17-005192 Gregory R. Lulkoski vs. St. Johns County School District Status: Closed Recommended Order on Friday, June 28, 2019.

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 - 5192

ST. JOHNS COUNTY SCHOOL

DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a form al hearing was held in

St. Augustine, Florida, on January 29 through 31, 201 9 , before

W. David Watkins, the duly - designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory Ryan Lulkoski, pro se

212 River Island Circle

St. Augustine Florida 32095

For Respondent: Robert J. Sniffen , Esquire

Jeffrey Douglas Slanker , Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Th e issue in this case is whether Petitioner was retaliated

against in violation of the Florida Civil Rights Act of 1992

(FCRA), c hapter 760, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed an Employment Complaint of Discrimination

(Complaint) with the Florida Commission on Human Relations

(FCHR) on December 22, 2016, claiming that the St. Johns County

School District (District) retaliated against him for engaging

in activity protected by the FCRA. Following its investigation,

the FCHR rendered a ÐN o Reasonable CauseÑ determination on

August 17, 2017.

On September 30, 2017, Petitioner filed a Petition for

Relief requesting an administrative hearing regarding the FCHRÓs

No Reasonable Cause determination pursuant to section 760.11(7).

The matter was re ferred to the Division of Administrative

Hearings on September 21, 2017, and the undersigned subsequently

issued a Notice of Hearing. At the request of the parties, the

hearing was continued several times and was ultimately conducted

on January 29 through 31, 2019.

At hearing, Petitioner testified on his own behalf and

called the following witnesses: Cathy Mittelstadt, the

DistrictÓs Deputy Superintendent of Operations; Cathy Weber, the

DistrictÓs Director of Salary and Benefits; Danielle Cook,

Administra tive Assistant to the Chief of Community Relations of

the District ; Michael Degutis, the DistrictÓs Chief Financial

Officer; Kelly Barrera, the Chairperson of the DistrictÓs

elected School Board; Tim Forson, the DistrictÓs Superintendent;

JoJean Ponce, Edw ard Lambert and Joan Gibson - Long, all employees

at First Coast Technical College ( FCTC ) in varying capacities;

and Dr. Joseph Joyner, the DistrictÓs former Superintendent.

Petitioner moved exhibits numbered 1, 3, 4, 5, 8, 11, 12, 15

through 18, 35, 36, 37 , 39, 40, 41, 48, 49, 65, 66, 76, 77, 80,

81, 83, 89, 90, 95, 97, 100, 111, 112, 132, 143, 148, 150, 175,

216, and 220 into evidence, many subject to objection, including

objections regarding whether they were permitted to be entered

as substantive evidenc e and on the grounds of hearsay.

The District offered the te stimony of Ms. Mittelstadt,

Ms. Weber, and Ms. Ponce. It offered Resp ondentÓs Exhibits

numbered 1, 2, 3, 5, 6, 7 , 11, 15, 16, 22, 23, 24, 26, 30 ,

and 3 4 , all of which were received in evidence.

The six - volume Transcript of the final hearing was filed on

February 25, 2018. Thereafter, both parties filed Proposed

Recommended Orders, and by permission of the undersigned,

responses to the partiesÓ respective Proposed Recommended

Orders, all of whic h have been carefully considered in the

preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to the

2018 version of the Florida Statutes.

FINDING S OF FACT

Based upon the demeanor and credibility of the witnesses

and o ther evidence presented at the final hearing and on the

entire record of this proceeding, the following Findings of Fact

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 conversion charter

technical center in St. Johns County, Florida, operating

pursuant to a charter contract with the District by a privately

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

Technical Institute (FCTI).

2 . On July 1, 2016 , the District began operating the

educational programs at FCTC, due to the dire financial

situation which had developed at the college. In taking over

the pro grams at FCTC, the District immediately recognized that

the administrative staff at FCTC was bloated and needed to be

streamlined. Further, because FCTC would now be operated by the

District, the District endeavored to evaluate FCTCÓs structure

to determi ne how it could operate more like a District school,

including with respect to personnel structure. The District set

out to reorganize and restructure FCTC to align it with the

District and address administrative redundancy and financial

issues.

3 . To f acilitate this transition and evaluation, the

District placed all administrative employees at FCTC on

temporary contracts, effective July 1, 2016. This decision was

made sometime in June 2016.

