17-002367 Gina A. Ruiz vs. Logistic Services International, Inc. Status: Closed Recommended Order on Monday, October 16, 2017.

Summary: Petitioner failed to prove her claim of racial discrimination and retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GINA A. RUIZ ,

Petitioner,

vs. Case No. 17 - 2367

LOGISTIC SERVICES INTERNATIONAL ,

INC.

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

July 12 , 2017, by video teleconference at locations in

Tallahassee and Pensacola, Fl orida, before James H.

Peterson III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) .

APPEARANCES

F o r P e t i t i o n e r : Gina A. Ruiz , pro se

3445 Wasatch Range Loop

Pensacola, Florida 32526

F o r R e s p o n d e n t : Kathryn K. Rudderman, Esquire

Robert G. Riegel, Jr. , Esquire

Buchanan Ingersoll & Rooney PC

50 North Laura Street , Suite 2800

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

W he th er Logistic Services International, Inc . (Respondent

or LSI ) , di sc ri minated ag ai nst Gina A. Ruiz (Petitioner) in her

employment with LSI o n th e basi s o f PetitionerÓs rac e or because

of unlawful retaliation i n v iolatio n o f th e Flori da Civ il Right s

Ac t o f 1992 .

PRELI M INARY STATE M ENT

Petitioner filed an Employment Charge of Discrimination

(Complaint) dated October 9, 2016, with the Florida Commission

on Human Relations (the Commission) alleging that Respondent

violated the Florida Civil Rights Act by terminating her

employment based on her race , age, gender, retaliation , and

prohibited employment pract ices. 2/

The Commission investigated the Complaint, which was

assigned FCHR No. 201602034 . F ollowing completion of its

investigation, the Commission issued a Determination signed by

its executive director on March 16, 2017, finding that Ðno

reasonable cause exists to believe an unlawful practice

occurred.Ñ The same day, the Commission sent Petitioner a

ÐNotice of Determination: No Reasonable Cause,Ñ which advised

Petitioner of her right to file a Petition for Relief for an

administrative proceeding on her Complaint within 35 days from

the date the Determination was signed by the executive director .

Petitioner timely filed a Petition for Relief with the

Commission on April 18, 2017. The Commission referred the

matter to the Division of Administrative Hearings, and the case

was assigned to the undersigned to conduct an administrative

hearing pursuant to c hapter 120, Florida Statutes (2017) . 1/

At the final hearing, Petitioner testifie d on her own

behalf , presented the testimony of six other witnesses, and

offered five exhibits received into evidence as Exhibits P - 1

through P - 3 , P - 6 , and P - 12 . By agreement of the parties,

Respondent presented the testimony of some of the witnesses

called by Petitioner through expanded inquiry after cross -

examination, and offered the testimony of two additional

witnesses . Respondent offered nine exhibits received into

evidence as Exhibits R - 3, R - 5, R - 7 through R - 9, R - 11, R - 15,

R - 19, and R - 20. Joint Exhibit 1, which was the same as R - 15,

was also received into evidence.

Th e proceedings wer e recorde d an d a transcript was ordered.

The parties were given 30 days from the filing of the t ranscript

within which to submit their respective Proposed Recommended

O rders. The two - volume Transcript was filed on August 7, 2017.

The parties timely filed their respective Proposed Recommended

Order s on September 6 , 2017 , both of which have been considered

in the preparation of this Recommended Order.

F I N D INGS OF FAC T

1. LSI Ós Pensacola facility builds training devices for

the U.S. Army by salvaging damaged aircraft and fashioning

simulated parts to be used in military aircraft maintenance

train ing .

2. Petitioner is an African - American female who was

employed by LSIÓs Pensacola facility for 19 months, from

February 17, 2015 , to September 9, 2016.

3. During her employment with LSI, Petitioner held three

different positions: tools and parts attendant , shipping and

receiving clerk, and procurement planner.

4. Initially , f rom February 17, 2015 , until approximately

April 2015, Petitioner worked as a t ools and p ar t s attendant at

the rate of $14.00 per hour.

5. Beginning in approximately April 2015, Petitioner moved

from her job as tools and parts attendant to a position in

shipping and receiving . At the final hearing, Petitioner

testified that her move to the shipping and receiving position

was actually a demotion because i t had a lower classification

number than her previous tools and parts attendant position.

Petitioner , however, liked the shipping and receiving posi tion

at the time and considered it to be a positive move bas ed on her

skills . Petitioner received a raise to $14.75 per hour with the

move.

6. I n approximately May 2015, Petitioner received a 90 - day

appraisal report rating of 6.38 out of 10 from her then - LSI

supervisor , Bernard Hill. Mr. Hill is African - American . While

Petitioner testified that she does not believe that Mr. HillÓs

appraisal of her was based o n her race, she asserts that a

director at LSI, David Corbisier, interfered with that

appraisal.

7. Petitioner testified that she was not happy with her

6.38 appraisal rating and thought that she should have received

at least an 8 or 9 out of 10 for that appraisal. Petitioner

admitted , however, that she does not know the significance of

the numbers assigned under LSIÓs employee rating system.

