and he never mentioned discrimination or a hostile

work environment t o him before he was terminated.

60 . On March 12, 2015, three days after his position

elimination , Mr. Tensen spoke with Mr. Toplisek in a phone

conversation. During the call, Mr. Tensen expressed that he

believed Ms. Turpin terminated him because he sent an email to

Mr. Eazor. Mr. Tensen did not state that be believed he was

terminated because he is male, or as a result of discrimination

or harassment.

61 . Mr. Tensen followed up on the conversation with

Mr. Toplisek by email later that same day. Although he was

critical of Ms. Turpin, he did not mention that he believed he

was terminated based on discrimination, harassment, or bec ause

he is male.

62 . Mr. Tensen alleged that Ms. Turpin retaliated against

him after he sent the letter to Mr. Eazor complaining about

Ms. Turpin. Ms. P owell testified that before Mr. Tensen was

terminated, Ms. Tur pin was aware of the letter Mr. Tense n sent

to Mr. Eazor and inst ructed her not to talk with Mr. Tensen

because of that Ðletter.Ñ Ms. Turpin denies this. Ms. PowellÓs

testimony, which is largely uncorroborated, is found to be not

credible on whether Ms. Turpin knew about the letter before

M r. Tensen was terminated.

63 . The evidenc e supports the finding that Ms. Turpin did

not learn of the letter until after Mr. TensenÓs position w as

eliminated . Mr. Tense n sent two emails regarding Ms. TurpinÓs

leader ship and management style. Mr. Tensen sent the first

email to Mr. Eazor on February 2, 2015, where he outlined his

concerns about Ms. Turpin, including that she created and

sustains a hostile work environment. On March 12, 2015, a

second email was sent to Mr. Toplisek (three days after

Mr. T ensen was terminated). Similar to the first letter,

Mr. Tensen complained about Ms. Turpin and it also me ntioned the

first letter to Mr. Eazor.

64 . On March 12, 2015, Mr. Toplisek forward Mr. TensenÓs

second email (mentioning the letter to Mr. Eazor) t o Mark

Hopkins in human resour ces. Mr. Hopkins discussed Mr. TensenÓs

email with Ms . Turpi n. Mr. Hopkins agreed with Mr. Toplisek

that he shou ld cease communication with Mr. Tensen.

65 . Ms. Turpin and Mr. Toplisek credibly testified that

they did not le arn of the lett er to Mr. Eazor until after

Mr. Tensen was terminated.

66 . Mr. Tensen failed to provide evidence to demonstrate

that he complained of discrimination or a hostile work

environment before he was terminated from EarthLink .

67 . It is undis puted that Petitioner received a positive

performance review for 2014 and excee ded his quota f or that year

by more than nine per cent . He was recognized for his abilit y to

drive results. He was success ful in motivating his team to

focus on driving sales. He was recognized as very ef ficient and

effective when it came to putting customer s first. He was

characterized as a key to the success of his department .

68 . However, the credible evidence supports that

Mr. TensenÓs position being eliminated had noth ing to do with

his work performance; rather , it was due to the company - wide

RIF . Petitioner offered no credible evidence that EarthLink Ós

elimination of his position was in retaliation for any complaint

of discriminatory employment practices or due to gen der bias

against males.

69 . While Petitio ner was employed with EarthLink , he never

complained about discrimination or a hostile work environment.

CONCLUSIONS OF LAW

70 . Pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2016), t he Di vision h as jurisdiction over the subject

matter and parties to this proceeding.

71 . Section 760.10(1)(a) makes it unlawful for an employer

to take adverse action against an individual because of that

employeeÓs race or sex.

72 . The FCRA defines ÐemployerÑ as Ðan y 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 person.Ñ £ 760.02(7), Fla. Stat.

73 . Based on the evidence presented, EarthLink meets the

d efinition of employer.

74 . Petitioner filed a complaint alleging Respondent

discriminated against him on the basis of his sex (male) and

retaliated against him for engaging in a protected employment

activity.

75 . Section 760.11(1) provides, in pertine nt part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [Commission ] within 365 days of the

alleged violatio n.Ñ Petitioner timely filed his complaint.

76 . Section 760.11(7) provides that upon a d eterminati on

by the Commission that there is no reasonable cause to believe

that a violation of the FCRA has occurred, Ð[t]he aggrieved

person may request an administrative hearing under ss. 120.569

and 120.57, but any such request must be made within 35 days of

the date of determination of reason able cause.Ñ Following the

CommissionÓs determination of no cause, Petitioner timely filed

his Petition for Relief from Unlawful Employment Practices and

Request fo r Administrative Hearing resul ting in this hearing.