4 . On the morning of July 1, 2016, all employees of FCTC

wer e called to a meeting held by Dr. Joseph Joyner, the District

Superintendent. At that meeting, Dr. Joyner introduced Cathy

Mittelstadt as the i nterim p rincipal. At the conclusion of the

meeting, all administrative personnel, including Petitioner,

were of fered temporary employment contracts, for a term of

approximately six months. The contracts could be terminated by

either party with two weeksÓ notice. No administrative employee

was placed on a longer temporary contract. The temporary

employment contra cts, including PetitionerÓs, began on July 1,

2016 , and terminated on December 21, 2016.

5 . PetitionerÓs temporary employment contract expressly

incorporates District Board Rule 6.10(3). Board Rule 6.10(3)

concerns temporary employment with the District , and provides

that temporary employees work for a limited amount of time. The

rule does not state that temporary employees enjoy an

expectation of employment beyond the contract term.

6 . As the interim principal, Ms. Middelstadt was tasked by

the Distr ict with evaluating the structure of FCTC to determine

how it could be streamlined to address budget and financial

issues and also bring it in line with how other District schools

operated. The elimination of positions at FCTC was contemplated

as part of this evaluation. Every administrative position at

FCTC was evaluated for potential elimination.

7 . Ultimately, Ms. Mittelstadt was responsible for

recommending to the DistrictÓs Executive Cabinet (Executive

Cabinet) how FCTC should be restructured. As part of this

process, Ms. Mittelstadt was also responsible for recommending

to the Executive Cabinet those positions that would be

eliminated as part of the restructuring process. The Executive

Cabinet did not reject any of Ms. MittelstadtÓs recommendatio ns,

but rather, accepted them without change. The Executive Cabinet

would not have taken any action with respect to any employee

working at FCTC without a recommendation from Ms. Mittelstadt.

8 . Ms. Weber had limited involvement in the restructuring

pro cess. She provided ministerial assistance to Ms. Mittelstadt

during this process, but she was not responsible for, or

involved in, the decision as to how the school would be

restructured, or for any recommendations regarding the same.

9 . FCTC employees were kept informed as to the status of

restructuring during the process. Ms. Mittelstadt and Ms. Weber

did not tell any administrative employee at FCTC, including

Petitioner, that they could expect their contract would be

renewed or that they would retain their positions past the term

of their temporary employment contract. Petitioner understood

that he was being appointed to a temporary employment contract

not to extend past December 21, 2016.

10 . Ms. Mittelstadt made the determination as part of the

r estructuring process that PetitionerÓs position should be

eliminated , and that his temporary employment contract would be

allowed to expire pursuant to its terms. Ms. Mittelstadt

recommended this course of action to the Executive Cabinet,

which approved i t.

11 . Through Ms. MittelstadtÓs evaluation and assessment of

the needs of FCTC, she determined that a full - time grant writer

was not necessary for FCTC. Certain tasks related to grants

obtained by the School District, including accounting related

tasks, are handled in the DistrictÓs main office, and the

remaining tasks related to grants are handled at particular

schools by a different position, career specialists. Indeed, no

other District school employs a full - time grant writer.

12 . In furtherance of the DistrictÓs decision to

streamline administration at FCTC and realign it with how other

District schools operated, Ms. Mittelstadt determined that the

grant writer position occupied by Petitioner, as well as another

type of position at FCTC, the progra m manager position, should

be eliminated, and the duties performed within those positions

subsumed within the career specialist position, as in other

District schools.

13 . The District distributed a vacancy announcement for

the Career Specialist position to all FCTC employees, including

Petitioner. The announcement included a job description for the

position. The job description and vacancy announcement were

used to fill the position. The job description provides that

grant writing and management, encom passing PetitionerÓs duties

as a grant writer, are part of the duties, among others, of a

career specialist. Petitioner did not apply for this position.

14 . Petitioner was informed at a meeting on November 18,

2016, that his contract would be allowed to expire effective

December 21, 2016, and not renewed. Present at this meeting, in

addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and

Brennan Asplen, the DistrictÓs Deputy Superintendent for

Academic & Student Services. At the meeting, Petitioner was

provided a notice indicating that his temporary employment

contract was expiring pursuant to its terms. Petitioner was

permitted to work through the remainder of his contract term

with no diminution in benefits or pay.

15 . Petitioner requested to be placed in another position

at FCTC at this time, but was informed there were no vacancies

posted for him to be moved to, that the District was not placing

non - renewed employees into positions, and that he could apply to

any position he liked when it was p osted. One position, a Case

Manager in the Career Pathways program, was funded from a grant,

and that position was technically vacant under the grant.

