17-006468 Karsen Spradlin vs. Florida Department Of Education Status: Closed Recommended Order on Tuesday, July 24, 2018.

Summary: Petitioner failed to present persuasive evidence to support her claims of unlawful employment practices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARSEN SPRADLIN,

Petitioner,

vs. Case No. 17 - 6468

FLORIDA DEPARTMENT OF EDUCATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hea ring was conducted on

March 9, 2018 , in Tallahassee, Florida, and on April 13, 2018,

in Marianna, Florida, before Garnett W. Chisenhall, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Peti tioner: Karsen Elizabeth Spradlin , pro se

4940 Logan Loop

Malone, Florida 32445

For Respondent: Riley Michelle Landy, Esquire

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue is whether the Florida Department of

Education (Ðthe DepartmentÑ) committed one or more unlawful

employment practice s against Petition er (Ð Ms. SpradlinÑ) by

discriminating against her based on race.

PRELIMINARY STATEMENT

On October 13, 2016, Ms. Spradlin filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Ðthe CommissionÑ) alleging that the Department subje cted her to

disparate treatment:

During my employment with Vocational

Rehabilitation in Marianna, Florida, as an

Entry Level Counselor, beginning in 2011 and

ending on May 18, 2016, I was repeatedly

harassed by my supervisor Tawana Gilbert,

African Ameri can, female because of my race

(Caucasi a n). Ms. GilbertÓs constant

disciplinary actions, berating and

condemning statements, and disparaging

treatment of me created a hostile work

environment.

In 2012, I applied for two openings in

our Marianna VR offi ce for Senior Counselor

position(s). Both positions were filled

by African Americans, one of which was an

external candidate, ma l e, with no VR

experience or credentials. I was passed

over for promotion for Senior Counselor

twice in 2012, with Ms. Gilbert on the

interview committees. In May 2016, I

applied for another Senior Counselor

position in the Marianna VR office. I

was passed over for promotion again for

an African American female with no VR

expe rience and no credentials. Ms. Gilbert

was o n the i nterview committee. Ms. Gilbert

and the Area Supervisor Allison Gill came

into my office on May 18, 2016 to inform me

that they had selected another candidate

for the Senior Counselor position. I asked

that an investigation into a hostile work

environmen t be initiated, and Ms. Gilbert

commenced with berating and verbally bashing

me. Following this encounter , I was then

required to sit next to Ms. Gilbert in a

lengthy meeting while she glared at me.

Based on the foregoing, I allege that I

was discriminat ed against based on my race,

when in 2012 I was not selected for either

of the two senior counselor positions,

and again passed over in 2016 for another

Senior Counselor position despite my

superior qual ifications, experience, and

job performance/knowledge in comparison to

the hired candidates who are all African

American. F urthermore, I allege that I

was required to work in a hostile work

environment in Marianna, FloridaÓs VR office

due to constant harassment I endured at the

hands of Ms. Gilbert, and the discriminatory

hiring practices of FloridaÓs Department of

Education, Vocational Rehabilitation from

2011 Î May 18, 2016.

On November 3, 2017, the Commission issued a letter

notifying Ms. Spradlin that it had determined that there was Ðno

reasonable ca useÑ to conclude that an unlawful employment

practice had occurred:

[Ms. Spradlin] worked for [the Department] ,

a state agency, as a vocational counselor.

She alleged that she was subjected to

disparate treatment based on her race and

color. [Ms. Spradli n] fails to prove a

prima facie case. [Ms. Spradlin] claimed

that she was denied flex time and FMLA,

while her coworkers were per mitted to

work flexible schedules. [ T he Department] 's

documents indicate that [Ms. Spradlin]

failed to request and document t ime off

according to [the Department] 's designated

procedure; however [the Department]

permitted [Ms. Spradlin] to take time off

as needed. [Ms. Spradlin] was required

to donate successfully completed cases to

new coworker s, but this requirement

applied t o all of [the Department] 's

vocational counselors. Therefore,

[Ms. Spradlin] failed to provide evidence of

similarly situated comparators outside her

protected class who were treated more

favorably. Also, [Ms. Spradlin] alleged

failure to promote based o n her race and

color. [Ms. Spradlin] fails to prove a

prima facie case. [Ms. Spradlin] applied

for four positions and was not hired fo r

any of them. [The Department] 's records

indicate that these positions were filled

based on candidates scores on writt en

exercises and interviews. Each time she

applied, othe r candidates scored higher

than [Ms. Spradlin] . [Ms. Spradlin] then

applied for a nd was offered the position

of Vocational Rehabilitation Consultant.

