18-000425 Denise Burns vs. City Of Gainesville Status: Closed Recommended Order on Monday, July 23, 2018.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE BURNS,

Petitioner,

vs. Case No. 18 - 0425

CITY OF GAINESVILLE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on Apr il 5 and 20,

2018, in Gainesville, Florida, before Administrative Law Judge

Suzanne Van Wyk.

APPEARANCES

For Petitioner: Gary Lee Printy, Esquire

Gary Lee Printy, Attorney at Law

Suite 200

1804 Miccosukee Commons Drive

Tallahassee, Florid a 32308

For Respondent: Elizabeth A. Waratuke, Esquire

Gainesville City AttorneyÓs Office

200 East University Avenue

Gainesville, Florida 32601

STATEMENT OF THE ISSUE S

Whether Petitioner was subject to an unlawful employment

practice by Respondent in retaliation for participating in a

protected activity, in violation of section 760.10, Florida

Statutes (2016) 1/ ; and , if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 31, 2017, Petitioner filed an Employment

Charge of Discrimination with the Florida Commission on Human

Relations (ÐCommissionÑ) , which alleged that Respondent violated

section 760.10 by discriminating against her for engaging in a

protected activity.

On December 21, 2017, the Commission issued a Determin ation:

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

Commission determined that reasonable cause did not exist to

believe that an unlawful employment practice occurred. On

January 24, 2018, Petitioner filed a Petition for Relief with th e

Commission, which was transmitted that same date to the Division

of Administrative Hearings (ÐDivisionÑ) to conduct a final

hearing.

The final hearing was scheduled for April 5, 2018, in

Gainesville, Florida, and was commenced, but not concluded, on

th at date. The final hearing was continued to, and concluded

on, April 20, 2018, in Gainesville, Florida.

At the final hearing, Petitioner testified on her own behalf

and presented the testimony of Joseph Michael Weeks, Tim Burnett,

Robert Arnold, Willia m Webb, Daniel Trujillo, and R.V. Mathews.

Petitioner introduced Exhibits P1, P2, P3(a) through (j), P4

through P8, P9 (except for affidavits attached to PetitionerÓs

Petition for Relief), P10, and P12, which were admitted in

evidence.

Respondent presente d the testimony of Brian Hinson, George

Demopoulos, Lonnie Little, Dino DeLeo, Tim Bates, and Petitioner.

RespondentÓs Exhibits R1(a) through (g), R2(a) through (j), R5,

R9, R15, R24 through R27, R29 through R31, and R34 through R45 ,

were admitted in evid ence.

A two - volume Transcript of t he proceedings was filed on

May 16, 2018. The parties jointly filed, and the undersigned

granted, a Motion to set June 6, 2018, as the due date for

proposed recommended orders. 2/ The parties timely filed Proposed

Recomm ended Orders which have been considered by the undersigned

in preparing this Recommended Order.

FINDING S OF FACT

Background

1 . Petitioner, Denise Burns, is a 17 - year employee of

Gainesville Regional Utilities (ÐGRUÑ), the corporate entity

through which th e City of Gainesville (ÐCityÑ) provides electric

service to its customers in Gainesville and surrounding areas.

2 . Petitioner is an electrician by training, and was hired

by GRU as a Power Plant Electrician on May 29, 2001. Petitioner

participated in an internal training program , beginning in

June 2006, and ultimately became a journeymen level Power Plant

Instrumentation, Controls and Electrical Technician (ÐICE TechÑ)

for GRU. Petitioner has been continuously employed as an ICE

Tech for GRU since May 8, 2006.

3 . There are currently eight full - time ICE Techs. ICE

Techs perform assignments requested by employees throughout the

plant through a work order s ystem . The work orders come through

a compute r system, and are assigned to ICE Tech s by their

superv iso r. On a day - to - day basis, an ICE Tech may be asked to

perform preventative maintenance on transmitters, breakers, and

switches within the facility, as well as daily maintenance and

major repairs during plant outages.

4 . There are three levels of ICE Techs: trainee,

apprentice, and journeymen. A journeymen is level 7 through 10,

where level 10 is the top of the pa y scale. Petitioner is a

level 10 ICE Tech.

5 . L evel 10 ICE Tech s are expected to be the most

experienced and knowledgeable, and to work under minimum

supervision. They are not expected to have the answers to

everything that comes before them, but to apply their experience

and knowledge to find additional resources and problem - shoot the

issues they encounter.

6 . Prior to formation of the ICE Tech position, GRU

separately employed electricians and instrumentation control

specialists to install and repair equipment throughout its

facilities. The employees frequently worked in pairs on work

orders to ensure that all aspects of the work coul d be addressed

at the same time.

7 . The ICE Tech position was created in an effort to

address budget reductions and increase efficiency in technical

service. Ideally, the ICE Techs were to be cross - trained and

capable of installing and servicing both ele ctrical equipment and

instrument controls.

8 . GRU operates two facilities relevant to the issues

herein: The Deerhaven Generating Station (ÐDeerhavenÑ) in

northeast Gainesville, and the John R. Kelly Plant (ÐKelly

PlantÑ) close to the University of Flori da campus.