77 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal pro totype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround

N. Am ., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Univ.

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

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

78 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

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

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

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

Discrimination - Sex

79 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

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

80 . Direct evidence i s evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

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

1561 (11th Cir. 1997). It is we ll established that ÐÒonly the

most blatant remarks, whose intent could be nothing other than

to discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

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

81 . Petitioner argues that he presented direct evidence of

discrimination on the basis of sex as indicated by testimony of

Ms. Powell and Mr. Risse. Their testimony was insufficient to

prove direct evidence of bias. However, Ms. Bour as , Mr. Dunn,

and Mr. Toplisek testified that Ms. Turpin did not treat men

differently and more importantly, they did not observe any

instances of Ms. Turpin treating Petitioner differently because

he was male. Petitioner failed to prove that there was d irect

evidence of discrimination on the basis of sex.

82 . Petitioner presented no statistical evidence of

discrimination by Respondent in its personnel decisions

affecting Petitioner.

83 . In the absence of any credible direct or statistical

evidence o f discriminatory intent, Petitioner must rely on

circumstantial evidence. In McDonnell Douglas Corporation v.

Green , 411 U.S. 792 (1973), and as refined in Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981), and

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993), the

United States Supreme Court established the procedure for

determining whether employment discrimination has occurred when

employees rely upon circumstantial evidence of discriminatory

intent.

84 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination.

85 . To establ ish a prima facie case of gender

discrimination, Petitioner must demonstrate by a preponderance

of the evidence that : 1) he is a m ember of a p rotected class;

2) he was qu alified for the position; 3) he was subjected to an

adver se employment action; and 4) his employer treated

similarly - s ituated employees outside of his protected class more

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

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

86 . The first, second , and third element s of the prima

facie case have bee n met by Petitioner. Petitioner is a male ,

he was qualified for the position, and he was terminated from

his position at EarthLink due to the RIF .

87 . Petitioner d id not, however, prove the fourth element,

that other similarly - situated employees were treated more

favorably than him .

88 . An adequate comparator for Petitioner must be

ÐÒsimilarly - situatedÓ in all relevant respects.Ñ V alenzuela v.

GlobeGround N. Am. , 18 So. 3d at 23 ( internal citations

omitted); Johnson v. Great Expressions Dental Ctrs. of Fla. ,

132 So. 3d 1174 (Fla. 3d DCA 2014). The Johnson court explained

the exacting nature of the similarly - situated comparator, as

follows:

Similarly situated employees must have

reported to the same supervisor as the

plaintiff, must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to plaintiffÓs,

withou t such differentiating conduct that

would distinguish their conduct of the

appropriate discipline for it.

Id. at 1176.

89 . Petitioner has failed to prove by a preponderance of

the evidence that Respondent treated similarl y - situated

employees outside his protect ed class more favorably than him .

Petitioner Ós only evidence that Ms. Turpin treated women more

favorably was that she created a ÐgirlÓs clubÑ and surrounded

herself with women. However, this is not evidence of a

similarly situated comparator. Fu rthermore, Ms. Bouras was the

only non - biased witness who testified regarding the alleged

girlÓs club , and stated that Ðthere were girls hanging out

togetherÑ but stopped short of stating there were girls working

together or that there was a girlÓs club . Thus, t his argument

is rejected.

90 . Petitioner failed to produce evidence that Respondent

treated female employees more favorably than Petitioner. At the

time of his position elimination, Petitioner was the only

employee that served as a senior d irect or of partner

d evelopment. Ms. Powell and Ms. Bouras were females w orking in

the Channel under Ms. Turpin, whereas Petitioner was the only

senior director. Further, Ms. Powell testified that she was

placed on a performance for plan and had travel restricti ons.

The evidence presented at hearing failed to demonstrate that any

of the female employees met the similarly - situated employee test

and failed to demonstrate that any female received favorable

treatment on the basis of gender. Therefore, Petitioner fa iled

to prove a prima facie case of unlawful discrimination based on

his sex (male) under the McDonnel l Douglas standard.