However, FCTC was in a hi ring freeze at the time, as

Ms. Mittelstadt made the decision to not fill the Case Manager

position given, and during, the extensive realignment and

assessment of FCTC whose budget was being scrutinized at a deep

level. The District did not place any other non - renewed

employees into positions. The Case Manager position was

eventua lly advertised in April 2017. Petitioner did not apply

for the position despite being informed of it and having nothing

restricting him from doing so.

16 . PetitionerÓs work performance played no role in the

decision to eliminate his pos ition. Ms. Mittel stadt and

Ms. Weber both indicated that they did not retaliate against

Petitioner for any reason.

17 . In fact, Petitioner was not the only person whose

position was eliminated. Ms. Mittelstadt also recommended that

six or seven other positions also be e liminated. Furthermore,

approximately 12 to 15 FCTC employees resigned, and their

positions were eliminated. Had those employees not resigned,

their positions still would have been eliminated and those

employeesÓ contracts would have been allowed to expi re.

18 . Petitioner filed the complaint or charge, at issue in

this proceeding, with the FCHR on December 22, 2016 (December

22nd Complaint). In it, Petitioner alleges that he was

retaliated against in violation of the FCRA. While Petitioner

was not repr esented by counsel at the time that he filed the

December 22nd Complaint, he obtained representation from a

lawyer thereafter, and during the FCHRÓs investigation of this

complaint.

19. This was not PetitionerÓs first complaint filed with

FCHR concerning his work at FCTC. Just before the District

began operating the programs at FCTC, and specifically on

June 27, 2016, Petitioner filed a complaint (June 27th

Complaint) with the F CHR also alleging retaliation. The

June 27th Complaint was received by the F CHR on June 28, 2016.

Petitioner introduced no evidence showing that at the time the

decision was made to place individuals on temporary employment

contracts, that the District was aware of his June 27th

Complaint.

20 . Petitioner alleges in the December 22nd Complaint that

the District terminated his employment because he engaged in

protected activity under the FCRA. Petitioner does not allege

in the complaint that he was subjected to a hostile work

environment or harassment due to any retaliatory animus on the

part of the District. Rather, Petitioner only alleges that he

believes he frustrated his supervisor at various times, not that

he was subjected to a hostile work environment.

21 . On August 17, 2017, the FCHR issued a no - cause

determination. On S eptember 20, 2017, Petitioner filed a

Petition for Relief from Unlawful Employment Practice,

initiating the instant proceeding. In the Petition, Petitioner

largely alleges that he believes the District submitted false

information to the FCHR and that the District was guilty of

various acts of fraud and abuses. Specifically, Petitioner

alleged:

Not only did the SJCSD lie about its

relationship with FCTC, the SJCSD

deliberately lied about my position working

collaboratively with other SJCSD personnel

assign ed to grants administration and my

unique ability to assist the SJCSD in

avoiding mistakes that they were driven to

make, mistakes that rose to the point that

they became criminal. The SJCSD committed

to a path of making such criminal errors

with federal funds and falsifying their

account of why they fired me. I have

assembled sufficient evidence to show that

the SJCSD is guilty of violating the

Racketeer Influenced and Corrupt

Organizations Act and that they fired me as

a whistle blower having abundant e vidence of

their crimes committed against the public

interest for the personal benefit of key

administrators.

22 . In his Petition, Petitioner did not identify reasons

why he believes the FCHRÓs ÐNo Reasonable CauseÑ finding was

without merit. And other than his alleged retaliatory firing,

Petitioner does not identify any other adverse effects that he

suffered as a result of the SJCSD ÐcriminalÑ activities, or

allege that he was subjected to a hostile work environment.

23 . Petitioner alleged for the fir st time at hearing that

the District subjected him to a hostile work environment in

retaliation for engaging in protected activity. He alleged this

hostile work environment centered on three actions. First, that

the District did not provide him a copy of a harassment

complaint filed by another employee concerning him in a timely

manner, and did not set up the meetings he requested to address

that complaint the way he wished. Second, that District

personnel did not provide him access to ÐSunGardÑ software .

And, third, that District o fficials asked him to sign a form

related to grants that he did not wish to sign.

24 . Regarding the first all egation, sometime prior to

July 1, 2016, Renee Staufaccher filed a complaint with Stephanie

Thomas regarding Petitio nerÓs conduct. This complaint was

lodged while the District was not operating the programs at

FCTC. District officials told Petitioner that complaints lodged

during this time period should be referred to FCTI. Once the

District began operating the progr ams at FCTC, Petitioner

reached out to Ms. Weber for a copy of Ms. StaufaccherÓs

complaint. Ms. Weber took steps to obtain that complaint, and

it was provided to Petitioner within roughly two weeks of his

request, despite Ms. Weber being out of the office one of those

weeks. Petitioner requested to meet with Ms. Staufaccher and

Ms. Thomas regarding the nature of the complaint and his

concerns about whether th e complaint was authentic.

