17-002385 Gregory R. Lulkoski vs. First Coast Technical College Status: Closed Recommended Order on Wednesday, September 5, 2018.

Summary: Petitioner did not prove he was discriminated against in retaliation for having filed a prior charge of discrimination against his employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY R. LULKOSKI,

Petitioner,

vs. Case No. 17 - 2385

FIRST COAST TECHNICAL COLLEGE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in

St. Augustine, Florida, on October 30 and 31, 2017 ; November 1,

2017; December 6, 2017 ; and January 23, 2018 , before W. David

Watkins, the duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory R yan Lulkoski, pro se

212 River Island Circle

St. Augustine F lorida 32095

For Respondent: Robert J. Sniffen

Jeffrey Douglas Slanker

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

Whether Respondent, First Coast Technical College

(Respondent) retaliated against Petitioner, Gregory R. Lulkoski

(Petitioner) in violation of the Florida Civil Rights Act of

1992 (FCRA), s ection 760.01 - 760.11, Florida Statu tes? 1/

Secondary issues raised by Respondent are whether the St. Johns

County School Board (School Board) is immune from PetitionerÓs

allegations, and, if not, whether the School Board was

PetitionerÓs employer during the relevant period .

PRELIMINARY STAT EMENT

Petitioner filed an Employment Complaint of Discrimination

(Complaint) with the Florida Commission on Human Relations

(FCHR) on June 27, 2016, claiming that the First Coast Technical

College (FCTC) retaliated against him for engaging in activity

prot ected by the FCRA. Following its investigation, the FCHR

rendered a ÐNo CauseÑ determination on March 17, 2017.

On April 12, 2017, Petitioner filed a Petition for Relief

requesting an administrative hearing regarding the FCHRÓs No

Cause determination purs uant to section 760.11(7) .

The matter was referred to the Division of Administrative

Hearings on April 19, 2017, and the undersigned subsequently

issued a Notice of Hearing, setting the final hearing for

October 30 and 31, 2017.

On May 10, 2017, the Scho ol Board filed a motion to

dismiss, asserting that as a sponsor of a charter technical

school it was imm une from liability pursuant to section

1002.33(5)(b)1.h . , Florida Statutes, that successor liability or

other theories of liability did not attach to th e actions of

FCTC and on the substance of PetitionerÓs allegations. By Order

dated September 21, 2017, the undersigned denied the Motion

based upon disputed issues of fact that required the conduct of

an evidentiary hearing.

The hearing went forward as sc heduled over several

consecutive and non - consecutive days beginning on October 30,

2017 , and concluding on January 23, 2018.

At hearing, Petitioner testified on his own behalf and

called two other witnesses: Cathy Mittelstadt, the School

BoardÓs Deputy Su perintendent of Operations; and Cathy Weber,

the School BoardÓs Director of Salary and Benefits. Petitioner

moved in evidence his E xhibit s numbered 2, 3, 4, 6 through 9, 11

through 19, 21, 22.5, 23 through 31, 35, 36, 37, and 39, many of

which were receiv ed over the objections of Respondent.

The School Board offered the testimony of Frank D.

Upchurch, III, the School Board Attorney. It offered in

evidence its E xhibit s numbered 3, 4, 6 through 10, 12, 13, 15,

19, 21, 25, 43, 51, 52, 53, 55, 56, 57A, 75, 78 , 80, 81, 82, 84,

85, 86, 90, 94, and 100 , many of which were received over

objection by Petitioner. 2/

The five - volume T ranscript of the final hearing was filed

on May 16, 2018. Thereafter, both parties filed Proposed

Recommended Orders, which have been c arefully considered in the

preparation of this Recommended Order.

FINDING S OF FACT

Based upon the demeanor and credibility of the witnesses

and other evidence presented at the final hearing and on the

entire record of this proceeding, the following F inding s of F act

are made:

1 . Petitioner worked for FCTC for several years in several

different positions, including as a career pathways supervisor,

and most recently as a grant writer. FCTC was, for all times

relevant to PetitionerÓs allegations, a conversio n charter

technical center in St. Johns County, Florida, operating

pursuant to a charter contract with the School Board by a

privately organized 501(c)(3) non - profit corporation, the First

Coast Technical Institute (FCTI). A charter technical school is

a creature of Florida statute, distinct from school boards and

districts, including those school districts in which they are

located, which act as the sponsor of the school.