Thus, the evidence shows [Ms. Spradlin]

was not denied a promotion. In addition,

[Ms. Spradlin] alleged that she was

harassed. [Ms. Spradlin] fails to prove

a prima facie case. [Ms. Spradlin]Ó s

supervisor did reprimand [Ms. Spradlin] for

violating [the Department] 's policies;

however this is not sev ere or pervasive

conduct. Also, [Ms. Spradlin] alleged that

[the Department] retal iat ed against her.

[Ms. Spradlin] fails to prove a prima facie

case because she failed to describe any

adverse action she may have suffered.

Ms. Spradlin filed a Petitio n for Relief with the

Commission on November 28, 2017, and the Commission transferred

the case to DOAH on November 29, 2017.

Via a Notice of Hearing issued on December 11, 2017, the

undersigned scheduled the final hearing to occur in Tallahassee,

Florida, on February 13, 2018.

On February 5, 2018, the Department filed an ÐAgreed

Motion to Continue Formal Hearing,Ñ and the undersigned issued

an Order rescheduling the final hearing to occur on March 9,

2018.

The final hearing was commenced as scheduled on M arch 9,

2018, but was not completed that day. The final hearing was

completed on April 13, 2018 , in Marianna, Florida.

In addition to her own testimony, Ms. Spradlin presented

the telephonic testimony of Alvin Webb and Amy Asselin . The

Department prese nted the testimony of Evelyn Langmaid, Allison

Gill, and Tawana Gilbert.

Ms. SpradlinÓs Exhibits 1 through 1 0, 12 , and 13 were

accepted into evidence. The Dep artmentÓs Exhibits 1 through 21

were accepted into evidence.

The final volume of the three - vo lume hear ing T ranscript was

filed on May 31, 2018.

On June 4, 2018, the Department filed a n unopposed Motion

asking that the deadline for the partiesÓ proposed recommended

orders be extended to June 21, 2018. The undersigned issued an

Order granting tha t m otion on June 4, 2018.

Both parties filed timely P roposed R ecommended O rder s that

w ere considered in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following Findings of Fact are made:

1. Ms. Spradlin worked from 2006 to 2010 as a

psychological specialis t at a facility known as Sunland in

Marianna, Florida. Ms. Spradlin is Caucasian.

2. During a portion of the time that Ms. Spradlin was at

Sunland, Tawana Gilbert worked there as a human service

administrator. Ms. Gilbert is African - American.

3. Ms. Spradlin and Ms. Gilbert did not work closely

together, but they served on the same interdisciplinary team and

wor ked with the same residents.

4. Ms. Gilbert Ós only knowledge of Ms. Spradlin was

through the documentation that Ms. Spradlin submitted to the

interdisciplinary team.

5 . Ms. Gilbert left Sunland in approximately Nov e mber of

2009 , and began working fo r the Departmen t as a unit supervisor

for a v ocational r ehabilitation s ervices unit in Marianna,

Florida.

6. Vocational rehabilitation assists people by providing

them with services that enable them to obtain and maintain

gainful employment.

7 . Durin g the time period relevant to the instant case,

the Marianna unit ha d 10 staff members and served five counties.

Of those 10 staff members, five were counselors and one was the

unit supervisor.

8. At some point afte r Ms. Gilbert left Sunland,

Ms. Sprad lin saw an advertisement for an entry level vocational

rehabilitation counselor position at the Marianna unit .

Ms. Spradlin applied for the position and was hired in 2010.

9 . In March or April of 2011 , Ms. Gilbert invited all of

her coworkers to a spec ial event at her church.

10 . Ms. Gilbert asked her coworkers with children if their

child w ould like to participate in a program that was to be part

of the festivities.

1 1 . Ms. Spradlin sa id that her daughter was willing to

participate, and Ms. Gilbe rt typed out the words that

Ms. SpradlinÓs daughter was to recite during the program .