Ms. Staufaccher was no longer employed at FCTC within a matter

of days of this request. Petitioner also requested to meet with

Ms. Thomas only a matter of days before she ceased working at

FCTC. Petitioner was not afforded the meeting or other items

requested because the matter concerned old, not ongoing events

occurring p rior to the time the District began operating FCTC.

Petitioner did not interact with , or report to , Ms. Staufaccher

or Ms. Thomas during this time, and neither supervised him.

Petitioner never disclosed to the District that he was suffering

continued har assment at the hands of Ms. Staufaccher or

Ms. Thomas subsequent to July 1, 2016. Petitioner offered no

evidence that his request was handled differently from any other

District employee, and Ms. Weber credibly testified he was

treated the same as any oth er District employee in this regard.

25 . Regarding the second allegation, Petitioner alleged at

the hearing that the District did not provide him access to

SunGard, a computer program that had some relation to the

performance of his job duties. At hearin g, Petitioner

represented that he was never provided access to this program.

However, he later conceded that he did have access to this

program during his employment. Specifically, prior to being

given direct access to this program, Petitioner was provid ed

access to the information in the program through the assistance

of another District employee. This provided Petitioner with

access to the information he needed to perform his job,

including generating reports. Accordingly, it was not necessary

for Pet itioner to have direct access to SunGard to perform his

job duties. The District was not authorizing extensive access

to SunGard during this time because it was in the process of

creating new systems and processes to bring FCTC in line with

the DistrictÓs standards. In short, Petitioner was still able

to perform his job, despite his complaint that he was not given

direct access to SunGard.

26 . As to PetitionerÓs third complaint, on or about

October 2016, Jena Young, formerly employed in the DistrictÓs

ac counting office, asked Petitioner to sign a form related to

grant accounting. Ms. Young was not PetitionerÓs supervisor.

Petitioner stated that he did not want to sign the form because

he believed there was incorrect information on the form.

Petitioner was not forced to sign the form, and was not told he

must sign the form or face adverse consequences. Ultimately, he

did not sign the form.

27 . The District maintains a rule governing harassment in

the workplace. The rule provides a complaint procedure for

employees to complain of harassment. The rule provides multiple

avenues for employees to report harassment, and provides that

complaints will be investigated and discipline meted out for

employees impermissibly harassing others in violation of the

rul e. The rule prohibits retaliation against an employee who

files a complaint. Notably, Petitioner never filed a harassment

complaint about conduct occurring subsequent to July 1, 2016,

despite his being aware of the rule.

28 . PetitionerÓs protected activ ity at issue in this case

concerns his June 27 th Complaint and varied grievances that he

filed while he was an employee at FCTC prior to July 1, 2016.

Petitioner only offered three grievances into evidence -- his

first grievance, his ninth grievance and his tenth grievance --

all lodged prior to July 1, 2016, and all concerning the conduct

of administrators at FCTC while it was still operated by FCTI

and not the District.

29 . PetitionerÓs first grievance was filed on May 21,

2015, alleging that FCTCÓs then - pr esident, Sandra 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 in e - mails.

Petitioner does not allege in this grievan ce 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.

30 . PetitionerÓs ninth and tenth grievances, both filed on

June 13, 2016, allege that Ms. Fortner engaged in nepotism by

hiring her associates, and that Stephanie Thomas, FCTCÓs H uman

R esources D irector, and Ms. Stauffacher, were complicit in that

nepotism. Indeed, Petitioner testified that the thrust of these

g rievances was that members of potential protected classes did

not get to interview for jobs at FCTC, not because of those

protected classes, but because they were not Ms. FortnerÓs

friends or family.

31 . Ms. Mittelstadt had not seen the grievances that

Pe titioner filed, and had no knowledge of the June 27th

Complaint when she determined that his contract be allowed to

expire pursuant to its terms and his position eliminated.

Petitioner introduced no evidence that Ms. Mittelstadt ever saw

any of his grieva nces or the June 27th Complaint at the time she

made the decision to eliminate his position. Ms. Mittelstadt

credibly testified that none of PetitionerÓs grievances,

requests for grievances, e - mails related to grievances, or his

June 27th Complaint played any role in her recommendation that

his position be eliminated.

CONCLUSIONS OF LAW

32 . The Division has jurisdiction over the subject matter

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

Fla. Stat.

