19-001562 Bridget D. Nelson vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, August 21, 2019.

Summary: Petitioner failed to prove that her dismissal from employment was because of her sex, race, or age and failed to prove that any actions taken by the employer were in retaliation for her exercise of protected rights.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGET D. NELSON,

Petitioner,

vs. Case No. 19 - 1562

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was co nducted in this case on July 2,

2019, in Tallahassee, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Bridget D. Nelson, pro se

3001 Mock Drive

Tallahassee, Florida 32301

For Respondent: Susan Sapoznikoff, Esquire

Andrew Taylor Sheeran, Esquire

Agency for Health Care Administration

2727 Mahan Drive , M ail S top 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Respondent, Agency for Health Care

Administration (ÐAHCAÑ or Ðthe AgencyÑ), discriminated against

Petitioner, Bridget D. Nelso n, now Levens (ÐPetitionerÑ), based

upon her sex, race, or age, in violation of section 760.10,

Florida Statutes (201 7 ), 1/ and/or whether the Agency retaliated

against Petitioner for the exercise of protected rights under

section 760.10.

PRELIMINARY STATEM ENT

The parties agree that on March 29, 2018, Petitioner filed

an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (ÐFCHRÑ). The Employment

Complaint of Discrimination was not provided to DOAH by the

FCHR. Petitioner alleged the Agency retaliated against her by

terminating her employment after she filed an internal grievance

alleging discrimination.

The FCHR conducted an investigation of PetitionerÓs

allegations. On March 19, 2019, the FCHR issued a written

determinat ion that there was no reasonable cause to believe that

an unlawful practice occurred. The FCHRÓs determination stated

as follows, in relevant part:

Complainant worked for Respondent, a state

agency, as a program administrator.

Complainant claimed that sh e was wrongfully

terminated after she filed an internal

complaint regarding discrimination. In

addition, Complainant claimed that

Respondent gave prospective new employers

negative references regarding her

performance. Respondent submitted

affidavits fro m Complainant's supervisors

and Respondent's human resources

professional. These affidavits state that

when prospective new employers ask for

references for its former employees,

Respondent only provides the dates of

employment, job title, and salary.

Fu rthermore, the investigation revealed that

Complainant was terminated in May 2017 and

that she filed her discrimination complaint

in September 2016. Complainant alleged that

Respondent retaliated against her.

Complainant fails to prove a prima facie

case because the evidence does not show a

causal link between Complainant's

discrimination complaint and any adverse

action that she suffered.

On March 20, 2019, Petitioner timely filed a Petition for

Relief with the FCHR. On March 21, 2019, the FCHR referre d the

case to DOAH. The case was scheduled for hearing on May 16,

2019. On April 5, 2019, the Agency informed DOAH that its

counsel had a scheduling conflict necessitating a brief

continuance of the hearing. The parties agreed to move the

hearing to Jul y 2, 2019, on which date it was convened and

completed.

Petitioner testified on her own behalf, including brief

rebuttal testimony, and presented the testimony of Robert

Kennedy. PetitionerÓs Exhibits 1 through 9 were entered into

evidence. The Agency presented the testimony of the following

AHCA employees: Human Resources (ÐHRÑ) Bureau Chief Jamie

Skipper; HR Manager Alesia Carroll; Senior Management Analyst

Supervisor Luis Diaz; and Recipient and Provider Assistance

Bureau Chief Damon Rich. The Agen cyÓs Exhibits 1 through 6 were

entered into evidence.

On July 12, 2019, Petitioner submitted a 66 - page document

(with thumb drive) , titled ÐFacts and Findings.Ñ The document

appears to be an attempt to supplement PetitionerÓs testimony

and rebut the testi mony of the AgencyÓs witnesses. There is no

indication that this document was served on the Agency. This

document has not been considered in the preparation of this

Recommended Order.

