19-001693 Jacquelyn James vs. Florida Department Of Revenue Status: Closed Recommended Order on Tuesday, July 16, 2019.

Summary: Petitioner did not prove allegations of unlawful discrimination on the basis of age or in retaliation for engaging in a protected activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELYN JAMES,

Petitioner,

vs. Case No. 19 - 1693

FLORIDA DEPARTMENT OF REVENUE,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case on

June 7, 2019, in Tallahassee, Florida, before Administrative Law

Judge Suzanne Van Wyk of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jacquelyn James, pro se

8309 Caplock Road

Tallahassee, Florida 3 2311

For Respondent: Alexandra Marshall Lozada, Esquire

Carla J ane Oglo, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

STATEMENT OF THE ISSUE

Whether Respondent is liable to Petitioner for employ ment

discrimination in violation of section 760.10, Florida Statutes

(2018). 1/

PRELIMINARY STATEMENT

On March 16, 2018, Petitioner, Jacquelyn James, filed a

complaint of discrimination with the Florida Commission on Human

Relations (ÐFCHRÑ) alleging that Respondent, Department of

Revenue (ÐDepartmentÑ or ÐRespondentÑ), violated section 760.10,

by discriminating against her on the basis of her age and in

retaliation for engaging in a protected activity. The complaint

of discrimination alleges that Petition er applied for positions

with the Department, Ðmet the screening criteria, passed the test

for both and interviewed for both positions,Ñ but that she was

not hired because she had previously filed a charge of

discrimination against the Department.

On Febru ary 21, 2019, the FCHR issued a Determination: No

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

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On March 28,

2019, Petitioner fi led a Petition for Relief with the FCHR. The

Petition was transmitted to the Division of Administrative

Hearings (ÐDivisionÑ) to conduct a final hearing.

The final hearing was scheduled for June 7, 2019, and

commenced as scheduled. At the final hearing, Petitioner

testified on her own behalf, and offered Exhibits P1 through P23,

which were admitted in evidence. Respondent presented the

testimony of Tiffany Clark, Lance Swedmark, Debra McCall, Vance

Wiggins, Janeen Evans, Taronza Robinson, and Jonathan Mc Cabe.

Respondent's Exhibits R1 through R10 were admitted in evidence.

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

June 27, 2019. The parties timely filed Proposed Recommended

Orders on July 8, 2019, which have been considered by the

unde rsigned in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner is a 63 - year - old female , who was employed by

Respondent in its Child Support Program in the Tallahassee

Service Center from June 9, 1997, to April 5, 2010.

2. In 1997, Petitio ner became employed as a Revenue

Specialist II (ÐRS IIÑ) in the Payment Processing and Funds

Distribution (ÐPPFDÑ) section, where she performed financial

reviews and audits of client financial accounts.

3. On January 28, 2005, Petitioner was promoted to R S III

in that section, where Petitioner continued to perform financial

reviews and audits, and assumed supervisory duties, including

interviewing candidates and training new employees. In that

position, Petitioner was considered a PPFD team expert.

4. At her request to Ðlearn something new,Ñ Petitioner was

transferred to the Administrative Support section in April 2009.

She was assigned half - time to the Administrative Paternity and

Support (ÐAPSÑ) team, and half - time to support the PPFD team.

5. The spl it - time arrangement was terminated in July 2009,

and Petitioner was assigned to APS full - time.

6. On December 7, 2009, Petitioner received her first

performance evaluation for her new position. The evaluation

covered the time period from April 17, 2009, to January 29,

2010. 2/ PetitionerÓs supervisor, Katherine Osborne, rated

PetitionerÓs overall performance at 2.11.

7. Petitioner was placed on a Corrective Action Plan

(ÐCAPÑ) concurrent with her December 7, 2009 performance

evaluation. The CAP period ended on February 8, 2010.