9 . The ICE Techs, as well as the ICE Tech S upervisor and

manager, are based out of the administrative building at

Deerhaven. The majority of the work orders and associated time

is spent working on facilities located at Deerhaven. ICE Techs

ar e assigned to work at other locations as needed, but there are

no ICE Techs assigned to those locations, including the Kelly

Plant, on a permanent basis.

10 . From an organizational perspective, the ICE shop is one

of three divisions within the Major Mai ntenance Group. The other

two divisions are Maintenance and Planning.

Relevant Employees and Managers

11 . Brian Hinson is the ICE Tech Supervisor and has served

as PetitionerÓs direct supervisor since December 12, 2011.

Mr. Hinson has worked with Petit ioner since 2003. Mr. Hinson

retired from GRU in 2007, and became employed as a contractor

building an Air Quality Control System (ÐAQCSÑ), or Ðscrubber,Ñ

which was eventually installed at Deerhaven. Mr. Hinson returned

as an ICE Tech in 2009, and was pr omoted to ICE Tech Supervisor

in 2011.

12 . George Demopoulos h as been employed by GRU for

six years. He currently holds the position of Major Maintenance

Leader, reporting to Lonnie Little. Both Mr. Hinson and the

supervisor of the Mechanical Shop, Je ff Williams, report to

Mr. Demopoulos. Mr. DemopoulosÓ duties pertain to the planning

and scheduling of major maintenance for all power plants within

GRU. He has held this position s ince August of 2011, but at

final hearing was temporarily assigned to a so ftware

implementation project.

13 . Lonnie Little is the Manager of Outage Planning and

Major Maintenance and has held that position since April 2014.

He took over the position as Manager from Timothy Bates. His

direct reports are Mr. Demopoulos and two engineers. Mr. Little

has known and worked with Petitioner in excess of 10 years and

has been in a supervisory role relative to her since 2014.

2016 Charge of Discrimination

14 . On February 16, 2016, Petitioner filed a Charge of

Discrimination with the E EOC (Ð2016 ChargeÑ) alleging GRU

unlawfully discriminated against her on the basis of her sex and

in retaliation for filing a 2004 EEOC Charge, which was resolved

by settlement agreement. The 2016 Charge contains numerous

specific allegations that Mr. Hi n son and other managers treated

her differently than her male co workers in relation to

discipline, training, and over time, among other allegations. 3 /

Performance Evaluations

15 . All supervisors and managers are involved in the

evaluation process. The City Ós evaluation period runs from

October 1st of a year to September 30th of the following year.

An evaluation for the time period of October 1, 2015 to

September 30, 2016 , is re ferred to as an employeeÓs

2016 evaluation.

16 . GRU uses a numerical system for scoring each factor in

an evaluation, with numbers ranging from 1 to 5, where 1 is

ÐunacceptableÑ and 5 is Ðoutstanding.Ñ

17 . From 2006 to 2016, the CityÓs evaluation format

contained fourteen (14) factors, with each factor having several

elements that a n evaluator should consider in scoring that

factor.

18 . Supervisors begin preparing evaluations for the

preceding 12 months in October. The draft evaluations are

submitted to the appropriate managers for review and discussion,

if needed. Final evaluatio ns are approved by the appropriate

managers and turned over to the supervisors to discuss with their

employees. The process usually takes several weeks between

reviewing the employeeÓs performance over the year, preparing

comments, attending meetings betw een the supervisors and managers

as needed, editing drafts, preparing the final document, and

meeting with the employee.

19 . As a supervisor, Mr. Hinson prepares annual evaluations

for the ICE Techs and has done so since the fall of 2012. In

preparing th e evaluations, he reviews the employeesÓ performance

from the previous year, looking at information gathered

throughout the year, including verbal and written feedback,

observations in the field, and comments and hours logged on work

orders. Mr. Hinson sp ends several weeks on the evaluations

between the preparation and review with his supervisor. After

preparing the draft of the evaluations, Mr. Hinson submits them

to his manager for review.

20 . For the 2015 and 2016 ICE Tech evaluations,

Mr. Demopoulos met with Mr. Hinson to go over each employeeÓs

evaluation. Together they looked at the scores and the

documentation to support the scores.

21 . Mr. Demopoulos also talked with Mr. Hinson during the

year about the work orders and projects and, at evaluatio n time,

discussed with him the highest and lowest recommended scores,

asking for examples to support each score. At various times over

the last few years, these meetings have included the upper - level

manager, Mr. Little.

22 . The upper - level managers revi ew the draft evaluations

for consistency within the departments, to make sure the comments

match the score and that there are comments to support the

scores. They also consider their own knowledge and observations

of the employeeÓs performance during the year , as well as

feedback from others.

23 . The managers meet with Mr. Hinson to discuss any scores

they may have questions about or to discuss borderline scores.

For example, there may be one area within the overall factor on

which the employee needs imp rovement, but overall, the employee

meets expectations in that factor. Those are some of the hardest

ones to decide. If scores are outside the range of Ðmeets

expectations , Ñ the evaluator and managers discuss the reason for

the outlying score.

24 . Durin g the 2011 to 2014 time frame, there were

discussions within management at GRU about the evaluation scores

needing to more accurately reflect the work performance of the

employee . Specifically, Mr. Bates criticized Mr. HinsonÓs

evaluation scores of ICE Te chs as not reflecting Mr. HinsonÓs

verbal reports on the employeeÓs performance. Mr. Bates found

the scores extremely high.