33 . Petitioner has the burden of pro ving by a

preponderance of the evidence that Respondent committed an

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

34 . The FCRA, at section 760.10(7), prohibits retaliation

in employment as follows:

(7) It is an unlawful employment practi ce

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participated in any

mann er in an investigation, proceeding, or

hearing under this section. (emphasis

added).

35 . Florida courts have held that because the Act is

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

federal case law dealing with Title VII is applicabl e. See

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

(Fla. 1st DCA 1991).

36 . 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. 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).

37 . Petitioner has the ultimate burden to establish

impermissible retaliation either by direct or indirect evidence.

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

existence of illegal retaliation without inference or

presumpt ion. Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189

(11th Cir. 1997). Direct evidence includes actions or

statements of an employer that reflect retaliatory attitude

correlating to the retaliation complained of by the employee.

See I d. There is no d irect evidence of retaliation in this

case.

38 . Absent direct evidence, Petitioner has the burden of

establishing a prima facie case of retaliation. St. Mary's

Honor Ctr . v. Hicks , 509 U.S. 502 (1993); Texas Dep Ó t of Cmty .

Aff . v. Burdine , 450 U.S. 248 ( 1981); McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); Berman v. Orkin Exterminating Co. ,

160 F.3d 697, 701 (11th Cir. 1998).

39 . To establish a prima facie case of discrimination in

retaliation by indirect evidence, Petitioner must show:

(1) th at 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).

40 . Peti tionerÓs June 27th Complaint is protected activity

under the participation clause of the FCRA. That clause, in

s ection 760.10, provides in relevant part that retaliation ,

because an employee Ðhas made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this section , Ñ is prohibited. PetitionerÓs June

27th Complaint constitutes participation clause activity and is

thus protected. See Guess v. City of Miramar , 889 So. 2d 840,

846 (Fla. 4th DCA 2004) , receded from on other grounds , Palm

Bch. Cnty. Sch. Bd. v. Wright , 217 S o . 3d 163, 165 (Fla. 4th DCA

2017) .

41 . PetitionerÓs grievances introduced at the hearing are

not protected activity because they do not amount to

participation or opposition clause activity. The grievances

were not filed in conjunction with , or after the filing of , a

formal charge, and therefore they are not participation clause

activity. See § 760.10, Fla. Stat.; Guess , 889 So. 2d at 846.

To be protected under the opposition cla use in s ection 760.10,

Petitioner must 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 s ., 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 s ., Inc. ,

176 F.3d 1346, 1351 (11th Cir. 1999). A petitionerÓs belief

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

precedent int o question or undermined its reasoning." King v.

Piggly Wiggly Ala. Distr. Co. , 929 F.Supp.2d 1215, 1228 (U . S .

Dist. Ct., N. Dist. Ala.) . Furthermore, a belief that there is

a violation of anti - discrimination laws must be sufficiently

clear from the comp laint to put the employer on notice of that

belief. See Murphy v. City of Aventura , 383 Fed. AppÓx. 915,

918 (11th Cir. 2010) (ÐA complaint about an employment practice

constitutes protected opposition only if the individual

explicitly or implicitly commu nicates a belief that the practice

constitutes unlawful employment discrimination.Ñ (quoting EEOC

Compl. Man. (CCH) §§ 8 Î II Î B(2) (2006))(internal quotation marks

omitted)).

42 . As noted, Petitioner only introduced three grievances

into evidence -- grievanc es he labels his first, ninth, and tenth

grievances. PetitionerÓs first grievance was filed on May 21,

2015. That grievance, fairly summarized, alleges that

Petitioner was subjected to a hostile work environment by co -

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

that the president of FCTC at the time, Sandra Fortner, was

engaging in nepotism by favoring friends and family for

positions and affording them special treatment. Nowhere in this

grievance does Petitioner ever 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.

43 . PetitionerÓs ninth and tenth grievances purport to

concern violations of equal employment opp ortunity laws. Both

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

Ms. Fortner denied applicants a fair shot at positions at FCTC

because she favored hiring friends and family, whom Petitioner

refers to as associates.

44 . PetitionerÓs compl aints are not objectively reasonable

because he did not allege that he was discriminated against on

the basis of any protected class, or otherwise complain or

oppose any action that was a violation of employment

discrimination law as measured against exist ing substantive law.