Legitimate Non - Discriminatory Reason

91 . If Petitioner had met his burden of demonstrating a

prima facie case of unlawful discrimina tion, the burden would

shift to Respondent to proffer a legitimate reason for the

adverse employment action. Assuming Respondent does proffer a

legitimate reason for the adverse employment action, the burden

would then shift back to Petitioner to prove by a preponderance

of the evidence that the Ðlegitimate reasonÑ is merely a pretext

for the prohibited, retaliatory conduct. Russell v. KSL Hotel

Corp. , 887 So. 2d 372 (Fla. 3d DCA 2004) (citing Sierminski v.

Transouth Fin. Corp. , 216 F.3d 945, 950 (11th Ci r. 2000)).

92 . Respon dentÓs proffered legitimate non discriminatory

reason for terminating Petitioner was the RIF . Given the CEOÓs

directive to provide greater value to EarthLink shareholders, it

was necessary for EarthLink to reduce operating costs and

expenses and employee reduction was the most obvious place to

make reductions. The decision to eliminate Mr. TensenÓs

position was not related to his gende r. R ather, his position

elimination was a result of the RIF .

93 . Thus, Respondent met its burden to produce evidence of

a legitimate , non discriminatory reason for eliminating

PetitionerÓs position .

Pre - text for Discrimination

9 4 . To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a reasonable

fact finder t o conclude that the employer's legitimate,

nondiscriminatory reason was Ða pretext for discrimination.Ñ

Laincy v. Chatham Cnty. Bd. of Assessors , 520 F. AppÓx. 780, 781

(11th Cir. 2013) (citing Vessels v. Atlanta Indep. Sch. Sys. ,

408 F.3d 763, 771 (11th Cir. 2005)). ÐProvided that the

proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with

the wisdom of that reason.Ñ Id. Rather, the plaintiff must

show Ðsuch weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer's proffered

legitimate reasons . . . that a reasonable factfinder could find

them unworthy of credence.Ñ Id.

9 5 . It is clear from the evidence presented that EarthLink

provide d a legitimate, non discriminatory reason for its

employment action involving elimination of Mr. TensenÓs

position. Therefore, Petitioner did not prove by a

preponderance of the evidence that EarthLink Ós ground s for the

position elimination were pretextual.

Retaliation

9 6 . As a preliminary matter, the undersigned finds that

Petitioner abandoned any retaliation claim against Respondent in

this matter. While Petitioner alleged in his initial complaint

of dis crimination that Respondent retaliated against him,

Petitioner never alleged a retaliation claim in his Petiti on.

Further, in the Joint Pre - h earing Stipulation submitted by the

parties on March 16, 2017, Petitioner did not identify

retaliation as an issue which remained to be tried at the

hearing.

9 7 . In paragraph 5(h) of the Order of P re - hearing

I nstructions, the undersigned directed the parties to Ð provide a

concise statement of those issues of law which remain for

determination by the undersigned. Ñ T he undersigned also

indicated that Ðthe failure to identify issues of fact or law

remaining to be litigated may constitute a waiver and

elimination of those issues. Ñ See Palm Beach Polo Holdings,

Inc. v. Broward Marine, Inc. , 174 So. 3d 1037 (Fla. 4th DC A

2015). Petitioner did not include retaliation as an issue of

law which remained for determination in the joint pre - hearing

stipulation . At the hearing, the undersigned asked whether the

issues identified in the joint pre - hearing s tipulation were the

on ly issues to be tried at the hearing; Petitioner still did not

raise retaliation as an issue. Accordingly, the undersigned

finds that Petitioner abandoned any retaliation claim in this

case.

9 8 . Even if Petitioner had not abandone d his claim for

retalia tion, Petitioner failed to present evidence to support a

claim for retaliation.

9 9 . A claim of retaliation involves section 760.10(7),

which provides that: Ð It is an unlawful employment practice for

an employer, . . . to discriminate against any person b ecause

that person has opposed any practice which is an unlawful

employment practice under this section, or because that person

has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

sec tion. Ñ

100 . ÐSection 760.10(7) , Florida Statutes, is virtually

identical to its Federal Tit le VII counterpart, 42 U.S.C.

§ 2000e - 3(a). Th e FCRA is patterned after Title VII; federal

case law on Title VII applies to FCRA claims.Ñ Hinton v.

Supervision I nt'l, Inc. , 942 So. 2d 986, 989 (Fla. 5th DCA

2006)(citing Guess v. City of Miramar , 889 So. 2d 840, 846 n.2

(Fla. 4th DCA 2005)).

