19-000029 Virginia Howell vs. College Of Central Florida Status: Closed Recommended Order on Monday, June 17, 2019.

Summary: Petitioner failed to prove that Respondent was on notice of misconduct or that Respondent's decision to terminate Petitioner was a pretext for discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGINIA HOWELL,

Petitioner,

vs. Case No. 19 - 0029

COLLEGE OF CENTRAL FLORIDA,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal adminis trative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings (ÐDOAHÑ) in Ocala,

Florida, on March 28, 2019.

APPEARANCES

For Petitioner: Joseph C. Shoemaker, Esquire

Bogin, Munns, and Munns, P.A.

628 South 14th Street

Leesburg, Florida 34748

For Respondent: Craig Frischer Novick, Esquire

Susan T. Spradley, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The issues for determination are: (1 ) did the College of

Central Florida (ÐCCFÑ) commit an unlawful employment practice by

discriminating against Petitioner on the basis of age and/or sex;

and (2) did CCF unlawfully retaliate against Petitioner by firing

her.

PRELIMINARY STATEMENT

On June 6, 2018, Petitioner (ÐMs. HowellÑ) filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Ðthe CommissionÑ), alleging that she was the victim of age and

sex discrimination. In support thereof, Ms. Howell alleged the

following:

I was employed by [CCF] from approximately

August 2015 until I was unlawfully discharged

on or about July 21, 2017.

I was employed by CCF as a landscape worker

for nearly two years. During my employment

with [CCF], I did not miss work, never had

any sort o f discipline or corrective action

taken against me, and was an exemplary

employee. Nonetheless, I do believe that I

was discriminated [against] in the work place

and treated unfairly based upon my gender

and/or my age and ultimately fired in

retaliation f or complaining about such

unlawful behavior.

Such unlawful actions started early on in my

employment and continued until my

termination. In approximately January of

2016, a co - worker, Josh, came up in a Kubota

four - wheel drive vehicle and tried to push m e

and a handicapped co - worker, Marvin, while we

were in the parking lot in a golf cart. As

this was both inappropriate and obviously

dangerous, I, of course, told him to stop,

but he refused to do so and activity of this

sort continued.

Thereafter, in approximately March 2016, Josh

came up behind me while I was getting ice and

ran his finger down my neck. This action

startled me and was, of course, completely

inappropriate. I pushed him away from me and

told him to keep his hands off of me. Other

emp loyees in the area laughed at the

incident.

In approximately June of 2016, Josh, along

with another co - worker, again pushed me with

the Kubota vehicle while I was in the golf

cart. Josh hit me harder in this incident

than in the previous one. Josh and h is co -

worker laughed at me after the incident. I

told both to stop and noted that I had a rod

in my back.

Next, in approximately August 2016, another

co - worker, Craig, hit the golf cart that I

was in with the company pickup truck. Two

mechanics at the i ncident started laughing

and told me to Ðact like I was hurt.Ñ

Throughout my employment I was harassed

nearly every day by my younger male co -

workers. This included calling me various,

vicious names and acting like they were going

to hit me with vehicles . I reported these

various, ongoing incidents to management, but

they continued nonetheless.

I was, for example, given the middle finger

many times by Thomas Smith and was called a

Ð[c*nt]Ñ and a Ð[f***ing c*nt]Ñ by Mr. Smith.

I told him that I found th is offensive and

asked him to stop and he merely told me that

he talked to his wife that way. Mr. Smith

communicated these incidents to his wife, who

is also an employee, and I believe she may

have played some role in getting me

terminated.

I asked many times to be present when

management spoke to the offending employees

as to my complaints, but I was not allowed to

do so. Mr. Morelock, the plant operations

manager, had a meeting with me as to these

issues. I was told that he would get back to

me as to my concerns, but did not do so and

never spoke to me again. I was ultimately

terminated on or about July 21, 2017 with a

phone call wherein I was simply told I was

Ðno longer needed.Ñ

I felt that I was clearly singled out based

upon my age and gender a nd was treated

significantly less favorably than younger

and/or male employees of the company.

Moreover, I was terminated for complaining

about the ongoing, varied harassment that I

suffered while employed by CCF.

After conducting an investigation, the Commission issued a

notice on November 29, 2018, stating that Ðno reasonable cause

exists to believe that an unlawful practice occurred.Ñ The

Commission explained its determination as follows:

[Ms. Howell] worked for [CCF], a college, as

a landscape work er and groundskeeper.