8. On February 16, 2010, Petitioner was notified, in

writing, that the Department intended to demote her to the

position of RS II because she did not successfully complete the

expectations during the CAP period, or Ðfailed the CAP.Ñ

Petitioner exercised her right to an informal hearing to oppose

the intended demotion.

9. On March 2, 2010, Petitioner was notified, in writing,

that she was being demoted to the position of RS II because she

failed the CAP.

10. Petitioner resig ned from her position with the

Department , effective April 5, 2010.

11. On September 15, 2010, Petitioner filed a complaint

with the Equal Employment Opportunity Commission (ÐEEOCÑ),

challenging her demotion as illegal employment discrimination.

12. On February 12, 2011, the EEOC issued its

determination, stating that it was Ðunable to conclude that the

information obtained establishes violations of the [requisite]

statutes.Ñ

PetitionerÓs 2017 Applications

13. On August 16, 201 7, the Department advert ised

20 openings for an RS III (position 4372) in cus tomer service

administration. Petitioner applied for the position, met the

screening criteria, took and passed the skills verification test,

and was interviewed for the position.

14. Petitioner was in terviewed by a selection committee

composed of Tiffany Clarke, Janeen Evans, and Jonathan McCabe.

Each of the three committee members rated PetitionerÓs interview

as ÐfairÑ on a scale which ranged from Ðpoor,Ñ Ðfair,Ñ and

Ðgood,Ñ to Ðexcellent.Ñ Petition er was not considered for the

position following her interview.

15. While the Department made some offers to candidates,

ultimately the Department did not hire any candidates for

position 4372.

16. On October 2, 201 7, the Department advertised

30 openi ngs for an RS III (position 6380) in customer service

administration.

17. The main difference between the screening criteria for

positions 4372 and 6380 was in education and experience.

Position 4372 required applicants to have child support

experienc e, while position 6380 gave a preference to applicants

with child support experience. The DepartmentÓs goal in revising

the requirements was to increase the applicant pool in response

to the advertisement for position 6380.

18. Petitioner applied for po sition 6380, met the screening

requirements, passed the skills verification test, and was

interviewed for the position.

19. Petitioner was interviewed by a selection committee

composed of Tiffany Clarke, Lance Swedmark, and Taronza Robinson.

All three c ommittee members rated her interview as Ðgood,Ñ and

recommended advancing PetitionerÓs application for reference

checks.

20. Mr. Swedmark conducted reference checks on PetitionerÓs

application. During that process, he was informed of

PetitionerÓs prior CAP failure, demotion, and resignation. Based

on that information, the selection committee determined

Petitioner would not be considered for the position.

Hires for Position 6380

21. The Department hired 30 applicants from the pool for

position 6380.

2 2. Of the 30 hires, 10 were over age 40. Specifically,

their ages were 56, 50, 49, 49, 48, 46, 44, 43, 42, and 41.

23. Petitioner was 61 years old when she applied for

position 6380. None of the members of the selection committee

were aware of Petitio nerÓs age when she applied, or was

interviewed, for the position.

24. The ages of the 30 new hires were compiled from human

resources records specifically for the DepartmentÓs response to

PetitionerÓs March 2018 charge of discrimination.

25. None of the members of the selection committee were

aware of PetitionerÓs 2010 EEOC complaint against the Department.

CONCLUSIONS OF LAW

26. Sections 120.569 and 120.57(1), Florida Statutes

(2019), grant the Division of Administrative Hearings

jurisdiction over the s ubject matter of, and the parties to, this

proceeding.

27. Petitioner alleges discrimination on the basis of both

her age and in retaliation for engaging in protected conduct,

namely filing the 2010 EEOC complaint, in violation of section

760.10.

28. Cha pter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended, as well as the Age

Discrimination in Employment Act (ÐADEAÑ), 29 U.S.C. § 623. When

Ða Florida statute is modeled after a federal law on the same

subject, the Flor ida statute will take on the same constructions

as placed on its federal prototype.Ñ Brand v. Fla. Power Corp. ,

633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009);

Fla. State Univ. v. S ondel , 685 So. 2d 923 (Fla. 1st DCA 1996);

Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st

DCA 1991).

29. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed an unlawful employment

practice. See St. Louis v. Fla. IntÓl Univ. , 60 So. 3d 455

(Fla. 3d DCA 2011); Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So.

2d 778 (Fla. 1st DCA 1981).

30. Employees may prove discrimination by direct,

statistical, or circumstantial evidence. See Valenzuela , 18 So.

3 d at 22.

31. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. See Maynard v. Bd. of Regents , 342

F.3d 1281, 1289 (11th Cir. 2003). ÐO nly the most blatant

remark s, whose intent could be nothing other than to discriminate

will constitute direct evidence of discrimination.Ñ Damon v.

Fleming Supermarkets of Fla. , 196 F.3d 1354, 1358 - 59 (11th Cir.

1999)(citations omitted).

32. Ð[D]irect evidence of intent is often u navailable.Ñ

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

1996). For this reason, those who claim to be victims of

intentional discrimination Ðare permitted to establish their

cases through inferential and circumstantial proof.Ñ Kline v.

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

33. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

in McDonnell Douglas Corp . v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), is applied. Under this well - established model of proof,

the complainant bears the initial burden of establishing a prima

facie case of discriminati on.

34. When the charging party is able to make out a prima

facie case, the burden to go forward shifts to the employer to

articulate a legitimate, non - discriminatory explanation for the

employment action. See DepÓt of Corr. v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991)(court discusses shifting burdens of

proof in discrimination cases). The employer has the burden of

production, not persuasion, and need only persuade the finder of

fact that the decision was non - discriminatory. Id. ; Alexander

v. Fulto n Cnty., Ga. , 207 F.3d 1303 , 1335 (11th Cir. 2000).

35. The employee must then come forward with specific

evidence demonstrating that the reasons given by the employer

are a pretext for discrimination. Schoenfeld v. Babbitt , 168

F.3d 1257, 1267 (11th Cir . 1999). The employee must satisfy

this burden by showing directly that a discriminatory reason

more likely than not motivated the decision, or indirectly by

showing that the proffered reason for the employment decision is

not worthy of belief. Chandler , 582 So. 2d at 1186; Alexander

v. Fulton Cnty., Ga. , 207 F.3d at 13 36 .

36. ÐAlthough the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner].Ñ

EEOC v. JoeÓs Stone Crabs, Inc. , 296 F.3d 1265 (11th Cir. 2002);

see also Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th

DCA 2007)(ÐThe ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times.Ñ).

Age Discrimination

37. Section 760.10 provides, ÐIt is an unlawful employment

practice for an employer . . . [t]o discharge or to fail or

refuse to hire any individual . . . because of suc h individualÓs

. . . age[.]Ñ

38. As stated in City of Hollywood v. Hogan , 986 So.

2d 634, 641 (Fla. 4th DCA 2008):

The Florida Civil Rights Act of 1992 (FCRA)

prohibits age discrimination in the

workplace. See § 760.10(1)(a), Fla. Stat.

(2007). It follo ws federal law, which

prohibits age discrimination through the Age

Discrimination in Employment Act (ADEA).

29 U.S.C. § 623. Federal case law

interpreting Title VII and the ADEA applies

to cases arising under the FCRA. Brown

Distrib. Co. of W. Palm Beac h v. Marcell ,

890 So. 2d 1227, 1230 n.1 (Fla. 4th DCA

2005).

39. To establish a prima facie case of age discrimination

under the federal ADEA, the complainant must show that she is a

member of a protected age group (i.e., over 40); she was

qualified for the job; she suffered adverse employment action;

and she was treated less favorably than substantially younger

persons. See McQueen v. Wells Fargo , 2014 U.S. App. LEXIS

14387 , at *7 ( 11th Cir. 2014)(citing McDonnell Douglas , 411 U.S.

at 792)(the 11th Circ uit has adopted a variation of the

McDonnell test in ADEA violation claims).

