17-000564 Benjamin D. Love vs. Escambia County Board Of County Commissioners Status: Closed Recommended Order on Wednesday, May 24, 2017.

Summary: Petitioner failed to meet his burden of proving by a preponderance of the evidence that Respondent engaged in a discriminatory employment practice based on his religion, or as a retaliation in opposition to acts of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENJAMIN D. LOVE,

Petitioner,

vs. Case No. 17 - 0564

ESCAMBIA COUNTY BOARD OF COUNTY

COMMISSIONERS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held April 4 ,

and April 18, 2017 , by video teleconference in Pensacola and

Tallahassee , Florida, before Yolonda Y. Green, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (ÐD ivision Ñ).

APPEARANCES

For Petitioner: Benjamin D avid Love, pro se

Post Office Box 1132

Gonzalez, Florida 32560

For Respondent: Meredith D. Crawford, Esquire

Escambia County Board of

County Commissioners

Suite 430

221 Palafox Place

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

Whether Respondent subjected Petitioner to an unlawful

employment practice on the basis of religion; or in retaliation

to his engagement in a lawful employment activity, in violation

of section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Be njamin D. Love (ÐMr. Love Ñ or ÐPetitionerÑ),

filed a Complaint of Employment Discrimination with the Florida

Comm ission on Human Relations (ÐCommission Ñ) on January 25,

2016 . The complaint alleged that Respondent, Escambia County

Board of County Commissio ners (Ð Escambia County Ñ or

ÐRespond entÑ), discriminated against him on the basis of

religion . Following its investigation of the allegations, FCHR

issued a determination of ÐNo Reasonable CauseÑ regarding

PetitionerÓs complaint on December 21, 2016 .

On J anuary 24, 2017 , Petitioner filed a Petition for Relief

requesting an admin istrative hearing regarding the CommissionÓs

ÐNo Reasonable CauseÑ determination pursuant to section

760.11(7).

The Commission referred this matter to the Division on

January 24, 2 017 , and on January 25 , 2017 , this matter was

assigned to the undersigned. The undersigned issued a Notice of

Hearing, setting t he final hearing for April 4 , 2017. On

March 28, 2017, Respondent filed a Motion to Dismiss, which was

denied after a telephonic motion hearing. The parties filed a

pre - hearing stipulation wh erein they stipulated to certain facts

which, to the extent relevant, have been incorpora ted into the

Findings of Fact below .

On April 4, 2017, d uring preliminary matters, the

undersigned heard RespondentÓ s m otion to c ompel discovery,

motion for sanctions, and second r equest for extension of t ime.

The motion , which was related to incomplete answers to

interrogatories, was granted , in part , and denied , in part .

Pursuant to RespondentÓs request to depose Petitioner, t he

hearing was recess ed to allow Respondent to take the deposition

of Petitioner to obtain responses to the incomplete

interrogatories . Following the deposition , t he fi nal hearing

convened and was partially held . The hearing reconvened on

April 18, 2017 , until completion.

At hear ing, Petitioner testified on his own behalf

and offered no other witnesses . He offered Exhibits 1 a , 1b,

2a through 2h, 3a through 3x, 4, 10 , 10 c , and 10h, which were

admitted in evide nce. Pe titioner also offered Exhibit 8, which

was not admitted.

Responden t offered the testimony of four witnesses: Mary

Elizabeth Bush, Escambia County, Public Works Department,

C onstruction and Bridge Program m anager; James Duncan, Escambia

County, Public Works Department, Deputy Division Manager ; Joy

Jones, Escambia County, Public Works Department , Division

Manager ; and Sharon Johnson , Blue Arbor contract employee .

Respondent offered Exhibits 9, 11 , 14, 15, 19, 20, 23 through

30, a nd 32 through 40 , which were admitted.

The two - volume Transcript was filed on May 1, 2017 . The

parties timely filed Proposed Recommended Orders, which have

been carefully considered in the preparation of this Recommended

Order.

All statutory references are to Florida Statutes (2014 ),

when the alleged discriminatory act occurred, unless otherwise

indicated.

FINDINGS OF FACT

1 . Respondent, Escambia County, is a political subdivision

of the state of Florida that is authorized to carry out county

government , pursuant to s ection 125.01 , Florida Statutes (2016) .