25 . Likewise, when Mr. Little became Major Maintenance

Manager in 2014, he noted that the ICE shop scores were much

higher than the maintenance shop scores, and much higher than the

scores he gave when supervising the engineering department. When

Mr. Demopoulos became Major Maintenance Manager in 2015, he noted

the earlier evaluations were Ðoverinflated,Ñ meaning many

employees we re receiving scores higher than 3, which correlates

with Ðmeets expectations,Ñ when their work did no more than meet

expectations.

26 . Management began to work with the supervisors to

accomplish scoring that more accurately reflected the level of

work per formed by the employees. The directive of grading to the

actual verbiage of the factors had come down from the head of

Deerhaven, first from John Stanton, Assistant General Manager,

and then Mr. DeLeo.

27 . Beginning in 2015, his first full year in Major

Maintenance, Mr. Little took the approach of adding commentary in

the remarks section to reflect the score that should have been

given, rather than dropping the actual score. For example, if

the employee had previously c onsistently received scores of 3

Ðm eets expectationsÑ in a factor, but actually needed improvement

in that factor, the number would stay the same that year, but the

comments would reflect that they needed improvement in some

aspect of that factor. This would inform the employee that their

performance needed to improve in the following year, and if there

was no improvement, the score would drop in the next year.

28 . For the 2016 evaluation year , management began to

adjust the scores to more closely match the criteria as described

in the eva luation. That year, virtually every ICE Tech saw a

drop in their overall evaluation score. With the exception of a

probationary employee, Ray Yanke, the ICE Techs overall scores

dropped a minimum of 4 points from 2015 to 2016.

29 . Five ICE Techs receive d performance evaluations in both

2015 and 2016. Tim BurnettÓs score dropped 4 points ; Miro Turk,

5 points ; Mike Weeks, 6 points; Tracey Wilkinson, 4 points ; and

Petitioner, 4 points. 4 /

PetitionerÓs Performance Evaluations

30 . On PetitionerÓs 2012 perfo rmance evaluation, Mr. Hinson

rated PetitionerÓs overall performance as 3.36 out of 5.0. T he

only performance factor o n which P etitioner scored lower than

a 3 was for Safety Consciousness. On that f actor Petitioner

received a 2 Ðn eeds improvement , Ñ appa rently based on an injury

during that evaluation period.

31 . Mr. Hinson gave Petitioner an overall performance score

of 3.21 on PetitionerÓs 2013 evaluation. Petitioner received a

score of 2 in Flexibility. Mr. Hinson noted, ÐDenise needs to

improve in this area. Needs to recognize priorities when work

assignments are changed.Ñ

32 . On her 2014 evaluation, Mr. Hinson gave Petitioner an

o verall performance score of 3.0 . Petitioner received a 2 in

both Initiative and Communication. With regard to Initia tive,

Mr. Hinson noted, ÐDenise needs to improve in this area. Use EAM

to continue to work on assignments if held up on assigned work

without supervisor direction.Ñ With respect to Communication,

Mr. Hinson noted, ÐDenise needs to improve in this area. Provide

better feedback to supervisor on scope, timeframes, and

projections for work orders and projects.Ñ

33 . PetitionerÓs evaluatio n scores fell again on her

2015 evaluation, on which she received an overall performance

score of 2.86. During that perio d, Mr. Hinson gave Petitioner a

2 on the following factors: Customer Relations, Initiative,

Communication, and Effectiveness and Productivity. With regard

to both Customer Relations and Communication, Mr. Hinson noted

that Petitioner needs to improve com munications with her

supervisor, including Ðface - to - faceÑ contact with her supervisor,

especially on the status of assigned tasks. With respect to

Productivity and Effectiveness, Mr. Hinson gave examples of

specific assignments which were not completed in a timely and

effective manner. In regards to Initiative, Mr. Hinson again

noted, ÐUse EAM to continue to work on assignments if held up on

assigned work without supervisor direction.Ñ

34 . Petitioner was presented with her 2016 evaluation on

November 30, 2016. Both Petitioner and Mr. Hinson reviewed and

signed it on that date.

35 . PetitionerÓs 2016 performance evaluation dropped again

to an average performance score of 2.64. Petitioner received a

2 on 8 out of 14 factors, including Customer Relations,

Initiative, Communication, Teamwork and Interpersonal Relations,

Problem Solving/Decision Making, Effectiveness and Productivity,

Support of Organizational Goals and Objectives, and Professional

Development.

36 . Petitioner did not lose any pay or other be nefits for

the scores she received on the evaluation. She received the same

raise as the other Level 10 ICE Techs.

PetitionerÓs Corrective Action Plan

37 . Mr. DeLeo met with PetitionerÓs leadership team several

times to put a plan together to address the issues Petitioner was

having with her work performance.

38 . On January 31, 2017, a meeting was held with Petitioner

to talk about her overall performance , as well as the comments

that had been made on her 2016 evaluation -- communication with her

superviso r, work ethic, productivity and the ability to apply the

skill sets of a Level 10 ICE Tech.