2 . FCTI and the School Board entered into a charter which

governed the operating r elationship between them. The last

operative charter between FCTI and the School Board became

effective July 1, 2013. The School Board was the sponsoring

entity of FCTC under the charter.

3 . The School Board had no involvement in the day to day

operati ons of FCTC when it was operated by FCTI. FCTI had its

own management team and board of directors. FCTI had its own

articles of incorporation, employment handbook, organizational

structure, management plan, human relations (HR) director and

department, a nd its own legal counsel. FCTCÓs president, Sandra

Raburn - Fortner, entered into a contract of employment with FCTI.

No one from the School District is on FCTIÓs organizational

chart.

4 . FCTI and FCTC management, and not the School Board,

were responsibl e for the daily operations of FCTC and all

personnel matters of FCTC employees. FCTI had its own procedure

in its employee handbook for reporting discrimination and

harassment .

5 . FCTC employees were designated as School Board

employees solely for wage p ayments, benefits, and collective

bargaining purposes under the charter. For this reason, FCTC

employees received checks and tax documents from the School

Board and the School Board remitted contributions to the Florida

Retirement system on their behalf. FCTI reimbursed the School

Board for these pass - through expenditures, and the School Board

charged FCTI a fee for this service.

6 . The School BoardÓs only involvement in personnel -

related decisions of FCTC was the ministerial act of the School

Board supe rintendent signing off on employment decisions made by

FCTI officials, which were then placed on the consent agenda of

the School Board to be approved at its next meeting. This

process -- which was necessary given the fact that FCTC employees

were designate d as School Board employees under the charter for

wage payment, benefits, and collective bargaining purposes --

involved ensuring the statutory requirements to take an

employment action were met, but did not involve second - guessing

the merits of the personne l decisions made by FCTI. Indeed, the

charter expressly provides that the School Board assigns and

FCTI assumes and retains all responsibility for FCTC employees ,

including responsibility for the selection and discipline of

employees, and all other aspect s of the terms and conditions of

employment at FCTC.

7 . Petitioner submitted his application for employment to

FCTC. Petitioner had an FCTC e - mail address and not a school

district e - mail address.

8 . The School Board was the signatory to some grant

appl ications for funding to be expended at FCTC, however, FCTI

was responsible for fulfilling the obligations relating to the

grant awards, and appropriately utilizing those funds at FCTC.

The School Board was not involved in the day to day

administration of programs funded by those grants at FCTC.

9 . During the spring of 2016, district personnel became

aware of financial irregularities at FCTC through its monitoring

of FCTIÓs unaudited financial statements. Under state statute,

the School Board was required to take certain actions as the

sponsor of FCTC when put on notice that FCTC might be in a

deteriorating financial condition. The School Board

investigated those irregularities and found significant

financial mismanagement and budgetary shortfalls at FCTC under

FCTIÓs administration. On May 3, 2016, the School Board

declared that the school was in a deteriorating financial

condition. This declaration triggered statutory obligations on

the part of the School Board and FCTC to develop a corrective

action p lan to address these issues. On May 26, 2016, the

School Board served a notice of financial emergency stating that

it had reason to believe that there was a financial emergency at

FCTC and that there was no way to save FCTC other than to

terminate the cha rter and begin operating the programs at FCTC

itself. The School Board Superintendent sent a letter to FCTIÓs

board on June 8, 2016, detailing the findings of the School

BoardÓs investigation into FCTC and the financial issues

plaguing the school.

10 . On June 14, 2016, FCTIÓs board voted to terminate the

charter with the School Board and cease operating the programs

at FCTC, effective June 31, 2016. On June 15, 2016, the School

Board voted to approve an agreement to terminate the charter

with FCTI and to take over the programs at FCTC effective

July 1, 2016. As part of this transition of the responsibility

for operating FCTC, the School Board and FCTI entered into an

agreement specifically stating that any liabilities of FCTC

arising prior to July 1, 201 6 , would not be assumed by the

School Board.