101 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh

Circuit has held that: [t]he statute's participation clause

Ðprote cts proceedings and activities which occur in conjunction

with or after the filing of a fo rmal charge with the EEOC.Ñ The

opposition clause, on the other hand, protects activity that

occurs before the filing of a formal charge with the EEOC, such

as submi tting an internal complaint of discrimination to an

employer, or informally complaining of discrimination to a

supervisor. (citations omitted). Muhammed v. Audio Visual

Servs. Group , 380 Fed. Appx. 864, 872 (11th Cir. 2010). The

division of section 760. 10(7) into the Ðopposition clauseÑ and

the Ðparticipation clauseÑ is recognized by Florida state

courts. See Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922,

at 925 - 926 (Fla. 5th DCA 2009) .

102 . In explaining the difference between the two clauses,

th e Second District Court of Appeal has held that:

FCRA's Ðopposition clause [protects]

employees who have opposed unlawful

[employment practices]. . . . Ñ However,

opposition claims usually involve

Ðactivities such as Òmaking complaints to

management, writ ing critical letters to

customers, protesting against discrimination

by industry or by society in general, and

expressing support of coworkers who have

filed formal charges. . . . ÓÑ Cases

involving retaliatory acts committed after

the employee has filed a charge with the

relevant administrative agency usually arise

under the participation clause.

Carter v. Health Mgmt. Assoc. , 989 So. 2d 1258, 1263

(Fla. 2d DCA 2008).

103 . Petitioner did not introduce any direct or

statistical evidence that proves R espo ndent retaliated against

him as a result of PetitionerÓs opposition to acts of

discrimination. Absent any direct or statistical evi dence,

Petitioner must prove his allegations of retaliation by

circumstantial evidence. Circumstantial evidence of retaliat ion

is subject to the burden - shifting analysis established in

McDonnel l Douglas .

104 . To establish a prima facie case of retaliation under

the oppos i tion clause under McDonnell Douglas , Petitioner must

demonstrate by a prepondera nce of the evidence Ð(1) t hat [ he]

engaged in statutorily p rotected expression; (2) that [ he]

suffered an adverse employment action; and (3) there is some

causal relationship between the two events.Ñ (citations

omitted). Holifield v. Reno , 115 F.3d at 1566; see also

Muhammed v. A udio Visual Servs. Group , 380 Fed. Appx. at 872;

Tipton v. Canadian Imperial Bank , 872 F.2d 1491 (11th Cir.

1989).

a. Statutorily - Protected Activity

1 05 . Not every act an employee takes in opposition to

discrimination is a protected activity. Laincy , 5 20 Fed. AppÓx.

at 782 (citing Butler v. Ala. Dep't of Transp. , 536 F.3d 1209,

1214 (11th Cir. 2008)). The employee must show: Ð(1) that [ he ]

had a subject ive good - faith belief Òthat [his ] employer was

engaged in unlawful employment practicesÓ; and (2) th at [his]

belief, even if mistaken, was objectively reasonable in light of

the record.Ñ Id. (emphasis added).

10 6 . The standard requires an intensely fact - specific

analysis. In Laincy , the court found that plaintiff did not

engage in a protected activit y because his belief that his

coworkersÓ allegedly harassing comments constituted an unlawful

employment practice was objectively unreasonable, where it was

limited to three innocuous comments asking him if he was dating

someone. Laincy , 520 Fed. AppÓx. a t 783. See also MacKenzie v.

Denver , 414 F .3d 1266, 1281 (10th Cir. 2005) (plaintiffÓs claim

of age harassment was both subjectively and objectively

unreasonable where she likewise lobbed age - related comments at

her supervisor, thus participating in a form of Ðmutual

banteringÑ); Atkinson v. StavroÓs Pizza, Inc. , Case No. 13 - 2880

(Fla. DOAH Jan. 29, 2015) (petitionerÓs complaint of sexual

harassment based on a single Ðweird conversationÑ between

petitioner and another employee, in which the other employee

s tated he Ðknew everything about her, including where she lived,

and that her favorite color was blue,Ñ was objectively

unreasonable).

10 7 . Here, Petitioner argued that on February 2, 2015, he

submitted a written complaint of discrimination to RespondentÓs

CEO. While he used what he termed the Ðbuzz wordÑ of hostile

environment, his statement referenced complaints regarding men

and women. He did not specifically state any complaints of

discrimination directed to one gender (males). Further,

Petitioner se nt his email to an email address that appeared to

be for feedback to lodge his complaints, instead of complaining

to Mr. Toplisek (Ms. TurpinÓs direct supervisor) with whom he

had regular conversations or to a member of human resources.

Thus, Petitioner f ailed to establish a subj ective good - faith

belief for his reports of discrimination based on sex or hostile

environment .