39 . The meeting was attended by Mr. Hollandsworth, the

Director of Production and Assurance Support; Keisha Young, Labor

Relations; Melissa Jones, Dir ector of Prod uction; Mr. Little;

Mr. Demopoulos; Petitioner, and her union representative s , Robert

Arnold and Mr. Welch. 5 / Mr. Hinson was specifically excluded

from the meeting because of PetitionerÓs previous complaints

about him.

40 . Three main areas in her evaluat ion were the focus of

the meeting -- communication with her supervisor, work ethic and

productivity, and knowledge and ability to do the job.

41 . Mr. Demopoulos was assigned to develop the plan. With

the assistance of the CityÓs Human Resources Departmen t , and the

involvement of the Union, Mr. Demopoulos prepared the action

plan.

42 . The entire action plan consisted of direction to

Petitioner to review materials from GRU trainings she had

previously attended, such as ÐTake Charge of Change,Ñ ÐEmotional

I ntelligence,Ñ ÐRelationship Strategies,Ñ and ÐDealing with

Difficult Customers,Ñ and Ðcome up with a plan on how you as a

GRU employee in Energy Supply can move forward in a positive and

more productive direction.Ñ The action plan directed Petitioner

to Ð [i]dentify behaviors that need to be changed,Ñ and develop an

Ðaction plan to change behavior.Ñ

43 . The action plan was light on details and provide d

little guidance on how Petitioner was to address behaviors.

Management testified it was only the first s tep in the action

plan, directed at PetitionerÓs Ðsoft skills.Ñ Eventually, the

action plan was scrapped following a grievance filed by

Petitioner and her union representatives.

PetitionerÓs Charge of Discrimination

44 . In her 2017 Charge of Discriminati on (Ð2017 ChargeÑ),

Petitioner alleged as follows:

I was given a poor job performance evaluation

(see attached copy) in retaliation for my

filing of an EEOC Charge No. 510 - 2016 - 02011

in violation of Chapter 760 of the Florida

Civil Rights Act, Title VII of the Federal

Civil Right [sic] Act of 1964 as amended and

the Federal Civil Rights Act of 1991 as

applicable. I am requesting injunctive

relief, removal of said evaluation,

reimbursement of out of pocket expenses and

costs, attorneyÓs fees, costs, punitiv e

damages, compensatory damages and whatever

other relief is deemed to be just and

appropriate.

Notably, on her 2017 Charge, Petitioner indicated the last date

discrimination took place was November 30, 2016, but checked the

box to indicate the charge was for a Ðcontinuing action.Ñ

45 . In its Determination of No Reasonable Cause

(ÐDeterminationÑ), the Commission reported as follows:

Complainant alleged that Respondent

retaliated against her for filing a complaint

with the [EEOC]. However, the investigati on

did not reveal enough evidence to support

ComplainantÓs allegations. The investigation

revealed that ComplainantÓs evaluation score

declined based on pre - existing employment

weaknesses and that she was put on an action

plan to help her improve her perf ormance.

The investigation did not reveal any evidence

that RespondentÓs reasons for her lower

evaluation score, or for putting her on an

action plan, were pretext for retaliation.

The investigation did not reveal that

Complainant was treated less favora bly than

other employees regarding discipline,

overtime, or training. The investigation did

reveal that Complainant complained to

Respondent that she thought her supervisor

was retaliating against her for reporting

that he was a poor manager, but reportin g her

supervisorÓs poor management style was not a

protected activity that could lead to

unlawful retaliation under the Florida Civil

Rights Act. Additionally, the investigation

revealed that any animosity between

Complainant and her supervisor was likely due

to personal issues and not retaliation for

her EEOC compliant. Complainant did request

a transfer to another building, but the

investigation revealed that ComplainantÓs

request was denied because her position did

not exist at that building and nobody worked

full - time at that building.

46 . The EEOC Investigative Report was not introduced into

evidence. However, it is apparent from the Determination that

the EEOC investigated, in connection with PetitionerÓs 2017

Charge, Mr. HinsonÓs 2016 performance evaluation of, and action

plan for, Petitioner, as well as PetitionerÓs complaints that

Mr. Hinson treated her less favorably than other employees

regarding training and that he denied her request to transfer to

another location .

Bases of Mr. HinsonÓs Eva luation Scores

47 . Mr. Hinson considered a number of specific instances

that occurred over the previous year in preparing PetitionerÓ s

2016 evaluation. One of these was her handling of the crushed

lime bin/air cannon job, which involved repair ing a solen oid on

the third floor of the air cannon on a grated floor. Mr. Hinson

provided Petitioner with a manual to do the job, and she received

verbal instructions from both Mr. Hinson and Mr. Demopoulos.

Despite these resources, and her years of experience, it took her

43 hours to complete what managers estimated should have been a

16 hour job.

48 . The time was so excessive that Mr. Little requested

Petitioner to meet with him, Mr. Demopoulos, and Mr. Hinson to

discuss the issues she had come across on the job . Petitioner

explained that much time was spent looking for and retrieving

screws that frequently fell through the third floor grating to

the floors below. She spent much time climbing down two floors,

sifting through lime dust to retrieve the screws , an d climbing

back up again . To resolve this problem on a future job,

Petitioner suggested that a second worker be assigned to work

with her and hold their hands under the solenoid to catch screws

rather than having them drop through to floors below. Manage ment

found this to be an unacceptable solution for a level 10 ICE Tech

to propose.