8. The 6.38 employee rating received by Petitioner under

LSIÓs employee rating system translates to a Ðhighly effectiveÑ

performance rating.

9. Petitioner never complained about Mr. HillÓs appraisal

of her until after submitting a resignation from her employmen t

with LSI on August 29, 2016.

10. In October 2015, Petitioner was promoted to the

position of procurement planner . With her promotion, Petitioner

received an increase in compensation from $14.75 to $16.67 per

hour. Petitioner was happy with her promotion.

11. The pos ition of procurement planner was a newly -

created position at LSI . Both Petitioner and another employee,

Patricia Koons, were assigned to work as procurement planners .

Petitioner and Patricia Koons were th e only two procurement

planners. Initially, both Petitioner and Ms. Koons were

supervised by Jason Delsandro .

12. On October 16, 2015, LSI hired PetitionerÓs husban d,

Victor Ruiz, as a government - furnished equipment clerk at the

Pensacola facility . After approximately three months, Mr. Ruiz

was promoted to the position of inventory control manager, where

he understood he would be supervising Sheila Corbisier .

13. Sheila Corbisier is the wife of David Corbisier.

David Corbisier is, and was at the time, director of

manufact uring for LSIÓs Pensacola facility. In that capacity,

Mr. Corbisier oversaw the Pensacola facilityÓs production and

supervised PetitionerÓs supervisor, Mr. Delsandro , as well as

other supervisors at LSI.

14. At some point, Mr. Ruiz became aware that

Ms. Corbisier may have been abusing her overtime. He reported

his suspicions to his immediate supervisors, Victor Wright and

Bernard Hill . Mr. Ruiz did not tell Sheila Corbisier that he

thought she was abusing overtime or that he would be repo rting

his conce rns to anyone. Mr. Ruiz never reported his concerns to

Mr. Corbisier .

15. LSI p roduction manager Mark Case testified that the

issue was not with Ms. CorbisierÓs abuse of overtime , but

whether she would be given the opportunity to work overtime if

authorized. To Mr. CaseÓs knowledge, Ms. Corbisier did not work

any overtime.

16. At some point after Mr. Ruiz reported to his

supervisors his concerns about Ms. CorbisierÓs overtime,

Ms. Corbisier resigned from LSI . Mr. Ruiz does not know why

Ms. Corbisier resigned . N o evidence was submitted indicating

the reason or providing an explanation of why M s . Corbisier

resigned , or whether it had anything to do with her overtime .

17. Petitioner alleges that, because her husband , Mr. Ruiz

reported his concerns about Ms. Corbisier to his supervisors,

Mr. Corbisier retaliated against Petitioner by interfering with

PetitionerÓs appraisals and assigning her menial tasks of

inventory control that were to be performed in areas without

air - condit ioning . Petitioner also contends that Mr. Corbisier

took these alleged adverse employment actions against her

because of her race .

18. At the final hearing, PetitionerÓs h usband, Mr. Ruiz,

could not say how Mr. Corbisier had retaliated against

Petitioner. The evidence was otherwise insufficient to

reasonably suggest that Mr. Corbisier retaliated against

Petitioner or that Mr. Corbisier discriminated against

Petitioner in her employment based upon her race.

19. As to PetitionerÓs alleged assignment to menial tasks

of inventory control , the evidence failed to show that

Mr. C orbisier assigned any tasks to Petitioner . In his capacity

of supervisor over the two procurement planners , Mr. Delsandro ,

and no one else, decided which tasks were ass ign ed to Petitioner

and Ms. Koons.

20. As procurement planners, both Petitioner and Ms. Koons

were responsible for inputting requisitions into the system,

gathering backup data for proposal s , conducting inventory

control, and timely planning and requisitioning parts for

trai ning devices.

21. Inventory control requires the monitoring of inventory

levels to ensure consistency with forecasted demand and

inventory goals for common stock items.

22. T he procurement planner job de scription provides that

the work is to be performed in office and production floor

environment s . As used in the job description, Ðproduction floor

environmentÑ refers to an area that is not air - conditioned.

While procurement requisitions are prepared in air - conditioned

office space , a pproximately 90 percent of the facilities at

LSIÓs Pensacola location are not air - conditioned.

23. During his supervision, Mr. Delsandro had the

intention of dividing work assignments equally between

Petitioner and Ms. Koons. Ms. Koons, however, who had more

procurement experience than Petitioner, ended up performing more

requisitions than Petitioner, and Petitioner was ass igned more

inventory control .

24. The inventory control function includes the counting

of inventory. Petitioner and Ms. Koons were both involved in

counting various items for inventory control. Mr. Del sandro

also engaged in inventory control tasks.

25. While Petitioner apparently had more assigned tasks in

inventory control than Ms. Koons, Mr. Delsandro attempted to

assign inventory control tasks to Petitioner and Ms. Koons as

equally as he could, based on their availability. At least

once, when Pe titioner was performing inventory control tasks in

an environment without air - conditioning, Mr. Delsandro offered

to let Petitioner take the inventory items into his office to

work in air - conditioning. Petitioner, however , elected to work

on the floor ins tead.

