17-004839 Donna M. Cyrus vs. Express Scripts Status: Closed Recommended Order on Tuesday, February 27, 2018.

Summary: Petitioner failed to prove that Respondent discriminated against her based on her race, or in retaliation for her protected activity. Further, Respondent presented legitimate, non-discriminatory reasons for its employment decisions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA M. CYRUS,

Petitioner,

vs. Case No. 17 - 4839

EXPRESS SCRIPTS,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted b efore

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2017), 1/ on November 8 , 2017, in

Orlando, Florida.

APPEARANCES

For Petitioner: Donna Michelle Cyru s , pro se

4411 Prairie Court

Orlando, Florida 32808

For Respondent: B. Tyler White, Esquire

Jackson Lewis, P.C.

501 Riverside Avenue , Suite 902

Jacksonville, Florida 3 2202

STATEMENT OF THE ISSUE

Whether Petitioner, Donna M. Cyrus, was subject to an

unlawful employment practice by Respondent, Express Scripts,

based on her race in violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On February 22, 2017, Peti tioner filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (the Ð Commission Ñ ) alleging that Respondent, Express

Scripts, violated the Florida Civil Rights Act ( Ð FCRA Ñ ) by

discriminating against her based on her ra ce and in retaliation

for her practice of an activity protected by the FCRA.

On August 21, 2017, the Commission notified Petitioner that

no reasonable cause existed to believe that Express Scripts had

committed an unlawful employment practice.

On August 24 , 2017, Petitioner filed a Petition for Relief

with the Commission alleging a discriminatory employment

practice. The Commission transmitted the Petition to the

Division of Administrative Hearings ( Ð DOAH Ñ ) to conduct a

chapter 120 evidentiary hearing.

Th e final hearing was held on November 8, 2017. At the

final hearing, Petitioner testified on her own behalf.

Petitioner Ó s Exhibits A through E were admitted into evidence.

Express Scripts called Robin Morris and Karina Ward as witnesses

at the final hear ing. Respondent Ó s Exhibits 1 through 7 were

admitted into evidence.

A two - volume Transcript of the final hearing was filed with

DOAH on December 27, 2017. At the close of the hearing, the

parties were advised of a ten - day timeframe following DOAH Ó s

recei pt of the hearing transcript to file post - hearing

submittals. Both parties timely filed post - hearing submittals

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Express Scripts is a prescription benefit management

compa ny. Express Scripts provides pharmaceutical home delivery

services, pharmacy claims processing, and benefit plan managem ent

for its patient clients.

2. Petitioner, a Black woman, began working for Express

Scripts in January 2013. Petitioner was hired as a nurse

clinician. Petitioner explained that she acted as a telephonic

nurse. Her job was to perform clinical assessments for new and

existing medical patients regarding their medications.

Thereafter, she would provide Express Scripts customers with dr ug

specific counselling and education. Petitioner Ó s work was

primarily done with a computer and over the telephone. Beginning

in December 2014, Petitioner worked exclusively from her home.

3. As required for her job, Petitioner held an active

nursing li cense with the S tate of Florida.

4. By all accounts, Petitioner was a consistent and

reliable worker with no marked deficiencies in her job

performance.

5. However, by the fall of 2013, Petitioner became

increasingly disenchanted by what she perceived to be

discriminatory harassment by her supervisors. In or about

October 2013, Petitioner e - mailed her direct supervisor, Robin

Morris, to complain about several negative assessments she had

received. Petitioner felt like she was being judged more harshly

b ecause she was Black. Petitioner also commented about how she

believed that Express Scripts was treating a white employee

better than her. Petitioner relayed that she felt the white

employee was provided more lenience in meeting his job

responsibilities and in being granted time off from work.

6. In addition, Petitioner testified that around this time

she formally reported to Express Scripts the discrimination she

alleged to have experienced in her workplace. Petitioner

explained that she contacted the Express Scripts compliance

hotline which was a phone number listed in the Equal Employment

Opportunity section of the Express Scripts employee policy

handbook. However, Petitioner did not disclose to either

Ms. Morris or the Express Scripts human resourc es department that

she had called the hotline.

7. After her phone call to the hotline, Petitioner asserts

that she began to experience Ð subtle, Ñ but persistent,

discrimination. Petitioner endured what she described as Express

Scripts Ó abusive, offensive, and unfair treatment based upon her

race, as well as retaliation for her complaint of discrimination.

Specific instances in which Petitioner asserts Express Scripts

subjected her to different terms and conditions from her (white)

co - wor kers, include the following:

a. Denied Requested Time Off

8. Petitioner claims that she was denied requested time off

from work based on her race. Petitioner described an incident in

October 2013 when she asked for two hours off for personal leave.

She input ted her re quest into the Express Scripts computer

program as required. However, five minutes later, she observed

that her request had been deleted in the system. She reentered

her request. Less than an hour later, she discovered that the

computer program had dele ted her request for a second time. She

did not know how or why she was not allowed to take the leave

hours she requested.

9. Petitioner asserted that other non - black employees were

authorized to take personal leave of their choice. Petitioner

specific ally identified another nurse clinician named Jonathon

Guyette, a white male, who was freely granted his requests for

time off. Petitioner also identified Nicole Deverling, another

nurse clinician and a white female, who was regularly given time

off. Pet itioner felt that Linda Hampson, who was not her

immediate supervisor but supervised all nurse clinicians, showed

favoritism in granting or denying personal leave time.