2 . Escambia County is an employer as that term is defined

by the Florida Civil Rights Act 1992 .

3 . Petitioner, Mr. Love, was employed by Blue Arbor, Inc.,

a staffing agency. Blue Arbor had a contract with Escambia

County for temporary labor services. Blue Arbor assigned

Mr. Love to a temporary job with Escambia County, Public Works

Department, Office of Engineering and Construction, as an

engineering project c oordinator. The assignment was for one

year. Petitioner was a ssigned to the job from May 26, 2014,

until his termination.

4 . On January 26, 2015, Escambia County terminated

PetitionerÓs temporary employment contract.

5 . Petitioner was an employee of Escambia Co unty as that

term is defined by the Florida Civil Rights Act of 1992.

6 . Mr. Love is a Christian.

7 . Petitioner timely filed a complaint with the Commission

alleging Respondent engaged in an unlawful employment practice

by terminating Petitioner on the basis of his religion.

8 . As an engineering project c oordinator, PetitionerÓs job

responsibilities included: management of complex projects,

ability to prioritize work, and ability to exercise good

interpersonal skills with co - workers, supervisors, and the

public.

9 . Mr. Love earned a B achelor of Science in Engineering

Technology and C onstruction degree in December 2 013. Mr. Love

had no prior drainage or roadway experience before working for

Escambia County.

10 . Mr. Love began working for Escambia County following a

storm that was declared a disaster. Due to the dis aster, staff

was expected to be flexible and able to perform job duties

without refusal or hesitation.

11 . Respondent asserts that it terminated Petitioner Ós

contract due to his in ability to perform job responsibilities

without objection or hesitation, work performance, and

disruptive behavior .

12 . Mr. Love had multiple supervisor s during his eight

month tenure at Escambia County. While working at Escambia

County, Mr. LoveÓs supervisor s had issues with his work

performance and his behavior .

13. Mary Bush, a const ruction manager, supervised Mr. Love

in 2014. Ms. Bush had issues with Mr. LoveÓs file storage

practices and behavior. Ms. Bush testified that Mr. Love saved

all his work on a personal computer and was told several times

to save his work in the shared folder. Mr. Love refused to save

his work on the shared drive on the basis that the documents

were his work .

14 . During the time Ms. Bush supervised Mr. Love , she

experienced two incidents with Mr. Love involving outbursts. On

one occasion, Mr. Love was in Ms. BushÓs office seeking review

of Mr. LoveÓs work . Mr. Love stated in a raised voice, Ð you

need to review the repo rt so I can do my job. Ñ On another

occasion, Ms. Bush directed Mr. Love to identify his documents

using a certain description and explained the importance of the

practice. Mr. Love objected on the basis that the practice was

an asinine process.

15 . Mr. Love was reassigned to another supervisor due to

the outbursts involving Ms. Bush . At no point did Mr. Love

state that his objection to following directions was based on

his religion.

16 . Chris Curb, an engineering m anager for s tormwater,

also super vised Mr. Love during his tenure at Escambia County.

Despite the direction from Ms. Bush, t he file - sharing issue

continued. On December 30, 2014, Chris Curb notified Mr. Love

by email that his file saving was a Ðproblem.Ñ Mr. Curb advised

Mr. Love that his file folder was not a standard subfolder and

he needed to save all files in the proper shared subfolders. He

explained that file sharing is important so Escambia County

could comply with state regulations and records requests. He

further ex plained that Mr. Love was not the sole owner of a

project record because other employees would need access to the

work. He concluded his email with instructions for Mr. Love to

use designated file folders .

17 . A third supervisor, Jim Duncan, also had issues w ith

Mr. LoveÓs work performance and behavior. Similar to his

practice under prior supervisors, Mr. Love refused to save his

files to the sh a red file folder.