1 2 . When it was time for Ms. SpradlinÓs daughter to recite

her part, she became nervous, and her grandmother read the part.

1 3 . Following this event , Ms. Spradlin ass erts that

Ms. GilbertÓs attitude toward her changed and that the unlawful

employment practices alleged in her Charge of Discrimination

began.

Findings Regarding Ms. SpradlinÓs Interviews for Senior

Counselor Positions

1 4 . T here were two openings for sen ior vocational

rehabilitation counselors at the Marianna unit in October of

2012 . 1/

1 5 . When the Department i s considering applicants for a

particular position, it utilizes a three - person panel to conduct

interviews and score the applicants.

1 6 . Aft er the interviews, the three - person panel reaches a

consensus as to each applicantÓs scores, and t he Department uses

a standardized matrix to rank each applicant .

1 7 . The panel for the two senior vocational rehabilitation

counselor openings consisted o f Allison Gill , the DepartmentÓs

area supervisor ; Michael Nobles, the former supervisor of the

Marianna unit ; and Ms. Gilbert.

1 8 . Ms. Gill and Mr. Nobles are Caucasian.

1 9 . Of the five people who interviewed for the two

openings, Ramonia Robinson earned the highest score, a 72.

20 . With regard to Ms. RobinsonÓs qualifications,

Ms. Gilbert testified as follows:

Ms. Robinson, she was a current employee

there. She was an entry - level counselor,

had been for many, many years. She was

there prior to my hi ring with VR, so I was

familiar with her work history. And she was

very thorough, very detailed, very flexible,

and very unemotionally involved with her

cases. So she, in conducting her cases and

case manage ment, was awesome. And she

was very knowledgea ble about the questions

that were being asked. She had had a long

history of experience with case management,

providing services to individuals with

disabilities, and just adequately managing

her caseload. She did very well on her

interview.

2 1 . Ms. S pradlin received the second highest score, a 56.

Keith Sutton, an outside applicant, received a score of 55.

2 2 . When two applicantsÓ scores are within one point of

each other, the Department bases the ultimate hiring decision on

reference checks.

2 3 . Ms. Gilbert contacted Mr. SuttonÓs references and

received positive feedback about him.

2 4 . As for Mr . SuttonÓs qualifications, Ms. Gilbert

provided the following testimony:

Q: What about Mr. SuttonÓs experience,

resume was notable to you in the int erview

process?

A: Well, he had his degree. ItÓs directly

related to t he field of counseling. He

had a wealth of experience in the counseling

field. He came to us from the Agency for

Persons with Disabilities, which is Sunland,

where he had a year the re, and he met

at least the minimum qualifications. He was

very Î his application was very detailed,

and it identified precisely his experience

based on his ability to Î or his experience

with providing counseling, providing

services for those with disabi lities. And

he had a long history from where he had

previously worked in the field of

counseling.

Q: Okay, so Mr. Sutton achieved a MasterÓs

in Counseling in 2011, is that correct,

according to his application?

A: Yes.

Q: And thatÓs directly rel ated to the

position; is that correct?

A: Yes, thatÓs correct.

Q: And he had experience as a masterÓs

level therapist?

A: Yes.

Q: Is that accurate, according to the

application?

A: Yes. He worked for Florida Therapy

as a masterÓs level therapi st, where h e

was expected to provide counseling,

psychotherapy to children, adults and their

families, but doing so on an independent

basis. That demonstrated he was very

flexible, detailed oriented and [had] the

ability to function independently.

2 5 . Because she was Ms. Spradlin Ós supervisor at the time ,

Ms. Gilbert acted as her reference and did not recommend her for

a senior counselor position .

2 6 . In explaining her reasoning, Ms. Gilbert testified

that :

Ms. Spradlin was difficult to work with

a nd she was very negative. She had several

participant c omplaints during the span

of [] that year. In her first year coming

in, she wa s very challenging, she did

not want to accept constructive criticism

from me as th e unit supervisor. She did

not want v ery Î she wanted very little

feedback from me based on her performance.

Several participant complaints, calling me

directly, contacting the ombudsman, faxing

me complaints based on their interaction

with Ms. Spradlin, how they felt that they

were being tr eated unfairly, they did not

agree with her tone from time to time. She

was not at all culturally sensitive to some

of our participants. She was insubordinate.