Petitioner concluded that, particularly in light of Petitioner Ó s

seniority over Ms. De verling, that Ms. Hampson personally denied

her leave because of her race.

b. Harassment Following an On - the - job Injury

10. In December 2015, Petitioner began to experience pain

in her right wrist. Petitioner attributed her injury to the

overuse of h er computer during her job. Petitioner was

ultimately diagnosed with DeQuervain Ó s disease. Petitioner

reported her injury to Ms. Morris. However, she felt that

Express Scripts was grossly unsympathetic about her injury.

11. Then, in June 2016, Petiti oner Ó s left wrist began to

ache. Petitioner described the pain as a constant burning and

tingling sensation, as well as numbness. Petitioner was

eventually diagnosed with tendinitis and carpel tunnel syndrome.

Petitioner needed multiple surgeries on her left and right

wrists.

12. Petitioner expressed that Ms. Morris harassed her about

the medical care and treatment she sought for her wrist pain.

Petitioner maintained that Ms. Morris Ó callous reaction to her

injuries effectively prevented her from using the same employee

benefits as her co - workers. For instance, Ms. Morris demanded

that Petitioner provide written documentation recording the dates

and times of her doctors Ó appointments. Petitioner declared that

Ms. Morris unfairly wrote her up in 2015 a nd 2016 for violating

the Express Scripts Ó medical leave policy for being absent

without authorization. Petitioner claimed that the days she took

off were legitimately due to her medical appointments.

13. Petitioner also accused Ms. Morris and her worke rs Ó

compensation caseworker (Sarah Reichert) of forcing her to

overuse her left hand to type while her right hand was

recuperating. Petitioner felt that not only was she wrongfully

harassed and rushed, but her work conditions exacerbated (if not

caused) t he injury to her left wrist.

14. Finally, Petitioner testified that Express Scripts

unjustifiably interfered with her ability to obtain medical care

for her injuries. Petitioner relayed that Ms. Reichert

determined what of Petitioner Ó s medical treatmen ts was

compensable under Express Scripts Ó workers Ó compensation

coverage. Petitioner complained that Ms. Reichert unfairly

denied certain medical procedures Petitioner required.

c. Not Given Work Schedule Preference

15. Petitioner accuses Express Sc ripts of not allowing her

to work her preferred work schedule. Instead, Express Scripts

permitted white employees to work during the shift she desired.

Specifically, in May 2015, Express Scripts offered its nurse

clinicians the opportunity to work an alt ernative schedule of

4 days a week/10 hours a day (as opposed to 5 days a week/8 hours

a day). Petitioner did not accept the flex schedule. Instead,

Petitioner e - mailed her supervisor, Ms. Morris, that she Ð would

prefer to work 8hr shifts only, 8 - 4:30pm if possible. Ñ

16. Several months later, however, Petitioner expressed to

Express Scripts that she would like to work the 4 - day/10 - hour

work week. Express Scripts did not approve her request. On the

other hand, Petitioner represented that a white empl oyee

(Mr. Guyette) was allowed to work the flex schedule.

d. Not Equal Acknowledgment of Workplace Accomplishments

17. In December 2014, Express Scripts did not include

Petitioner on an e - mail that congratulated tw o nurse clinicians

on their two - year a nniversary with the company. Petitioner was

hired at the same time as these employees. Upon learning of the

oversight from Petitioner, Express Scripts issued a separate,

company - wide e - mail in January 2015 congr atulating Petitioner on

her two - year annive rsary. Neither was Petitioner Ó s picture ever

featured on the office wall. Petitioner was devastated. She

felt that both omissions were intentional and based on her race.

e. Denied Workplace Privileges

18. Petitioner generally complained that Expre ss Scripts

did not promote her or provide her special jobs or privileges as

it did for other (white) nurse clinicians. Petitioner also

asserted that her bonus was lower than her co - workers. In

addition, Petitioner proclaimed that her co - workers and

super visors intentionally acted in a way to intimidate her and

force her to resign from the company. Finally, Petitioner

conveyed that she received many groundless verbal Ð write - ups. Ñ

However, at the final hearing, Pet itioner did not provide

evidence supporti ng any of these claims outside of her own

testimony.

19. Robin Morris, Petitioner Ó s direct supervisor at Express

Scripts, testified at the final hearing. Ms. Morris managed

approximately 14 nurse clinicians.

20. Ms. Morris commented that Petitioner wa s a solid

employee and generally met all job expectations. Although

Petitioner accumulated several attendance Ð points Ñ for unexcused

absences, she never received any disciplinary action during her

employment. On the converse, Petitioner was given merit p ay

increases every year she worked for Express Scripts.

21. Concerning Petitioner Ó s complaint that Express Scripts

was less than helpful regarding her use of leave time for her

injuries, Ms. Morris explained that Express Scripts required all

employees to provide medical documentation to justify medical

time off. Therefore, any frustration Petitioner experienced

regarding her medical leave was based on the lack of

documentation that Petitioner produced confirming her medical

visits. Ms. Morris recalled t hat, at least on one occasion, she

gave Petitioner a verbal coaching about her failure to provide a

doctor Ó s note recording the times she arrived and left her

doctor Ó s office.