18 . Mr. Love also repeatedly refused to attend mandatory

meetings without a direct command. For example, on multiple

occasions Mr. LoveÓs supervisor had to locate and direct him to

attend the weekly department meetings. Mr. Love testified that

he was reluctant to attend the meetings because he believe d they

Ðwere unproductive and take up to o much time.Ñ

19 . Similar to other supervisors, Mr. Love engaged in an

outburst with Mr. Duncan. Mr. Duncan was a c onstruct ion m anager

when he supervised Mr. Love and thus, was responsible for

directing Mr. Love to advance projects from conception to

completion. One such project was ENG Flood 414 - 85, which was

also referred to as the Beulah Road at Helms Intersection

project (ÐBeulah - Helms projectÑ) . Mr. Love was the project

coordinator for the project.

20 . In October 2014, Roads , Inc. , a construction company,

submitted a bid for the Beulah - Helms project. Brett Moylan is

the vice - president and chief operating o fficer of Roads, Inc.

21 . The project was a pricing agreement contract. Pricing

agreement contracts are contracts where prices are established

for a period of one year and are adopted by the Escambia County

prior to the award of any specific pricing agreement contract.

Pricing agreements have a blackout period and bidding process

that also takes place p rior to acceptance of the pricing

agreement.

22 . I n December 2015, Mr. Love was in the final stages

of the procurement process for the Beulah - Helms project .

Roads, Inc. was the lowest bidder on the project. Mr. Love

corresponded with Mr. Moylan regarding the documents necessary

to approve the project . Mr. Love requested a construction

schedule and MOT plan for the project before the work order

could be approved . Mr. Moylan asserted in an email that the

construction schedule would begin after the purchase order is

issued. Mr. Moylan later submitted the MOT plan and signed the

work order.

23 . On January 22, 2015, Mr. Love sent a n email to

Mr. Moylan requesting the construction schedule and ano ther

signed work order w ith the appropriate dates. Mr. Love advised

Mr. Moylan that he woul d not begin the project until Mr. Moylan

submitted the construction schedule . Although Mr. Moylan

explained that he usually d id not submit a construction

schedule, he ultimately provided the construction schedule to

Mr. Love indicating that the project would begin the following

Monday and Ðbe substantially complete within 60 days of

commencement, and have a completion date within 90 d ays.Ñ The

construction schedule provide d by Mr. Moylan was an acceptable

schedule.

24 . For a reason that wa s not addressed at hearing,

Mr. Love asked Mr. Moylan for the construction schedule again,

despite receiving it. Mr. Moylan advised Mr. Love to accept the

next lowest bidder.

25 . As a result of the email exchange with Mr. Moylan,

Mr. Love planned to send Mr. Moylan a follow - up email about

accepting the next highest bidder, which would purportedly cost

Escambia County an additional $20,000 for the project. Before

Mr. Love d rafted the email, he called Mr. Moylan to discuss the

issues referenced in the em ail. Mr. Love testified that before

he called Mr. Moylan he Ðdro ve around the block a couple of

times , before he could call Mr. Moylan because [he] knew that

the conversation was going to get heated. Ñ Mr. Love described

the conversation as heated , and they Ðcut each other offÑ during

the conversation .

26 . Mr. Moylan contacted M r. Duncan to complain about

Mr. LoveÓs behavior related to the Beulah - Helms project.

Mr. Duncan approached Mr. Love to discuss the exchan ge between

Mr. Love and Mr . Moylan. Mr. Duncan directed Mr. Love to award

the Beu lah - Helms project to Roads, Inc.

27 . Mr. Love objected to awarding the contract to

Roads, Inc. He testified that his objection was based on his

religion because Ð[ he ] had an obligation to utilize his moral

and ethical judgment which is inherent to [his] religion.Ñ

Mr. Love stated that the r eligious accommodation was based on

his request for addit ional information before he c ould feel

comfortable awarding the project to Roads, Inc.

28. Mr. Love testified that he told Mr. Duncan that he

refused to award Roads, Inc. , without the construction schedule

Ðbased on a matter of principal.Ñ Mr. Love did not say he

refused to approve the project based on his religion. He did

not say he needed an accommodation for his religion.

29. Mr. Duncan directed Mr. Love not to take any further

action until they discussed Mr. LoveÓs objection with the

department manager, Joy Jones. During the conversation ,

Mr. Love became angry and yelled at Mr. Duncan.