11 . Just before the School Board began operating the

programs at FCTC, and specifically on June 27, 2016, Petitioner

filed his Complaint with FCHR. In that Complaint he alleges

that he was retaliated against f or engaging in protected

activity. Petitioner specifically listed two discrete instances

of alleged protected activity in his Complaint:

I am being discriminated against on the

basis of retaliation by my employer. I

began employment with Respondent on

11 /7/2007, as a Case Manager and most

recently as a Grant Writer. On 5/21/2015, I

filed a formal grievance due to harassment

and nepotism; creating a hostile work

environment. This grievance was

investigated internally but I never received

a response. On 6/30/2015, I filed a second

grievance after experiencing retaliation by

my Supervisor, Renee Stauffacher. Up to

date, both grievances remain unanswered and

I continue to experience harassment and

retaliation.

12 . PetitionerÓs claim of discrimination was based solely

upon a charge of retaliation. Petitioner did not allege that he

was discriminated against based upon race, religion, age,

marital status, or any other protected class.

13 . Petitioner filed the first grievance referenced in the

FCHR Complain t on May 21, 2015, alleging that FCTCÓs then -

president, Sandra Raburn - Fortner, engaged in nepotism by hiring

her friends and family, and that he experienced a hostile work

environment because a co - worker, William Waterman, was rude to

him in meetings and o ver e - mail. Petitioner does not allege in

this grievance that he was being discriminated against on the

basis of a protected class or that he believed anyone else was

being discriminated against or adversely affected because of

their protected class. Pet itioner does not allege in this

grievance that he was mistreated by any School Board employee,

and he did not direct the grievance to anyone at the School

Board. Petitioner filed this grievance with FCTCÓs human

resources office.

14 . In his second grieva nce, filed June 26, 2015,

Petitioner alleges that Renee Stauffacher, his supervisor at the

time, retaliated against him for naming her in his May 21, 2015,

grievance by giving him an evaluation on June 26, 2015, that

contained some information or statement s with which he

disagreed, even though he thought the evaluation itself was good

and that he was given high numbers. No one from the School

Board was involved in this evaluation. When Ms. Stauffacher

gave Petitioner this evaluation, she was an employee o f FCTC and

not the School Board.

15 . Petitioner alleges that Sandra Raburn - Fortner

retaliated against him for his first two grievances by giving

him another position. That change, from ÐCareer Pathways

SupervisorÑ to ÐGrant WriterÑ occurred on or about A ugust 4,

2015. PetitionerÓs salary did not change. At this time,

Ms. Raburn - Fortner, who had a contract with FCTI, was an FCTC

employee, and not an employee of the School Board.

16. Later, in the Spring of 2016, Petitioner submitted

numerous other grie vances, a total of nine more, to FCTC

officials and FCTIÓs board. Petitioner only introduced his

ninth and tenth grievances into evidence at the final hearing.

Both are similar. Those grievances, both filed on June 13,

2016, allege that Ms. Raburn - Fortn er engaged in nepotism by

hiring her associates, and that Stephanie Thomas, FCTCÓs human

resources director, and Ms. Stauffacher, were complicit in that

nepotism. Both grievances state that Petitioner believed he was

disclosing violations of equal employm ent opportunity law.

17 . During the time that Petitioner submitted these

additional grievances, the School Board was in the process of

investigating the financial irregularities at FCTC. Petitioner

submitted some of these grievances to School Board offic ials,

who told him he needed to take his concerns to the FCTI Board

who was still operating FCTC at the time pursuant to the

charter. None of PetitionerÓs complaints, including those

relayed to the School Board and its officials, concerned

complaints of d iscrimination based on a protected class, or

retaliation for complaining about discrimination based on a

protected class.

18 . Petitioner stated he believed he was reporting equal

employment opportunity violations in alleging Ms. Raburn - Fortner

was hiring or favoring friends and family, because this action

prohibited members of many different protected classes from

getting a fair shot at positions that would go to family,

friends, or associates of Ms. Raburn - Fortner. Petitioner admits

all protected classes were treated similarly in this regard and

that all protected classes lacked equal access to positions if

they were not friends or family of Ms. Raburn - Fortner.

19 . While Petitioner does not allege any discrete

instances of retaliation that occurred after his title change,

Petitioner also contends that he was harassed, including that he

felt harassed about how data at the school was handled, the

pressure put on him by financial difficulties brought about by

the administration of FCTI, and that he was given the cold

shoulder by peers. By May 2016, Ms. Raburn - Fortner was no

longer working at FCTC.