[Ms. Howell] claimed that she was wrongfully

terminated after she complained of

mistreatment by her coworkers. [Ms. Howell]

explained that a coworker, Josh, tried to use

his four - wheel drive vehicle to push her

while she was sittin g in a golf cart.

Furthermore, [Ms. Howell] stated that Josh

ran his finger down her neck and hit her golf

cart while he was driving a truck. According

to [Ms. Howell], these incidents took place

between January 2016 and August 2016.

[Ms. Howell] discu ssed mistreatment by her

co - workers during a meeting with [CCF]Ós

manager of plant safety and facility

operations, in June 2017. At this time,

[Ms. Howell] never mentioned any

discriminatory conduct and stated that she

did not want to file a formal compl aint.

Approximately two days after this meeting,

[CCF] noticed video footage of [Ms. Howell]

engaging in a verbal altercat ion with a

coworker. [CCF] terminat ed [Ms. Howell] as a

result. The investigation did not reveal

other employees who engaged in sim ilar

conduct without being disciplined.

[Ms. Howell] alleged that she was subjected

to disparate treatment based on her age and

sex. [Ms. Howell] fails to prove a prima

facie case because the investigation did not

reveal evidence of similarly situated

c omparators outside [Ms. Howell]Ós protected

classes who were treated more favorably or

any other evidence of discrimination. Also,

[Ms. Howell] alleged that she was harassed

based on her sex and age. Assuming

[Ms. Howell] can prove a prima facie case,

t his claim still fails because the evidence

shows that the severe and pervasive conduct

[Ms. Howell] suffered occurred in 2016.

Therefore, this claim is not timely. In

addition, [Ms. Howell] alleged that [CCF]

retaliated against her. [Ms. Howell] fails

t o prove a prima facie case because she was

not engaged in protected activity as

described in Section 760.10(7), Florida

Statutes.

Ms. Howell responded by filing a Petition for Relief with

the Commission on January 2, 2019, and the Commission referr ed

the case to DOAH that same day.

Via a Notice of Hearing, issued on January 24, 2019, the

undersigned scheduled the final hearing to occur in Ocala,

Florida, on March 28 and 29, 2019.

On March 24, 2019, CCF filed a ÐMotion to Relinquish

Jurisdiction from the Administrative Law Judge to the Florida

Commission on Human RelationsÑ (Ðthe Motion to RelinquishÑ).

In addition to arguing that there were no disputed issues of

material fact, CCF asserted that Ms. HowellÓs complaint was

untimely with regard to the majority of the alleged violations.

See § 760.11(1), Fla. Stat. (2015 - 2017) 1/ (mandating that Ð[a]ny

person aggrieved by a violation of ss. 760.01 - 760.10 may file a

complaint with the commission within 365 days of the alleged

violation, naming the employer . . . responsible for the

violation and describing the violation.Ñ).

After considering Ms. HowellÓs response, the undersigned

issued an Order on March 25, 2019, denying the Motion to

Relinquish. The aforementioned Order stated that Ð[w]hile the

Motion to Relinquish was unsuccessful in definitively

establishing that there are no disputed issues of material fact,

it was successful in demonstrating that the issues to be

addressed at the final hearing can be substantially narrowed.Ñ

Therefore, the O rder specified that Ð[n]o alleged incidents that

occurred more than 365 days prior to the date that [Ms. Howell]

filed her Charge of Discrimination with [the Commission] are at

issue in this proceeding.Ñ

The final hearing was commenced as scheduled and c ompleted

on March 28, 2019. Ms. Howell testified on her own behalf and

presented the testimony of Newell Melton, Thomas Smith, Mark

Sakowski, and Katherine Hunt. CCF presented the testimony of

Carol Smith.

Joint Exhibits 1 through 5 and 8 through 10 we re accepted

into evidence. Ms. HowellÓs Exhibits 2 and 3 and CCFÓs

Exhibits 1 through 7 were accepted into evidence.

At the close of the final hearing, the undersigned granted

the partiesÓ request that the deadline for their proposed

recommended order s be 30 days after the filing of the transcript.

The Transcript was filed with DOAH on April 19, 2019, and

the parties timely filed their proposed recommended orders on

May 20, 2019. The undersigned considered all of the post - hearing

submittals 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. Howell began working in CCFÓs lawn maintenance

department on August 17, 2015. She worked 25 hours a week

performing activities such as removing weeds, picking up debris,

and maintaining the flower beds around CCFÓs campus.