22. Ms. Morris further explained that Sarah Reichert was

not an Express Scrip ts employee. Instead, she was a contract

worker for Express Script Ó s workers Ó compensation insurer,

Traveler Ó s Insurance. Ms. Reichert managed Petitioner Ó s workers Ó

compensation claims. Ms. Morris testified that she did not have

any input into how Trav eler Ó s administered or authorized

Petitioner Ó s medical treatment or doctor Ó s visits.

23. Ms. Morris denied that she, or any other Express

Scripts supervisor, showed any favoritism in approving personal

time off for the nurse clinicians. Ms. Morris testi fied that all

Express Scripts employees requested leave hours/days through an

automated computer program that automatically approved or denied

leave requests. Leave was granted on a first come, first serve

basis. Ms. Morris further added that Express Scr ipts Ó leave

policy allowed only 10 percent of a company section off of work

at any one time. This policy effectively allowed only one nurse

clinician a day to take leave. Consequently, Ms. Morris

explained that if Petitioner Ó s personal leave requests wer e

denied, then another nurse clinician had asked for that

particular date/time off first. Ms. Morris refuted Petitioner Ó s

allegation that Express Scripts ever refused to allow her to take

personal leave based on her race.

24. After she filed her Employ ment Complaint of

Discrimination with the Commission in February 2017, Petitioner

continued to work for Express Scripts. Karina Ward, Express

Scripts Ó Senior Human Resources Advisor, testified regarding

Express Scripts Ó reaction to Petitioner Ó s complaint.

25. After learning of Petitioner Ó s complaint, Ms. Ward

opened an internal investigation. Ms. Ward Ó s first step was to

contact Petitioner to discuss her concerns about fair treatment

in the workplace. Ms. Ward called Petitioner on or about

February 13 , 2017. During their phone call, Petitioner described

the incidents of discr imination she experienced.

26. At the end of their conversation, Ms. Ward told

Petitioner that she would call her the following day to review

Petitioner Ó s desired outcome. When Ms. Ward called on

February 14, 2017, however, Petitioner did not answer. Neither

was Ms. Ward able to reach Petitioner when she called her on

February 16 and 22, 2017.

27. Despite not speaking further with Petitioner about her

allegations, Ms. Ward co ntinued to investigate Petitioner Ó s claim

of discrimination. Ms. Ward contacted Petitioner Ó s co - workers to

explore any additional concerns regarding disparate or unfair

treatment. Ms. Ward did not uncover any information

substantiating Petitioner Ó s alleg ations of discrimination. With

no further communication from Petitioner, Ms. Ward closed her

investigation on March 6, 2017.

28. Regarding Petitioner Ó s testimony that she called a

compliance hotline in 2013 to report discrimination, Ms. Ward

relayed that , at that time, Express Scripts did not have a

central phone number for employees to report workplace disputes

such as discrimination. Instead, the complaint hotline which

Petitioner called was administered by a third - party vender.

Ms. Ward testified th at she was not aware of, nor had she ever

received any information regarding, Petitioner Ó s report of

discrimination in 2013. Neither could she find any evidence of

Petitioner Ó s complaint in the Express Scripts Ó human resources

records. (Ms. Morris also d enied any knowledge of Petitioner Ó s

2013 phone call.)

29. At the final hearing, Ms. Ward also responded to

Petitioner Ó s complaint that Express Scripts did not allow her to

work alternate hours. Ms. Ward explained that Express Scripts

had offered Petition er the option of working a 4 - day a week/10 -

hour a day schedule, just as it offered to every nurse clinician.

Petitioner, however, declined to take advantage of the

opportunity when it was offered. Ms. Ward recalled that

Petitioner then contacted Express Scripts approxi mately six

months later requesting the alternate work hours. But, by that

time, Express Scripts had determined not to offer the flex

schedule to any employee.

30. Ms. Ward further explained that the white employee

Petitioner identified (Mr . Guyette) was allowed to work the

4 - day/ 10 - hour work week based on a medical accommodation.

Mr. Guyette was the only Express Scripts employee who was

authorized to work an alternate schedule. (Ms. Morris echoed

Ms. Ward Ó s testimony that Petitioner de clined the initial

opportunity to work a flex schedule. Ms. Morris also repeated

that Mr. Gu yette was allowed to work a 4 - day work week to

accommodate a medical issue.)

31. After her complaint to the Commission in February 2017,

Petitioner regularly ask e d for medical leave based on her

recurring health issues. Finally, in May 2017, Petitioner

stopped reporting in for work, citing her medical condition. In

July 2017, however, Ms. Ward learned from the Traveler Ó s workers Ó

compensation department that on M ay 31, 2017, Petitioner had been

medically cleared to return to work with no restrictions.

Therefore, Ms. Ward contacted Petitioner and asked her to produce

medical documentation supporting her recent leave requests.

Petitioner responded that, on the con trary, her doctor told her

that she had not been medically cleared to work. However,

Petitioner did not provide Ms. Ward any additional documentation

substantiating either the days she had taken medical leave or her

nee d for future medical treatment.

32. On July 14, 2017, Ms. Ward spoke with Petitioner, and

notified her that Express Scripts considered her in an unapproved

leave of absence status. Express Scripts received no

communication from Petitioner after that date. Therefore, on

July 27, 2017, Ms. Ward concluded that Petitioner had voluntarily

resigned her job. Express Scripts terminated Petitioner Ó s

employment due to Ð job abandonment. Ñ 2/

33. At the final hearing, Petitioner claimed that all the

days that she was absent from work were related to medical care

she received for her wrist injuries. Petitioner also represented

that she had applied for short - term disability in order to take

time off to care for her various health issues.

