17-003862 Ana-Maria Enciu vs. Department Of Children And Families Status: Closed Recommended Order on Tuesday, October 17, 2017.

Summary: Petitioner did not prove Respondent discriminated against her in employment based on her race or national origin, or was subjected to a hostile work environment, or retaliated against for engaging in protected activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA - MARIA ENCIU,

Petitioner,

vs. Case No. 17 - 3862

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this ca se was heard on September 13,

2017 , via video teleconference in Tallahassee and Pensacola ,

Florida, before Administrative Law Judge Suzanne Van Wyk .

APPEARANCES

For Petitioner: Ana - Marie Encui, pro se

3441 Jubilee Drive

Milton, Florida 32571

For Respondent: Brian J. Stabley, Esquire

Office of the Attorney General

Plaza Level 01

The Capit o l

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

Whether Petitioner was subject to an unlawful employment

practice by Respondent based on her race , national origin, or in

retaliation for participating in a protected activity, in

violation of sectio n 760.10, Florida Statutes (2016 ); 1/ and if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 15, 2017 , Petitioner f iled an Employment

Charge of Discrimination with the Florid a Commission on Human

Relations ( Ð Commission Ñ ) which alleged that Respondent violated

section 760.10 by discriminating against her on the basis of her

race, national origin, and in retaliation for engaging in a

protected activity .

On June 14, 2017, the Commission issued a Determination:

No Cause and a Notice of Determination: No Cause, by which the

Commission determined that reasonable cause did not exist to

believe that an unlawful employment pr actice occurred. On

July 7, 2017 , Petitioner filed a Petition for Relief with the

Commission, which was transmitted that same date to the Division

of Administrative Hearings to conduct a final hearing.

The final hearing was scheduled for September 13, 2 017 , via

video teleconference in Tallahassee and Pensacola , Florida, and

commenced as scheduled.

At the final hearing, Petitioner testified on her own behalf

and introduced Exhibits P1 through P14, which were admitted in

evidence .

Respondent presented the testimony of Katelyn Paschal ,

Department Child Protective Investigator; Stacy Amaro, Department

Program Administrator; Geanetta Salter, Department Operations

Program Administrator; Julie Yeadon, Department Operations

Management Consultant II ; and Tina Cai n, Department Northwest

Region Operations Manager for Circuit 1 . RespondentÓs Exhibits

R 1 through R34 were admitted in evidence.

A two - volume Transcript of the proceedings was filed on

September 28, 2017 . The parties timely filed Proposed

Recommended Or der s which have been considered by the undersigned

in preparing this Recommended Order.

FINDING S OF FACT

Background

1. Petitioner, Ana - Marie Encui , is Caucasian, a native of

Bucharest, Romania , and speaks with a Romanian accent .

2 . PetitionerÓs son and d aughter both reside with her. At

all times relevant hereto, PetitionerÓs son was 13 years old and

her daughter , 11.

3 . Petitioner was first employed by Respondent, Department

of Children and Families (ÐDepartmentÑ or ÐRespondentÑ) as a

Child Protective Investigator (ÐCPIÑ) in the Office of Family

Safety in Brevard County , Region 5, on October 26, 2012.

4 . Petitioner and her children relocated to Pace , Florida,

in Santa Rosa County in 2014 . Petitioner was again employed by

the Department as a CPI in ne ighboring Escambia County, Region 1 ,

from May 9, 2014, until her resignation effective February 16,

2017.

5 . A CPIÓs responsibilities are to investigate allegations

of child abuse, neglect, and/or abandonment , received through the

DepartmentÓs central abu se hotline and other sources. CPIs

investigate allegations of abuse and neglect by interviewing

chil dren and adults involved in the allegations, as well as

Ðcollaterals,Ñ such as relatives living outside the home ,

teachers, and other caregivers .

6 . Throu gh investigation, CPIs assess the validity of

allegations, document living conditions, and determine the steps

needed to protect children from unsafe environments. CPIs also

coordinate with, and refer clients to, social services for

support, and conduct f ollow - up visits to ensure the safety of

children is being maintained and supports are in place. CPIs may

be called upon to testify in court regarding the circumstances of

cases under investigation.