26. On at least one other occasion, Petitioner asked

Mr. Delsandro if she could help her husband in the warehouse,

which is not air - conditioned.

27. Prior to Mr. DelsandroÓs supervision, Petitioner had

worked in the tool room, an area which is not air - conditioned.

28. The evidence does not support a finding that

PetitionerÓs assignments to work in inventory control were

influenced by Mr. Corbisier, or were the result of retaliation

or racial discrimination.

29. Regarding PetitionerÓs appraisals, there is no

evidence that Mr. Corbisier, or anyone else, retaliated or

discriminated against Petitioner. As noted above, PetitionerÓs

first appraisal , a 90 - day appraisal report conducted in

May 20 15 , gave Petitioner a Ðhighly effectiveÑ rating.

30. PetitionerÓs only other appraisal, dated March 2,

2016, resulted in an even higher rating of Ðoutstanding . Ñ

31. PetitionerÓs March 2, 2016 , appraisal was prepared and

approved in accordance with LSIÓs procedures designed to promote

consistency in the appraisal process . In accordance with that

process, draft appraisal s are first prepared by employeesÓ

supervisor s , and then shared with the supervisors of those

supervisor s; in this case, David Corbisier. I f the supervisorÓs

supervisor agree s with the ev al uation, then it would be

approved. Otherwise, there would be some discussion that may

lead to changes, for consistency purposes. Any appraisal

recommending a merit pay increase of more than three percent

require d justification prior to approval. Even with this

interaction, the individual supervisors are ultimately

responsible for the final appraisals.

32. Petitioner and Ms. Koons were the first employees that

Mr. Delsandro had supervised, and t he appraisals for those two

employees were the first appraisals that Mr. Delsandro had

prepared for LSI . In accordance with LSIÓs procedures, and

considering the fact the appraisals of Petitioner and Ms. Koons

were Mr. DelsandroÓs first appraisals, Mr. Corbisier met with

Mr. Delsandro to discuss the apprai sals.

33. Mr. Delsandro Ós draft appraisal for Pet itioner gave

Petitioner an overall ÐoutstandingÑ rating and recommended a

3.5 - percent merit pay raise . When Mr. Corbisier met with

Mr. Delsandro to discuss PetitionerÓs draft appraisal , there

were some differences in opinion. Providing a score between

1 and 10 for each category on the draft appraisal, Mr. Delsandro

had in itially assigned Petitioner a rating of 7 for job

knowledge, 7 for teamwork, 9 for accountability, 7 for

communications, 7 for incentive, and 8 for quality ; for an

overall rating of 7.5 across the categories , which is an

ÐoutstandingÑ rating . On the other hand , Mr. Corbisier assigned

Petitioner a rating of 6 for job knowledge, 6 for teamwork,

8 for accountability, 7 for communications, 7 for incentive, and

7 for quality; for an overall rating of 6.83 across the

categories , which is a Ðhighly effectiveÑ rating .

34. The discussion s between Mr. Delsandro and

Mr. Corbisier resulted in P etitioner receiv ing an overall

ÐoutstandingÑ rating of 7.17 , and Mr. Delsandro and

Mr. Corbisier agreed that PetitionerÓs merit increa se would

remain at 3.5 percent as initially recommended by Mr. Delsandro.

35. After PetitionerÓs appraisal report was approved by

Mr. Corbisier, Mr. Delsandro met with Petitioner to review her

evaluation . Petitioner accepted the appraisal report without

objection . Based on Petitioner's overall rating of 7.17 , as

reflected in her M arch 2016 appraisal, Respondent received a

3.5 - percent merit pay increase , from $16.67 per hour to $17.25

per hour. 3/

36. On approximately August 1, 2016, while still serving

as procurement planners, both Petitioner and Ms. Koons were

t ransferred from supervisor Mr. Delsandro to a new supervisor ,

Victor Wright. That same month, Petitioner was reassigned to

work in LSIÓs newly acquired building. Some of the employees

referred to the new building as Ðthe penthouseÑ because

everything was so new.

37. PetitionerÓs pay was raised to $17.53 per hour,

effective September 1, 2016.

38 . At the time, Petitioner did not object to her

reassignment and made no complaint while working in the new

building. Petitioner considered Mr. Wright to be fair and did

not h ave any issues with Mr. Wright.

39 . On August 29, 2016, Petitioner submitted her voluntary

resignation with a two - week notice to LSI, indicating that her

last day of employment with LSI would be September 9, 2016.

Prior to submitting her resignation, Pet itioner had never

complained about her appraisals , job duties , or work

environment , and had not alleged retaliation or discrimination.

40. P etitioner worked during the two - week notice period

from the date of her resignation letter on August 29, 2016 ,

until September 9, 2016. PetitionerÓs rate of pay never

decreased during her employment with LSI.