PetitionerÓs complaints that Ms. 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 concedes in the co mplaints

themselves that such employment decisions were not motivated by

an animus towards any particular motivated class, but rather

were motivated by favoritism towards family and friends. While

such favoritism may be an unfair practice, it is not illeg al

under the FCRA, which only prohibits employment decisions that

are motivated by animus towards a protected class. Indeed, the

practice of nepotism affected members of different protected

classes equally and, essentially, here the Ðprotected classÑ

cons isted of those that we re not family or friends of

Ms. Fortner. That class of individuals is not protected under

the FCRA.

45 . The Eleventh Circuit has repeatedly held that

employment decisions motivated by nepotism are not violative of

employment discrim ination laws. Powell v. Am. Remediation &

Envtl., Inc. , 618 Fed. 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.2 d 902, 905 (11th Cir. 1990)

(holding that taking employment action on the basis of nepotism

was not discriminatory in violation of Title VII); Thompson v.

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

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

particular class was not discriminatory); 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)(holding that discrimination

claim lacked merit because nepotism practice affected all

protected classes equally). It should also be noted that the

undersigned has already found that these very same grie vances

were not protected under the FCRA. Lulkoski v. First Coast

Tech . Coll . , Case No. 17 - 2385 (Fla. DOAH Sept. 5, 2018; FCHR

Nov. 11, 2018). Accordingly, PetitionerÓs only instance of

protected activity in this case is his June 27th Complaint.

46 . Pet itioner generally alleged two adverse retaliatory

actions at the hearing: the subjection to a hostile work

environment, and his termination. The Eleventh Circuit Court of

Appeals recognized the viability of a claim for retaliatory

hostile work environmen t claim in Gowski v. Peake , 682 F.3d 1299

(11th Cir. 2012), but at hearing Petitioner failed to establish

such a claim on the merits. Specifically, the evidence

presented did not establish that the working environment was

sufficiently severe and pervasive enough to alter the terms and

conditions of PetitionerÓs employment. 682 F.3d at 1312.

47 . To prevail on a retaliatory hostile work environment

claim, Petitioner must show Ðthe workplace [wa]s permeated with

discriminatory intimidation, ridicule, and in sult, that is

sufficiently severe or pervasive to alter the conditions of the

[plaintiff's] employment and create an abusive working

environment.Ñ Id . at 1311 (quoting Harris v. Forklift Sys.,

Inc. , 510 U.S. 17, 21 (1993)) (internal quotation marks omitted ).

The elements of establishing a retaliatory hostile work

environment are slightly different from a typical retaliation

claim given the different nature of the claim. In this regard,

Petitioner must establish (1) he engaged in protected activity;

(2) af ter doing so, he was subjected to unwelcome harassment;

(3) his protected activity was a Ðbut forÑ cause of the

harassment; (4) the harassment was sufficiently severe or

pervasive to alter the terms or conditions of his employment;

and (5) a basis exists f or holding his employer liable either

directly or vicariously. See Swindle v. Jefferson C n ty. Comm'n ,

593 Fed. App'x 919, 929 (11th Cir. 2014) (citing Gowski , 682

F.3d at 1311 Î 12); Miller v. Kenworth of Dothan, Inc. , 277 F.3d

1269, 1275 (11th Cir. 2002); Univ. of Tex. SW. Med. Ctr. v.

Nassar , 570 U.S. 338 (2013).

48 . There is a subjective and objective component to the

severe or pervasiveness analysis, prong four. See Harris , 510

U.S. at 21 - 22. As to the objective requirement, one must show

the environm ent was objectively severe or pervasive under the

totality of the circumstances. Id . at 23. This ensures civil

rights statutes do not become civility codes and that ordinary

workplace interactions are not deemed unlawful harassment. See

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998); Gupta

v. Fla. Bd. of Regents , 212 F.3d 571, 583 (11th Cir. 2000),

overruled on other grounds by Burlington N. & Santa Fe Ry. Co.

v. White , 548 U.S. 53 (2006).

49 . Courts are guided by four elements in determining

whether a work environment is severe and pervasive enough to

alter the terms and conditions of employment; the frequency of

the conduct, the severity of the conduct, whether the conduct is

physically threatening or humiliating, and whether the conduct

inte rferes with the ability to perform oneÓs work duties.

Harris , 510 U.S. at 21 - 22.

50 . As an initial matter, I conclude the conduct was not

frequent. The conduct includes Petitioner requesting a copy of

a complaint lodged by Ms. Staufaccher against him an d his

perceived delay in obtaining that document; a request by a non -

supervisory District employee for Petitioner to sign a grant

form; and PetitionerÓs contention that he was not granted the

type of access to SunGard software that he preferred and as

quic kly as he would have liked. These three events , spanning a

period of six months , do not rise to the type of frequent

conduct envisioned by applicable precedent. See Guthrie v.