34. Ms. Ward denied that Express Script disapproved any

reques t for leave days based on PetitionerÓs race or in

retaliation for a complaint of discrimination. Neither was

Express Script Ó s decision to terminate Petitioner Ó s employment

based on Petitioner Ó s race or her participation in an activity

protected by the FCR A.

35. Based on the competent substantial evidence in the

record, the preponderance of the evidence does not establish that

Express Scripts discriminated against Petitioner based on her

race or in retaliation for her complaint of discrimination.

Accordin gly, Petitioner failed to meet her burden of proving that

Express Scripts committed an unlawful employment action against

her in violation of the FCRA.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and th e subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7),

Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016.

37. Petitioner brings this matter alleging that Express

Scripts : 1) discriminated against her based on her r ace in

violation of the FCRA ; and 2) retaliated against her based on her

participation in an activity protected by the FCRA.

38. The FCRA protects individuals from discrimination in

the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section

760.10 st ates, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or pri vileges of employment, because of such

individual Ó s race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

39. The FCRA also protects employees from certain

retaliatory acts. The FCRA Ó s anti - retaliation provision is fo und

in section 760.10(7) and states, in pertinent part:

(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 sec tion, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under

this section.

40 . Section 760.11(7) permits a party for whom the

Commission determines that there is not reasonable cause to

believe that a violation of the FCRA has occurred to request an

administrative hearing before DOAH. Following an administrative

hearing, if the Administrative Law Judge ( Ð ALJ Ñ ) finds that a

discriminatory act has occurred, the ALJ Ð sha ll issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay. Ñ § 760.11(7), Fla. Stat.

41 . The burden of proof in an administrative proceedin g,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. Dep Ó t of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see also Dep Ó t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)( Ð The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue. Ñ ). The preponderance of

the evidence standard is applicable to this matter. See

§ 120. 57(1)(j), Fla. Stat.

42 . The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts hold

that federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blo ckbuster Entm Ó t

Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and

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

1996).

4 3. Discrimination may be proven by direc t, statistical, or

circumstantial evidence. Valenzuela , 18 So. 3d at 22. Direct

evidence is evidence that, if believed, would prove the existence

of discriminatory intent behind the employment decision without

any inference or presumption. Denney v. Cit y of Albany , 247 F.3d

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

1555, 1561 (11th Cir. 1997). Courts have held that Ð Ò only the

most blatant remarks, whose intent could be nothing other than to

discriminate . . . Ó will constitute dir ect evidence of

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

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

44 . Petitioner presented no direct evidence of race

discrimination on the part of Express Scripts. Similarly, the

r ecord in this proceeding contains no statistical evidence of

discrimination by Express Scripts.

45 . In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of discrimination to prove her c ase. For discrimination

claims involving circumstantial evidence, Florida courts follow

the three - part, burden - shifting framework set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973), and its progeny.

Valenzuela , 18 So. 3d at 21 - 22; see als o St. Louis v. Fla. Int Ó l

Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

4 6 . In a race discrimination action, Petitioner bears the

initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. To establish a

pri ma facie case, Petitioner must show that: (1) she belongs to

a protected class (race); (2) s he was qualified for her position;

(3) she was subjected to an adverse employment action; and (4) her

employer treated similarly - situated employees outside of her

protected class more favorably than she was treated. See

McDonnell Douglas , 411 U.S. at 802 - 04; Burke - Fowler v. Orange

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

47 . Demonstrating a prima facie case is not difficult, but

rather only requires the petiti oner Ð to establish facts adequate

to permit an inference of discrimination. Ñ Holifield , 115 F.3d

at 1562.

48 . If Petitioner establishes a prima facie case, she

creates a presumption of discrimination. At that point, the

burden shifts to the employer to articulate a legitimate, non -

discriminatory reason for taking the adverse action. Valenzuela ,

18 So. 3d at 22. The reason for the employer Ó s decision should

be clear, reasonably specific, and worthy of credence. Dep Ó t of

Corr. v. Chandler , 582 So. 2d 11 83, 1186 (Fla. 1st DCA 1991).

The employer has the burden of production, not the burden of

persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. Flowers voup Cnty. , 803

F.3d 1327, 1336 (11th Cir. 2015). This burd en of production is

Ð exceedingly light. Ñ Holifield , 115 F.3d at 1564. The employer

only needs to produce evidence of a reason for its decision. It

is not required to persuade the trier of fact that its decision

was actually motivated by the reason given . St. Mary Ó s Honor

Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

49 . If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to

Petitioner to prove that the employer Ó s proffered reason was not

the true reas on but merely a Ð pretext Ñ for discrimination. Combs

v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir. 1997);

Valenzuela , 18 So. 3d at 25.