The one - volume Transcript of the hearing was filed at DOAH

on July 25 , 2019. The Agency timely filed its Proposed

Recommended Order on August 5, 2019. Petitioner filed her

Proposed Recommended Order on August 7, 2019, two days after the

10 - day deadline established by F lorida Administrative Code

R ule 28 - 106.216. 2/ The Age ncy objected to PetitionerÓs late

filed Proposed Recommended Order in a written Motion to Strike

filed on August 13, 2019. The Agency objected not merely to the

late - filing , but because PetitionerÓs Proposed Recommended Order

was clearly a responsive docu ment to the AgencyÓs Proposed

Recommended Order, was more than twice the 40 - page limit set

forth in rule 28 - 106.215, and contained numerous allegations of

fact and hearsay statements beyond the record established at the

formal hearing. The Agen cyÓs Motion to Strike is well - taken.

PetitionerÓs late - filed Proposed Recommended Order has not been

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. The Agency is an employer as that term is defined in

section 760.02(7).

2. Petitioner , an African American female born on July 23,

1968, was hired by the Agency as a Program Administrator in the

Bureau of Recipient and Provider Assistance (ÐRPAÑ or ÐBureauÑ )

on September 13, 2013. She worked in that job position until

her employment was t erminated on May 18, 2017.

3. PetitionerÓs position was classified as Select Exempt

Service (ÐSESÑ). SES employees serve at the pleasure of the

agency head and are subject to suspension, dismissal, reduction

in pay, demotion, transfer, or other personn el action at the

discretion of the agency head. Such personnel actions are

exempt from the provisions of chapter 120 , Florida Statutes .

§ 110.604, Fla. Stat.

4. At the time she was hired, Petitioner supervised two

employees. Luis Diaz was a fellow Prog ram Administrator who sat

at a desk next to hers. Both Petitioner and Mr. Diaz were

supervised by Damon Rich.

5. Petitioner had , prior to her employment with the

Agency, worked with Mr. Rich and Mr. Diaz at Affiliated Computer

Services (ÐACSÑ), a private sector company. Mr. Rich testified

that he supervised Petitioner for a time at ACS and that he

became friends with Petitioner and her husband. Mr. Diaz also

worked in a higher position than Petitioner at ACS.

6. Petitioner testified that when Mr. Rich hired her to

work at the Agency, he advised her that she should consider

herself an equal to Mr. Diaz and that she should not let

Mr. Diaz make her feel that she was answerable to him.

7. Petitioner testified that Mr. Diaz often had conflicts

with fema le employees and would look to Petitioner for

assistance. Petitioner testified that she assumed supervision

of Ivis Suarez, one of Mr. DiazÓs employees, at his request

because he could not make her understand what he needed her to

do.

8. Petitioner sta ted that Ms. Suarez filed a complaint

against Mr. Diaz. Petitioner disagreed with the complaint at

the time but attributed her disagreement to not yet

understanding the full dynamics of the situation in the office.

Petitioner only knew that the working e nvironment was not good.

Petitioner testified that she was able to work with Ms. Suarez,

who eventually resigned her position with the Agency.

9. Petitioner described a similar situation that occurred

in 2014. Another subordinate of Mr. Diaz, Natasha Ha mpton,

complained to Petitioner that she did not understand the

training she was receiving. Mr. Diaz complained to Petitioner

that Ms. Hampton was not catching on to the job. Petitioner

agreed to take over the supervision of Ms. Hampton.

10. Petitioner testifie d that she asked Mr. Diaz for

copies of Ms. HamptonÓs workplace ÐcoachingsÑ because she was

taking over her supervision in the middle of the year and needed

to know where Ms. Hampton stood in terms of her annual

evaluation. Petitioner stated that Mr. Diaz ignored her

repeated requests for the coachings.

11. By 2016, Mr. Rich had been promoted to Bureau Chief

and Mr. Diaz had been promoted to a supervisory position that

made him PetitionerÓs direct superior. Petitioner was upset

that she was not c onsulted abo ut Mr. DiazÓs Ðelevation.Ñ

Mr. Rich believed that PetitionerÓs subsequent problems in the

workplace were attributable to her resentment at having to

answer to Mr. Diaz.

12. For her part, Petitioner claimed that Mr. Diaz created

a hostile work ing environment. She testified that every time

Mr. Diaz had a problem with a female employee, she would end up

as that employeeÓs supervisor. She stated that Mr. Diaz once

told her that if an order were given to downsize their unit, he

would recommend el iminating all of her subordinates but one.