2. CCFÓs lawn maintenance department consisted of

approximately 20 people, but Ms. Howell was the only female. At

the time of the final hearing, Ms. Howell was 67 years old.

3. Tommy Morelock, CCFÓs director of f acilities , made the

decision to hire Ms. Howell.

4. Ms. Howell claims that her co - workers mistreated her.

For example, she asserts that there were at least three occasions

when co - workers intentionally drove a four - wheel drive vehicle or

a pickup truck into a golf cart driven by her. Another alleged

incident involved a co - worker running a finger down h er neck. In

addition, Thomas Smith supposedly Ðflipped her offÑ on numerous

occasions throughout her tenure at CCF and referred to her as a

Ðf***ing c*nt.Ñ

5. In approximately August of 2016, after a co - worker

allegedly used a vehicle to stri ke a golf cart driven by

Ms. Howell, her fiancée, Newell Melton, called CCF in order to

lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke

with Katherine Hunt, one of Mr. MorelockÓs subordinates and CCFÓs

manager of facility operations and constructi on projects.

6. Ms. Hunt met with Ms. Howell soon afterward about these

alleged incidents. Ms. Howell also described how her male co -

workers would grab themselves b etween the legs. However,

Ms. Howell did not indicate that those actions were directed

toward her.

7. Ms. Howell did not mention any improper conduct by

Thomas Smith during her meeting with Ms. Hunt.

8. In late 2016 or early 2017, Ms. Howell also met with

Mark Sakowski, another of Mr. MorelockÓs subordinates and CCFÓs

manager of plan t safety and facility operations, about one of the

vehicle incidents. Mr. Sakowski told Ms. Howell that he would

talk to the co - worker in question and asked her to bring any

future issues to his attention.

9. Ms. Howell did not mention anything to Mr. Sakowski

about Thomas Smith directing obscene g estures toward her.

10. After the meeting, Mr. Sakowski spoke to employees

within the lawn maintenance department about professionalism,

safety, and hav ing respect for others.

11. Ms. Howell never filed a formal complaint with CCF

about her co - wor kersÓ alleged misconduct.

12. At Mr. MorelockÓs request, Ms. Howell met with him and

Caroline Smith, CCFÓs equity officer, on June 7, 2017, to discuss

her complaints. During this meeting, Ms. Howell described :

(a) how her co - workers would drive vehicles into golf carts she

was occupying; (b) the incident in which a co - worker ran a finger

down her neck ; and (c) a rumor among her co - workers that she was

planning to file a sexual harassment complaint.

13. As CCFÓs equity officer, Ms. Smith is responsible for

investigating student and employee claims of discrimination or

harassment. After hearing Ms. SmithÓs description of the alleged

incidents, she concluded that the allegations involved

inappropriate Ðhor seplay Ñ rather than age and/or gender - based

discrimination. She then explained CCFÓs employee complaint

procedure to Ms. Howell, but Ms. Howell declined to initiate a

formal complaint.

14. Ms. Howell did not mention Mr. SmithÓs alleged

misconduct dur ing her meeting with Mr. Morelock and Ms. Smith.

15. In a memorandum dated June 7, 2017, and addressed to

Ms. Howell, Mr. Morelock wrote the following:

As discussed in our 11:00 AM meeting today

with the College Equity Officer, Mrs. Smith,

to address yo ur complaints regarding

horseplay in the workplace, rumors, and

possible harassment, I have met with the 3

employees in your complaint and have

addressed these issues.

Please let me know immediately if there are

any further incidents or if you have any

ad ditional concerns.

16. Mr. Morelock noted in the memorandum that Ms. Hunt,

Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received

a copy of Mr. MorelockÓs memorandum shortly after their meeting.

17. At approximately 12:30 p.m. on July 19, 2017,

Ms. Howell was nearing the end of her workday and driving a golf

cart. She crossed paths with a vehicle driven by Mr. Smith and

noticed in her rearview mirror that Mr. Smith was directing an

obscene gesture toward her. 2/

18. Ms. Howell proceeded on her way to leaving the CCF

campus. However, she reversed course and, with the assistance of

another co - worker, spent approximately ten minutes driving around

the CCF campus looking for Mr. Smith.

19. Upon finding Mr. Smith at the back of the CCF ca mpus

planting junipers, Ms. Howell exited the golf cart and angrily

told Mr. Smith to stop directing obscene gestures toward her.