50 . In order to satisfy this final step of the process, the

petitioner must show Ð directly that a discriminator y reason more

likely than not motivated the decision, or indirectly by showing

that the proffered reason for the . . . decision is not worthy of

belief. Ñ Chandler , 582 So. 2d at 1186 (citing Tex. Dep Ó t of

Cmty. Aff. v. Burdine , 450 U.S. 248, 252 - 256 (1981 )). The

proffered explanation is unworthy of belief if the petitioner

demonstrates Ð such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer Ó s proffered

legitimate reasons for its action that a reasonable factfi nder

could find them unworthy of credence. Ñ Combs , 106 F.3d at 1538;

see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133,

143 (2000). The petitioner must prove that the reasons

articulated were false and that the discrimination was the real

reason for the action. City of Miami v. Hervis , 65 So. 3d 1110,

1117 (Fla. 3d DCA 2011)(citing St. Mary Ó s Honor Ctr . , 509 U.S. at

515)( Ð [A] reason cannot be proved to be Ò a pretext for

discrimination Ó unless it is shown both that the reason was

false, and that disc rimination was the real reason. Ñ ).

51 . Despite the shifting burdens of proof, Ð the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the [petitioner]. Ñ Burdine , 450 U.S. at 253;

Valenzuela , 18 So. 3d at 22.

52 . Applying the burden - shifting analysis to the facts

found in this matter, Petitioner established a prima facie case

that Express Scripts discriminated against her based on her race.

Petitioner su fficiently demonstrated that she belongs to a

protected class, was qualified to perform as a nurse clinician,

and was subject to an adverse employment action (denial of

requested leave time and denial of her requested work schedule). 3/

Petitioner also est ablished that Express Scripts treated at least

one similarly situated, white employee (Jonathon Guyette)

differently. 4/

5 3. However, despite the fact that Petitioner established a

prima facie case of race discrimination, Express Scripts

articulated legiti mate, non - discriminatory reasons for the

adverse employment action about which Petitioner complains.

Express Scripts Ó burden to refute Petitioner Ó s prima facie case

is light. Express Scripts met this burden by providing credible

testimony that its decisi ons regarding Petitioner Ó s leave were

based on internal policies and procedures that were uniformly

applied to all employees. Express Scripts further explained that

any medical leave of absence which Petitioner believes she was

denied was due to her failu re to provide sufficient medical

documentation justifying the leave. Again, Express Scripts

attested that all its employees were obligated to comply with

this requirement.

54 . Regarding Petitioner Ó s allegation that Express Scripts

refused to authorize her to work a modified work schedule,

Express Scripts responded that it did offer Petitioner the

opportunity to adjust her work hours in May 2015. However, she

did not timely accept the offer. (In fact, she expressed her

prefe rence to continue working 8 - hour shifts.) When Petitioner

requested the 4 - day/10 - hour work week several months later,

Express Scripts had already decided not to offer the alternate

work hours to any nurse clinician. Express Scripts also credibly

explained that Mr. Guyette was autho rized to work the flex

schedule based specifically on a medical accommodation.

Therefore, Express Scripts sufficiently articulated legitimate,

non - discriminatory reasons for its alleged adverse employment

decisions.

55 . Completing the McDonnell Douglas b urden - shifting

analysis, Petitioner did not prove that Express Scripts Ó stated

reasons for denying her leave and flex schedule requests were not

its true reasons, but were merely a Ð pretext Ñ for discrimination.

The evidentiary record does not support a fi nding or conclusion

that Express Scripts Ó explanations are false or not worthy of

credence. As persuasively attested by Ms. Morris and Ms. Ward,

Express Scripts Ó employment decisions regarding Petitioner were

firmly based on company policy, which it unifo rmly applied to all

company employees. Conversely, while Petitioner repeatedly

asserted that Express Scripts treated her less favorably than

other employees, the evidence in the record does not establish

that the actions about which she complains were in any way based

on, or influenced by, her race.

56 . Therefore, even though Petitioner presented enough

evidence to establish a prima facie case of discrimination, she

did not produce sufficient evidence to prove that Express Scripts

treated her differentl y because of her race. Consequently,

Petitioner did not meet her ultimate burden of proving, by a

preponderance of the evidence, that Express Scripts Ó decisions

affecting her employment were based on discriminatory animus.

57 . Furthermore, Petitioner d id not meet her burden of

proving that Express Scripts retaliated against her based on her

communication to the hotline in 2013. The FCRA provides that no

person shall discriminate against any individual because such

individual has opposed an unlawful emp loyment act or practice.

See Stewart v. Happy Herman Ó s Cheshire Bridge, Inc. , 117 F.3d

1278, 1287 (11th Cir. 1997) ; see also 42 U.S.C. § 12203(a) and

§ 760.10(7) Fla. Stat.

58 . When a petitioner produces only circumstantial evidence

of retaliation (as in this matter), Florida courts use the burden

shifting framework set forth in McDonnell Douglas . To establish

a prima facie case of retaliation, Petitioner must demonstrate

that: (1) she engaged in statutorily protected activity; (2) she

suffered a mat erially adverse employment action; and (3) there

was a causal connection between the protected activity and the

adverse employment action. Kidd v. Mando Am. Corp ., 731 F.3d

1196, 1211 (11th Cir. 2013); Webb - Edwards v. Orange Cnty.

Sheriff Ó s Off. , 525 F.3d 1013, 1028 (11th Cir. 2008). The

failure to satisfy any of these elements is fatal to a complaint

of retaliation. Higdon v. Jackson , 393 F.3d 1211, 1219 (11th

Cir. 2004).