30. Sharon Johnson, a pr oject coordinator, witnessed the

exchange between Mr. Love and Mr. Duncan . Specifically,

Ms. Johnson observed Mr. Love and Mr. Duncan having the

discussion about the Beulah - Helms project. Ms. Johnson

described Mr. LoveÓs demeanor as unhappy and upset. She

testified that he raised his voice and yelled at Mr. Duncan. At

the same time, Mr. Duncan attempted to calm Mr. Love.

Ms. Johnson could not recall the substance of the discussion,

but she testified without hesitation that Mr. Love did not

mention anything about his religion. Ms. JohnsonÓs te stimony is

found to be credible.

31 . On January 26, 2015, Escambia County terminated

PetitionerÓs contract.

32. Joy Jones, the E ngineering Department m anager, made

the final decision to terminate Mr. LoveÓs contract. Although

Ms. Jones did not directly supervise Mr. Love, she was aware of

the issues concerning his work performance and behavior through

complaints from her staff who directly supervised Mr. Love.

After several complaints of angry outbursts, difficulty meeting

deadlin es, failure to save critical documents to the shared

drive, inability to move projects in the process without

reluctance, and inability to wor k with several supervisors,

Ms. Jones made the decisio n to terminate Mr. LoveÓs contract.

Based on the evidence, Respondent has demonstrated that

Mr. LoveÓs termination was based on a le gitimate business

decision due to poor work performance and disruptive behavior .

33. Approximately one year after his termination , Mr. Love

sent an email to the Escambia Co unty Administrator, Jack Brown.

T he email compla ined of perceived damage to Mr. LoveÓs

reputation, credibility, and career. Mr. Love did not mention

any complaint of religious discrimination or retaliation. In

his response to Mr. Love, Mr. Brown explained th at Ði n the

project c oordinator position staff must examine and thoroughly

understand applicable process. Refusal and hesitation to

perform job duties affect production, grant reimbursement

deadlines, and citizen expectations.Ñ

34 . Mr. Love did not explicitly mention anything about his

religion or religious discrimination to any of his supervisors

before he was terminated from Escambia County.

CONCLUSIONS OF LAW

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

Statutes (2016), the Divisi on has jurisdiction over the subject

matter and parties to this proceeding.

36 . Section 760.10(1)(a), provides in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

37 . T he civil rights act defines ÐemployerÑ as Ðany 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.

38 . Escambia County meets the definition of an employer .

Religious Discrimination

39 . Petitioner filed a complaint alleging Resp ondent

discriminated against him on the basis of his religion.

40 . Section 760.11(1) provides, in pertinent part, that

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

file a complaint with the [FCHR] within 365 days of the alleged

violatio n.Ñ Petitioner timely filed his complaint.

41 . Section 760.11(7) provides that upon a determination

by the Commission that there is no reasonable cause to believe

that a violation of the Florida Civil Rights Act of 1992 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

reasonable cause.Ñ Following the CommissionÓs determination of

no ca use, Petitioner timely filed his Petition for Relief from

Unlawful Employment Practices and Request for Administrative

Hearing , re sulting in this hearing.

42 . 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 prototype.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. Br yant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

43 . 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. D ep't of Transp.

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

44 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

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

45 . Direct evidence is 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 well 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)(citations omitted).

46 . Petitioner did not present any direct evidence of

employment discrimination based on religion .

47 . Similarly, Petitioner presented no statistical

evidence of employment discrimination by Respondent a gainst

Petitioner .

48 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence. In McDonnell Douglas Corp . v. Green , 411 U.S.

792 (1973), and as refined in Tex as Dep Ó t of Cmty . Affairs v.

Burdine , 450 U.S. 248 (1981), and St. Mary's Honor Ctr . 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

circumstant ial evidence of discriminatory intent.

49 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination.

50 . To establ ish a prima facie case of religious

discrimination, a p etitioner must demonstrate by a preponderance

of the evidence that: 1) she is a member of a protected class;

2) she was qualified for the position; 3) she was subjected to

an adverse employment action; and 4) her employer treated

similarly - situated employ ees outside of her protected class more

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

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

51 . The first , second , and third prongs of the prima facie

case have been met by Petitioner. Mr. Love is Christian , he was

qualified for the position , and he was terminated by Escambia

County.