According to Mr. Smith, Ms. Howell went into a Ðtirade.Ñ

20. After confronting Mr. Smith, Ms. Howell left the campus

wi thout reporting this new incident to any supervisors. As far

as she knew, none of the pertinent supervisors were available.

21. Mr. Smith felt threatened and immediately sought out

Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that

he stop spreading rumors about her , and Ms. Howell supposedly

stated that CCF, Mr. Smith, and Mr. SmithÓs wife Ðwould be

sorry.Ñ 3/

22. Rather than obtaining Ms. HowellÓs version of the

confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock,

who was o n vacation at the time. Mr. Morelock recommended that

they confer with CCFÓs director of Human Resources and authorized

them to resolve the matter as they saw fit.

23. Mr. Sakowski and Ms. Smith called Ms. Howell on

July 21, 2017, and notified her th at she had been fired. The

only explanation given to Ms. Howell was that she did not work

well with supervisors and co - workers.

24. Mr. Sakowski explained that he was concerned about his

staffÓs safety and that of CCFÓs students:

We take safety very se riously on the campus.

And in this day and age with mass - casualty

and active - shooter scenarios, we practice

these drills on campus on an annual basis.

And it did scare me that -- I did not want it

[to] make national news.

25. Mr. Sakowski was also con cerned by the fact that

Ms. Howell confronted Mr. Smith rather than reporting his obscene

gesture to a supervisor:

Instead of coming back onto campus after

leaving her shift, she should have come into

the bui lding and either got myself or

Ms. Hunt at tha t time and explained what had

just happened instead of taking matters into

her own hands.

26. Because Mr. MorelockÓs memorandum to Ms. Howell

directed her to Ð[p]lease let me know immediately if there are

any further incidents or if you have any additi onal concerns,Ñ

Ms. Hunt considered Ms. Howell to be insubordinate when she

confronted Mr. Smith on July 19, 2017. 4/

2 7. This was the first disciplinary action that CCF had

taken against Ms. Howell.

28. Since being fired by CCF, Ms. Howell has unsuc cessfully

applied for two positions, a greeter at a hospital and a

landscaping technician at a local cemetery. While she considers

herself to be retired, Ms. Howell is still looking for

employment.

Ultimate Findings

29. Ms. Howell persuasively testi fied that Mr. Smith

directed an obscene gesture toward her on July 19, 2017.

30. However, the preponderance of the evidence demonstrates

that CCF did not know nor should have known that Mr. Smith

directed obscene gestures and/or language toward Ms. Howe ll.

While Ms. Howell consistently testified that she did not discuss

Mr. SmithÓs conduct with Mr. Sakowski or Ms. Hunt, she gave

conflicting testimony as to whether she reported Mr. SmithÓs

conduct to Mr. Morelock during their meeting on June 7, 2017. In

contrast, Carol Smith, CCFÓs equity officer, persuasively

testified that Mr. SmithÓs conduct was not discussed during that

meeting. 5/

CONCLUSIONS OF LAW

31. DOAH has jurisdiction over the parties and the

subject matter of this proceeding pursuant to se ctions 120.569

and 120.57, Florida Statutes, and Florida Administrative Code

Rule 60Y - 4.016(1).

32. The legislative scheme contained in sections 760.01

through 760.11, Florida Statutes, is known as the Florida Civil

Rights Act of 1992 (Ðthe FCRAÑ).

33 . Section 760.10(1)(a) prohibits discrimination Ðagainst

any individual with respect to compensation, terms, conditions,

or privileges of employment, because of such individualÓs race,

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

statu s.Ñ

34. The FCRA 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.

35. Florida courts have determined that federal

discrimination law should be used as guidance when construing the

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

21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994) .

36. In the instant case, Ms. Howell has the burden of

proving by a preponderance of the evidence that CCF committed an

unlawful employment practice. See EEOC v. JoeÓs Stone Crabs,

Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002)(noting that a claimant

be ars the ultimate burden of persuading the trier of fact that

the employer intentionally discriminated against the employee);

§ 120.57(1)(j), Fla. Stat.

Ms. HowellÓs Hostile Work Environment Claim

37. Ms. Howell argues that she was subjected to a hostile

work environment due to her age and/or sex. As discussed in the

Preliminary Statement, the majority of the alleged misconduct

occurred more than 365 days prior to the filing of Ms. HowellÓs

Charge of Discrimination and could not be addressed in this

proce eding. See § 760.11(1), Fla. Stat. (2015 - 2017)(mandating

that Ð[a]ny person aggrieved by a violation of s. 509.092 may

file a complaint with the commission within 365 days of the

alleged violation naming the person responsible for the violation

and descri bing the violation.Ñ).