40. Alternatively, Petitioner may establish a prima facie

case Ðby showing by a preponderance of the evidence that age was

the Òbut - forÓ cause of the employerÓs adverse action.Ñ McQueen

v. Wells Fargo , 2014 U.S. Dist. LEXIS 14387, at *7 (citing Gross

v. FBC Fin. Servs. , 557 U.S. 167 ( 2009)).

41. In cases alleging age discrimination under section

760.10(1)(a), FCHR has concluded that, unlike cases brought

under the ADEA, the age of 40 has no significance in the

interpretation of the Florida Civil Rights Act of 1992. See

Lopez v. Wal - Mart Stores East, L.P. , Case No. 18 - 0297 (Fla. DOAH

Oct. 25, 2018), rejected in part , Case No. 2017 - 410 ( Fla. FCHR

Jan. 17, 2019). FCHR has determin ed that to demonstrate the

last element of a prima facie case of age discrimination under

Florida law, it is sufficient for Petitioner to show that she

was treated less favorably than similarly situated individuals

of a ÐdifferentÑ age as opposed to a Ðyou ngerÑ age. See

Torrence v. Hendrick Honda Daytona , Case No. 14 - 5506 ( Fla. DOAH

Feb. 26, 2015), rejected in part , Case No. 2014 - 303 ( Fla. FCHR

May 21, 2015), and cases cited therein. FCHR cites its own

final orders as the only basis for this interpretatio n.

42. FCHR has repeatedly rejected and modified the

conclusions of law in the DivisionÓs recommended orders

construing section 760.10 to apply Ðprotected classÑ status to

individuals over age 40 for the purposes of demonstrating a

prima facie case of age discrimination. See , e.g. , Downs v.

Shear Express, Inc. , FCHR Order No. 06 - 036 (May 24, 2006); Boles

v. Santa Rosa Cnty. SheriffÓs Off. , FCHR Order No. 08 - 013

(Feb. 8, 2008); Grasso v. Ag. for Health Care Admin. , FCHR

Order No. 15 - 001 (Jan. 14, 2015); Co x v. Gulf Breeze Resorts

Realty, Inc. , FCHR Order No. 09 - 037 (Apr. 13, 2009); Toms v.

Marion Cnty. Sch. Bd. , FCHR Order No. 07 - 060 (Nov. 7, 2007); and

Stewart v. Pasco Cnty. Bd. of Cnty. CommÓrs , FCHR Order No. 07 -

050 (Sept. 25, 2007).

43. In its orders, FCHR reasoned that the conclusions of

law being modified Ðare conclusions of law over which the [FCHR]

has substantive jurisdiction, namely conclusions of law stating

what must be demonstrated to establish a prima facie case of

unlawful discrimination unde r the Florida Civil Rights Act of

1992.Ñ Freeman v. LD Mullins Lumber Co. , Case No. 2013 - 01700

(Fla. FCHR Nov. 7, 2014).

44. In 2018, the Florida Constitution was amended to

create a rticle V , s ection 21, which reads as follows:

Judicial interpretation of statutes and

rules . Ï In interpreting a state statute or

rule, a state court or an officer hearing an

administrative action pursuant to general

law may not defer to an administrative

agencyÓs interpretation of such statute or

rule, and must instead inte rpret such

statute or rule de novo.

45. The undersigned is not required to defer to FCHRÓs

interpretation of section 760.10, and declines to do so. The

undersigned adopts the more persuasive legal analysis of the

Eleventh Circuit Court of Appeals and Fl orida courts.

46. Pursuant to controlling federal and state caselaw,

Petitioner has not established a prima facie case of age

discrimination by circumstantial evidence. Petitioner

established the first two elements: (1) she is a member of a

protected cl ass (i.e., over 40) ; and (2) she was qualified for

the positions sought (as evidenced by the fact that she met the

screening requirements, passed the skills verification tests,

and was interviewed for both positions). Petitioner satisfied

the third elemen t because she was rejected for both RS III

position s 4372 and 6380.