41. F or the first time , o n September 7, 2017, two day s

prior to her last day at LSI, in a telephone conve rsation with

LSIÓs director of human r esources, David Edwards , Petitioner

alleged retaliation and discrimination . During that

conversation, Petitioner advised Mr. Edwards that she had been

told that Mr. Corbisier had made a ra cial comment about her

husband, Victor Ruiz. S he advised Mr. Edwards that she also

believed Mr. Corbisier had retaliated against her because her

husband had reported an overtime i ssue concerning Ms. Corbisier.

42. Petitioner did not hear the alleged racial comment and

neither did her husband. Rather, Petitioner and her husband

were allegedly told by Steve Lewis , who was a production manager

at LSI, that Mr. Corbisi er had made racial statements.

43. A fter conducting an investigation to determine whether

Mr. Corbisier made racial statements about Mr. Ruiz , Mr. Edwards

determined that the allegation was without merit. According to

Mr. Edwards, ÐMr. Lewis was unab le to specifically say that

Mr. Corbisier had made any specific racial comments against

[Victor Ruiz].Ñ

44. Steve Lewis , the o nly one who allegedly heard

Mr. Corbisier make a racial statement about Mr. Ruiz, testified

at the final hearing. Consideration of his testimony, in light

of testim ony of other witnesses and other evidence, casts doubt

upon the credibility of Mr. LewisÓs assertion that Mr. Corbisier

made a racial statement about Mr. Ruiz or anyone else .

45. Although Steve Lewis was still employed at LSI at the

time that Petitioner resigned, he later resigned from employment

with LSI . According to Mr. Lewis, he resigned from LSI due to

conflicts with David Corbisier .

46. Mr. Lewis testified that , on just one occasion in

Mr. C orbisierÓs office , when just he and Mr. Corbisier were

present, Mr. Corbisier made c omment s of a racial nature about

Victor Ruiz. 4/ During his testimony, however, Mr. Lewis could

not recall the exact comment or comments that Mr. Corbisier

allegedly made about Mr. Ruiz , but said that Mr. Corbisier had

used t he ÐNÑ word when referring to Mr. Ruiz .

47. Mr. Lewis further testified that Mr. Corbisier had

used the ÐNÑ word freely in another conversation when he and

co - worker , Mark Case , were present. Mr. Lewis testified that,

on that occasion , the ÐNÑ word was not necessar ily directed at

anyone.

48. Altho ugh Mr. Lewis had received training on reporting

discrimination as part of his management training with LSI , he

did not report any racial comments by Mr. Corbisier at the time

that they were allegedly made. Rather, Mr. Lewis did not

discuss the allegations with LSIÓs human resources department

until after Petitioner had resigned from her employment with

LSI .

49. When Mr. Lewis finally spoke to LSIÓs human resources

department about the matter , he told Mr. David Edwards that he

had heard Mr. Corbisier make a racial comment about Mr. Ruiz ,

but that he c ould not recall the comment .

5 0 . Mr. Edwards recalled that Mr. Lewis told him that he

believed Mr. CorbisierÓs racial comment about Mr. Ruiz was a

one - time comment in the heat of the moment. Mr. Edwards

testified that Mr. Lewis never told him that Mr. Corbisier used

the ÐNÑ word.

51. Mark Case also testified. Mr. Case did not he ar

Mr. Corbisier make any racial statements, at the workplace or

socially.

52. Melissa Griffith, LSIÓs human r esources g eneralist who

is the human resources contact for LSIÓs Pensacola facility ,

testified that she has never heard Mr. Corbisier make any racial

comments about Mr. R uiz or anyone else.

53. In his testimony, Mr. Corbisier denied ever making a

racial statement about Mr. Ruiz . He further testified that he

has not used the ÐNÑ word regarding Mr. Ruiz, has not made

racial comments in the presence of Mr. Lewis, and did not make a

racial statement about Mr. Ruiz in an alleged one - on - one meeting

with Mr. Lewis. Mr. Corbisier further testified that he does

not have any hostility or resentment toward Mr. Ruiz and that he

has no motivation to harm or retaliate against Petitioner based

on anything concer ning Petitioner or her husband.

Mr. CorbisierÓs testimony was c redible and is credited.

54. T he evidence presented at the final hearing was

insufficient to support a finding that Mr. Corbisier used racial

slurs against PetitionerÓs husband or retaliated against

Petitioner .

55. Moreover, the evidence fail ed to show adverse action

against Petition er . Both of PetitionerÓs employment appraisals

at LSI were positive. Her last appraisal resulted in a merit

pay raise higher that her co - worker, Ms. Koons. 5/ During her

19 months of employment with LSI , Petitioner received four

salary increases.

56. At all material times, LSI had a grievance procedure

in its employee handbook that provided employees with a

complaint procedure for reporting discrimination , retaliation ,

or harassment. Petitioner receive d training on LSIÓs grievance

procedures during her new employee orientation process with LSI ,

and signed an acknowledgement regarding her receipt of LSIÓs

employee handbook.