49 . PetitionerÓs handling of this assignment factored in

her evaluation scores in the categories of Communication,

Initiative, and Problem Solving/Decision Making.

5 0 . Ano ther of PetitionerÓs work assignments considered

during this evaluation period was her work on the hydrolyzer

Masoneilan control valves. Petitioner was assigned to do

preventive maintenance on the valves. Petitioner had performed

this same work before, b ut on this occasion calibrated the valves

backwards. A manual was available to assist her, but she had not

used it. Her handling of this assignment factored in her

evaluation scores in the categories of Initiative, Problem

Solving/Decision Making, Produc tivity, and Job Skills and

Knowledge.

51 . Another issue Mr. Hinson considered in preparing

PetitionerÓs evaluation was her failure to ask permission to take

GCU classes (City - sponsored trainings) prior to registering with

Human Resources to take them. Sh e also enrolled in supervisory

classes which were not applicable to her position, and repeated

classes she had previously taken . This factored into her

evaluation scores in Communication and Following Instructions.

5 2 . In addition to specific examples, M r. Hinson testified

generally about PetitionerÓs failure to communicate with him. He

testified that it is generally Ðvery minim al,Ñ despite his

availability on his C ity cell phone at all times.

53 . At the final hearing, the tension between Petitioner

and Mr. Hinson was palpable. PetitionerÓs demeanor during

Mr. HinsonÓs testimony was completely different than that during

the other managersÓ testimony. During the testimony of other

managers, Petitioner sat quietly taking notes and passing them to

her cou nsel. She did not make eye contact with other managers.

Petitioner sat bolt upright from the minute Mr. Hinson entered

the room until he exited following his testimony. During

Mr. HinsonÓs testimony, Petitioner practically stared him down.

54 . As if in response, Mr. HinsonÓs tone of voice during

his testimony was defensive, and at times, sarcastic. He avoided

eye contact with Petitioner.

55 . It is readily apparent that Petitioner and Mr. Hinson

do not care for one another. In fact, there is outright

resentment between the two. 6 /

56 . PetitionerÓs complaints about Mr. Hinson are not new.

During Mr. BatesÓ tenure as Major Maintenance Supervisor, between

2011 and 2014, Petitioner repeatedly complained about

Mr. HinsonÓs management style. She was offend ed by his tone of

voice, yelling, and Ðjerking her off jobs.Ñ Mr. Bates observed

that Mr. Hinson spoke loudly and barked out directions, but did

so across the board to all ICE Techs.

57 . GRU has taken some steps to resolve the issues between

Petitioner and Mr. Hinson. Mr. DeLeo asked Mr. Bates to meet

with Petitioner individually and asked her directly what

management could do to ease tensions and facilitate a better

working relationship. Petitioner stated that she wanted

management to fire her superv isor, to Ðleave her alone,Ñ and to

Ðstay out of her pocket.Ñ By this, Petitioner meant she wanted

to be able to work on the projects of her choice and to not have

her overtime hours cut. Mr. DeLeo and Mr. Bates found no cause

to terminate Mr. Hinson. Th ey could not grant her other requests

because all ICE Techs have to take the assignments given and a ll

overtime was being cut plant - wide for budgetary reasons.

58 . PetitionerÓs failure to communicate with Mr. Hinson was

intentional, due, at least in part, to resentment and fear.

59 . PetitionerÓs communication methods may not have been

antagonistic, but Mr. Hinson clearly resented her refusal to

meaningfully communicate directly with him about issues she

encountered on the job. It appears Petitioner tried to conceal

from him problems she encountered on the job, instead seeking

assistance from other employees.

60 . PetitionerÓ s managers have also noted her failure to

communicate with her supervisor. Mr. Demopoulos met with

Petitioner on numerous occasions during the 2015 and 2016

evaluation periods and counseled her on a number of areas he

identified as needing improvement, including the importance of

learning how to communicate adequately with a supervisor. He

also spoke with her about the importance of d ealing with change

in the organization and how to deal with it.

61 . Mr. Hinson testified to several specific incidents in

these same areas of deficiency in her 2015 evaluation.

Mr. Demopoulos also testified to the same areas of deficiency in

both her 201 5 and 2016 evaluations. The areas identified as

needing improvement in PetitionerÓ s 2016 evaluation were

consistent with the areas identified as needing improvement in

her 2015 evaluation.

62 . The areas in PetitionerÓs 2015 and 2016 evaluations

that Mr. Hinson identified as needing improvement w ere consistent

with Mr. Little, Mr. Demopoulos , and Mr. BatesÓ observations of

PetitionerÓs performance over the years that they worked with

her.

63 . Mr. Bates gave an example of Petitioner working on the

cleaning system for the baghouse at the AQCS. Petitioner and the

others were having difficulty with the assignment. Mr. Bates

found the manual and gave it to them so they could complete the

assignment. A few months later, a similar situation arose.

Rather than Petitioner getting the do cumentation Mr. Bates had

previously shown her, Mr. Bates had to get the manual and show

her again. Upon inspection, the manual had PetitionerÓs

handwritten notes from the previous work on the same project.

Other Alleged Retal iatory Acts

64 . In addition to the negative evaluation, Petitioner

cited denial of her request to transfer to the Kelly Plant as a

form of retaliation.