13. One incident that espec ially galled Petitioner was

Mr. DiazÓs procrastination in signing a tuition waiver that

would allow her to take the final class required for her college

degree. Mr. Rich explained that the delay in approving

PetitionerÓs waiver was because her unit was about to implement

a procurement. Mr. Rich and Mr. Diaz needed to make sure that

accommodating PetitionerÓs request to attend class would not

adversely affect the AgencyÓs business needs .

14. Petitioner nonetheless complained to the HR department

about the delay in processing her tuition waiver, which was

eventually signed by Mr. Diaz. Petitioner testified that she

resented being required to go to HR for something so minor and

attribute d her problem to the hos tile environment created by

Mr. Diaz, who did everything he could to make things more

difficult for her. Mr. Rich testified that school attendance

seemed a greater priority for Petitioner than her job duties.

15. Petitioner offer ed other examples of what she termed

Mr. DiazÓs hostile behavior. A former employee, Ms. Suarez, had

expressed an interest in coming back to work at the Agency but

Mr. Diaz declined to interrupt a meeting to speak with her on

the phone. Petitioner stated that other employees were

constantly coming to her with problems because they were afraid

to talk to Mr. Diaz about them. Petitioner stated that Mr. Diaz

would leave her out of meeting s. A rumor circulated that

Mr. Diaz and Mr. Rich had received raises at a time when no one

else i n the unit had received a raise for several years, which

made the employees feel underappreciated.

16. Petitioner complained that Mr. Diaz required her to

submit leave requests for his approval, whereas Mr. Rich had not

done so . Petitioner believed that as a supervisor , she should

not be required to ask for time off. She met with Mr. Rich, who

explained to her that every manager deals with things a little

differently and that even the Secretary of the Agency must

obtain the Go vernorÓs approva l to be out of the office.

Mr. RichÓs practice had been to respond to leave requests only

when he intended to deny them, which he believed may have left

Petitioner with the impression that she did not have to obtain

approval. Mr. Diaz wan ted to affirmatively grant the leave

requests. Mr. Rich testified that PetitionerÓs leave requests

were not handled any differently than those of any other

employee i n her unit. He did not consider the issue worth the

time Petitioner was taking to argue about it.

17. After the leave request dustup, Mr. Rich sent

Petitioner an email, dated August 15, 2016, stating his

intention to schedule a meeting with Mr. Diaz and her, Ðto get

to the root of communication and other underlying issues to

determine the be st way forward. We cannot continue to have this

type of fragmented leadership and disagreement about routine

functions between you and your supervisor, Luis [Diaz].Ñ A

follow - up email from Mr. Rich indicated that the meeting was

somewhat successful, but the resolution was not to be lasting.

18. Petitioner complained about her annual evaluation.

She stated that during a full year of working under Mr. Diaz,

she had received no one - on - one coachings. Petitioner conducted

monthly coachings with her subordin ates so that they would know

exactly where they stood on their evaluations.

19. Petitioner testified that she felt blind - sided when

she received her annual evaluation from Mr. Diaz for 2015 - 16 and

it was substantially lower than her 2014 - 15 evaluation don e by

Mr. Rich. She submitted a written rebuttal to the evaluation

and declined to sign it until she could meet with Mr. Rich to

discuss it.

20. In his testimony, Mr. Rich made it clear that by this

time , he was tiring of PetitionerÓs inability to work ou t her

disputes with Mr. Diaz without involving him or other Bureau -

level personnel. When he hired Petitioner, Mr. Rich was

overseeing 17 employees. Petitioner was part of his leadership

team and he had the time to meet regularly with her and deal

with he r complaints. However, Mr. Rich was now a Bureau Chief

in charge of 230 employees. Petitioner was no longer part of

Mr. RichÓs leadership team and no longer directly reported to

him. Directly dealing with PetitionerÓs complaints now meant

that Mr. Rich was forced to put aside other duties.