CONCLUSIONS OF LAW

20 . The Division has jurisdiction over the subject matter

of, and parties to, this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat.

21 . Petit ioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

22 . The Florida Civil Rights Act, at section 760.10(7),

prohibits retaliation in employment as fo llows:

(7) 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,

t estified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section. (emphasis

added).

23 . Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act, as amended,

feder al case law dealing with Title VII is applicable. See

e.g. , Fla. Dept. of Cmty. Aff. v. Bryant , 586 So.2d 1205, 1209

(Fla. 1st DCA 1991).

24 . The burden of proving retaliation follows the general

rules enunciated for proving discrimination. Reed v. A.W.

Lawrence & Co. , 95 F.3d 1170, 1178 (2d Cir. 1996).

25 . There is no direct evidence RespondentÓs performance

evaluation, some of which he disagreed with, or the change in

assigned position, was in retaliation for PetitionerÓs Complaint

or the grievances h e had filed.

26 . To establish a prima facie case of discrimination in

retaliation by indirect evide nce, Petitioner must show:

(1) that he was engaged in statutorily protected expression or

conduct; (2) that he suffered an adverse employment action; and

( 3) that there is a causal relationship between the two events.

See Holifield v. Reno , 115 F.3d 1555, 1566 (11th Cir. 1997).

27 . To be sure, the FCRA prohibits an employer from

retaliating against an employee for engaging in protected

activity; in the ins tant case, Petitioner did not establish that

he engaged in activity protected by the statute.

28 . The FCRA does not prohibit all misconduct in the

workplace, but only discrimination that is motivated by a

protected class, defined as a personÓs race, color , religion,

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

status. § 760.10(1), Fla. Stat.

29 . The FCRA provides that Ð[i]t is an unlawful employment

practice for an employer . . . to discriminate against any

person because that person has op posed 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 section .Ñ § 760.10(7), Fla. Stat. (emphasis added). 3/

While Petitioner attempts to claim that his reporting of alleged

workplace abuses at FCTC should serve as the protected conduct

in his retaliation claim, the applicable statutory provision

references complaints made Ðunder this section.Ñ See

§ 760.10(7), Fla. Stat. PetitionerÓs grievances alleging

nepotism and a less than completely favorable performance

evaluation were not complaints made Ðunder this section.Ñ

30 . Petitioner only alleges that he engaged in Ðopposition

clause Ñ protected activity and this requires that he establish a

subjective good faith belief that his employer engaged in an

unlawful employment practice under employment discrimination law

and that his belief was objectively reasonable in light of the

facts. Little v. United Tech., Carrier Transicold Div. ,

103 F.3d 956, 960 (11th Cir. 1997). The objective

reasonableness must be measured against existing substantive

law. Clover v. Total Sys. Serv., Inc. , 176 F.3d 1346, 1351

(11th Cir. 1999). A petitionerÓs b elief that a certain practice

is discriminatory cannot be objectively reasonable "[w]here

binding precedent squarely holds that particular conduct is not

. . . unlawful . . . and no decision of this [Circuit] or of the

Supreme Court has called that precede nt into question or

undermined its reasoning." Butler v. Alabama Dep't of Transp. ,

536 F.3d 1209, 1214 (11th Cir. 2008). Furthermore, a belief

that there is a violation of anti - discrimination laws must be

sufficiently clear from the complaint to put the employer on

notice of that belief. See Murphy v. City of Aventura ,

383 Fed.Appx. 915, 918 (11th Cir. 2010)(ÐA complaint about an

employment practice constitutes protected opposition only if the

individual explicitly or implicitly communicates a belief tha t

the practice constitutes unlawful employment discrimination.Ñ

(quoting EEOC Compl. Man. (CCH) §§ 8 Î II Î B(2) (2006)) (internal

quotation marks omitted)).