38. Because Ms. Howell filed her Charge of Discrimination

on June 6, 2018, the only misconduct that can be addressed is the

incident on July 19, 2017, when Mr. Smith directed an obscene

gesture toward Ms. Howell. While the unders igned credited

Ms. HowellÓs version of what transpired that day, that alone does

not demonstrate that she has a meritorious hostile work

environment claim based on age and/or sex discrimination. 6/

39. ÐTitle VII is violated when the workplace is per meated

with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the

victimÓs employment and create an abusive working environment.Ñ

Coles v. Post Master Gen. United States Postal Serv. , 711 Fed.

Appx. 890, 897 (11 th Cir. 2017).

40. In order to substantiate such a claim, a plaintiff must

satisfy the following criteria: (a) she belongs to a protected

group; (b) she has been subjected to unwelcome harassment;

(c) the harassment was based on a protected characteristic of the

employee; (d) the harassment was sufficiently severe or pervasive

to alter the terms and conditions of employment; and (e) the

employer was responsible for the harassment under a theory of

vicarious or direct liability. S ee Miller v. Kenworth of Dothan,

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

41. ÐOnly conduct that is based on a protected category,

such as age, may be considered in a hostile work environment

analysis.Ñ Dexter v. Amedisys Home Health, Inc. , 965 F. Su pp. 2d

1280, 1289 ( N.D . Al a . 2013). ÐInnocuous statements or conduct,

or boorish ones that do not relate to the age of the actor or of

the offended party (the plaintiff), are not counted.Ñ Id.

42. With regard to the severity or pervasiveness of

haras sment, an employee must subjectively perceive the harassment

as sufficiently severe or pervasive to alter the terms or

conditions of employment, and the employeeÓs subjective

perception must be objectively reasonable. Mendoza v. Borden,

Inc. , 195 F.3d 123 8, 1246 (11 th Cir. 1999). ÐThe burden is on

[the] Plaintiff to demonstrate that she perceived, and that a

reasonable person would perceive, the working environment to be

hostile or abusive.Ñ Dexter , 965 F. Supp. 2d at 1290.

43. As for whether an empl oyeeÓs subjective perception is

objectively reasonable, the United States Supreme Court has held

that courts should consider: (a) the frequency and severity of

the conduct at issue; (b) whether the conduct is physically

threatening or humiliating rather t han a mere offensive

utterance; and (c) whether the conduct unreasonably interfer e s

with the plaintiffÓs job performance. Mendoza , 195 F.3d at 1246.

ÐAlthough these factors help guide the inquiry, the objective

element is not subject to mathematical prec ision.Ñ Smelter v. S.

Home Care Servs. , 904 F.3d 1276, 1285 (11 th Cir. 2018). A court

Ðmust view the evidence cumulatively and in the totality of the

circumstances.Ñ Id.

44. The Supreme Court has repeatedly emphasized that simple

teasing, offhand comme nts, and isolated incidents, unless

extremely serious, will not amount to discriminatory changes in

the terms and conditions of employment. Dexter , 965 F. Supp. 2d

at 1290. ÐThe Eleventh Circuit considers an incident a week to

be sufficiently frequent t o bolster a plaintiffÓs case but

considers an incident every two months to be insufficiently

frequent to do so.Ñ Id. But see Smelter , 904 F .3d at 1286

(rejecting an argument that a single use of the n - word was

insufficient to establish severity as a matt er of law and noting

Ð[t]his Court has observed that the use of this word is

particularly egregious when directed toward a person in an

offensive or humiliating manner.Ñ).

45. In assessing whether the employer is responsible for

harassment perpetrated b y a co - worker under a theory of vicarious

or direct liability, Ðan employer is directly liable for an

employeeÓs unlawful harassment if the employer was negligent with

respect to the offensive behavior.Ñ Vance v. Ball State Univ. ,

133 S. Ct. 2434, 2441, 1 86 L. E d. 2d 565 (2013). Employer

liability based on a co - workerÓs actions requires a showing of

negligence. Id. A plaintiff must show that the employer knew or

should have known of the harassing conduct, but failed to take

prompt remedial action. Bald win v. Blue Cross/Blue Shield of

Ala. , 480 F.3d 1287 (11 th Cir. 2007). ÐActual notice is

established by proof that management knew of the harassment,

whereas constructive notice will be found where the harassment

was so severe and pervasive that managemen t should have known of

it.Ñ Miller , 277 F.3d at 1278. In evaluating whether there was

constructive notice, tribunals evaluate the remoteness of the

location of the harassment as compared to the location of

management, whether the harassment occurred inte rmittently over a

long period of time, whether the victim worked full or part - time,

and whether there were only a few, discrete instances of

harassment.