52 . In its proposed recommended order , Respondent argued

Petitioner had not met the second prong of the McDonnell Douglas

framework. However, Respondent did not provide support for that

position , and Petitioner was employed in the position when he

was terminated. RespondentÓs argument is therefore rejected.

5 3. Petitioner d id not, however, prove the fourth prong ,

that other similarly - situated employees were treated more

favorably than h e .

5 4. An adequate comparator for Petitioner must be

ÐÒsimilarly - situatedÓ in all relevant respects.Ñ Valenzuela 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 subje ct to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to plaintiffÓs,

without such differentiating conduct that

wo uld distinguish their conduct or the

appropriate discipline for it.

Id. at 1176.

5 5. Petitioner has failed to prove by a preponderance of

the evidence that Respondent treated similarly - situated

employees outside his protect ed class more favorably than h e .

The evidence establishes that Petitioner was terminated for work

performance and disruptive behavior. Petitioner did not

identify any other non - Christian employees who were treated more

favorably than h e .

56. Thus, Mr. Love failed to prove by a preponder ance of

evidence a prima facie case of unlawful discrimination by

Escambia County based on his religion under McDonnell Douglas .

57 . If Petitioner had been able to prove his prima facie

case by a preponderance of the evidence, the burden would shift

to Respondent to articulate a legitimate, non discriminatory

reason for its employment decision. Tex. DepÓt of Cmty. Aff. v.

Burdine , 450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991). An employer has the burden of

producti on, not persuasion, to demonstrate to the finder of fact

that the decision was non discriminatory. DepÓt of Corr. v.

Chandler , supra . This burden of production is "exceedingly

light." Holifield v. Reno , 115 F.3d at 1564; Turnes v. Amsouth

Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

58 . If the employer produces evidence that the decision

was nondiscriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Ho nor Ctr. v. Hicks ,

509 U.S. at 516 - 518. In order to satisfy this final step of the

process, Petitioner must Ðshow[] directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for t he

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 (citing Tex as Dep't of Cmty. Aff.

v. Burdine , 450 U.S. at 252 - 256). Ð[A] reason cannot be a

pretext for discrimination Òunless it is shown both that the

reaso n was false, and that discrimination was the real reason.ÓÑ

(emphasis added). Fla. State Univ. v. Sondel , 685 So. 2d at

927 ( citing St. Mary's Honor Ctr. v. Hicks , 509 U.S. at 515 ) ;

see also Jiminez v. Mary Washington Coll. , 57 F.3d 369, 378 (4th

Cir. 1995). The demonstration of pretext Ðmerges with the

plaintiff's ultimate burden of showing that the defendant

intentionally discriminated against the plaintiff.Ñ Holifield

v. Reno , 115 F.3d at 1565.

59 . In a proceeding under th e Civil Rights Act, Ð[w]e are

not in the business of adjudging whether employment decisions

are prudent or fair. Instead, our sole concern is whether

unlawful discriminatory animus motivates a challenged employment

decision.Ñ Damon v. Fleming Supermarket s of Fla., Inc. ,

196 F.3d at 1361. As established by the Eleventh Circuit Court

of Appeals, Ð[t]he employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

discriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns ,

738 F.2d 1181, 1187 (11th Cir. 1984). Moreover, Ð[t]he

employerÓs stated legitimate reason . . . does not have to be a

reason that the judge or jurors would act on or approve.Ñ DepÓt

of Corr. v. Chandler , 582 So. 2d at 1187.

60 . In determining whether RespondentÓs actions were

pretextual, the undersigned Ðmust evaluate whether the plaintiff

has demonstrated Òsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions i n the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.ÓÑ

Combs v. Plantation Patterns, Meadowcraft, Inc. , 106 F.3d 1519,

1538 (11th Cir. 1997).

61 . Respondent presented evidence t hat Petitioner was

terminated based on several issues including: his behavior in

the work place , his inability to work with several supervisors,

refusal to move projects without reluctance, and work

performance. Respondent also offered evidence that inability to

perform job duties without hesitation affects production, grant

reimbursement deadlines, and citizen expectations. The evidence

Respondent presented credibly articulated a legitimate business

reason for terminating Petitioner.

6 2. To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a reasonable

fact finder to conclude that the employer's legitimate,

nondiscriminatory reason was Ða pretext for discrimination.Ñ

L aincy , 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 legi timate reasons . . . that a reasonable

factfinder could find them unworthy of credence.Ñ Id.