She would Î there were times she would just

leave the unit because things Î conditions

were u nfavorable to her.

2 7 . Ms. Gilbert submitted her recommendation to the

DepartmentÓs area director, and Mr. Sutton was ultimately

offered a senior counselor position.

2 8 . Mr. Sutton is currently the supervisor of the Marianna

unit.

2 9 . There is no persuasive evidence that Ms. Spradlin was

not promoted because of her race or any animus from Ms. Gilbert.

The interview panel, consisting of two Caucasians, had

legitimate, nondiscriminatory grounds for concluding that

Ms. Robinson and Mr. Sutton were more qualified for the

openings.

30 . In short, the greater weight of the evidence

demonstrates that there was no unlawful employment practice

associated with the DepartmentÓs selection of applicants for the

two openings discussed above .

3 1 . In Ma y of 2016, Ms. Spradlin applied for another

senior counselor position in the Marianna unit.

3 2 . The interview panel fo r this opening consisted of

Ms. Gilbert and two other Department employees, Evelyn Langmaid

and Rebecca Stevens.

3 3 . Ms. Langmaid a nd Ms. Stevens are Cau c asian.

3 4 . Ms. Gilbert did not supervise Ms. Langmaid or

Ms. Stevens, and she did not attempt to influence their

decision - making.

3 5 . Georgia Britt received the highest score from the

interview panel and was offered the senio r counselor position.

36. Ms. Langmaid described Ms. BrittÓs interview as

follows:

She just came in and every answer weÓd or

every question that we gave her she was just

right on with the answers and [was] hitting

the points on the Î because we have sort of

like a little sheet that we can look for

certain points that weÓre looking for

answers, and she was just right on every

point, and was very, very knowledgeable of

what was going on.

3 7 . Ms. Spradlin had obtained a certified rehabilitation

counseli ng certificat ion in October of 2014, and Ms. Britt

lacked that certification. However, Ms. BrittÓs other

credentials bolstered her application.

3 8 . For instance, she has a bachelorÓs degree in

elementary and special education and a masterÓs degree in

counseling.

3 9 . Ms. Britt also had relevant work experience.

40 . When she applied for the senior counselor position,

Ms. Britt was employed at Sunland as a b ehavior s pecialist

working with adults with developmental disabilities.

41 . Ms. Britt wro te in her application that she had been

able to Ðwork with all different types of individuals at all

intellectual levelsÑ via her position at Sunland.

4 2 . Prior to working at Sunland, Ms. Britt had worked in a

childrenÓs psychiatric hospital in Dothan, A labama.

4 3 . That position also gave her an opportunity to work

with individuals from diverse backgrounds.

4 4 . Ms. Britt wrote on her application that her position

at the hospital required her to engage in some counseling and

that she had to use couns eling skills in order to obtain

psychiatric histories and other information.

4 5 . Ms. BrittÓs interview bolstered her application .

According to Ms. Langmaid, Ms. Britt Ðblew it out of the water.

She was fantastic on the interview.Ñ

4 6 . Ms. Gilbert was also very complimentary of Ms. BrittÓs

interview:

Q: What about Ms. Britt stood out to you

and the panel?

A: Her ability to respond to the questions

as they were being asked. At that time, we

were transitioning to where we were asking

more emotion al [intelligence] questions

where Î to identify a counselorÓs ability to

emotionally manage cases and refrain from

being emotionally involved with that case.

So she answered the questions. ItÓs on ones

that can give a thorough answer based on the

circ umstance that occurred, the actions that

took place and the results of the question.

Q: Okay.

A: She was really, really thorough with her

answers.

47. There is no persuasive evidence that Ms. Spradlin did

not receive the promotion because of her race or due to any

animus from Ms. Gilbert. The interview panel, consisting of two

Caucasians, had legitimate , nondiscriminatory grounds for

concluding Ms. Britt was more qualified for the opening.

48 . In short, the greater weight of the evidence

dem onstrates that there was no unlawful employment practice

associated with th e DepartmentÓs selection of Ms. Brit t .