47. Petitioner did not establish the fourth element -- that

the positions were filled by persons substantially younger than

herself. As to position 4372, the Department did not hire any

of the candidates. As to position 6380, Respondent produced

competent, substantial evidence that 10 of the 30 positions were

filled by applicants within PetitionerÓs protected class (i.e.,

over 40). One of those individuals was age 56, a mere five

years yo unger than Petitioner at age 61.

48. Petitioner did not establish a prima facie case by the

alternative method of demonstrating by a preponderance of the

evidence that age was the Ðbut - forÑ cause of the DepartmentÓs

decision not to hire Petitioner.

49. A ssuming, arguendo, Petitioner had established a prima

facie case, the burden shifted to Respondent to articulate a

legitimate, non - discriminatory reason for its failure to hire

Petitioner. Burdine , 450 U.S. at 255; Chandler , 582 So. 2d

at 1183. An employ er has the burden of production, not

persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. Id. This burden of production

is Ðexceedingly light.Ñ Holifield v. Reno , 115 F.3d 1555, 1564

(11th Cir. 1997) ; Turnes v. Amso uth Bank, N.A. , 36 F.3d 1057,

1061 (11th Cir. 1994).

50. Respondent met this burden by introducing evidence of

PetitionerÓs CAP failure and de motion to RS II from a prior

RS III position. The evidence established a legitimate, non -

discriminatory reason f or the DepartmentÓs decision not to hire

Petitioner for the RS III position.

51. If the employer produces evidence that the decision was

non - discriminatory, then the complainant must establish that the

proffered reason was not the true reason, but merely a pretext

for discrimination. St. Mary's Honor Ctr. v. Hicks , 509 U.S.

502, 516 - 518 (Fla. 1993). In order to satisfy this final step of

the process, Petitioner must Ðshow[] directly that a

discriminatory reason more likely than not motivated the

decision , or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief.Ñ Chandler , 582

So. 2d at 1186 (citing Burdine , 450 U.S. at 252 - 256). The

demonstration of pretext Ðmerges with the plaintiffÓs ultimate

burden of sh owing that the defendant intentionally discriminated

against the plaintiff.Ñ Holifield , 115 F.3d at 1565.

52. Petitioner attempted to demonstrate that the

DepartmentÓs articulated reason was mere pretext by attacking the

CAP itself as unfounded. Petitio ner argued, among other

criticisms of the CAP, that she was neither provided the job

description in a timely manner, nor the training she needed to

succeed in her new position.

53. PetitionerÓs arguments were misplaced. The issue in

this case is not whet her PetitionerÓs 2010 CAP was fair, but

whether the CAP failure and demotion were legitimate reasons for

failure to hire Petitioner. This proceeding was not the forum to

challenge or grieve PetitionerÓs 2010 CAP.

54. Petitioner did not meet her burden to prove by a

preponderance of the evidence that RespondentÓs articulated

reason for not hiring her was a pretext for discrimination.

55. Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discret ion when making legitimate, necessary personnel

decisions.Ñ See Holland v. Washington Homes, Inc. , 487 F.3d 208,

220 (4th Cir. 2007).

56. Because Petitioner failed to either establish a prima

facie case of age discrimination or demonstrate that Respond entÓs

articulated reason was mere pretext for discrimination, her

petition must be dismissed.

Retaliation

57. Section 760.10(7) prohibits retaliation in employment

as follows:

(7) It is an unlawful employment practice

for an employer . . . to discriminat e

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section . (emphasis

added).

58. The burden of proving retaliation follows the general

rules enunciated for proving discrimination. Reed v. A.W.

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

above, Petitioner can mee t her burden of proof with either

direct or circumstantial evidence.

59. Petitioner did not introduce any direct evidence of

retaliation in this case. Thus, Petitioner must prove her

allegation of retaliation by circumstantial evidence.