6 3. Petitioner introduced no evidence to persuade the

un dersigned that RespondentÓs reasons for terminating his

contract was a mere pretext.

64 . For the reasons set forth her ein, Petitioner did not

meet his burden to prove a prima facie case of discrimination on

the basis of rel igion. Respondent demonstrated legitimate

non di scriminatory reasons for it s action s. Petitioner did not

prove that RespondentÓs legitimate non discriminatory reason was

a pretext.

Retaliation

65 . 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 because

that person has opposed any practice which is an unlawful

employment practice under this section, or because that person

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

manner in an investigation, proceeding, or hearing under this

section. Ñ

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

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

§ 2000e - 3(a). The FCRA [Florida Civi l Rights Act] is patterned

after Title VII; federal case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision Int'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)).

6 7 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh

Circuit has held that: T he statute's participation clause

Ðprotects proceedings and activities which occur in conjunction

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

opposition cl ause, on the other hand, protects activity that

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

as submitting an internal complaint of discrimination to an

employer, or informally complaining of discrimination to a

supervisor. (citations o mitted). 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 Dire ct, Inc. , 16 So. 3d 922,

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

68 . In explaining the difference between the two clauses,

the Second District Court of Appeal has held that:

FCRA's Ðopposition clause [protects]

employees who have opposed unlawful

[employment pract ices]. . . . Ñ However,

opposition claims usually involve

Ðactivities such as Òmaking complaints to

management, writing 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).

69 . Petitioner did not introduce any direct or statistical

evidence that proves R espondent retaliated against him as a

result of PetitionerÓs opposition to acts of discrimination.

Absent any direct or statistical evide nce, Petitioner must prove

her allegations of retaliation by circumstantial evidence.

Circumstantial evidence of retaliation is subject to the burden -

shifting analysis established in McDonnel l Douglas .

70 . To establish a prima facie case of retaliation u nder

the oppos i tion clause under McDonnell Douglas , a p etitioner must

demonstrate by a preponderance of the evidence Ð(1) that [he]

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

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

caus al relationship between the two events.Ñ (citations

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

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

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

1989).

a. S tatutorily - Protected A ctivity

71 . Petitioner did not offer sufficient evidence to prove

by the preponderance of evidence that Escambia County engaged in

religious discrimination . Mr. LoveÓs claim that his objection

to awarding the Beulah Helms project to Roads, Inc. , as a matter

of principle , and his subsequent request for information as a

matter of principle , falls short of being discrimination on the

basis of religion. Thus, Petitioner did not prove that he was

engaged in a statutorily - protected activity.

b. Adverse Employment Action

72 . Petitioner claims that Respondent terminated his

contract after he requ ested additional information which he

believed was an accommodation for his religion . Petitioner did

suffer an adverse employment action when he was terminated on

January 26, 2015 .

c. Causal Connection

73 . To prove the third element, Petitioner must

demonstrate a causal connection between the protected activity

and the adverse employmen t 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. Nation wide Mut. Ins. , 197 F.3d 1322,

1337 (11th Cir . 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 to 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).

74 . Petitioner has not offered sufficient evidence to

prove by a preponderance of evidence that there is a causal

connection between any protected activity and the adverse

employment . Therefore, Petitioner has failed to meet the third

element.

75 . Petitioner has failed to establish a prima facie case

of retaliation.

76. Assuming Petitioner met his burden to prove a prima

facie case of retaliation, Respondent met its burden to produ ce

evidence of a legitimate non discriminatory reason for

PetitionerÓs terminati on as explained in paragraph 61 above.

Conclusion

77 . 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 religion 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

discrimination c omplaint and Petition for Relief consistent with

the Findings of Fact and Conclusions of L aw of this Recommended

Order.

DONE AND ENT ERED this 24th day of May , 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 Administrative Hearings

this 24th day of May , 2017.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Benjamin David Love

Post Office Box 1132

Gonzalez, Florida 32560

(eServed)

Meredith D. Crawford, Esquire

Escambia County Board of County Commissioners

Suite 430

221 Palafox Place

Pensacola, Florida 32502

(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.