Waffle House, Inc. , 460 Fed. App'x 803, 807 (11th Cir. 2012)

(dozens of commen ts or actions over 11 months were infrequent);

Godoy v. Habersham Cnty. , 211 Fed. AppÓx. 850, 853 - 54 (11th Cir.

2006)(summary judgment affirmed on hostile work environment

claim where plaintiff endured racial slurs nearly every day).

Indeed, frequent cond uct contemplates more pervasive acts than

those alleged here. Cf . Miller , 277 F.3d at 1276 (conduct was

frequent where discriminator hurled slurs at plaintiff three to

four times daily in a month); Dees v. Johnson Controls World

Serv.Ós, Inc. , 168 F.3d 41 7, 418 (11 th Cir.1999) (summary

judgment for employer reversed where plaintiff alleged Ðalmost -

daily abuseÑ).

51 . I also find the conduct was not severe, physically

threatening, or humiliating. PetitionerÓs allegations boil down

to objections with how the District decided to run its

operations, and his objection that, in his opinion, things

should have been done differently and more to his liking. This

is not the severe and pervasive harassment contemplated by

courts finding viable hostile work environmen t claims.

52 . The law is clear: the FCRA does not guarantee a fair

or pleasant working environment. McCollum v. Bolger , 794 F.2d

602, 610 (11th Cir. 1986) (Title VII does not Ðshield against

harsh treatment in the work placeÑ). PetitionerÓs allegations

of hostility are squarely the type of personnel related issues

that courtÓs counsel against interceding in given that courts do

not sit as a super - personnel department of employers, second -

guessing decisions an employer makes where there is no evidence

of retaliatory intent. Elrod v. Sears, Roebuck & Co. , 939 F.2d

1466, 1470 (11th Cir. 1991). I find that Petitioner thus has

not established that the District subjected him to an actionable

retaliatory hostile work environment.

53 . PetitionerÓs remaining cl aim, that he was terminated

because of engaging in protected activity, also ultimately fails

because he cannot show a causal connection between his

termination and his protected activity. Clover v. Total Sys .

Servs . , Inc. , 176 F.3d 1346, 1354 (11th Cir. 1 999). A

petitioner cannot establish a causal connection at the prima

facie stage where the decision maker was unaware of the

protected conduct. Brungart v. BellSouth Telecomm s . , Inc. , 231

F.3d 791, 799 (11th Cir. 2000).

54 . Petitioner failed to establis h that Ms. Mittelstadt,

the de facto decision maker in this case, had any knowledge of

any protected activity. Ms. Mittelstadt is the de facto

decision maker in this case because she was responsible for

recommending that PetitionerÓs position be eliminate d and his

contract allowed to expire. While she was not the ultimate

decision maker (which was the DistrictÓs Executive Cabinet), she

was the de facto decision maker because the Executive Cabinet

did not reject any of her recommendations, but rather accep ted

them all without change.

55 . Petitioner ultimately failed to present any evidence

that Ms. Mittlestadt was aware of his June 27th Complaint, the

only activity that is protected as a matter of law.

Ms Mittelstadt testified she did not know of this com plaint when

she decided to recommend that PetitionerÓs position be

eliminated. Even assuming that the grievances that Petitioner

introduced at hearing, and that I have found not to be

protected, are protected, Petitioner failed to establish that

Ms. Mitte lstadt was aware of these grievances. Ms. Mittelstadt

could not have acted on retaliatory animus for protected

activity she had no idea existed. Accordingly, Petitioner

cannot establish his claim that the elimination of his position

was in retaliation fo r engaging in activity protected by the

FCRA.

56 . Assuming that Petitioner could establish a prima facie

case of retaliation, the burden of production shifts to the

District to articulate one or more legitimate non - retaliatory

reasons for the non - renewal. The District only need produce

admissible evidence it took the alleged adverse employment

action for non - prohibited reasons. Tex. DepÓt of Cmty. Aff . v.

Burdine , 450 U . S . 248, 257 (1981).

57 . Credible evidence of record established that the

District eliminated PetitionerÓs position consistent with the

results of Ms. MittelstadtÓs assessment and analysis of the

workforce and structure of FCTC, and her proposal for the

reorganization and restructuring of FCTC. This assessment was

conducted in order to address the serious financial problems at

FCTC, to eliminate redundancy between FCTC and District

operations, and to bring FCTC in line with how other District

schools operated. The simple fact of the matter is that

RespondentÓs position, grant writer, wa s no longer needed given

the nature of the DistrictÓs operations and the creation of the

Career Specialist position.