Abuse Complaint Involving PetitionerÓs Household

7 . On A ugust 15, 2016, the Department received an anonymous

complaint through the central abuse hotline regarding

PetitionerÓs household.

8 . Petitioner was not named as the perpetrator of abuse or

neglect of children in the household. The complaint implicated

o ther adult members of the household.

9 . Department Policy 170 - 16 (the ÐPolicyÑ) , Chapter 5,

governs the procedure to be followed when D epartment employees

are the subject of a report of abuse, neglect or exploitation.

Such reports are designated as Ðspec ial handlingÑ reports.

10 . When a Ðspecial handlingÑ report is received , the

hotline supervisor must notify the appropriate ma nager, in this

case the Region 1 Program Administrator , who must review the

report immediately upon receipt.

11 . Section 5 - 6 b. o f the Policy provides, as follows:

To maintain confidentiality, provide an

objective assessment, and avoid the

appearance of impropriety, the Circuit or

Regional Program Administrator or Program

Manager shall determine if the report needs

to be reassigned to a different region or

county.

12 . According to the Policy, in all cases in which the

employee is the alleged perpetrator, the employee must be removed

from customer contact while the investigation is pending, and the

employeeÓ s access to the Florida S afe Families Network (ÐFSFNÑ)

database must be restricted by the close of business the

following day.

13 . The Policy further provides that investigative

activities on Ðspecial handlingÑ cases Ðshall be expedited to

ensure a timely but thorough investigati on.Ñ The decision

regarding when, or if, the employee may return to assigned duties

is at the discr etion of the appropriate manager, which, in the

case at hand is the regional manager.

14 . Stacy Amaro, DCF Region 1 Program Administrator , was

notified of the Ðspecial handlingÑ report involving PetitionerÓs

household. She approached Santa Rosa CPI, Katelyn Paschal , who

was in line for assignment of the next case in the normal course

of business. Ms. Amaro questioned Ms. Paschal about wheth er she

knew Peti tioner, who was a CPI in neighboring Escambia C ounty .

15 . Ms. Amaro determined that Ms. Paschal had never worked

directly with Petitioner, although the two had collaborated on

out - of - town inquiries (ÐOTIsÑ) over the phone and via electronic

mail, and may have attended Department trainings events togethe r.

Ms. Paschal was not friends with Petitioner, did not have social

or personal interactions with Petitioner, and did not discuss

PetitionerÓs family or personal life with Petitioner.

16 . Ultimately, Ms. Amaro determined Ms. Paschal would be

impartial and investigate the report fairly and thoroughly .

Ms. Amaro decided to keep the report in th e Santa Rosa office and

assign it to Ms. Paschal for investigation.

17 . Ms. Paschal investigated the complaint fr om the date it

was assigned to her -- August 16, 2016 -- through October 22, 2016,

when she closed the investigation finding the allegations of

maltreatment of PetitionerÓs children non - substantiated.

18 . During her investigation, Ms. Paschal interviewed

Pet itionerÓs son at his school. Ms. Paschal asked PetitionerÓs

son questions about all the members of the household, activities

in the household, arguments between adults, and the adultsÓ use

of alcohol . During this interview, PetitionerÓs son shared with

M s. Paschal that his sister had a l earning disability.

19 . What Ms. Paschal said in response to that information

was a subject of debate at the final hearing and is the crux of

PetitionerÓ s complaint in this case.

20 . According to Petitioner, in Ms. Pasch al Ós subsequent

interviews with collaterals, Ms. Paschal referred to her daughter

as ÐslowÑ or Ðretarded,Ñ or both.

21 . Ms. Paschal denied ever referring to PetitionerÓs

daughter as either ÐslowÑ or Ðretarded.Ñ

PetitionerÓs Whistleblower Complaint

22 . On December 9, 2016 , Petitioner filed a complaint with

the DepartmentÓs Inspector General Ós Office (ÐIG Ó s OfficeÑ), in

Tallahassee, alleging the D epartment failed to follow correct

procedures in investigating the abuse complaint involving her

family . Petiti oner alleged, and insisted at final hearing , that

the complaint involving her famil y should have been assigned to a

ÐneutralÑ county. Petitioner further alleged the CPI disclosed

confidential health information regarding her daughter during

interviews wit h collateral s , and failed to follow Department

policy in other aspects of the investigation.