10 8 . Therefore, Petitioner failed to prove by a

prep onderance of the evidence that he engaged in a statu torily -

protected activity wh en he reported complaints of hostile work

environment to RespondentÓs CEO.

b. Adverse Employment Action

10 9 . Clearly, Petitioner suffered an adverse employment

action whe n his position was eliminated on March 9, 2015 .

110 . Thus, Petitioner could satisfy his burden to

establish that he met the second element of the prima facie case

for retaliation.

c. Causal Connection

111 . To prove the third element, Petitioner must

demonstrate a causal connection between the protected activity

and the adverse employme nt decision. This causal link element

is construed broadly, and may be established by a demonstration

that the employer was aware of the protected conduct and that

the protected activity and the adverse action were not Ðwholly

unrelated.Ñ Farley v. Natio nwide Mut. Ins. , 197 F.3d 1322, 1337

(11th Circ. 1999)(internal citations omitted); Olmstead v. Taco

Bell Corp. , 141 F.3d 1457, 1460 (11th Cir. 1998). Moreover, for

purposes of demonstrating a prima facie case, close temporal

proximity may be sufficient t o show that the protected activity

and adverse action were not wholly unrelated. Gupta v. Fla. Bd.

of Regents , 212 F.3d 571, 590 (11th Cir. 2000).

112 . At the hearing, Petitioner discussed incidents that

occurred during his employment that he did not li ke and felt

were discriminatory. However, Petitioner failed to establish

that he complained about discrimination during his employment.

PetitionerÓs vague statements of hostile work environment and

displeasure with men and women were not sufficient to es tablish

that he sufficient ly complained of discrimination on the basis

of gender. No evidence was produced by Petitioner that he

expressly complained about gender discrimination. Courts have

consistently required that an employee's complaints must clearl y

put an employer on notice of a violation of the law. See

Johnson v. Fla. Dep't of Elder Aff . , No. 4: 09 - CV - 306/RS/WCS,

2010 U.S. Dist. LEXIS 42784, at 6 (N.D. Fla. Mar 20, 2010).

Further, the courts recognize a Ðcommon senseÑ requirement that

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

something unknown to [her].Ñ Brungart v. BellSouth Telecomms .,

Inc. , 231 F.3d 791, 799 (1 1th Cir. 2000).

1 13 . The record is clear that Petitioner received the

employee handbook with the grie vance p rocedures for EarthLink .

Since Petitioner never put EarthLink on notice that he was

opposing gender discrimination or that he was making a fo rmal

complaint, Petitioner failed to produce evidence of any

protected activity, and as a result, he failed to sho w a causal

connection related to PetitionerÓs position elimination .

1 14 . Therefore, Petitioner would not be able to prove by

preponderance of the evidence that Respondent retaliated against

him for engaging in protected complaints of unlawful employment

d iscrimination.

Conclusion

1 15 . Based on the foregoing, Petitioner did not prove his

Charge of Discrimination. The undersigned therefore concludes

that Respondent did not violate the Florida Civil Rights Act of

1992, and is not liable to Petitioner for discrimination in

employment based on sex or 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 dismissing PetitionerÓs

discrimin ation complaint and Petition for Relief consistent with

the Findings of Fact and Conclusions of Law of this Recommended

Order.

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

Tallahassee, Leon County, Florida.

S

YOLONDA Y . GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

t hi s 1st day of June , 2017 .

ENDNOTE S

1/ Florida Administrative Code Rule 28 - 106.104(3) states ÐAny

document received by the office of the agency clerk before

5:00 p.m. shall be filed as of that day but any document

received after 5:00 p .m. shall be filed as of 8:00 a.m. on the

next regular business day. Ñ

2/ Based on the evidence presented at hearing, Mr. Butts did not

attended the meeting.

3 / The acronym B.I.T.C.H.E.S. represented: Babes or (Boys) In

Total Control of Herself (or Hi mself).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Alex Drummond, Esquire

Seyfarth Shaw, LLP

Suite 2500

1075 Peachtree Street, Northeast

At lanta, Georgia 30309

(eServed)

Soloman Laguerre, Esquire

Seyfarth Shaw, LLP

Suite 2500

1075 Peachtree Street, Northeast

Atlanta, Georgia 30309

(eServed)

Alvin Mark Gomez, Esquire

Gomez Law Group, PC

Suite 7

2725 Jefferson Street

Carlsbad, California 92008

(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 wi thin

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.