46. As for the sufficiency of an employerÓs remedial

action, there is no bright - line test. ÐWhether a n employerÓs

response is sufficient depends on, among other things, the

effectiveness of the steps taken, and whether it was reasonably

likely to prevent the misconduct from recurring.Ñ Hollon v. DAS

N.A., Inc. , 2016 U.S. Dist. LEXIS 114609 , at *19 - 20 (M. D. Ala.

2016).

47. With regard to the instant case, even if one were to

assume that Ms. Howell belongs to a protected group, was

subjected to unwelcome harassment, that the harassment was based

on a protected characteristic, and that the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of her employment, she still would not have a prima

facie hostile work environment claim because the preponderance of

the evidence demonstrated that Ms. Howell did not put CCF on

notice of Mr. SmithÓs allegedly pervasive conduct that occurred

prior to the obscene gesture on July 19, 2017.

48. Even if one were to accept Ms. HowellÓs testimony that

she complained about Mr. Smith during her meeting with

Mr. Morelock, the fact that she waited until June 7, 2017, to

notify a supervisor indicates she did not subjectively perceive

Mr. SmithÓs conduct to be sufficiently severe or pervasive to

alter the terms or conditions of employment. 7/ Therefore, even if

one were to credit Ms. HowellÓs descript ion of the June 7, 2017,

meeting over that of M r . Smith (which the undersigned does not),

Ms. Howell would still be unable to satisfy all of the elements

of a prima facie hostile work environment claim.

Ms. HowellÓs Retaliation Claim

49. As for Ms. HowellÓs claim that her termination was

unlawful retaliation, the burden of proof in Title VII

retaliation cases is governed by the framework established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973). A pla intiff establishes a prima facie

case by demonstrating the following: (a) that she engaged in a

statutorily protected activity; (b) she experienced an adverse

employment action; and (c) a causal link between the protected

expression and the adverse action . Coles , 711 Fed. Appx. at 896.

The burden then shifts to the defendant to negate the inference

of retaliation by presenting legitimate reasons for the adverse

employment action. If the defendant is successful, then the

plaintiff bears the burden of pro ving that the reasons offered by

the defendant are pretextual. Id.

50. With regard to the causal link element, the Eleventh

Circuit construes Ðthe causal link element broadly so that a

plaintiff merely has to prove that the protected activity and the

adverse action are not completely unrelated.Ñ Williams v. Ala.

DepÓt of Indus. Rels. , 684 Fed. Appx. 888, 894 (11 th Cir. 2017).

ÐA plaintiff satisfies this element (for the purpose of making a

prima facie case) if he provides evidence that (1) the defen dant

was aware of his protected expression or activity; and (2) there

was a close temporal proximity between this awareness and the

adverse action.Ñ Id. at 894. ÐA close temporal proximity

between the protected expression and an adverse action is

suffici ent circumstantial evidence of a causal connection for

purposes of a prima facie case.Ñ Higdon v. Jackson , 393 F.3d

1211, 1220 (11 th Cir. 2004). See Donnellon v. Fruehaud Corp. ,

794 F.2d 598, 601 (11 th Cir. 1986)(stating that Ð[t]he short

period of time

discrimination complaint and the plaintiffÓs discharge belies any

assertion by the defendant that the plaintiff failed to prove

causation.Ñ). However, Ð[i]f there is a substantial delay

between the protected express ion and the adverse action in the

absence of other evidence tending to show causation, the

complaint of retaliation fails as a matter of law.Ñ Dexter , 965

F. Supp. 2d at 1295.

51. If an employer articulates a legitimate, non -

discriminatory and non - reta liatory reason for the adverse action,

then a petitioner establishes that the aforementioned reason was

merely a pretext by demonstrating that the proffered reason was

not the true reason for the employment decision. Jackson v.

State of Ala. State Tenure CommÓn , 405 F.3d 1276, 1289 (11 th Cir.