23 . On January 31, 2017, a fter a Ðpreliminary reviewÑ of

the complaint, t he IGÓs o ffice responded to Petitioner in

writing , as follows:

[T]his office has determin ed that your

complaint Ð does not demonstrate reasonable

cause to suspect that an employee or agent of

an agency or in d e pendent contractor has

violated any federal, state, or local law,

rule or regulation, thereby creating and

presenting a substantial and s pecific danger

to the publicÓ s hea lth, s a fety, or welfare or

has committed an act of gross mismanagemen t,

malfeasance, misfeasance, gr o s s waste of

public funds, or gross neg l ect of duty Ñ as

required under section 112.3187 - 112. 31895,

Florida Statutes, also known as the Ð Whistle -

blowerÓs Act. Ñ

24 . The IGÓs office simultaneously forwarded PetitionerÓs

complaint to the DepartmentÓs Northwest Region Manager, Walter

Sachs, for Ðany action deemed appropriate by [his] office.Ñ

25 . Finally, because PetitionerÓs c omplaint raised the

possib ility of a HIPPA violation , the IGÓs office also forwarded

PetitionerÓ s complaint to Herschel Minnis, H uman Resources

Administrator, Civil Rights D ivision .

PetitionerÓs Corrective Action Plan

26 . On January 24, 2017, Petitioner w as presented with a

Performance Corrective Action Plan, or PCAP, by her supervisor,

Shavon Terrell. The PCAP note d seven different performance

expectations for which Petitioner had fallen short, along with a

summary of the particular reasons PetitionerÓ s performance was

substandard.

27 . In each and every section, the summary included, Ðsee

write up for specific case information.Ñ

28 . The Ðwrite - upÑ refer red to an Employee Disciplinary

Action Proposal Form, completed by Julie Yeadon, Ms. SalterÓs

assistan t . The Form summarize d specific cases with deficiencies

in case f ollow - up, danger as s essments, and case notes, and

documented untimely submission of her cases to her supervisor

when danger wa s identified. The Form documented PetitionerÓs

historic case ba cklog and past efforts to address the backlog by

tran sfer of her cases to other CPIs .

29 . The PCAP period was two months -- January 24 through

March 24, 2017 -- during which Petitioner was expected to correct

the noted performance expectation deficiencies by completin g the

specific corrective actions noted in the plan. The PCAP

expressly stated the corrective actions must be taken Ðto attain

satisfactory performance in your current position .Ñ

30 . The PCAP expressly stated, ÐNon - compliance may result

in: Dis ciplinary action, up to and including dismissal may be

initiated.Ñ The PCAP provided that the plan was in accordance

with ÐStandards of Conduct and Standards of Disciplinary Action

for Department Employees CFOP 60 - 55, chapter 1.Ñ 2 /

31 . Petitioner refused to sign the PCAP agreeing to

participate i n the corrective action plan.

PetitionerÓs Resignation

32 . On January 31 , 2017, Petitioner informed Ms. Terrell

that she would not agree to the PCAP and would, instead, resign

her position.

33 . In her resign ation letter , Petitioner explained that

she was resigning due to retaliation, unfair treatment, and

negative job action taken against her for expressing her concerns

regarding the Ðunlawful, unprofessional, and disrespectful manner

that [her] children and family were approached and treatedÑ

during the investigation of the complaint involving her

household.

34 . PetitionerÓs resignation was effective February 16,

2017.

Retaliation Claim

35 . Petitioner maintains the PCAP was a means of

retaliation against h er for filing the IG Complaint with the

Department.

36 . Respondent presented Petitioner with the PCAP on

January 24, 2017, 26 days after Petitioner filed the IG Complaint

on December 9, 2016.

37 . The decision to place Petitioner on a PCAP was m ade

by the following employees of the Escambia County office:

PetitionerÓs supervisor, Ms. Terrell; Operations Management

Consultant, Julie Yeadon; and Program Administrator, Ms. Salter.

38 . Although the IG Complaint concerned the actions of, and

was investigated by personnel in, the Santa Rosa office,

Ms. Salter was aware in December 2016 that Petition er had filed

the IG Complaint.