6 5 . In April 2016, two months after her 2016 Charge,

Petitioner requested a transfer to the Kelly Pl ant and that she

no longer be supervised by Mr. Hinson.

66 . Mr. DeLeo denied PetitionerÓs request. GRU employs no

ICE Techs at the Kelly Plant, and there is not enough demand to

warrant employment of a full - time ICE Tech at the Kelly Plant. 7 /

All ICE T echs are headquartered at Deerhaven and are deployed to

the Kelly Plant when an ICE work order is issued.

67 . Moreover, assigning Petitioner to the Kelly Plant would

not have relieved her from Mr. HinsonÓs supervision. Mr. Hinson

is the only superviso r of the ICE Techs.

68 . Finally, Petitioner alleges that she was denied

training opportunities given to similarly - situated employees.

The evidence does not support PetitionerÓs allegation.

69 . When the instrument and electrical shops were combined,

t he instrument techs received electrical training and vice versa.

However, the supervisor prior to Mr. Hinson tended to assign work

orders to the ICE Techs according to their strengths, so

meaningful on - the - job cross - training was limited.

70 . Petitione r gave examples of Mr. Hinson refusing to

allow other employees to assist her when she encountered

difficulty with tasks in the field, alleging that these were

instances in which she was Ðdenied training.Ñ However, the

record established that Mr. HinsonÓs intervention in those

instances was based on PetitionerÓs request for assistance from

another employee or manager, rather than communicating with her

supervisor, and her failure to consult readily available manuals

(some of which she had previously been i nstructed to use) rather

than interrupt another employeeÓs work to assist her.

71 . There was no credible evidence that Petitioner was

denied any formal training opportunities. As to GCU classes, the

record revealed that Petitioner attended many classes, some

without obtaining prior approval, and many more than once.

Allegations Post - Commission Complaint

72 . Petitioner testified about incidents occurring in 2017

and in 2018, after she filed the 2016 Charge, she alleges were

retaliatory.

73 . The first of these was a written warning issued in

April 2017. About 2:00 p.m. , on April 21, 2017, while out on the

plant grounds, Mr. Little came across a number of ICE Tech tools,

but no ICE Techs, at a gas turbine on which Petitioner and

another ICE Tech had been a ssigned to do preventative

maintenance. Being concerned that the techs were taking an

extended break (as there was no shop supervisor that Friday

afternoon), he called Mr. Demopoulos to check the shop and find

the ICE Techs that were supposed to be at tha t location. While

Mr. Little was waiting, the other ICE Tech returned.

74 . Petitioner was found in the plant about an hour later

in the motor control center, a concealed area that was not

routinely occupied or utilized as an office or to do paperwork.

T he paperwork that she claimed she was doing -- writing down the

results of visual checks of the batteries Î - was something that

would be expected to be completed by the ICE Tech when observing

the equipment. Yet, Petitioner was nowhere in the vicinity of

the equipment.

75 . Mr. L ittle issued Petitioner a first - step employee

notice, or written warning. Mr. Hinson was not involved in that

incident or issuance of the discipline, as he was on vacation

that afternoon.

76 . The second incident occurred in August 20 17. In this

incident, Petitioner was assigned to work on the sump pump for a

gas turbine transformer. Petitioner observed conditions at the

site and deemed the area to be unsafe to work unless the gas

turbine was taken out of service. Rather than report ing back to

Mr. Hinson and asking for direction, Petitioner approached Torey

Richardson, the manager of a different department , and asked him

to take the gas turbine out of service so she could work on the

sump pumps.

77 . Mr. Richardson told Petitioner he could not take the

gas turbine out of service . It was August and the plant was

operating at peak capacity , which requires use of the gas

turbines. Again, Petitioner did not report back to Mr. Hinson.

Instead, Petitioner allowed Mr. Richardson to call M r. Hinson

from his office and inform Mr. Hinson he would not take the gas

turbine out of service. This call came as a surprise to

Mr. Hinson, who had not asked for the gas turbine to be taken out

of service, and was not aware Petitioner had determined the work

area to be unsafe with the gas turbine in service.

78 . Petitioner was given a written warning and a three - day

suspension for not contacting her supervisor prior to requesting

another department to interrupt normal operations.

79 . Petitioner had b een repeatedly counseled about her

failure to communicate with her supervisor when issues arose in

the field.

8 0 . Petitioner complained of a third incident occurring in

early 2018. In that incident, Mr. Hinson instructed Petitioner

to unwire a valve, rep lace the components, and work with the

mechanics to have it reinstalled. Very little non - hearsay

evidence was introduced related to this incident. The most that

can be found is Mr. Little called Petitioner in to question her

about the job, which he state d she had abandoned and left for a

mechanic to do. In the end, Petitioner received no discipline

regarding the incident.

CONCLUSIONS OF LAW

8 1 . The Division has jurisdiction over the subject matter

of, and parties to, this proceeding. §§ 120.569 and 120 .57(1),

Fla. Stat. (2017).

8 2 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

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

8 3 . The Florida Civil Rights Act (Ðthe ActÑ), at section

760 .10(7), prohibits retaliation in employment as follows:

(7) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this 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 . (emphasis

added) .

8 4 . Florida courts have held that because the Act is

patterned after Tit le VII of the Civil Rights Act, as amended,

federal case law dealing with Title VII is applicable. See

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

(Fla. 1st DCA 1991).