58 . Because the District asserted legitimate non -

retaliatory reasons for its decision not to renew PetitionerÓs

contract and eliminate hi s position, the burden shifts back to

Petitioner to show that each and every reason offered by the

District is a pretext to engage in retaliation and that Ðbut

forÑ his protected activity, he would not have been retaliated

against. Walker v. Prudential Pr op. & Cas. Ins. Co. , 286 F.3d

1270, 1274 (11th Cir. 2002); Nassar , 570 U.S. at 352 (2013);

Palm Beach C n ty. Sch. Bd. v. Wright , 217 So. 3d at 165 .

Petitioner has not done so here.

59 . Indeed, the Ðbut forÑ burden to show pretext is

weighty. Employers ma y take actions for a good reason, a bad

reason, a flawed reason, or for no reason at all, so long as the

reason is not retaliatory. See Alvarez v. Royal Atl.

Developers, Inc. , 610 F.3d 1253, 1266 - 67 (11th Cir. 2010).

Consequently, to show pretext, Petiti oner must show each of the

DistrictÓs proffered reasons was not the true reason for its

decision, Ðeither directly by persuading the court that a

[retaliatory] reason more likely motivated the employer or

indirectly by showing that the employer's proffered explanation

is unworthy of credence.Ñ Lucy v. Georgia - Pac. Corrugated I,

LLC , 497 Fed. AppÓx. 870, 871 (11th Cir. 2012) (quoting Jackson

v. State of Alabama State Tenure Comm'n , 405 F.3d 1276, 1289

(11th Cir. 2005) ) . Petitioner must present concrete evi dence in

the form of specific facts to establish pretext. See Standard

v. A.B.E.L. Servs., Inc. , 161 F.3d 1318, 1332 Î 33 (11th Cir.

1998).

60 . Here, Petitioner offers no evidence of pretext other

than his suspicion that his complaints were somehow related to

his non - renewal. This is insufficient to carry his burden and

is not competent pretext evidence. To the extent that

Petitioner seeks to argue that the reason proffered by the

District is pretext because it is illogical or evinces bad

judgment, he is entitled to that opinion, but it does not, and

cannot, support a showing of pretext. An employee, in showing

pretext, must do more than just quarrel with the reason for the

challenged action; he must meet the employer's stated reason

head on and rebut it. Chapman v. Aansp. , 229 F.3d 1012,

1030 (11th Cir. 2000). Courts may not substitute their business

judgment for that of the employerÓs. See Alvarez , 610 F.3d

at 1266 - 67.

61 . The competent evidence of record weighs heavily

against a finding of prete xt, and reinforces the legitimate

reasons for PetitionerÓs contract non - renewal. Indeed,

Petitioner was one of many individuals at FCTC placed on

temporary employment contracts when the District began operating

the educational programs at FCTC. Further, the District

communicated with employees at FCTC that it was in the process

of reorganizing and restructuring FCTC. Further, Petitioner was

non - renewed along with several other individuals as part of a

broader reorganization. Finally, Petitioner had the opportunity

to apply for another job at FCTC, the Career Specialist

position, but he chose not to take that opportunity. Petitioner

did not establish that he was unqualified for this position,

which encompassed his work duties. PetitionerÓs suggestion at

the hearing that he should have been placed in a vacant Case

Manager position also does not demonstrate pretext. The

evidence shows that the District was not filling any positions

at the time, rather it was trying to streamline operations at

FCTC and, in fact, had implemented a hiring freeze. Petitioner

was told he could apply for any position when it became

available, and when the position did become available, he did

not apply for it. There was no evidence that any other

employees that were let go wer e placed in other jobs or any

other evidence to indicate that the DistrictÓs actions were

pretextual. In sum, based on the totality of the evidence,

Petitioner failed to show that Ðbut forÑ his alleged protected

activity his position would not have been e liminated.

62 . Petitioner failed to carry his burden to establish a

prima facie case of discrimination in retaliation, by either

direct or indirect evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMEND ED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief filed by

Gregory R. Lulkoski in this case.

DONE AND ENTERED this 2 8 th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of t he

Division of Administrative Hearings

this 2 8 th day of June , 2019 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida 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 Monroe Street

Tallahassee, Florida 32301

(eServed)

Jeffrey Douglas Slanker, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Str eet

Tallahassee, Florida 32301

(eServed)

Robert J. Sniffen, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, 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 written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed wit h the agency that

will issue the Final Order in this case.