39 . Ms. Yeadon was not aware of the IG Complaint until she

began preparing for testimony in the instant proceeding.

40 . The record d oes not support a finding of w hether

Ms. Terrell had knowledge of the IG Complaint prior to

participating in the decision to place Petitioner on a PCAP.

41 . Between May 2014 and September 2015 , Petitioner was

supervised in the Escambia County office by CP I Supervisor

( Ð CPIS Ñ ) Tonja Odom. On January 28, 2015, Ms. Odom issued

Pet itioner a Documented Counseling for Poor Performance. The

following excerpt is notable:

As you are aware, the Family Functioning

Assessment (FFA) is a valuable tool we use to

help determine whether a child is safe or

not. If a child is determined to be unsafe,

then the family is referred to services with

a Family First Network (FFN) provider. We

have 14 days to complete [the FFA] and turn

the case over to our FFN provider. Lately ,

you have missed the 14 day deadline and have

cases that have exceeded 30 days.

* * *

In one of the overdue cases, (14 - 316539), the

children were deemed unsafe ; yet your FFA

documents were not complete and the transfer

to the provider did not take place timely.

On January 22, 2015, this cas e was scheduled

to be heard [by a judge] for a Case Plan

approval. Your lack of action resulted in

the FFN caseworker not being able to fulfill

their duties and could have potentially

harmed a child. Fortunately, th e agency did

not receive a penalty and the children are

safe.

Prior to this latest incident, I had several

conversations with you, individually and

within our group, stressing the importance of

completing the FFA timely. The families we

serve do not rece ive the needed services

available if the FFA is not completed timely.

* * *

Your actions are unacceptable and any future

violations may result in disciplinary action,

up to and including dismissal.

42 . Petitioner acknowledged receipt of the Documented

Counseling by her signature dated January 28, 2015.

43 . Ms. Salter was the Program Administrator in 2015 and

was aware of the performance issue with Petitioner and issuance

of the Documented Counseling.

44 . Ms. Salter testified, credibly, that Petitione rÓs

performance improved Ð for a brief whileÑ after the Documented

Counseling. Within a couple of months, Ms. Salter and

PetitionerÓs then - supervisor , Ms. Terrell, were discussing with

her again the importance of timely follow up with victims and

inputting notes in the system.

45 . In October 2016, the Department reassigned a number of

PetitionerÓs cases to other CPIs in order to address PetitionerÓs

backlog. When the cases were reviewed upon reassignment, the

Department discovered that follow - up investiga tions had not been

conducted timely, victims were not being seen according to

protocols, OTIs were not processed timely , and documented

appropriately, and there was an overall lack of documentation of

PetitionerÓs cases.

46 . In October and November 2016, Ms. Salter , Ms. Yeadon,

and Ms. Terrell embarked on an effort to get Petitioner back on

track with her investigations and case work. Following a meeting

in which Department management discussed how to address backlogs

with a number of CPIs, Ms. Yeadon , at Ms. SalterÓs direction,

reviewed PetitionerÓs case files and document ed specific

deficiencies in follow up and documentation. That documentation

was recorded on the Employee Disciplinary Action Form which was

later used in conjunction with PetitionerÓs P CAP.

47 . Ms. Yeadon subsequently drafted the PCAP which is the

subject of the instant proceeding.

48 . Prior to presenting the PCAP to Petitioner, Ms. Yeadon

discussed the PCAP with PetitionerÓs supervisor, Ms. Terrell;

Ms. Salter; and , ultimately, the No rthwest Region Operations

Manager for District 1.

49 . The PCAP provided Petitioner with specific performance

improvement objectives to be performed within a two - month period.

The PCAP provid ed that failure to comply may result in

disciplinary action, up to and including termination.

PCAP as Pretext

50 . Petitioner claims the PCAP and the DepartmentÓs

allegations of poor work performance in late 2015 through 2016

are false and a mere pretext for unlawful retaliation.

51 . Petitioner argued that her perform ance evaluations from

the Department were very good. Further, she argued that the

Department would not have continued to assign her heavy caseloads

in 2015 and 2016 if her performance were substandard as the

Department represented .