21. Petitioner testified that HR was pressuring the unit

to submit the performance evaluations, but that she continued to

resist signing hers. Mr. Rich met with her and agreed to change

one score on her evaluation. Petitioner then signed the

evaluation Ðunder duress.Ñ

22. Petitioner complained about the lack of input she was

allowed into her performance expectations for the following

year, 2016 - 17. She stated that Mr. Rich used to ask for her

input and give her ple nty of time to respond. Mr. Diaz sent her

an email with the draft performance expectations for Petitioner

and her subordinates two days before the final version was to be

submitted to HR. He asked her to go over the expectations with

her staff. Petition er stated that her staff was confused and

did not understand the proposed expectations. Petitioner again

took the issue to Mr. Rich.

23. Mr. Rich explained that the performance expectations

had been set by him in conjunction with his leadership team,

whi ch did not include Petitioner. Mr. Rich testified that, at

PetitionerÓs suggestion, he met one - on - one with each person on

her staff to learn the nature of their problems with the draft

performance expectations. He stated that he met with them in

this man ner to hear their independent opinions and to allow them

the confidentiality to speak frankly. None of PetitionerÓs

subordinates reported any concerns with the performance

expectations.

24. On September 14, 2016, Petitioner filed a grievance

with HR that was investigated by the AgencyÓs Office of

Inspector General. Petitioner complained of a hostile working

environment and gender discrimination. The factual allegations

involved the performance evaluation, performance expectations,

and tuition waiver dis putes discussed above. The investigation

disclosed no statutory, rule , or policy violations, and found

insufficient evidence to prove or disprove PetitionerÓs hostile

working environment claim. By way of a written report dated

October 11, 2016, the case was closed with no further activity

recommended by the Office of Inspector General.

25. Both Mr. Diaz and Mr. Rich testified that they were

unaware of PetitionerÓs grievance at the time she filed it.

Mr. Rich testified that he received a copy of th e Inspector

GeneralÓs report and only then became aware of the grievance.

Mr. Rich testified that Petitioner never told him that she felt

discriminated against because of her sex, age, or race.

26. Petitioner testified that in early 2017 she began

findin g particles of some white powdery substance in her office

and on the path she walked to her office. She did not know what

the substance was but stated that it triggered her asthma.

Petitioner was convinced that someone at the Agency was putting

the white substance in her office. She eventually changed

offices, but the white substance began appearing there as well.

27. Mr. Rich testified that he investigated the situation.

He noted that Petitioner was an inveterate user of air

fresheners and cleaners, t o the point that other employees

complained that the fumes coming from PetitionerÓs office were

making them nauseous. Mr. Rich , and then - HR Bureau Chief

Cynthia Mazzara , went into PetitionerÓs office after hours to

seek the source of the white powder. Th ey sprayed one of the

air fresheners. When the particles dried on the desk, they

turned white. This solved the mystery to Mr. RichÓs

satisfaction, though Petitioner remained convinced she was being

sabotaged.

28. Mr. Rich testified that PetitionerÓs beh avior and

attitude continued to worsen over time, especially after the

Office of Inspector General found no cause to credit her claims

of a hostile working environment and gender discrimination. She

refused to comply with a section - wide requirement that o ffice

doors remain open. She continued to expect the Agency to

accommodate her frequently changing school schedule. Petitioner

continued to over - complicate work assignments and challenge

directions from her superiors. She even requested that Mr. Rich

ce ase using the color red for emphasis in his emails because red

Ðdenotes yelling and angry emotions.Ñ

29. The final straw for Mr. Rich came in early May 2017,

when Petitioner encouraged and facilitated another employeeÓs

falsification of a time sheet. T he employee was out of annual

leave but expressed a desire to go home and deal with a

situation involving a relative. Petitioner sent the employee

home, then falsely reported that the employee was not feeling

well so that she could use sick leave.

30. In a memo to HR dated May 2, 2017, Mr. Rich outlined

his reasons for wishing to terminate PetitionerÓs employment.

The memo stated as follows, in relevant part, omitting

references to attached documents:

This memo is to provides [sic] a summary of

expressed concerns regarding the conduct of

employee Bridget Nelson.

* * *

During her employ, Ms. Nelson has

occasionally displayed instances that border

[on] insubordination, but recently there has

been an increased [sic]. Of specific

concern is her ability to Ðresolve any

difference with management in a constructive

manner.Ñ Her communications are almost

always accusatory in nature, taking no

consideration of her own accountability in

related issues.