2005). ÐA reason is not pretext for discrimination unless it is

shown both that the reason was false, and that discrimination was

the real reason.Ñ Brooks v. Cnty . CommÓn of Jefferson Cnty . ,

Ala. , 446 F.3d 1160, 116 3 (11 th Cir. 2006). A plaintiff Ðcan

meet her burden either directly by persuading the court that a

discriminatory reason more likely motivated the employer or

indirectly by showing that the employerÓs prof f ered explanation

is unworthy of credence.Ñ Dext er , 965 F. Supp. 2d at 1296. See

Jones v. Gerwens , 874 F.2d 1534, 1541 (11 th Cir. 1989)(noting

that when assessing whether an employerÓs proffered reason was

pretextual, it is the decision - makerÓs motive that is at issue);

Watkins v. Sverdrup Tech., Inc. , 153 F.3d 1308, 1314 (11 th Cir.

1998)(stating that in order to discredit an employerÓs

explanation, a plaintiff Ðmust demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employerÓs prof f ered legitimate re asons for

its action that a reasonable factfinder could find all of those

reasons unworthy of credence.Ñ); Murphree v. CommÓr , 644 Fe d .

Appx. 962, 968 (11 th Cir. 2016)(noting that Ð[i]n evaluating

pretext, we ask whether the plaintiff has cast sufficient d oubt

on the defendantÓs proffered nondiscrimi natory reasons to permit

a reas onable factfinder to conclude that the employeeÓs prof f ered

legitimate reasons were not what actually motivated its

conduct.Ñ).

52. If the prof f ered reason is one that might mot ivate a

reasonable employer, Ðan employee must meet that reason head on

and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason.Ñ Chapman v. AI

Transp. , 229 F.3d 1012, 1030 (11 th Cir. 2000)(en banc). Pretext

must be established with Ðconcrete evidence in the form of

specific factsÑ showing that the proffered reason was pretext;

Ðmere conclusory allegations and assertionsÑ are insufficient.

Bryant v. Jones , 575 F.3d 1281, 1308 (11 th Cir. 2009). A reason

cannot be pretext for discrimination Ðunless it is shown both

that the reason was false, and that discrimination was the real

reason.Ñ Fla. Stat. Univ. v. Sondel , 685 So. 2d 923, 927 (Fla.

1 st DCA 1996).

53. The undersigned does not agree with CCFÓs decision t o

fire Ms. Howell, especially given the fact that Mr. Sakowski and

Ms. Hunt did not hear her version of what transpired between

herself and Mr. Smith on July 19, 2017. Nevertheless, Ms. Howell

has not presented specific facts demonstrating that the safety

concerns cited by Mr. Sakowski and Ms. Hunt were a pretext for

discrimination. See Denney v. City of Albany , 247 F.3d 1172,

1188 (11 th Cir. 2001)(noting that a courtÓs role is not to act as

a Ðsuper - personnel departmentÑ and second - guess a companyÓs

busi ness decisions). 8/

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 1 7 th day of June, 2019 , 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 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of June, 2019 .

ENDNOTE S

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

the 2018 version of the Florida Statutes.

2/ Mr. Sakowski was able to view security camera footage of the

two vehicles passing each other during the time in question.

According to Mr. Sakowski, t he video did not indicate that

Mr. Smith directed an obscene gesture toward Ms. Howell. Because

CCF did not move a c opy of the video into evidence, the

undersigned was unable to independently assess what was visible

to the camera. Given Ms. HowellÓs subsequent action of returning

to campus and confronting Mr. Smith, the undersigned finds that

the preponderance of the e vidence demonstrates that Mr. Smith

directed an obscene gesture toward Ms. Howell when she was

leaving work on July 19 or 20, 2017.

3/ Mr. SmithÓs wife works for CCF as the executive administrative

assistant to the vice president of Student Affairs . T r., 84 - 85.

4/ Ms. Hunt corroborated Mr. SakowskiÓs explanation as to why

they decided to fire Ms. Howell:

Q: Why was [Ms. Howell] terminated?

A: Because of an incident that occurred on

college grounds. She went and directly

contacted one of her oth er [co - workers] after

the incident, after she had left campus, and

did not directly go and talk to a manager

first.

And we were worried about the fact that she

did not listen to a prior request to talk

[to] a manager first, as well as the safety

factor o f leaving campus and then coming back

and directly confronting a fellow co - worker.

So we thought that presented a safety . . .