52 . In support of her argument, Petitioner introduced

spreadsheets reporting individual monthly totals of cases

assigned to CPIs for the years 2014, 2015, and 2016 in the

Escambia office.

53 . Petitioner was assigned only 64 new cases in calendar

year 2015; however, in 2016, Pe titioner was assigned a total of

231 new cases. For 2016, out of 44 CPIs, Petitioner was one of

only nine assigned more than 200 cases.

54 . Twice in late 2016, Ms. Salter directed the transfer of

cas es from Petitioner in order to addre ss her case backlog .

Ms. Salter first directed the transfer of 40 of PetitionerÓs

cases, followed by ano ther 20 in late December to Ms. Yeadon for

manage ment .

55 . Three of PetitionerÓs relevant performance evaluations

were introduced in evidence.

56 . For the review perio d Ju ly 1 through December 31,

2013, Petitioner received an overall rating of Satisfactory,

scoring 3 out of a possible 5. Notably, the supervisor

commented, ÐCPI Encui at times struggles to provide timely

information to bring her cases to closure. She is actively

working to improve in this area.Ñ

57 . For the review period J anuary 1 through June 30,

2014, Ms. Odom rated Petitioner Satisfactory, assigning a score

of 3 out of 5. This performance evaluation was made prior to

Ms. OdomÓs January 2015 Document ed Counseling to Petitioner.

58 . For the review period July 1, 2014 through June 30,

2015, M s. Odom again rated Petitioner Satisfactory, assigning a

score of 3 out of 5. Ms. Odom made the following relevant

comments:

Ana has improved greatly in completin g her

assignments timely. She is learning how to

prioritize her workload.

* * *

If provided a weekly list of cases needed to

be submitted, Ana works diligently to get

these files submitted to supervisor on time.

* * *

AnaÓs cases have been submitted for closure

prior to the 60 day deadline with supervision

from management. Ana often needs to be

prompted by management to complete her FFA

corrections within 24 hours.

This performance evaluation was ma de during the year in which

Ms. Odom issued the Doc umented Counseling to Pe t it ioner.

59 . No performance evaluation for FY 2015 - 2 016 was

introduced in evidence .

60 . Tina Cain is the Northwest Region Operations Manager

for Circuit 1. She transferred t o the Escambia County office as

Program Administrator i n June 2016. At that time, Ms. Cain was

confronted with a number of employees with performance issues

including a number of CPIs with case backlogs.

61 . Evaluation s were due to be performed in June and July,

but , as Ms. Cain explained, unless an employee was on a

performance improvement plan prior to their evaluation, the

employee could be rated no lower than Satisfactory, a 3 out of 5 .

62 . Ms. Cain met with her supervisors and instructed them

to prepare improvement plans for employees who were not meeti ng

expectations. She directed her supervisors, many of whom were

new, to coordinate with Human Resources to prepare the plans

appropriately.

63 . Ms. Yeadon was instructed to assist Ms. Salter in

preparation of PetitionerÓs PCAP, as well as plans for othe r

employees under her supervision. Ms. Yeadon prepared the

specific case Ðwrite - upÑ on th e Employee Disciplinary Action F orm

out of ignorance, as she was not familiar with the correct forms

to use. Once the error was brought to her attentio n, Ms. Yeadon

prepared the PCAP form with reference to specific case notes on

the Ðwrite - up.Ñ

64 . At Ms. CainÓs direction, PCAPs were developed for

several employees in the Escambia office in October, November,

and December 2016.

65 . Petitioner did not prove the PCAP was a pretext for

retaliation. The evidence supports a finding that PetitionerÓs

performance issues were documented in the years prior to

PetitionerÓs IG Complaint, and that PetitionerÓs supervisor and

other management discussed and began preparing the PC AP to

improve PetitionerÓs performance months prior to PetitionerÓs IG

Complaint.

PCAP as Disciplinary Action

66 . The Department contends that the PCAP itself is not

disciplinary action.

67 . The Department follows a progressive disciplinary

policy. The first step is a verbal counseling . If the issue is

not resolved after a verbal counseling, it is followed by a

documented counseling. If the issue is not resolved following a

documented counseling, the employee is placed on a performance

improvement plan . Ms. Salter testified that, i f the employee

fails to meet the expectations in a performance improvement plan,

the employee may be subject to discipline in the form of

termination or placement on a probationary period.