Additionally, her behavior is becoming more

disruptive to t he work environment,

sometimes affecting those outside the

Bureau.

The follow ing are some examples where

Ms. Nelson has not been constructive in her

interactions with management and/or caused

disruption in the work place.

* On August 11, 2016, Ms. Nelso n submitted

a rebuttal to her performance expectations

. . . . Mr. Diaz and I had previously met

with Ms. Nelson to discuss her concern and

there were few concerns expressed compared

to the document sent to Mr. David Rogers (my

boss), Mr. Diaz and myself.

* On t he same day, I responded to

Ms. Nelson concerning her email and informed

her that I would meet with her and her staff

to evaluate the concerns.

* During the week of August 15, 2016 I met

with Ms. Nelson individually, followed by

individual meeti ngs with her staff. Her

staff was unaware of the concerns to which

Ms. Nelson was referring and understood

their performance expectations.

* On August 15, 2016 Ms. Nelson had an

adverse reaction to an email sent by her

supervisor, Mr. Luis Diaz. She

ch aracterized the email as ÐunprofessionalÑ

and seemed to imply that managers have

special privileges in the context of the

issue raised [i.e., PetitionerÓs belief that

as a manager, she was not required to have

leave requests approved by Mr. Diaz].

* Ms. Nelson does not take the time to

properly read and respond to emails in

context. There is a sense of entitlement by

Ms. Nelson that the Agency work is second

priority to her needs.

* In or around March of 2017 Ms. Nelson had

to be relocated to a differe nt office after

allegations that someone had sabotaged her

office by spraying some foreign substance,

which produced a strong odor, and Ðwhite

residueÑ in her office. [3/] On March 9, 2017

I sent an email directly to Ms. Nelson about

discontinuing the use of chemicals in her

new office and sent a general email to all

staff on the floor to the same effect after

receiving complaints about Ðstrong odorsÑ in

the vicinity of her new office. On the

morning of March 17, 2017 I receive[d] more

complaints regarding a strong odor coming

from her office. I reminded her of the

previous email from the 9 th . Additionally,

during a m eeting with Ms. Nelson on

April 18, 2017 I [had] to remind Ms. Nelson

of the policy concerning the closing of

office doors which had previou sly been sent

to all staff on 4/4/16, 9/16/16 and

11/18/16. I was informed by others in the

area, during a different incident concerning

her new office and foreign substances that

she was still spraying things in her office,

which may be why she continued to keep the

door close[d].

* Ms. Nelson often escalates issue[s]

unnecessarily, which contributes to

confusion, conclusion jumping and

increase[d] work for others.

* Ms. Nelson is confrontational and often

misapplies Agency or other state policy in a

manner that comes across as a veiled threat.

Most recently it came to my attention that

Ms. Nelson may have attempted to encourage

an employee to falsify their timesheet

because they did not have any Annual Leave

remaining and had a family issue. Based o n

the email sent by Ms. Nelson, it appears

that she implied, on behalf of the employee,

that they had to leave because they were not

feeling well.

In summary, I am not sure how to continue

with Ms. Nelson in the employ of the Agency

or what next steps sho uld be taken. Her

behavior as a manager is disruptive to the

portion of the Agency mission for which the

Bureau of RPA is accountable.

Although Ms. Nelson has been a part of the

Agency for more than 3 years, she seems not

to have grasped the means to per form her

duties in a constructive manner.

31. By letter dated May 18, 2017, Mr. Rich informed

Petitioner that her services were no longer required by the

Agency, effective at the close of business on that date.

32. At the hearing, Mr. Rich credibly tes tified that the

termination was not based on the grievance filed by Petitioner

eight months earlier, nor based on PetitionerÓs sex, race , or

age. The termination was based on the documented instances of

PetitionerÓs insubordination, her inability to resol ve

differences with management in a constructive manner, her

accusatory communications, her inability to accept her own

accountability when disputes arose, and the fact that her

behavior was becoming increasingly disruptive to the work

environment at the A gency both in and outside of the Bureau.

33. At the hearing, Petitioner essentially abandoned any

claim that her dismissal was based on her race or her age. She

offered no evidence or argument regarding race or age

discrimination.