Findings Regarding Ms. SpradlinÓs Hostile Work Environment

Allegations

49. Ms. Spradlin made several allegations during the final

hearin g that she was subjec t ed to a hostile work environment

during her time with the Marianna unit. 2 /

50. For example, in October of 2010, Ms. Spradlin exposed

at least part of her posterior to a coworker in the Marianna

unit in order to demonstrate the sev erity of a sunburn.

51. Ms. Gilbert did not learn of that incident until

another incident was reported to her on May 2, 2011.

52. That day, Ms. Spradlin was seated in an office within

the Marianna unit when a female coworker got very close to

Ms. S pradlin and ÐtwerkedÑ in her face.

53. Ms. Spradlin states that she placed her hands on the

coworkers posterior and playfully pushed her away. However, the

co worker reported to Ms. Gilbert that Ms. Sp r adlin had pinched

her posterior.

54. Upon learn ing of both incidents, Ms. Gilbert discussed

them with Ms. Spradlin and conferred with the DepartmentÓs labor

relations unit on formulating a proper course of action.

55. With input fro m the labor relations unit, Ms. Gilbert

issued a counseling memora ndum to Ms. Spradlin on October 4,

2011. 3 /

56. The counseling memorandum 4 / read in pertinent part as

follows:

You are being issued a Counseling

Memorandum for your violation of Rule 60L -

36.005(2)(f)( 1), Florida Administrative

Code (F.A.C.), Conduct unb ecoming a public

employee.

On October 12, 2010, you signed the

DepartmentÓs Acknowledgement Form stating

you received copies of the policies and

rules of the Department. Please be aware

that you are expected to abide by all

Standards of Conduct as stated in 60L -

36.005, F.A.C.

On May 2, 2011, you violated the following

rule and policy:

1 5

Rule 60L - 36.005(2)(f)(1), F.A.C., requires

that ÐEmployees shall conduct themselves, on

and off the job, in a manner that will not

bring discredit or embarrassment to the

state.

1. Employees shall be courteous,

considerate, respectful, and prompt in

dealing with and serving the public and

co - workers.Ñ

On May 2, 2011, it was reported by one

employee that you pulled your pants down

exposing your buttocks and ÐmoonedÑ tha t

employee. Another employee informed me that

on that same day you pinched her on her

buttocks. After I was told about these

incidents that day, I counseled you and

informed you that this was inappropriate

behavior and it was explained that your

actions were unacceptable.

This type of conduct is not conducive to a

satisfactory work environment. Your conduct

has adversely impacted the morale and

efficiency of your unit and the Department,

is detrimental to the best interest s of the

state and Department , and adversely affects

your effect iveness with the Department,

as well as your ability to continue to

perform your job. This behavior must cease

immediately. Should you continue conduct

unbecoming a public employee, disciplinary

actions, up to and inclu ding dismissal may

be taken.

57. Ms. Spradlin signed the counseling memorandum on

October 4, 2011 , and added the following comments:

These two incidents happened on [sic]

different persons . The incident w/

ÐmooningÑ was with [a] coworker after I

incurre d a severe sunburn. It was done only

to show my burns not to offend her. She

sobbed Î I was not wearing pants Î skirt

instead. On the second occasion w/co - worker

E.R. she put her buttocks in my face,

playing around, & I pinched it as if to

express my wi llingness to play as well. It

was provoked Î not done in an offensive

manner.

I understand that this type of behavior is

not accepted in my work environment . They

were done in a playful uplifting manner, not

intentional. However, I will refrain from

th is behavior as I have obviously offended

my colleagues .

58. Another allegation of disparate treatment concerned an

incident with a Department client named B.H. , who Ms. Spradlin

assisted with enroll ing in nursing school.

59. B.H. arrived at the Mari anna unit one day without an

appointment and reported that he wanted to do something other

than nursing.

60. Ms. Spradlin asserts th at B.H. got aggressive when

his requested changes could not be accomplished immediately.

Ms. Spradlin further asserts t hat she became afraid, threatened

to call 9 - 1 - 1, and managed to get past B.H. and into the hallway

outside her office.

61. Ms. Gilbert heard the commotion and called the police.

By the time the police arrived at the Marianna unit, B.H. was

very calm, an d Ms. Gilbert concluded there had been no need to

call law enforcement.