59 . For an action to be Ð materially adverse Ñ in the context

of retaliation, it Ð must be harmful to the point that [it] could

well dissuade a reasonable worker from making or supporting a

charge of discr imination.Ñ Wolf v. MWH Constructors, Inc. ,

34 F. Supp. 3d 1213, 1227 (M.D. Fla. 2014); Burlington N. & Santa

Fe Ry. v. White , 548 U .S. 53, 68, 126 S. Ct. 2405, 2415 (2006) .

60. Regarding a Ð causal connection Ñ between the protected

activity and the adverse action, a t the prima facie stage, a

petitioner Ð need only establish that the protected activity and

the adverse action were not w holly unrelated. Ñ Taylor v. Runyon ,

175 F.3d 861, 868 (11th Cir. 1999). A petitioner need not

definitively establish causation. Frazier v. Sec Ó y, Dep Ó t of HHS ,

No. 16 - 16329, 2017 U.S. App. LEXIS 18819, at *14 (11th Cir.

Sep. 29, 2017).

61 . Retaliation claims under the FCRA use the same

evidentiary framework as Title VII retaliation claims. Stewart ,

117 F.3d at 1287; Harper , 139 F.3d at 1389. As such, Petitioner

bears the ultimate burden of persuading the trier of fact that

Express Scripts intentional ly retaliated against her. Burdine ,

450 U.S. at 253.

62. Based on the evidence in the record, Petitioner did not

establish a prima facie case of retaliation. Concerning the first

two elements, Petitioner credibly testified that she reported to

the Expr ess Scripts compliance hotline in 2013 that she had

experienced and observed elements of racial discrimination in her

workplace. Petitioner also satisfied the Ð adverse action Ñ prong

of her prima facie claim through her testimony that Express

Scripts refus ed to modify her work schedule or grant her personal

leave under the same conditions as her co - workers. 5/ However,

Petitioner failed to demonstrate a Ð causal connection Ñ between

her protected activity in 2013 and the adverse employment action

about which she complains.

63. Initially , the evidence in the record does not establish

that Petitioner Ó s supervisors had sufficient knowledge of her 2013

report of discrimination at the time they allegedly retaliated

against her in 2015 and 2016. A petitioner Ð mus t generally show

that the decision maker was aware of the protected conduct at the

time of the adverse employment action. Ñ Brungart v. Bellsouth

Telecomms., Inc. , 231 F.3d 791, 799 (11th Cir. 2000). In other

words, a decision maker cannot have been motiv ated to retaliate by

events of which the decision maker is unaware. Butts v.

Ameripath, Inc. , 794 F. Supp. 2d 1277, 1294 (S.D. Fla. 2011).

Petitioner must present sufficient evidence to allow a court to

plausibly infer the existence of retaliatory intent on the part of

the employer. Ramsey v. Greenbush Logistics, Inc. , Case No. 3:17 -

cv - 01167 - AKK, 2017 U.S. Dist. LEXIS 207880, at *14 - 15 (N.D. Ala.

Dec. 19, 2017) .

64 . Express Scripts persuasively argues that the Express

Scripts supervisors who allegedly r etaliated against Petitioner

were not aware of her protected activity at the time of their

reputed retaliatory actions. On the contrary, both Ms. Morris

and Ms. Ward credibly testified that they had no knowledge of

Petitioner Ó s 2013 phone call when they m ade any decisions

regarding her work terms or conditions. Petitioner Ó s explanation

that she called an Ð 800 Ñ number to report her concerns instead of

directly informing her supervisors or the human resource

department furt her supports this conclusion.

65 . Secondly, Petitioner did not demonstrate that Express

Scripts Ó adverse actions were Ð not wholly unrelated Ñ to her

complaint in 2013. Petitioner did not request an alternative work

schedule until around September 2015. Further, Petitioner Ó s

medical leav e requests followed her on - the - job injuries in

December 2015 and June 2016. Petitioner did not sufficiently

show how her 2013 complaint was related to Express Scripts Ó

denial of her leave or work schedule requests in 2015 or 2016.

See Higdon , 393 F.3d at 1220 (If there is a substantial delay

between the protected expression and the adverse action, in the

absence of other evidence tending to show causation, the

complaint of retaliation fails as a matter of law.) . 6/ Petitioner

did produce an e - mail she sen t to Ms. Morris in October 2013

generally complaining about racial disparities in the workplace.

However, this single e - mail is too attenuated to connect with

Express Scripts Ó alleged retaliation two years later. Therefore,

for purposes of establishing h er prima facie case, Petitioner did

not present the requisite Ð causal connection Ñ to infer the

existence of retaliatory intent on the part of her supervisors at

Express Scripts.

66. Finally, e ven assuming that Petitioner established

a prima facie case, s he did not meet her ultimate burden of

proving that Express Scripts wrongfully retaliated against her.

Title VII retaliation claims require a petitioner to prove that

the employer Ó s unlawful retaliation was the Ð but - for Ñ cause of the

adverse employment ac tion. Palm Beach Cty. Sch. Bd. v. Leha

Ð B onnie Ñ Wright , 217 So. 3d 163, 165 (Fla. 4th DCA 2017) ( citing

Univ . of T x . S W Med . Ct r . v. Nassar , 133 S. Ct. 2517 (2013) ) .