34. PetitionerÓs f ocus was on sex - based discrimination by

Mr. Diaz. Petitioner asserted that Mr. DiazÓs actions

demonstrated that he has a Ðproblem with women,Ñ and that her

treatment by Mr. Diaz was motivated by his bias toward women.

Petitioner offered no corroborating evidence regarding the

female employees she claimed were moved from Mr. DiazÓs

supervision to hers. Petitioner also offered her personal view

that Mr. Diaz was generally more deferential to his male

subordinates tha n to the females. Petitioner presented no other

witnesses to corroborate her opinion on this point.

35. Mr. Diaz and Mr. Rich credibly testified that

Petitioner never made a contemporaneous complaint to them that

any of her many office disputes had anything to do with her sex.

36. Petitioner offered no credible evidence that any

adverse employment actions taken against her had anything to do

with her sex. The evidence established that Petitioner was a

disputatious employee in the best of times. Her resentment at

having Mr. Diaz elevated to t he position of her supervisor led

Petitioner to question and undermine virtually any action taken

by Mr. Diaz, no matter how inconsequential.

37. Petitioner claimed that Mr. Diaz had conflicts with

some female employees, but could point to no adverse acti ons

Mr. Diaz ever took against her. Petitioner took great offense

at Mr. DiazÓs insistence that she submit leave requests like any

other Agency employee. However, PetitionerÓs subjectively felt

outrage does not transform this trivial workaday directive i nto

an adverse employment action. PetitionerÓs termination was the

only actual adverse employment action in this case and it was

effectuated by Mr. Rich, the Bureau Chief, not Mr. Diaz.

38. The evidence established that, perhaps because of

their prior r elationships with Petitioner at ACS, Mr. Diaz and

Mr. Rich continued attempting to mollify and work with

Petitioner well after Mr. Rich would have been justified in

terminating her employment for insubordination and constant

disruption of the workplace.

39 . Subsequent to her dismissal by AHCA, Petitioner

applied for a position at the Department of Highway Safety and

Motor Vehicles (ÐDHSMVÑ). She interviewed for that job in

August 2017. Petitioner stated , without corroboration, that

DHSMV assured her that she would be hired if her references were

good. In September 2017, Petitioner was advised that DHSMV

would not be hiring her. From this sequence of events,

Petitioner concluded that she was not hired by DHSMV either

because AHCA gave her a negative refe rence or because of

something inappropriate in her AHCA personnel file, in

retaliation for actions while an employee of AHCA.

40. Petitioner offered no direct evidence that anyone from

AHCA gave her a poor reference. She offered the testimony of

Robert Kennedy, a person who agreed to let Petitioner use him as

a reference. Mr. Kennedy testified that no one from DHSMV ever

called him about Petitioner. Based on his experience in hiring

employees, Mr. Kennedy found it ÐoddÑ that he was not contacted.

41. Jamie Skipper, Chief of the AgencyÓs HR Bureau,

testified that AHCAÓs policy on job references is to give only

the job title, salary, and dates of employment, without any

qualitative assessment. AHCA will make the affected employeeÓs

personnel file avail able upon request. Ms. Skipper testified

that all requests for employee references are routed through her

office, and that her office had no record of DHSMV ever asking

about Petitioner.

42. Ms. Skipper testified that she had no reason to

believe anyone from DHSMV ever reviewed PetitionerÓs personnel

file. In any event, PetitionerÓs personnel file simply reflects

that she was involuntarily separated from AHCA in May 2017.

43. Mr. Diaz and Mr. Rich both testified that their

consistent practice is to forw ard any employee reference

requests to HR. Both men testified that they never received a

reference request from anyone, including DHSMV, regarding

Petitioner.

44. There is no record evidence that anyone, including

DHSMV, sought an employment reference fr om AHCA about Petitioner

or that anyone at the Agency provided a negative reference

regarding Petitioner.

45. In summary, Petitioner offered no credible evidence

that the Agency retaliated against her for engaging in protected

activity.

46. Peti tioner offered no credible evidence disputing the

legitimate, non - discriminatory reason given by AHCA for her

termination.

47. Petitioner offered no credible evidence that AHCAÓs

stated reason for her termination was a pretext for

discrimination based on PetitionerÓs race, age, or sex.