62. While Ms. Spr adlin asserts that she became an object

of ridicule in the Marianna office for overreacting, Ms. Gilbert

asserts that she was ridiculed for failing to give the add ress

of the Marianna office when she called 9 - 1 - 1.

63. As another example of disparate treatment ,

Ms. Spradlin cites an incident on November 14, 2013, involving

a cigarette butt.

64. Ms. Spradlin was in Ms. GilbertÓs office and droppe d a

cigarette b utt into a trash can.

65. According to Ms. Spradlin, Ms. Gilbert demanded that

she remove the cigarette butt and forced Ms. Spradlin to search

through used tissues for the cigarette butt.

66. Ms. Gilbert acknowledged that she asked Ms. Spradlin

to re move the cigarette butt fro m the trash can, but she credibly

denied berating Ms. Spradlin or yelling at her . According to

Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt

from the trashcan and was not upset about having to do so.

67. Ms. S pradlin made several other allegations a bo ut how

Ms. Gilbert gave African - American employees in the Marianna unit

preferential treatment .

68. For example, Ms. Spradlin alleges that she was

required to handle more cases and inc ur more travel than her

Af rican - American coworkers. With regard to her travel

reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to

account for all the miles she traveled.

69. Ms. Sp radlin further asserts that Ms. Gilbert

subjected her to disparate treatment by req uir ing her to

maintain more documentation of her daily activities , inundat ing

her with e - mails inquiring about the status of her work , and

being less lenient regarding Ms. SpradlinÓs use of flex and

leave time.

70. Ms. Gilbert testified that she ha s ne ver denied a

request for annual leave and that she approved the majority of

Ms. SpradlinÓs request s for flex time , even though Ms. Spradlin

did not follow the proper procedure for making such requests.

71. As for the other allegations mentioned above ,

Ms. Gilbert credibly testifi ed that she did not subject

Ms. Spradlin to any disparate treatment.

72. Finally , Ms. Spradlin alleges that Ms. Gilbert

unfairly administered a system by which counselors within

the Marianna unit shared their successful ca ses with African -

American counselors who had fewer successful cases. This system

was implemented because counselo rs within the Marianna unit were

expected to have a certain number of successful cases.

73. Ms. Gilbert credibly denied that the system w as

administered unfairly:

Q: Ms. Gilbert, do you ever ask counselors

to donate their successful cases or case

numbers to other counselor?

A: I never asked counselors specifically to

do that. I did discuss it with the unit,

with our team as an option.

Q: Okay, and why would that be an option

they may want to do?

A: Well, the way Vocational Rehabilitation

operates is a person has to be on their

job a minimum Î a minimum of three months,

okay, 90 days, to consider that person as

successfully rehabili tated. And that was a

measurement. That was an expectation on

each counselorÓs performance evaluation,

that they had to get so many successful

rehabs within one year.

So someone thatÓs being hired and coming to

Vocational Rehabilitation in the middle of

the year, they donÓt have that opportunity

to monitor that person for 90 days, if they

donÓt already have someone thatÓs in that

employment status ready to begin monitoring.

So itÓs difficult. But I did not want that

to be a negative reflection of a c ounselor

thatÓs really trying and thatÓs working

their caseload and trying to get their

successful rehabs.

So I would ask counselors once theyÓve

received all of their rehabs and they close

enough people successfully that allows them

to get the most maxim um score that they can

get on their evaluation, I would ask them if

they wanted to, share those rehabs with

someone thatÓs probably a new counselor or

thatÓs just having a difficult time with

obtaining their successful rehabs.

Q: Okay. And so Mr. Sutton Ós first year,

might he have received some successful

numbers donated to him from other

counselors?

A: That is a possibility.

Q: Okay. Did Ms. Spradlin ever receive any

successful numbers donated to her when she

had a lower number?

A: Yes.

* * *

Q: Okay. And so that number of successes

or successful rehabilitations is important

to counselors?

A: Absolutely.

Q: Because they are Î are they evaluated on

that each year in their yearly performance

evaluation?

A: Yes. Each level of counselor, i f youÓre

an entry - level counselor, your first year

you may be expected to get five. Those

numbers are prorated. So the cutoff period

is last business day of June, so if you have

a new counselor that starts in February or

March, theyÓre at a disadvantage, they donÓt

have the time. Time works against them.