68 . The PCAP form stated, ÐNon - comp liance may result in:

Disciplinary action, up to and including dismissal[.]Ñ

69 . The PCAP did not materially alter the terms,

conditions , or privileges of PetitionerÓs employment.

Racial Discrimination Claim

70 . Petitioner was directly supervised in Esc ambia County

first by Ms. Odom, an African - American female , then by

M s. Terrell, also an African - American female .

71 . Ms. Salter, also an African - American female, supervised

Ms. Odom and Ms. Terrell and directly participated in the

decision to place Petit ioner on a PCAP.

72 . Ms. SalterÓs second in command was Ms. Yeadon, who is a

Caucasian female. Ms. Yeadon directly participated in drafting

PetitionerÓs PCAP.

73 . Ms. Cain, who is a Caucasian female, directed

Ms. Yeadon and Ms. Salter to prepare Petitio nerÓs PCAP.

74 . Petitioner contends that her African - American

supervisors discriminated against her by creating a hostile work

environment and disciplining her unfairly.

75 . When asked to recount specific remarks made by her

supervisors that were derogat ory in nature, Petitioner could only

recall references such as Ðthis type of peopleÑ or Ðthose

people.Ñ Petitioner admitted that the remarks were not Ð really

clear cutÑ discrimination.

National Origin Discrimination Claim

76 . Finally, Petitioner claims her supervisors

discriminated against her and created a hostile work environment

based on her national origin.

77 . Specifically, Petitioner claims that her supervisors

and other employees made fun of, or picked on her about, her

accent.

78 . When asked by the undersigned to identify the specific

individuals and statement made by them , Petitioner identified

Ms. Odom as rude and disrespectful to her for the entire period

in which Ms. Odom was PetitionerÓs supervisor. Petitioner stated

Ms. Odom frequently re sponded to PetitionerÓs questions with, ÐI

think this is a language problemÑ or ÐThis must be a

comprehension problem.Ñ

79 . Petitioner identified no additional specific comments

made by Ms. Odom regarding PetitionerÓs national origin or her

accent.

80 . P etitioner never complained to anyone at the Department

regarding Ms. OdomÓs treatment of her prior to her resignation .

81 . Ms. Odom was Petitione rÓs supervisor from May 2014

to September 2015.

82 . Ms. Terrell became PetitionerÓs supervisor in

September 2 015 and continued as PetitionerÓs supervisor until

PetitionerÓs resignation.

83 . Although Petitioner testified that Ms. Terrell made

derogatory remarks about PetitionerÓs national origin and her

accent, she was unable to give any specific example.

84 . Pe titioner also compla ined that Ms. Salter made fun of

her accent, but could not remember any specific statement.

CONCLUSIONS OF LAW

85 . The Division has jurisdiction over the subject matter

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

St at. (2017).

86 . Petitioner 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.

Race and National Origin Claims

87 . The Florida Civil Rights Act of 1992 (t he ÐActÑ),

makes it unlawful for an employer to discriminate against any

individual with respect to compensation, terms, conditions or

privileges of employment, because of the individualÓs race or

national origin. § 760.10(1)(a), Fla. Stat.

88 . The Act i s patterned after Title VII of the Civil

Rights Act of 1964, as amended. Thus, case law construing Title

VII is persuasive when construing the Act. See, e.g. , Fla.

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

89 . Petitioner can me et her burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1358 (1 1th Cir. 1999),

cert. den. 529 U.S. 1109 (2000). Direct evidence must evince

discrimination without the need for inference of presumption.

Standard v. A.B.E.L Svcs., Inc. , 161 F.3d 1318, 1330 ( 1 1 th Cir.

1998).

90 . There is no direct evidence the Department imposed the

PCAP against Petitioner based on either her race or national

origin.

91 . Because Petitioner presented no dir ect evidence of

discrimination , Petitioner must prove her allegation s by

circumstantial evidence. Circumstantial evidence of

discrimination is subject to the burden - shifting framework

established in McDonnell Douglas Corporation v. Green , 411 U.S.