48. Petitioner offered no credible evidence that AHCA

discriminated against her because of her race, age, or sex in

violation of section 760.10.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdict ion of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

50. The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), chapter 760, prohibits employer

retaliation for engaging in prot ected activity.

51. Section 760.10 states the following, in relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual w ith

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.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a ch arge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

52. AHCA is an "employer" as defined in section 760.02(7),

which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

53. Florida courts have determined that federal case law

applies to claims arising under the Florida Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under section 760.10 , absent

direct evidence of discrimination or retaliation. 4/ See Harper

v. Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir.

1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353,

1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d

923, 925 n.1 (Fla. 1st DCA 1996); Fla. DepÓt of Cmty. Aff. v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

54. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing,

by a preponderance of evidence, a p rima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer's offered

reasons for its adverse employment decision were pretextual.

See Texas DepÓt of Cmty. Aff. v. Burdine , 4 50 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

55. In order to prove a prima facie case of unlawful

employment discrimination under chapter 760, Petitioner must

establish that: (1) she is a member of the protected group;

(2) she was subject to ad verse employment action; (3) AHCA

treated similarly situated employees outside of her protected

classifications more favorably; and (4) Petitioner was qualified

to do the job and/or was performing her job at a level that met

the employerÓs legitimate expec tations. See, e.g. , Jiles v.

United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64 (11th Cir.

2010); Burke - Fowler v. Orange Cnty , 447 F.3d 1319, 1323 (11th

Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330 F.3d

1313, 1316 (11th Cir. 2003); Williams v. Vi tro Servs. Corp. , 144

F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp. ,

40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

56. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

57. Petitioner is an Afr ican American female who was

48 years old at the time her employment with AHCA was

terminated. She is therefore a member of a protected group.

58. Petitioner was fired from her position with AHCA and

was therefore subject to an adverse employment action.

59. As to the question of disparate treatment, the

applicable standard was set forth in Maniccia v. Brown , 171 F.3d

1364, 1368 - 1369 (11th Cir. 1999):

"In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in, or accused of, the same

or similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraway

Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(19 98) (quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omi tted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F. 2d 13, 19 (1st

Cir. 1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples."). [5/]

(Emphasis added).

60 . Petitioner offered no evidence as to disparate

treatme nt of similarly situated employees outside of her

protected classification, aside from uncorroborated allegations

that her supervisor, Luis Diaz, had a Ðproblem with womenÑ and

treated male subordinates more respectfully than he did females.

She pointed t o no specific action or statement by Mr. Diaz that

evidenced discrimination against her , much less against a

similarly situated comparator . Having failed to establish the

disparate treatment element, Petitioner has not established a

prima facie case of em ployment discrimination.

6 1 . The evidence demonstrated that Petitioner was not

performing her job at a level that met her employerÓs legitimate

expectations. Petitioner was insubordinate to her superiors and

disruptive to the workplace. She had a chip o n her shoulder

regarding Mr. Diaz and was on the constant lookout for things to

which she could take offense. Instead of resolving her disputes

with Mr. Diaz at the staff level, Petitioner insisted on taking

them to her Bureau Chief, Mr. Rich. Petitioner demonstrated an

inability to work as part of a team or to prioritize the needs

of her employer above her personal conflicts. Petitioner

submitted a false statement in order to assist another employee

in taking leave to which she was not entitled.

6 2 . Even if Petitioner had met the burden, AHCA presented

ample evidence of legitimate, non - discriminatory reasons for

Petitioner's termination. All of the factors set forth in the

preceding paragraph, described in greater detail in Mr. RichÓs

May 2, 2017, me morandum, see Finding of Fact 30, supra ,

demonstrate that AHCA had more than adequate reason to terminate

PetitionerÓs employment because of her deleterious effect on the

workplace.

6 3 . As to PetitionerÓs retaliation claim, the court in

Blizzard v. Applia nce Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th

DCA 2009), described the elements of such a claim as follows:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily pr otected

activity; (2) that he or she suffered

adverse employment action and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster EntmÓt Corp. , 139 F.3d

1385, 1388 (11th Cir.), cert. denied 525

U. S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422

(1998). Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Trans p. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id .