57. Petitioner had no complaints at the time of her

assignments to various jobs . In fact, p rior to her resignation,

Petitioner never once complained to her supervisors or human

resources under LSIÓs grievance procedures or otherwise. She

liked her immediate supervisors. Mr. Corbisier Ós interact ions

with PetitionerÓs supervisor s did not result in adverse

consequences against Petitioner and lacked retaliatory or

discriminatory intent.

58. In sum, the evidence did not demonstrate that

Petitioner was subjected to retaliation or unlawful

discrimination while employed at LSI.

CONCLUSIONS OF LAW

59. T he Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes, and Florida Administrative Code Rule 60Y - 4.016(1).

60. The State of Florida, under the legislative scheme

contained in sections 760.01 through 760.11 and 509.092, Florida

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

FCR A ), incorporates and adopts the legal principles and

p recedents establi shed in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq.

61. Section 760.10 of the FCR A prohibits unlawful

employment practices . Petitioner alleges unlawful

discrimination based on her race and retaliation . S ection

760.10(1)(a) prohibits discrimination Ðagainst any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individualÓs race, colo r,

religion, sex, national origin, age, handicap, or marital

status.Ñ S ection 760.10(7) of the FCR A prohibits an employer

from retaliating against an employee who has opposed Ðany

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 inves tigation,

proceeding, or hearing under this section.Ñ This opposition is

often referred to as the employee Ðengaging in protected

activity.Ñ

62. Florida courts have held that because the FCRA is

patterned after Title VII of the Civil Rights Act of 196 4, as

amended, federal case law dealing with Title VII is applicable.

See, e.g. , Fla. DepÓt of Cmty. Aff. v . Bryant , 586 So. 2d 1205,

1209 (Fla. 1 st DCA 1991).

63. As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence, which, if believed, would prove the existence of

discrimination without inference or presumption. 6/ Holifield v.

Reno , 115 F.3d 1555, 1561 (11 th Cir. 199 7). Usually, however,

as in this case, direct evidence is lacking and one seeking to

prove discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield , 115 F.3d at 1561 - 62.

64. Under the shifting burden pattern developed in

McDonnell Douglas :

F i r s t , [ P e t i t i o n e r ] h a s t h e b u r d e n o f

p r o v i n g a p r im a f a c i e c a s e o f d i sc r i mina t i o n

by a prep o n derance o f t h e e v i d e n c e. Sec o n d,

if [Pe t i t i o n er] s u f f i c i e n t l y e s t a b l i s h e s a

p r im a f a c i e c a s e , t h e b u r d e n s hi f t s t o

[Resp o n d e n t ] t o Ð ar t i c u lat e s o m e l e g i t ima t e ,

n o n d i s c r im i na t o r y reas o n Ñ f o r i t s ac t i o n .

Third, i f [ Re s p o n d e n t ] sat i s f i e s this

b urde n , [ P e t i t i o ner] has the o p p o r t u n i t y t o

p r o v e b y a p r e p o n d e r a n c e o f t h e e v i d e n c e

t h a t t he leg i t ima t e reas o n s as s er t e d b y

[Resp o n d e n t ] ar e i n fac t m er e p r e t e x t .

U.S. DepÓt o f Hous. & Urban Dev. v. B lack w e l l , 908 F .2d 864,

870 (1 1th C i r. 1990) ( citing McDonnell Douglas Co r p. v. G r ee n ,

411 U.S. 792, 802 - 804); Valenzu e la v. GlobeG r ound N. Am., LL C ,

18 S o. 3d 17, 22 (F l a. 3d DCA 2009) ) .

Racial Discrimination

65. In order to establish a prima facie case of racial

discrimination under the FCRA , Petitioner is required to prove

by a preponderance of the evidence that : (1) she belongs to a

protected group; (2) she was qualified for the position held;

(3) she suffered an adverse employment action; and (4) a

similarly - situated employee outside PetitionerÓs protected class

was treated more favorably. See Holifield , 115 F.3d at 1562 .

66. "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

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

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

2000)("A preponderance of the evidence is 'the greater weight of

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

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

67. While direct evidence of discrimination is not

n ecessary, a p etitionerÓs speculation as to the motives of

Respondent, standing alone, is insufficient to establish a prima

facie case of discrimination. See, e.g. , Lizardo v. DennyÓs,

Inc. , 270 F.3d 94, 104 (2d Cir. 2001) (ÐPlaintiffs have done

little mor e than cite to their mistreatment and ask the court to

conclude that it must have been related to their race. This is

not sufficient.Ñ).

68. Petitioner established the first two elements of her

racial discrimination claim by showing (1) as an African -

American, she belong s to a protected group; and (2) through

evidence of positive appraisals, Petitioner demonstrated that

she was qualified for the position s that she held at LSI.