792, 80 2 (1973).

92 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the burden shif ts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v. Glo beGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA

2009) . Facts that are sufficient to establish a prima facie case

must be adequate to permit an inference of discrimination. Id.

93 . Petitioner must first establish a prima facie case by

showing: (1) she is a member of a protected class; (2) she was

qualified for the position held; (3) she was subjected to an

adverse employment action; and (4) other similarly - situated

employees, who are not members of the protected group, were

treated more favorably than Petitioner. See McDonnell Douglas ,

411 U.S. at 802.

94 . The Findings of Fact here are not sufficient to

establish a prima facie case of discrimination based on either

race or national origin . Petitioner did establish the first two

elements: she is of a different race and national origin than

her supervisors, as well as the majority of her supervisorsÓ

supervisors ; and she was qualified for the position of CPI.

However, Petitioner did not establish the third element -- that

she suffered an adverse employm ent action.

95 . ÐNot all conduct by an employer negatively affecting

an employee constitutes adverse employment action.Ñ Davis v.

Town of Lake Park Fla. , 245 F. 3d 1232, 1238 (11th Cir. 2001)

(Plaintiff, who received one oral reprimand, one written

repri mand, the withholding of a bank key, and a restriction on

cashing non - account - holder checks, did not suffer an adverse

employment action). ÐThe asserted impact cannot be speculative

and must at least have a tangible adverse effect on the

plaintiffÓs emplo yment.Ñ Id. at 1239. An employee is required

to show a Ðserious and material change in the terms, conditions,

or privileges of employment.Ñ Id.

96 . In this case, the record does not support a finding

that the PCAP, even if Petitioner had agreed to it, constituted

an adverse employment action. The PCAP itself had no tangible

effect on PetitionerÓs employment. The PCAP did not result in

her termination, demotion, suspension, a reduction in pay, or a

change in job duties.

97 . The fact that the PCAP wa s a step in the DepartmentÓs

progressive disciplinary policy was also an insufficient basis

to conclude that it constituted an adverse employment action.

See Barnett v. Athens RegÓl Med. Ctr. , 2013 U.S. App. LEXIS

24867 *5 - 6 (11th Cir. Dec. 16, 2013) (Plai ntiffÓs argument that

the written reprimands and the negative performance evaluation

were successive steps in the employerÓs progressive disciplinary

policy, which could have led to harsher disciplinary action, was

insufficient to establish an adverse empl oyment action.) The

Petitioner must establish that the actions actually led to any

tangible effect on his or her employment. Id.

98 . Assuming, arguendo , the PCAP did constitute an adverse

employment action, Petitioner still failed to establish a prima

f acie case because she did not establish that similarly - situated

employees outside of either of her protected classes were

treated more favorably. Petitioner presented no evidence

regarding any other employee with backlogged cases who was not

placed on a P CAP. In fact, when Petitioner questioned

Ms. Salter whether other CPIs were placed on performance

improvement plans, Ms. Salter confirmed that all employees with

performance issues were placed on PCAPs.

99 . Finally, even if Pet itioner had established a

p rima facie case of discrimination based on either race or

national origin, the Department presented a legitimate, non -

discriminatory reason for placing Petitioner on a PCAP, which

Petitioner did not prove was mere pretext.

Retaliation Claim

100 . Section 7 60.10(7) prohibits retaliation in employment

as follows:

(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 se ction , or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section. (emphasis

added) .

101 . The burden of proving retaliation follows the general

rules enunci ated for proving discrimination. Reed v. A.W.

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

102 . There is no direct evidence the Department imposed

PetitionerÓs PCAP in retaliation against Petitioner for filing

the IG Complaint.

103 . To establish a prima facie case of discrimination

in retaliation by indirect evidence , Petitioner must show:

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

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

(3) that there is some causal r elationship between the two

events. Holifield v. Reno , 115 F.3d 1555, 1566 (11th Cir.

1997) .