6 4 . Petitioner failed to prove that any employment or

post - employment action by AHCA was causally related to her

statutorily protected activity of filing a grievance with HR

alleging a hostile working environment and a Ðgender related

issue.Ñ The Office of Inspector General investigated

PetitionerÓs allegations and found them unproven. PetitionerÓs

superiors were unaware of the grievance at the time it was filed

and took little notice of it once they were notified that the

investigation was complete. Mr. Rich continued working with

Petitioner for another eight months after her grievance was

resolved. He conscientiously tried to establish a way forward

for Petitioner to continue working at AHCA, but was ultimately

unable to obtain any reasonable level of cooperation from her.

6 5 . Even if Petitioner had met her burden and established

a p rima facie case of retaliation, she failed to show that

AHCAÓs legitimate business reasons for its decisions were false

and a pretext for retaliation. To establish pretext, Petitioner

must Ðcast sufficient doubtÑ on the AHCAÓs proffered

nondiscriminatory reasons Ðto permit a reasonable factfinder to

conclude that the [employerÓs] proffered legitimate reasons were

not what actually motivated its conduct.Ñ Murphree v. CommÓr ,

644 Fed. Appx. 962, 968 (11th Cir. 2016) ( quoting Combs v.

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

the proffered reason is one that might motivate 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 C hapman v. AI Transp. , 229 F.3d

1012, 1030 (11th 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 insuff icient. Bryant

v. Jones , 575 F.3d 1281, 1308 (11th Cir. 2009) ( quoting Earley v.

Champion IntÓl Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990) ) .

6 6 . Petitioner failed to provide evidence that AHCAÓs

proffered reasons for the supervisory actions taken by Mr. Diaz

and Mr. Rich were pretextual or used as a means of surreptitious

retaliation against Petitioner. There was no evidence that any

of Mr. DiazÓs or Mr. RichÓs supervisory decisions had anything

to do with PetitionerÓs discrimination grievance.

6 7 . In summary, Petitioner failed to establish that any

employment action taken by the Agency was in retaliation for

PetitionerÓs having engaged in protected activities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RE COMMENDED that the Florida Commission on Human Relations

issue a final order finding that the Agency for Health Care

Administration did not commit any unlawful employment practices

and dismissing the Petition for Relief filed in this case.

DONE AND ENTERE D this 21st day of August , 2019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 Administrative Hearings

this 21st day of August , 2019 .

ENDNOTE S

1/ Citations shall be to Florida Statutes (2017) unless

otherwise specifie d. Section 760.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

2/ The 10 - day deadline was explained to Petiti oner on the record

at the conclusion of the final hearing. Petitioner was also

told that the undersigned is Ðfairly liberalÑ about granting

extensions of the deadline and was told how to request an

extension. No extension was requested.

3/ On the point of the Ðstrong odor,Ñ Mr. RichÓs recollection is

inaccurate. Petitioner testified that the white substance was

odorless. The complaints about strong odors came from other

people in the office and were directed at PetitionerÓs use of

potent air freshener s.

4/ Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)).

ÐOnl y the most blatant remarks, whose intent could be nothing

other than to discriminate on the basis of a protected

classification, constitute direct evidence.Ñ Kilpatrick v.

Tyson Foods, Inc. , 268 Fed. Appx. 860, 862 (11th Cir.

2008)(citation omitted). Dir ect testimony that a defendant

acted with a retaliatory motive, if credited by the finder of

fact, would change the legal standard ÐdramaticallyÑ from the

McDonnell test. Bell v. Birmingham Linen Serv. , 715 F.2d 1552,

1557 (11th Cir. 1983). Petitioner of fered no evidence that

would satisfy the stringent standard of direct evidence of

discrimination or retaliation.

5/ The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has, in recent years,

reaffirmed its adher ence to it. See, e.g. , Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F.3d at 1323 n.2.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Bridget D. Nelson

3001 Mock Drive

Tallahassee, Florida 32301

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Dr ive

Tallahassee, Florida 32308

(eServed)

Andrew Taylor Sheeran, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4 075 Esplanade Way, Room 110

Tallahassee, 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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.