69. To meet the element (3) , Petitioner was required to

show that she suffered an adverse employment action. The

adverse employment actions addressed under section 760.10(1)(a)

of the FCR A relate to Ðcompensation, terms, conditions, or

privileges of employment . Ñ It is well - established that Ð T itle

VII prohibits discrimination on the basis of rac e, color,

religion, sex, and national origin Ò with respect to . . .

compensation, terms, conditions , or privileges of employment,Ó

and discriminatory practices that would Ò d eprive any individual

of employment opportunities or otherwise adversely af fect his

status as an employee. ÓÑ Thompson v. N. Am. Stainless, LP ,

562 U.S. 170, 173 - 74 ( 2011) ( first q uoting Burlington N. & Santa

Fe R y . Co. v. White , 548 U.S. 53, 62 (2006) ; ( then quoting

42 U.S.C. § 2000e - 2(a)).

70. According to Petitioner, racial discrimination by LSI

director , Mr. Corbisier , resulted in adverse employment actions

consisting of a demotion, less than optimal appraisals , a

reduced merit pay increase , and the assignment of menial tasks

to be performed in unfavorable working conditions . PetitionerÓs

first three alleged Ð adverse employment actions Ñ are not

supported by the evidence, but are rather based on PetitionerÓs

speculations and belief s . PetitionerÓs belief s , however,

without supporting evidence, amount to Ðconclusory allegationsÑ

or Ðunwarranted factual deductions masquerading as factsÑ that

are not sufficient to meet PetitionerÓs burden of proof. See

Davila v. Delta Air Lines, Inc. , 326 F.3d 1183, 1 185 (11th Cir.

2003).

71. PetitionerÓs allegation of a demotion relates to

PetitionerÓs first position move from tools and parts attendant

to a shipping and receiving position . At the time of the move ,

Petitioner liked her new position, considered it a positive

move, and received a raise from $14.00 per hour to $14.75 per

hour. She never complained that it was a demotion while she was

employed by LSI. Only later, after her resignation, did

Petitioner speculate that the mo ve was actually a demotion

because the new position had a lower classification number than

her previous position.

72. As to her appraisals, the facts show that both of her

appraisals were positive. The first appraisal determined

Petitioner to be a Ðhighly effectiveÑ employee. The second

determined Petitioner to be Ðoutstanding.Ñ Other than

PetitionerÓs unsubstantiated belief that she should have

received higher appraisals, there is no support for the

allegation. Petitioner admittedly does not u nderstand LSIÓs

employee appraisal scoring system.

73. There is also a lack of evidence to support

PetitionerÓs belief that she received a reduced merit pay

increase . The evidence demonstrated that she received the same

3.5 - percent merit pay increase ini tially recommended by her

immediate supervisor . There was also no support for

PetitionerÓs belief th at she should have received a 4 - percent

salary increase.

74. The only alleged Ðadverse employment actionÑ with any

support is PetitionerÓs allegation that she received more

inventory control assignments than her co - worker. Her immediate

supervisor explained, h owever, that assignment s to inventory

control were not influenced by Mr. Corbisier, but were his own

decisions, based on avail ability . Further, the evidence

indicated that PetitionerÓs co - worker , Ms. Koons, had more

requisition experience.

75. Petitioner also failed to prove element (4) of her

prima facie case, i.e., that a similarly - situated employee

outside PetitionerÓs protected class was treated more favorably .

Petitioner did not indicate the race of her alleged comparator,

Patricia Koons. Even if she had , a comparison showed that

Petitioner received a higher apprais al and a greater merit pay

raise than Ms . Koons. While the evidence indicated that

Petitioner may have been assigned more inventory control than

Ms. Koons, Petitioner did not complain prior to her resignation,

and declined at least one offer to work in an air - conditioned

environment while assigned to inventory control.

76. Therefore, considering the require d elements , it is

concluded that Petitioner failed to make a prima facie showing

of racial discrimination .

77. Even if Petitioner was able to esta blish a prima facie

case of racial discrimination, Respondent proffered legitimate,

non - discriminat ory reasons for the only alleged Ðadverse

employment actio nÑ with any evidentiary support -- PetitionerÓs

assignments to inventory control . As explained by Pe titionerÓs

immediate supervisor, the decision for PetitionerÓs assignments

to conduct inventory control was his decision alone.

PetitionerÓs co - worker, who had more requisition experience, was

assigned more requisition work than Petitioner. However, the

evidence also shows that PetitionerÓs immediate supervi sor

conducted inventory control himself and tried to assign those

tasks to Petitioner and her co - worker as evenly as possible,

based upon availability. Inventory control was an essential

part of PetitionerÓs job description as a procurement planner.

78. Finally, Petitioner offered no proof that LSI Ós

proffered reasons for assigning her to conduct inventory control

were a pretext for unlawful discrimination. In order to prove

that an employerÓ s asserted reason is merely a pretext:

A plaintiff is not allowed to recast an

employerÓs proffered nondiscriminatory

reasons or substitute [her] business

judgment for that of the employer. Provided

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

quarrelling with the wisdom of that reason.

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

79. Here, LSI, through Pet itionerÓs immediate supervisor,

proffered reason s for PetitionerÓs assignment to inventory

control , and those reasons are legitimate reasons which migh t

motivate a reasonable employer to assi gn Petitioner to perform

those inventory duties.