31 . None of PetitionerÓs alleged protected activity is

objectively reasonable in light of existing l aw. Initially,

while the Petitioner alleged at the hearing he was retaliated

against due to filing numerous different grievances while

employed at FCTC (eleven in total spanning May 2015 to

June 2016) he only pled in his Complaint that he was retaliated

a gainst due to his first two grievances. Petitioner is not

permitted to enlarge the scope of this proceeding with

allegations that were not made or within the scope of his

complaint filed with FCHR. E.g. Viritti Jackson v. DepÓt of

Child . and Fam . Servs . , Case No. 05 - 1243 (Fla. DOAH Sept. 16,

2005, FCHR Nov. 7, 2005) (holding that petitioner could not

expand proceeding before Division of Administrative Hearings to

include allegations of discrimination not previously contained

in a charge of discrimination a s those instances could not be a

part of the administrative finding subject to review under

Chapter 120).

32 . PetitionerÓs first grievance was filed on May 21,

2015. That grievance, fairly summarized, alleges that

Petitioner was subjected to a hostile wo rk environment by co -

worker Will Waterman , who was not pleasant to him at times , and

that the president of FCTC at the time, Sandra Raburn - Fortner,

was engaging in nepotism by favoring friends and family for

positions and special treatment. Nowhere in thi s grievance does

Petitioner complain that he was being subjected to a hostile

work environment because of a protected class. Nowhere in this

grievance does Petitioner mention a protected class at all.

33 . Petitioner filed his second grievance on June 30,

2015. This grievance, fairly summarized, alleges Renee

Stauffacher included incorrect information in his evaluation

because he named her in his first grievance. Nowhere in the

second grievance does Petitioner mention any protected class or

indicate he b elieved he or anyone else was being discriminated

against on the basis of a class protected by the FCRA.

34 . Ultimately, at the hearing, Petitioner admitted that

he did not link any of the treatment that he personally suffered

to any protected class. He did, however, contend that his

complaints about Ms. Raburn - Fortner engaging in nepotism in

hiring , and favoritism in the workplace , was a violation of

equal employment opportunity laws bec ause, as Petitioner put it,

Ms. Raburn - FortnerÓs favoritism towards her family and friends

deprived minority and other well qualified applicants access to

employment opportunities. However, Petitioner identified no

particular person in a protected class who was denied an

employment opportunity, and he acknowledged that al l protected

classes were affected equally by Ms. Raburn - FortnerÓs nepotism

regardless of their protected class.

35 . PetitionerÓs complaints are not objectively reasonable

because he did not allege that he was discriminated against on

the basis of any prot ected class or otherwise complain or oppose

any action that was a violation of employment discrimination law

as measured against existing substantive law. PetitionerÓs

complaints that Ms. Raburn - Fortner engaged in nepotism in hiring

that may have had the effect of excluding a minority applicant

from a position is not objectively reasonable for the simple

fact that Petitioner readily concedes that such employment

decisions were not motivated by an animus towards any particular

protected class, but rather we re motivated by favoritism towards

family and friends. While such favoritism may be an unfair

practice, it is not illegal under the FCRA which only prohibits

employment decisions that are motivated by animus towards a

protected class. It is readily clear that the purported

decisions motivated by nepotism were not motivated by animus

towards a protected class here, as Petitioner himself conceded

that the decisions affected all members of different protected

classes equally and that, essentially, the protec ted class was

those that were not family or friends of Ms. Raburn - Fortner.

36 . The Eleventh Circuit has repeatedly held that

employment decisions motivated by nepotism are not violative of

employment discrimination laws. Powell v. Am. Remediation &

Envtl ., Inc. , 618 F. App'x 974, 979 (11th Cir. 2015)(affirming

trial court order dismissing case and holding that nepotism is

not actionable under Title VII); Platner v. Cash & Thomas

Contractors, Inc. , 908 F.2d 902, 905 (11th Cir. 1990) (holding

that taking em ployment action on the basis of nepotism was not

discriminatory in violation of Title VII); Thompson v. Baptist

Hosp. of Miami, Inc. , 279 F. App'x 884, 888 (11th Cir.

2008)(holding that nepotism not to the detriment of a particular

class was not discrimina tory); Howard v. BP Oil Co. , 32 F.3d

520, 527 (11th Cir. 1994)(reasoning nepotism that has an equal

adverse impact on all protected classes is unlikely to conceal a

discriminatory motive); Brown v. Am. Honda Motor Co. , 939 F.2d

946, 952 (11th Cir. 1991)(ho lding that discrimination claim

lacked merit because nepotism practice affected all protected

classes equally).