This standard Ð requires proof that the unlawful retaliation would

not have occurred in th e absence of the alleged wrongful action or

actions of the employer. Ñ Nassar , 133 S. Ct. at 2533. In other

words, Petitioner must demonstrate that the complained - of

employment decisions would not have occurred Ð but - for Ñ Express

Scripts Ó actual intent to retaliate against her because of her

2013 complaint of discrimination. Frazier - White , 818 F.3d at

1258; Trask v. Sec Ó y, Dep Ó t of Vets . Aff . , 822 F.3d 1179, 1194

(11th Cir. 2016); and Mealing v. Ga. Dep Ó t of Juv . Just . , 564 F.

App Ó x 421 (11th Cir. 2014). 7/

67 . In her various claims, Petitioner Ó s strongest argument

for a retaliatory employment act is that Express Scripts did not

allow her to take personal leave under the same conditions, or

work the same flex schedule, as her white co - worker. However,

Expr ess Scripts Ó witnesses credibly explained that Petitioner Ó s

requests for leave and an alternative work schedule were not

denied based on her 2013 complaint. Instead, Express Scripts

applied the same policies (and computer program) to all decisions

regardi ng Petitioner Ó s leave time and work schedule as it did to

every other nurse clinician. The only exception to this

procedure was Mr. Guyette who had a specific medical condition.

68 . At its core, Petitioner Ó s complaint consists of broad

assertions that al l Express Scripts Ó decisions with which she

took umbrage were based on racism. However, the evidence and

testimony in the record does not, either directly or

circumstantially, link the frustrations Petitioner experienced

with actual racial animus or retal iation. On the contrary,

Express Scripts presented plausible explanations for its

employment decisions, and Petitioner did not demonstrate that

those explanations were a Ð pretext. Ñ Consequently, Petitioner

failed to meet her ultimate burden of proving th at Express

Scripts took action against her in retaliation for her complaint

of discrimination in 2013. Accordingly, Petitioner did not prove

that unlawful retaliation was the Ð but - for Ñ cause of Express

Scripts Ó adverse employment actions.

69 . In sum, th e evidence on record does not support

Petitioner Ó s claim that Express Scripts discriminated against her

based on her race. Petitioner did not prove that the Ð subtle Ñ

workplace tribulations she experienced were in any way motivated

by racial animus or in r etaliation for her complaint of

discrimination. Accordingly, Petitioner Ó s Petition for Relief

must be dismissed.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relatio ns issue a final order finding that Petitioner, Donna M.

Cyrus, did not prove that Respondent, Express Scripts, committed

an unlawful employment practice against her; and dismissing her

Petition for Relief from an unlawful employment practice.

DONE AND EN TERED this 27 th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 2 7 th day of February , 2018 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2017),

unless ot herwise noted.

2/ Petitioner Ó s termination in July 2017 occurred after she filed

her Employment Complaint of Discrimination with the Commission in

February 2017. Consequently, the undersigned did not consider

the circumstances regarding Petitioner Ó s dep arture from Express

Scripts in the scope of her allegations of discrimination and

retaliation in this matter.

Initially, the undersigned notes that o nly those claims

fairly encompassed within a timely - filed complaint and

investigated by the Commission may be the subject of an

administrative hearing conducted pursuant to chapter 120. See

generally , Mulhall v. Advance Sec. Inc. , 19 F.3d 586, 589 n.8

(11th Cir. 1994); and Davis v. City of Panama City , 510 F. Supp.

2d 671, 691 (N.D. Fla. 2007). Although new acts that occur

during the pendency of an administrative charge may be included

in the scope of the complaint, those actions must grow out of the

charge of discrimination. The facts found in the underlying

record, however, did not establish that Petitione r Ó s termination

was reasonably related to the allegations listed in Petitioner Ó s

Complaint of Discrimination to the Commission. See Ward v. Fla . ,

212 F. Supp. 2d 1349, 1355 (N.D. Fla. 2002)) . This reasoning

prevents complainants from circumventing the Co mmission Ó s

specific investigatory and conciliatory role in discrimination

actions.

Secondly, at the final hearing, Petitioner specifically

conceded that Express Scripts Ó decision to terminate her

employment was not related to her report of discriminatio n to the

compliance hotline in 2013, or otherwise based on her race.

A ccordingly, the undersigned restricted the analysis and review

in this matter to those claims specifically identified in

Petitioner Ó s complaint to the Commission.

3/ The undersigned n otes that the r eview of Petitioner Ó s

complaint should be limited to alleged adverse employment actions

that occurred within 365 days prior to her Employment Complaint

of Discrimination to the Commission on February 22, 2017. See

Wolf v. MWH Constructors, Inc. , 34 F. Supp. 3d 1213, 1222 (M.D.

Fla. 2014) ( a plaintiff cannot recover for discrete acts of

discrimination and retaliation that occur outside the applicable

statutory time period set forth in section 760.11(1) , i.e. , 365

days). Discrete discriminator y acts, such as termination,

failure to promote, etc., are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.

Each discrete discriminatory act starts a new clock for filing

charges alleging that act. See Na t Ó l R.R. Passenger Corp. v.

Morgan , 536 U.S. 101, 113 (2002).