80. For the foregoing reasons, it is concluded that

Petitioner failed to carry her burden of persuasion necessary to

establish a prima facie case of racial discrimination. Even if

she had, Respondent proved legitimate, non - discriminatory

reasons for assigning Petitioner to inventory control , which

Petitioner failed to show were a mere pretext for unlawful

racial discrimination.

Retaliation

81. Similar to claims of race and age discrimination,

claims of retaliation are analyzed under the McDonnell Douglas

burden - shifting paradigm.

82. In order to demonstrate a prima facie case of

retaliation, Petitioner must show: (1) that she , or someone

close ly related to her who was employed by the same employer, 7/

was engaged in statutorily - protected expression or conduct;

(2) that she suffered an adverse action from her employer ; and

(3) that there is some causal relationship between the two

events. Holifield v. Reno , 115 F.3d at 1556 ; Thompson v. N. Am.

Stainless, LP , 562 U.S. at 17 8 - 7 9 . The lesser standard of Ðsome

causal relationshipÑ articulated in Holifield has been replaced

with Ðth e causation in factÑ standard. Univ. of T e x . Sw. Med.

C tr . v. Nassar , 133 S. Ct. 2517, 2525 (2013) .

83. If the employee makes out a prima facie case of

retaliation, then the burden shifts to the employer to

demonstrate a legitimate, non - retaliatory reason for its

challenged action. Once the employer does so, th e burden

returns to the employee to demonstrate that the employerÓs

articulated reason is pretext for retaliatory action.

See McDonnell Douglas , 411 U.S. at 804 .

84. In this case, the alleged retaliation is not based on

PetitionerÓ s own engagement in statutorily - protected expression

or conduct. Rather, it is based on the alleged protected

activity of PetitionerÓs husb and, who allegedly reported

Ms. CorbisierÓs alleged abuse of overtime.

85. If Mr. RuizÓs report of alleged overtime abuse was

statutorily - protected activity within the meaning of the anti -

retaliation provisions, then it could meet the first element for

a prima facia case of retaliation claim by Petitioner , his wife .

As explained by the United States Supreme Court in Thompson ,

562 U.S. at 178, in an opinion which, by applying the Ðzone of

interestsÑ test, allowed plaintiff Thompson to sue his employer

for retaliation when he was fired after his co - employee Ós fiancé

engaged in protected activity:

Applying that test here, we conclude that

Thompson falls within the zone of interests

protected by Title VII. Thompson was an

employee of NAS, and the purpose of Title

VII is to protect employees from their

employers' unlaw ful actions. Moreover,

accepting the facts as alleged, Thompson is

not an accidental victim of the retaliation

-- collateral damage, so to speak, of the

employer's unlawful act. To the contrary,

injuring hi m was the employer's intended

means of harming [his fiancé] . Hurting him

was the unlawful act by which the employer

punished her. In those circumstances, we

think Thompson well within the zone of

interests sought to be protected by Title

VII. He is a person aggrieved with standing

to sue.

86. Mr. RuizÓs report of alleged overtime abuse, however,

is not statutorily - protected activity within the meaning of the

state and federal prohibitions against retaliation. Sect ion

760.10(7) provides :

It is an unlawful employment practice for an

employer, an employment agency, a joint

labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practic e under this section , or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section . [ 8/ ]

(Emphasis added ) .

87. While Petitioner attempts to claim that her husbandÓs

report of alleged overtime abuse by Ms. Corbisier should serve

as the Ðprotected activityÑ for her retaliation claim, according

to section 760.10(7), quoted above, the activities that are

protected from retaliation are activities opposing

discrimination Ðunder this section.Ñ Id. Mr. RuizÓs alleged

reports of overtime abuses by Ms. Cor bisier were not complaints

made Ðunder this section , Ñ and the evidence does not otherwise

show that either Mr. Ruiz or Petitio ner were engaged in

statutorily - protected activity. Therefore, Petitioner failed to

establish the first element for a prima facie showing of

retaliation.

88. As to the second element, the adverse action s

allegedly imposed as retaliation are the same as addressed under

the heading Racial Discrimination , above, consisting of a

demotion, poor appraisals, a reduced pay increase, and inventory

control assignments. 9 / As previously analyzed, all but the

inventory control assignments are not supported by the evidence,

and the inventory control assignments are supported by

legitimate , n on - discriminatory reasons which Petitioner did not

show were mere pretext. In additi on, c onsidered from an

objective standard, none of the actions allegedly taken against

Petitioner are Ð materially adverse. Ñ See Burlington N. & Santa

Fe Ry. v. White , 548 U.S. 53, 68 (2006)(ÐIn our view, a

plaintiff must show that a reasonable employee would have found

the challenged action materially adverse . . . . We refer to

reactions of a reasonable employee becaus e we believe that the

[antiretaliation] provisionÓs standard for judging harm must be

objective.Ñ ).

89. Petitioner also failed to satisfy the third element

for a prima facie case of retaliation because she did not

provide credible evidence showing a causal relationship between

her husbandÓs al leged protected activity and any alleged adverse

employment options . The eviden ce did not show that either

Mr. Corbisier or Ms. Corbisier were aware that Mr. Ruiz reported

to his supervisors that Ms. Corbisier was abusing overtime.