Q: Okay. IÓll ask you a little of that in

more detail, but whatÓs the safety issue that

youÓre referencing about leaving camp us and

coming [back]? HowÓs that unsafe?

A: Well, she was done with her shift and

came back and confronted the other co - worker.

And so with everything that goes on nowadays,

you just never know what could happen. So

just to, you know, keep our staff s afe as

well as our student population.

Q: But, again, what does that have to do

with being done with her shift?

A: She had had a confrontation with an

individual, and that individual, after the

confrontation, had went to one of the other

managers and t old him about the

confrontation, and they reviewed it. And I

guess it wasnÓt until she had gone back to

campus that that individual had gone to the

other manager, Mark Sakowksi, to tell him

that.

Q: Well, maybe IÓm confused. The question

though, what d oes her leaving the campus have

to do with safety?

A: When you come back onto campus and

confront somebody verbally . . .

Q: Right.

A: [W] hen youÓre asked to go talk to a

manager if you have a grievance with that

person, then that is a safety factor .

5/ Ms. Howell testified that she did not report Mr. SmithÓs

conduct Ð[a]t firstÑ but ultimately notified Mr. Morelock. See

T r ., 19. Ms. Howell reiterated those points later in her

testimony. See T r ., 48, 58. However, she contradicted herself

by testifying that she did not bring Mr. SmithÓs behavior to the

attention of anyone at the college. See T r ., 54. Ms. Hunt

corroborated Ms. HowellÓs testimony by testifying that she was

unaware of any incidents between Ms. Howell and Mr. Smith and

that Mr. Smith was not discussed during her meeting with

Ms. Howell. See T r ., 159, 170 - 71, 193 - 94. However and with

regard to whether Mr. SmithÓs conduct was discussed during

Ms. HowellÓs meeting with Mr. Morelock, Carol Smith testified

that: (a) Mr. Smith was never mentioned; (b) Ms. Howell never

reported that Mr. Smith had made an obscene gesture toward her;

and (c) it was never reported that Mr. Smith had called

Ms. Howell a Ðf***ing c*nt.Ñ See T r ., 215.

6/ A compelling argument co uld have been made that all of

Mr. SmithÓs conduct should have been at issue due to the

Continuing Violation Doctrine. As explained by the United States

Supreme Court in NatÓl R.R. Passenger Corp. v. Morgan , 536 U.S.

101, 115, 22 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), Ð[h]osti le

environment claims are different in kind from discrete acts.

Their very nature involves repeated conduct.Ñ ÐThe Òunlawful

employment practiceÓ therefore cannot be said to occur on any

particular day. It occurs over a series of days or perhaps years

a nd, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own.Ñ Id. Because

Ðincidents constituting a hostile work environment are part of

one unlawful employment practice, the employer may be liable for

all acts th at are part of this single claim.Ñ Id. at 118. See

Betz v. Chertoff , 578 F.3d 929, 937 - 38 (8th Cir. 2009)(stating

that, in the Title VII context, Ð[t]he Supreme Court has held

that the continuing violation doctrine applies in hostile work

environment cla ims, where, although one incident may not support

a claim, the claim may be supported by a series of incidents that

occur over a period of time.Ñ).

Because the preponderance of the evidence demonstrated that

Ms. Howell did not notify CCF about Mr. Smith Ós conduct,

application of the Continuing Violation Doctrine is irrelevant to

the instant case.

7/ Ms. Howell testified that she considered Mr. SmithÓs conduct

to be ÐchildÓs play, thatÓs the way I looked at it at first.

Then I got fed up with it.Ñ Se e T r ., 54.

8/ If Ms. Howell had filed her Charge of Discrimination sooner so

that the allegations of co - workers intentionally driving vehicles

into golf carts driven by her could have been at issue and if she

had been able to prove those claims, then Ms. Howell would have

had a much stronger basis for arguing that CCFÓs safety concerns

were a pretext. Multiple instances of employees intentionally

driving larger vehicles into a golf cart driven by a co - worker

presents a much more significant safety iss ue than a single

instance of an employee verbally confronting a co - worker about an

obscene gesture. The former is much more worthy of a summary

dismissal than the latter.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relat ions

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Joseph C. Shoemaker, Esquire

Bogin, Munns, and Munns, P.A.

628 South 14th Street

Leesburg, Florida 34748

(eServed)

Susan T. Spradley, Esquire

Gray Robinson, P.A.

Post Office Bo x 3068

Orlando, Florida 32802

(eServed)

Craig Frischer Novick, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallah assee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.