8 5 . The burden of proving retaliation follows the general

rules enu nciated for proving discrimination. Reed v. A.W.

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

8 6 . There is no direct evidence the City lowered

PetitionerÓs 2016 evaluation score and placed her on a

corrective action plan in retaliation for Petition er for filing

the 2016 Complaint.

8 7 . To establish a prima facie case of discrimination in

retaliation by indirect eviden ce, Petitioner must show:

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

conduct; (2) that she suffered an adverse e mployment 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).

8 8 . It is undisputed that Petitioner filed the

2016 Charge, which is a statutorily protected activity. Thu s,

she has demonstrated the first element of a prima facie case.

89 . As to the second element, Ð[n]ot all conduct by an

employer negatively affecting an employee constitutes adverse

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

1232, 123 8 (11th Cir. 2001) (Plaintiff, who received one oral

reprimand, one written reprimand, the withholding of a bank key,

a nd a restriction on cashing non account - holder checks, did not

suffer an adverse employment action). ÐThe asserted impact

cannot be specu lative and must at least have a tangible adverse

effect on the plaintiffÓs employment.Ñ Id. at 1239. An

employee is required to show a Ðserious and material change in

the terms, conditions, or privileges of employment.Ñ Id.

9 0 . Petitioner was not disci plined, demoted, dismissed,

transferred, or otherwise subjected to any action with a

tangible adverse effect on her employment due to the scores on

her 2016 evaluation. The uncontroverted evidence is Petitioner

received the same salary increase as other l evel 10 Ice Techs

following her 2016 evaluation.

9 1 . Further, under the facts of this case, that Petitioner

was placed on a corrective action plan , does not constitute an

adverse employment action. The plan was not a form of

discipline under the GRU pers onnel policies and resulted in no

tangible effect on the terms, conditions, or privileges of

PetitionerÓs employment. In fact, GRU abandoned the plan

following PetitionerÓs objection to it through her union

representatives.

9 2 . PetitionerÓs allegation th at she was denied a transfer

to the Kelly Plant was proven. However, the denial of

PetitionerÓs transfer request was not an adverse employment

action. The denial did not result in any material change to

terms or conditions of PetitionerÓs employment. Th e transfer,

had it been available, would not have resulted in an increase in

PetitionerÓs employment status or pay, or a substantial change

in her duties. Further, the transfer would have required GRU to

create a special position not within its normal bus iness

operations.

9 3 . As to PetitionerÓs allegation that she was denied

training opportunities, she failed to prove that allegation.

9 4 . Assuming, arguendo, Petitioner had established she

suffered an adverse employment action, PetitionerÓs case fails

bec ause she did not establish the third element -- a causal

connection between her engagement in the protected activity and

the adverse employment action.

9 5 . The U.S. Supreme Court changed the causation standard

for Title VII retaliation claims in Universit y of Texas

Southwest Medical Center v. Nassar , 570 U.S. 338 (2013). There,

the Court held that Ð[t]he text, structure, and history of Title

VII demonstrate that a plaintiff making a retaliation claim

under section 2000 e - 3(a) must establish that his or her

protected activity was a but - for cause of the alleged adverse

action by the employerÑ. Nassar , 570 U.S. at 365 . ÐTitle VII

retaliation claims must be prove[n] according to traditional

principles of but - for causation, not the lessened causation

testÑ for status - based discrimination. Id. at 360 .

9 6 . There is no direct evidence of a causal connection in

this case.

9 7 . As to circumstantial evidence, there is no temporal

proximity between the filing of her 2016 Complaint on

February 20, 2016, and the is suance of the annual performance

evaluation on November 30, 2016. Mere temporal proximity,

without more, must be Ðvery close.Ñ Thomas v. Cooper Lighting,

Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007). ÐA three to four

month disparity between the statutoril y protected expression and

the adverse employment action is not enough.Ñ Id. (citing

Richmond v. Oneok , 120 F.3d 205, 209 (10th Cir. 1997) and Hughes

v. Derwinski , 967 F.2d 1168, 1174 - 75 (7th Cir. 1992)).

9 8 . Again, assuming arguendo, Petitioner had e stablished a

prima facie case of retaliation, GRU presented persuasive

evidence that PetitionerÓs 2016 evaluation was based on her

actual work performance and the efforts of management to reform

Ðgrade inflationÑ in the evaluation process. The record was

replete with evidenc e of legitimate non discriminatory reasons

supporting the scores on her 2016 evaluation.

99 . As to the denial of PetitionerÓs transfer request,

there is temporal proximity of approximately two months.

However, GRU produced ample evid ence that the denial of

PetitionerÓs transfer request was not a pretext for retaliation.

No ICE Tech positions were available at the Kelly Plant, and had

the transfer been granted, Petitioner would have remained under

the supervision of Mr. Hinson.

10 0 . Petitioner did not present any credible evidence that

GRUÓs reasons for its actions were pretext for retaliation.

Petitioner expressed her belief that the evaluation was

retaliatory because it was based upon facts with which she

disagreed, but disagreeme nt with the employerÓs decision falls

short of the showing necessary to establish pretext. Chambers

v. Walt Disney World Co. , 132 F. Supp. 2d 1356, 1366 (M.D. Fla.