And, it was PetitionerÓs immediate supervisors, not

Mr. Corbisier , who gave Petitioner her job assignments. There

is no evidence tha t Mr. Corbisier made or interfered with

PetitionerÓs job assignments during her employment with LSI.

90. Thus, Petitioner failed to prove her claim of

retaliation.

Constructive Discharge

91. By alleging that she was forced to resign because of

alleged discrimination and retaliation, Petitioner claims

constructive discharge. To prove constructive discharge,

Petitioner must demonstrate that LSI deliberately made her

working conditions so intolerable that a reasonable person in

her position would be compelled to resign. Doe v. DeKalb C nty .

Sch. Dist. , 145 F.3d 1441, 1450 (11th Cir. 1998). According to

the United States Eleventh Circuit Court of Appeals:

In assessing constructive discharge claims,

we do not consider a plaintiff's subjective

feelings about his employerÓs actions.

Rather, we determine whether Ða reasonable

person in [the plaintiff's] position would

be compelled to resign.Ñ

Doe , 145 F.3d at 1450 (citing Steele v. Offshore Ship., Inc. ,

867 F.2d 1311, 1317 (11th Cir. 1989) ; accord , Webb v. Fla.

Health Care Mgmt. Corp , 804 So. 2d, 422, 424 (Fla. 4th DCA

2001)(explaining that Ð[i] n order to prevail on a constructive

discharge claim, an employee must show, under an objective

standard, that the employer made working conditions so difficult

that a reasonable person would feel compelled to resig n . Ñ) ) .

92. Petitioner did not demonstrate that a reasonable

person in her position would be forced to resign . She had

positive appraisals, continual raises , and was satisfied with

her immediate supervisors during her employment with LSI .

93. Moreover , Petitioner never complained prior to her

resignation , thus, depriving LSI of the opportunity to remedy

the alleged intolerable situation. For that reason as well,

Petitioner has failed to sustain her claim for constructive

discharge. See Kilgore v. Thompson & Brock Mgm t . , Inc. , 93 F.3d

752, 754 (11th Cir. 1996)( Ð A constructive discharge will

generally not be found if the employer is not given sufficient

time to remedy the situation. Ñ).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Complaint of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND ENTERED this 16th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 16th day of October , 2017.

ENDNOTE S

1 / Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively changed since

the time of the alleged discrimination.

2 / Petitioner testified that she only checked the boxes for

ÐageÑ and ÐsexÑ in her charge of discrimination (which she

signed under oath) because the ÐEEOC ladyÑ told her to.

Tr. 80:18 - 21. At the final hearing, Petitioner admitted that

she does not have any evidence to support a claim of age or sex

discrimination. Therefore, those claims are no longer pending

and have not been analyzed.

3/ LSIÓs salary information report for Petitioner indicates that

the effective date of the increase to $17.25 per hour was

February 16, 20 16. The rate of $17.25 per hour is a 3.5 percent

increase over Petitioner Ó s previous rate of $16.67 per hour.

See Exhibit P - 9.

4/ Victor Ruiz testified that his race is ÐAmerican Indian and

Hispanic, of Spanish descent.Ñ

5/ Petitioner never indicated the race of her alleged

comparator, Patricia Koons, in her Charge of Discrimination ,

Petition for R elief, or during the final hearing held on

July 12, 2017.

6 / A n example of direct evidence , for instance in an age

discrimination case , would be the employer's memorandum stating,

ÐFire [ the plaintiff ] Î he is too old,Ñ clearly and directly

evincing that the plaintiff was terminated based on his age.

See Early v. Champion Int'l Corp. , 907 F.2d 1077, 1081

(11 th Cir. 1990)). The evidence was also insufficient to prove

the alleged racial animus. E vidence of alleged racial

statements attributed to Mr. Corbisier was unpersuasive in light

of his credible denials and other evidence .

7/ See Conclusion of Law, ¶ 8 5 , infra .

8/ Similarly, Title VII provides that Ðit shall be an unlawful

employment practice for an employer to discriminate against any

of his employees . . . because he has opposed any practice made

an unlawful employment practice by this subchapter, or because

he has made a ch arge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under

this subchapter.Ñ

9 / Ð [T]he antiretaliation provision, unlike the substantive

provision [that protects against status discrimination] , is not

limited to discriminatory actions that affect the terms and

conditions of employment.Ñ Burlington Northern & Santa Fe Ry.

v . White , 548 U.S. 53, 64 (2006). N one theless, the alleged

adverse actions raised by Petitioner in this case are the same

u nder both her racial discrimination and retaliation claims.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Gina A. Ruiz

3445 Wasatch Range Loop

Pensacola, Florida 32526

( eServed )

Kathryn K. Rudderman, Esquire

Robert G. Riegel, Jr., Esquire

Buchanan Ingersoll & Rooney PC

50 North Laura Street , Suite 2800

Jacksonville, Florida 32202

( 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.