104 . Petitioner did not prove she was engaged in

statutorily - protected expression or conduct when she filed her

IG Complaint. Section 760.10 protects employees who oppose Ðany

practice which is an unlawful employment practice under this

section ,Ñ i.e., discrimination on the basis of race, color,

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

marital status. The IG Complaint alleged that the Departm ent

failed to follow Department Policy 170.16, governing the

procedure to be followed when a Department employee is the

subject of a child welfare complaint. PetitionerÓs IG C omplaint

was not filed in opposition to any employment practice unlawful

pursuan t to section 760.10 .

105 . Petitioner failed to prove a prima facie case of

unlawful retaliation because she did not engage in a n activity

protected under the Act .

Hostile Work Environment Claim

106 . Petitioner's Charge of Discrimination against the

Depar tment alleges that Petitioner was subjected to a hostile

work environment based on both her race and national origin .

Petitioner alleges she Ðfelt [she] had no other choice but to

quit [her] job duties, due to the unfair treatment received [sic]

ongoing r etaliation, harassment and discrimination.Ñ

107 . A hostile work environment claim is established upon

proof that Ðthe workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the condi tions of the victimÓs employment and

create an abusive working environment.Ñ Miller v. Kenworth of

Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris

v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1998)).

108 . In order to establish a prima faci e case under the

hostile work environment theory, Petitioner must show: (1) that

she belongs to a protected group; (2) that she has been subject

to unwelcome harassment; (3) that the harassment must have been

based on a protected characteristic of the emp loyee, such as race

or national origin ; (4) that the harassment was sufficiently

severe or pervasive to alter the terms and conditions of

employment and create a discriminatorily abusive working

environment; and (5) that the employer is responsible for suc h

environment under a theory of vicarious or of direct liability.

Id.

109 . Factors relevant in determining whether conduct is

sufficiently severe and pervasive to show a hostile work

environment include, among others: (a) the frequency of the

conduct, ( b) the severity of the conduct, (c) whether the conduct

is physically threatening or humiliating, or a mere offensive

utterance, and (d) whether the conduct unreasonably interferes

with the employee's job performance. Miller , 277 F.3d at 1276.

110 . Petit ioner failed to establish a prima facie case of

hostile work environment based on either race or national origin .

Petitioner is Caucasian and her direct supervisors were African -

American. The only comments Petitioner identified as offensive

or racially - m otivated were general references made by unspecified

employees to Ðthese type of peopleÑ or Ðthese people . Ñ

Petitioner did not identify any racially - derogatory comments made

on behalf of any supervisor or anyone else in PetitionerÓs chain

of command.

111 . Petitioner failed to prove that she was subject to

intimidation, intentional embarrassment, or ridicule , based on

her race that were sufficiently severe and pervasive to alter the

terms and conditions of her employment and create a hostile work

environme nt.

112 . With regard to her national origin, Petitioner

identified Ms. OdomÓs references to Ðlanguage problemsÑ and

Ðcomprehension problems , Ñ generally. Petitioner was unable to

recall any other specific comments directed toward, or treatment

of, her by any other employee on the basis of her national

origin.

113 . Petitioner failed to prove that she was subject to

intimidation, intentional embarrassment, or ridicule, based on

her national origin that was sufficiently severe and pervasive to

alter the term s and conditions of her employment and create a

hostile work environment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from a n Unlawful

Employment Practice filed by Petitioner against Respondent in

Case No. 2 01700691 .

DONE AND ENTERED this 1 7 th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judg e

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 1 7 th day o f October, 2017 .

ENDNOTE S

1/ Except as otherwise noted herein, all references to the

Florida Statutes are to the 2016 version . Although both the

2015 and 2016 version s of the Civil Rights Act of 1992 were in

effect at times when the alleged discrimina tory action s against

Petitioner took place , there is no substantive difference

between the two versions to warrant separate citation to each .

2 / The referenced Department document was not offered in

evidence at the final hearing.

COPIES FURNISHED:

Tam my S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Ana - Maria Enciu

3441 Jubilee Drive

Milton, Florida 32571

(eServed)

Eric David Schurger, Esquire

Department of Children and Families

Suite 601

160 Governmental Center

Pensacola, Florida 32502 - 5734

(eServed)

Lynn Soon Hewitt, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Brian J. Stabley, Es quire

Office of the Attorney General

Plaza Level 01

The Capit o l

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human R elations

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 ca se.