However, the Ð continuing violation doctrine Ñ offers an

exception to this limitation period and allows a petitioner to

assert an otherwise time - barred claim where at least one

violation occurr ed within the period. See Hipp v. Liberty Nat Ól

Life Ins. Co. , 252 F.3d 1208, 1221 (11th Cir. 2001). Ð In

determining whether a discriminatory employment practice

constitutes a continuing violation, Ò [the court] Ó must

distinguish between the present conse quence of a one - time

violation, which does not extend the limitations period, and the

continuation of the violation into the present, which does. Ñ

EEOC v. Joe Ó s Stone Crabs, Inc. , 296 F.3d 1265, 1271 (11th Cir.

2002). A petitioner must maintain that Ð a p attern of

discrimination or an employment practice presently exists to

perpetuate the alleged wrong. Ñ Jacobs v. Bd. of Regents , 473 F.

Supp. 663, 669 (S.D. Fla. 1979).

Petitioner filed her Employment Complaint of Discrimination

with the Commission on F ebruary 22, 2017. Consequently, all

discrete discriminatory and retaliatory acts that occurred before

February 22, 2016, for FCRA purposes, are untimely filed and no

longer actionable.

However, Petitioner described her supervisor Ó s alleged

retaliatory decisions as a continual effort to deny her requests

for medical leave and an alternate work schedule beginning in the

fall of 2015 and continuing through her termination from the

company. Therefore, the undersigned considered the alleged

adverse employme nt actions examined above to flow out of the same

series and events as those adverse decisions that fall within the

applicable statutory time period. Accordingly, all Petitioner Ó s

cognizable complaints up through February 22, 2017, are

considered in the s cope of this action.

4/ I n determining whether employees are similarly situated for

purposes of establishing a prima facie case, Ð [w]hen comparing

similarly situated individuals to raise an inference of

discriminatory motivation, these individuals must b e similarly

situated in all relevant respects. Ñ Jackson v. BellSouth

Telecomm. , 372 F.3d 1250, 1273 (l1th Cir. 2004). Based on the

evidence in the record, Mr. Guyette meets this requirement.

5/ The working conditions Petitioner described include suffic ient

allegations to meet the second prong of her prima facie case of

retaliation. ( See paragraphs 8 - 16 above) . However, several of

the perceived inequities Petitioner detailed do not constitute

Ð materially adverse employment actions Ñ that support a claim of

retaliation under the FCRA.

To prove an Ð adverse employment action, Ñ Petitioner Ð must

show a serious and material change in the terms, conditions, or

privileges of employment. Ñ Davis v. Town of Lake Park , 245 F.3d

1232, 1239 (11th Cir. 2001) . Ð The employer Ó s action must impact

the Ò terms, conditions, or privileges Ó of the plaintiff Ó s job in

a real and demonstrable way. Ñ Id. An employment action Ð is

considered Ò adverse Ó only if it results in some tangible,

negative effect on the plaintiff Ó s employm ent. Ñ Lucas v. W. W.

Grainger, Inc. , 257 F.3d 1249, 1261 (11th Cir. 2001)(negative

performance evaluations that did not result in any effect on the

employee Ó s employment did not constitute Ð adverse employment

action. Ñ ) . Ð T rivial harms Ñ and Ð petty slights Ñ unconnected to

any Ð tangible job consequences, Ñ do not constitute an adverse

employment action. Juback v. Michaels Stores, Inc. , 143 F. Supp.

3d 1195, 1206 (M.D. Fla. 2015). Further, Petitioner Ó s subjective

beliefs about the employer Ó s actions do not c ontrol. The

challenged employment action must be Ð materially adverse as

viewed by a reasonable person in the circumstances. Ñ Davis , 245

F.3d at 1239 ; see also Butler v. Ala. Dep Ó t of Transp. , 536 F.3d

1209, 1215 (11th Cir. 2008).

At the final hearing, Petitioner complained that a

supervisor (not hers) periodically provided a doughnut to a co -

worker, but no supervisor ever gave her a doughnut. Petitioner

also recounted that one day, she was alarmed to find dry splashes

of p aint all over her desk chair. ( Ms. Morris promptly replaced

her chair after s he reported it. ) While these discourtesies may

have left Petitioner feeling Ð violated and scared Ñ and like Ð a

slave on a plantation, Ñ no evidence indicates that these

incidents so affected the terms or cond itions of her employment

that they would have dissuaded a reasonable worker from making or

supporting a charge of discrimination.

6/ See also Novella v. Wal - Mart Stores, Inc. , 459 F. Supp. 2d

1231, 1235 (M.D. Fla. 2006)(A plaintiff cannot establish the

c ausal link element in a retaliation claim simply by inference.) .

7/ As with discrimination cases under the FCRA, courts apply the

McDonnell Douglas burden - shifting approach to evaluate the weight

of circumstantial evidence to establish a prima facie case of

retaliation. See Butts v. Ameripath, Inc. , 794 F. Supp. 2d 1277,

1289 (S.D. Fla. 2011). The Trask court indicates that Ð but - for Ñ

causation is a part of the prima facie case of retaliation under

the McDonnell Douglas framework.

COPIES FURNISHED:

Ta mmy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Kalin Berry

Express Scripts

One Express Way

St. Louis, Missouri 63121

Donna Michelle Cyrus

4411 Prairie Court

Orlan do, Florida 32808

(eServed)

B. Tyler White, Esquire

Jackson Lewis, P.C.

501 Riverside Avenue , Suite 902

Jacksonville, Florida 32202

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallah assee, Florida 32399 - 7020

(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.