2001).

Allegations of Retaliation Post - Commission Complaint

10 1 . As to the other i nstanc es of alleged retaliation -- the

April 2017 written warning, the August 2017 written warning and

three - day suspension, and th e 2018 discussion with Mr. Little --

there was no evidence that these issues had been presented to

the Commission . The Commission Dete rmination established that

PetitionerÓs allegations of her poor performance evaluation,

denial of her transfer request, and denial of training were the

only allegations investigated by the Commission in arriving at

its determination that there was no cause to believe GRU

retaliated against Petitioner for engaging in statutorily -

protected activity.

10 2 . A plaintiff is required to administratively exhaust

her remedies through a charge of discrimination before bringing

a civil suit on her claims in order to Ðnotify the employer of

discriminatory practices . Ñ See Gregory v. Ga. Dep Ó t. of Human

Res. , 355 F.3d 1277, 1279 (11th Cir. 2004); see also Wilkerson

v. Grinnell Corp. , 270 F.3d 1314, 1319 (11th Cir. 2001) (ÐOne of

the primary purposes for the charge requ irement is to provide

notice to the employer of the allegations against it.Ñ) .

10 3 . In order to bring a civil claim under the Act , a

plaintiff must first file a charge alleging the discriminatory

conduct within 365 days of when it occurred. The exhaustio n

requirement allows the Commission , Ðthe first opportunity to

investigate the alleged discriminatory practices to permit it to

perform its role in obtaining voluntary compliance and promoting

conciliation efforts.Ñ Ramsay v. Broward C nty . SheriffÓs Off . ,

2007 U.S. Dist. LEXIS 98428 *16 (S.D. Fla. 2007). See also

Jackson - Levarity v. Dep Ó t. of Child. and Fams. , 2003 Fla. Cir.

LEXIS 1081 (Fla. 2d Cir. 2003) (holding that a party cannot

proceed on claims from discrete acts not reasonably related to

the alleg ations in a charge). It is well - settled that

Ð[d]iscrete acts of discrimination that occur subsequent to the

filing of an administrative charge are not reasonably related to

the charged conduct.Ñ Buzzi v. Gomez , 62 F. Supp. 2d 1344, 1352

(S.D. Fla. 1999) (citing Ray v. Freeman , 626 F.2d 439, 443 (5th

Cir. 1980)). 8 / The denial of promotions which occur after the

filing of a charge of discrimination are Ðdiscrete acts , Ñ which

require the filing of a new or an amended charge. Buzzi ,

62 F. Supp. 2d at 1352.

10 4 . In this case PetitionerÓ s complaint was specific --

that her 2016 evaluation, attached to her charge, was

retaliation for having filed the 2016 Complaint. Therefore, the

Division does not have jurisdiction to consider her claims as to

the April and August 2017 discipline, and her allegation of a

2018 discipline.

10 5 . ÐThe ultimate burden of persuading the trier of fact

that the [employer] intentionally discriminated against the

[employee] remains at all times with the [employee].Ñ Texas

Dep Ó t. of C mty. Aff. v. Burdine , 450 U.S. 248, 253 (1981). In

this case, Petitioner failed to meet her burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed by Petitioner against Respo ndent in

Case No. 2017 - 00520 .

DONE AND ENTERED this 23rd day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN W YK

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 Administrativ e Hearings

this 23rd day of July , 2018 .

ENDNOTES

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

Florida Statutes are to the 2016 version, which was in effect

when Petitioner received the alleged retaliatory performance

evaluation.

2/ The parties waived the requirement that the undersigned issue

the recommended order within 30 days after receipt of the

Transcript by agreeing to a date for filing proposed recommended

orders that is more than 10 days after the date the Transcript

was filed. See Fla. Admin. Code R. 28 - 106.216.

3/ The outcome of the 2016 Charge was not a matter of record in

this proceeding.

4 / Two ICE TechÓs scores were not available for comparison as

they were no longer in the ICE s hop in 2016. Mr. DickhautÓs

employment was terminated bef ore his 2016 evaluation and

Mr. Trujillo retired before his 2016 evaluation.

5 / Mr. Welch was not identified by first name anywhere in the

record.

6 / Ironically, by all accounts, the two worked well together

whe n they were both ICE Techs , but that changed in the years

since Mr. Hinson was promoted to supervisor.

7 / PetitionerÓs testimony that Claude Pinder, the former Kelly

Plant manager, had requested an ICE Tech position be created at

the plant and that Petitioner be assigned the re, was

uncorroborated hearsay testimony for which no exception applies.

Thus, the testimony cannot support a finding of fact. See Fla.

Admin. Code R. 28 - 106.213(3).

8 / The caselaw establishes three exceptions to the Ðdiscrete

actsÑ rule, none of which apply under the specific facts of this

case.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Denise L. Burns

6321 Johnston Avenue

Starke, Flo rida 32091

(eServed)

Elizabeth A. Waratuke, Esquire

Gainesville City Attorney Ós Office

200 East University Avenue

Gainesville, Florida 32601

(eServed)

Gary Lee Printy, Esquire

Gary Lee Printy, Attorney at Law

1804 Miccosukee Commons Drive , Suite 200

Ta llahassee, Florida 32308

(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 wr itten 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.