37 . Even if PetitionerÓs other grievances that he filed

while employed by FCTC and prior to the filing of the Complaint

were considered, this d etermination would be the same.

Petitioner only offered into evidence two additional grievances

which he labeled as his ninth and tenth grievances. He labeled

each with a heading denoting that it purported to concern

violations of equal employment opport unity laws. Both

grievances were filed on June 13, 2016, and both allege that

Ms. Raburn - Fortner denied applicants a fair shot at positions at

FCTC because she favored hiring friends and family whom he

refers to as associates. For the same reasons previo usly set

forth, these complaints are not objectively reasonable, and

therefore they do not constitute protected activity.

38 . Because Petitioner has not engaged in protected

activity, he has not established a prima facie case of

retaliation under the FCRA . Because he has not done so, the

burden never shifts to Respondent to articulate its reasons for

taking the challenged action. Pace v. S. Ry. Sys. , 701 F.2d

1383, 1391 (11th Cir. 1983). Furthermore, to the extent

Petitioner alleges he was subjected to a hostile work

environment in retaliation for engaging in protected activity,

this claim also fails because he did not engage in protected

activity. Kelly v. Dun & Bradstreet , Inc., 641 F. App'x 922,

923 (11th Cir. 2016), cert. denied , 137 S. Ct. 2132, 198 L. Ed.

2d 199 (2017).

39 . Respondent argues that, by statute, the School Board

is immune from PetitionerÓs alleged FCRA violations.

Specifically, Respondent asserts that pursuant to section

1002.33(5)(b)1.h . , the sponsor of a charter school shall not be

liable for civil damages under state law for any employment

actions taken by an officer, employee, agent, or governing body

of the charter school. A charter technical center is a type of

charter school that can be created pursua nt to section 1002.34,

Flo rida Stat utes .

40 . According to Respondent, during the entire time the

alleged violations of the FCRA occurred, the School Board was

the sponsoring entity of FCTC which operated independently from

the School Board in accord with a charter contract between FCTI

and the School Board. Therefore, all actions taken against the

Petitioner were taken by employees or agents of FCTI, namely

Sandra Raburn - Fortner, William Waterman, Stephanie Thomas, and

Renee Stauffacher, rendering the School Board immune from

liab ility for the alleged violations of the FCRA that these

employees and agents of FCTI allegedly committed.

41 . Finally, Respondent argues that even if the immunity

prescribed by the Florida Legislature in section

1002.33(5)(b)1.h . did not bar PetitionerÓs claims, the School

Board cannot otherwise be held liable under a joint or

integrated employer theory of liability.

42 . Because Petitioner failed to establish a prima facie

case of discrimination in retaliation, by either direct or

indirect evidence, it is unnecessary to address the latter two

issues raised by Respondent. 4/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petit ion for Relief filed by

Gregory R. Lulkoski in this case.

DONE AND ENTERED this 5th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hea rings

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 5th day of September , 2018 .

ENDNOTE S

1/ Unless otherwise noted, all statutory references are to the

2018 version of the Florida Statutes.

2/ Although FCTC is the nominal Respondent to this proceeding,

as discussed herein, the School Board has assumed the operation

of FCTC and its programs an d, as such, assumed the defense of

PetitionerÓs complaint.

3/ Similarly, Title VII provides that Ð[i]t 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 charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

subchapter.Ñ 42 U.S.C. § 2000e - 3(a).

4/ The undersigned is not un mindful that Petitioner has also

filed a Complaint relating to his employment at FCTC during a

later period of time than that at issue herein, specifically,

July 1 through November 18, 2016. That matter, DOAH Case No. 17 -

5192, is also assigned to the unde rsigned. However, during a

telephonic motion hearing held in that case on July 11, 2018,

counsel for Respondent acknowledged that Petitioner was an

employee of the School Board during that period.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florid a Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Gregory Ryan Lulkoski

212 River Island Circle

St. Augustine, Florida 32095

(eServed)

Michael P. Spellman, Esquire

Sniffen & Spellman, P.A.

123 North M onroe Street

Tallahassee, Florida 32301

(eServed)

Jeffrey Douglas Slanker, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

(eServed)

Robert J. Sniffen, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tall ahassee, Florida 32301

(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 wri tten 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.