But if they are involved with their cases

and they are trying to work their cases, I

felt that it was only reasonable to assist

them.

* * *

Q: Okay, so you said that Ms. Spradlin

would have received a donation of successful

cases maybe early on in her career?

A: Yes.

Q: Did she donate cases once she became a

more proficient counselor?

A: IÓm pretty sure she did.

Q: And did you specifically ask her to

donate cases to any particular employee ?

A: No.

74. Ms. Spradlin resigne d from the Department on

August 10, 2016.

75. T here is no sufficiently persuasive evidence to

support Ms. SpradlinÓs disparate treatment claims. T he greater

weight of the evidence demonstrates that Ms. Spradlin wa s not

subjected to any disparate treatment during her tenure in the

Marianna unit.

CONCLUSIONS OF LAW

76. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of

this proceeding pursuant to secti ons 120.569 an d 120.57,

Florida Statutes (2016) , 5 / and F lorida Administrative Code

Rule 60Y - 4.016(1).

77 . The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, Florida

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

FCRAÑ) , incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

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

78 . S ection 760. 10 , prohibits discrimination Ðagainst any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's race,

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

status.Ñ § 760.10(1)(a), Fla. Stat.

79 . Ms. Spradlin alleged in her Charge of Discrimination

that she was the victim of disparate treatment under the FCRA;

in other words, Ms. Spradlin claimed that s he was treated

differently because of her race. As a result, Ms. Spradlin has

t he burden of proving by a preponderance of the evidence that

the Department discriminated against her. See Fla. DepÓt of

Transp. v . J.W.C. Co. , 396 So. 2d 778 (Fla. 1 st DCA 1981).

80 . A party may prove unlawful race discrimination by

direct or circumstan tial evidence. Smith v. Fla. DepÓt of

Corr. , 2009 U.S. Dist. LEXIS 44885 (M.D. Fla. 2009). When a

petitioner alleges disparate treatment under the FCRA, the

petitioner must prove that his race Ðactually motivated the

employerÓs decision. That is, the [p etitionerÓs race] Òmust

have actually played a role [in the employerÓs decision making]

process and had a determinative influence on the outcome.ÓÑ

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

141 (2000).

81 . Direct evidence is evidence tha t, Ðif believed, proves

[the] existence of [a] fact in issue without inference or

presumption.Ñ Burrell v. Bd. of Trs. of Ga. Mil. Coll. ,

125 F.3d 1390, 1393 (11 th Cir. 1997). Direct evidence consists

of Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11 th Cir.

1989).

82 . There is no direct evidence of unlawful race

discrimination in the instant case. That is not uncommon

bec ause Ð d irect evidence of intent is often unavailable.Ñ

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996).

Accordingly , those who claim to be victims of intentional

discrimination Ðare permitted to establish their cases through

inferential and c ircumstantial proof.Ñ Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

83 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

suc cessful, this creates a presumption of discrim ination.

Then the burden shifts to the employer to offer a legitimate,

nondiscriminatory reason for the adverse employment action. If

the employer meets that burden, the presumption disappears and

the employe e must prove that the legitimate reasons were a

pretext. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

25 (Fla. 3d DCA 2009). Facts that are sufficient to establish a

prima facie case must be adequate to permit an inference of

discrimination. Id.

84. With regard to Ms. SpradlinÓs allegations that

she should have been promoted to a senior counselor position

in 2012 and 2016, one establish e s a prima facie case of

discrimination on failure - to - promote grounds by showing that:

(a) she is a member of a protected class 6 / ; (b) she was qualified

for and applied for the p romotion; (c) she was rejected despite

these qualifications; and (d) other equally or less qualified

employees who were not members of the protected class were

promoted. See Beal v. CSX C orp . , 308 Fed. Appx. 324, 326 (11th

Cir. 2009)(citing Walker v. Prudential Prop. & Cas. Ins. Co. ,

286 F.3d 1270, 1274 - 75 (11 th Cir. 2002)).

85. The inter view panels that considered Ms. SpradlinÓs

applications for promotion in 2012 and 2016 had legitimat e,

nondiscriminatory grounds for concluding that others were

more qual ified for those seni or counselor positions than

Ms. Spradlin. Thus, Ms. Spradlin failed to prove this aspect

of her case by a preponderance of the evidence.

86 . As for Ms. Spradli nÓs claims of disparate treatment,

one can establish a prima facie case of discrimination by

demonstrating that: (a) she is a member of a protected class;

(b) she was qualified for the position held; (c) she was

subjected to an adverse employment action; and (d) other

similarly situated employees, who are not members of the

protected group, were treated more favorably. See McDonnell

Do uglas Corp. v. Green , 411 U.S. 792, 802 (1973). ÐWhen

comparing similarly situated individuals to raise an inference

of d iscriminatory motivation, these individuals must be

similarly situated in all relevant respects.Ñ Jackson v.

BellSouth Telecomm. , 372 F.3d 1250, 1273 (11 th Cir. 2004).

87. There is no sufficiently persuasive evidence to

support Ms. SpradlinÓs disparat e treatment claims. The greater

weight of the evidence demonstrates that Ms. Spradlin was not

subjected to any disparate treatment during her tenure in the

Marianna unit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing PetitionerÓs Petition

for Relief.

DONE AND ENTERED this 24th day of July 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Ad ministrative Hearings

this 24th day of July 2018 .

ENDNOTE S

1/ Section 760.1 1 (1), Florida S tatutes (2016), allows a

person alleging discrimination , pursuant to the Florida Civil

Rights Act , to file a complaint within 365 days of the alleged

violation. Thus, violations occurring more than 365 days prior

to the October 13, 2016, filing of Ms. SpradlinÓs Charge of

Discrimination are not actionable. However, the Commission did

not dismiss any of Ms. SpradlinÓs claims . Because those claims

were fully addre ssed by the parties at the final hearing, they

are discussed and evaluated herein so as to establish a

comprehensive record.

2 / Ms. SpradlinÓs Charge of Disc rimination only makes a

general allegation that she was subjected to disparate treatment

and give s no description of specific incidents. As a result ,

the Department argued at the final hearing that it was not on

notice that it would have to defend against such allegations.

However, t he CommissionÓs November 3, 2017, letter indicates

that it investig ated disparate treatment allegations, and

the Department had an opportunity to inquire about all the

allegations Ms. Spradlin intended to raise when it deposed her .

Given the fact that Ms. Spradlin was unrepresented by counsel

and the Department was able to present an adequate defense

through Ms. GilbertÓs testimony , the undersigned has elected to

proceed as if the Department was on notice regarding

Ms. SpradlinÓ s disparate treatment allegations.

3 / There was no explanation at the final hearing as to wh y the

October 2010 incident was not brought to Ms. GilbertÓs attention

until May of 2011. There was also no explanation about why the

counseling memorandum was not issued until October 4, 2011.

However, those facts do not indicate any disparate treatment .

4 / Ms. Gilbert denied ever disciplining Ms. Spradlin and

testified that the counseling memorandum was not discipline:

ÐAnd actually, the counseling memorandum is not technically

disciplinary action. It is more Î it is more feedback,

assisting the e mployee with ident ifying what occurred, what

went wrong, and just trying to assist them with appropriate

behaviors or appropriate presentations of themselves while on

the job. ItÓs [supposed] to be assist ing, not punitive at all.Ñ

Ms. Gilbert denied ever imposi ng any punitive measures on

Ms. Spradlin such a s a reprimand or a suspension.

5 / Unless stated otherwise, all statutory citations will be to

the 2016 version of the Florida Statutes.

6 / The Commission explained in Phillip McTaggart v. Pensacol a

Bay Transportation Company , Case No. 10 - 1182 (Fla. DOAH June 1,

2010; F CHR August 1 1 , 2010), that Ðpeople of all races are

entitled to establish discrimination claims under the Florida

Civil Rights Act of 1992, not just those belonging to a Òracial

minor ity.ÓÑ As a result, the Commission reframes the first

element of a prima facie discrimination case as whether the

petitioner Ðbelongs to a group protected by the statute.Ñ

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Re lations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Bennett E. Powell

Department of Education

Division of Vocational Rehabilitation

Suite 101

325 West Gaines Street

Tallahassee, Florida 32399

Karsen Elizabeth Spradlin

494 0 Logan Loop

Malone, Florida 32445

(eServed)

Riley Michelle Landy, Esquire

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission o n Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.