Circumstantial e vidence of retaliation is subject to the burden -

shifting framework established in McDonnell Douglas .

60. To establish a prima facie case of retaliation,

Petitioner must show: (1) that she was engaged in statutorily -

protected expression or conduct; (2) th at she suffered an

adverse employment action; and (3) that there is some causal

relationship between the two events. Holifield , 115 F.3d at

1566.

61. Petitioner established the first two elements of a

prima facie case: (1) she engaged in a statutorily - p rotected

activity when she filed the 2010 EEOC Complaint, and (2) she was

not considered for either of the RS III positions for which she

applied.

62. PetitionerÓs case fails because she did not establish

the third element -- a causal connection between her engagement in

the protected activity and the adverse employment action.

63. The U.S. Supreme Court changed the causation standard

for Title VII retaliation claims in University of Texas

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

the Court held that Ð[t]he text, structure, an d history of

Title VII demonstrate that a plaintiff making a retaliation

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

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

action by the em ployer . Ñ 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.

64. There is no direct evidence of a causal connection in

this case. Petitioner introduced no evidence that any member of

either selection committee raised PetitionerÓs 2010 EEOC

complaint as a basis for removing her application from

consideration.

65. Proximity between the protected conduct and the

adverse employment action can be offered as circumstantial

evidence of causation, but Ð[m]ere temporal proximity, without

more, must be Ò very close Ó .Ñ Thomas v. Cooper Lighting, Inc. ,

506 F.3d 1361, 1364 (11th Cir. 2007). Even Ð[a] three to four

month disparity between the statutorily 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)).

66. In the case at hand, a period of seven years elapsed

between PetitionerÓs EEOC complaint and the DepartmentÓs

decision not to consider PetitionerÓs application for the RS III

positions. Thus no inference of causation can be drawn from

temporal proximity . See Jones v. Gadsden Cnty. Sch. , 2018 U.S.

App. LEXIS 35176 , at *4 (11th Cir. 2018)(Ða nine - year gap is too

attenuated to establish [plaintiff] would have been hired but -

for his 2008 complaint.Ñ).

67. ÐIn the absence of other evidence of causation, if

there is a substantial delay between the protected expression

and the adverse action, the complaint of retaliation fails as a

matter of law.Ñ Cooper Lighting, Inc. , 506 F.3d at 1364. Here,

Petitioner introduced no other evidence of retaliatory conduct. 3/

68. Again, assuming arguendo, Petitioner had established a

prima facie case of retaliation, Respondent presented persuasive

evidence that its decision not to hire Petitioner was based on

her failed CAP and demotion in 2010. Respondent established a

leg itimate non - discriminatory reason supporting its decision not

to hire Petitioner for the RS III position.

69. Petitioner did not meet her burden to establish a

prima facie case of retaliation or prove that RespondentÓs

articulated reason for failing to hi re her was mere pretext for

retaliation.

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 finding that Respondent, Florida

Department of Reve nue, did not commit any unlawful employment

practice as to Petitioner, Jacquelyn James, and dismissing the

Petition for Relief filed in FCHR No. 2018 - 04904.

DONE AND ENTERED this 1 6 th day of July , 2019 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 Cle rk of the

Division of Administrative Hearings

this 1 6 th day of July , 2019 .

ENDNOTE S

1/ Unless otherwise noted, all references to the Florida

Statutes herein are to the 2018 version.

2/ There is no record explanation for why the evaluation was

give n prior to the expiration of the evaluation period.

3/ The record clearly establishes that none of the selection

committee members even knew that Petitioner had filed the 2010

EEOC complaint.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Com mission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Marian Deadwiley

Department of Revenue

5050 West Tennessee Street

Tallahassee, Florida 32399

Jacquelyn James

8309 Caplock Road

Tallahassee, Florida 32311

(eServed)

Alexandra Marshall Lozada, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

(eServed)

Carla Jane Oglo, Esquire

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

(eServed)

Cheyann e Costilla, General Counsel

Florida Commission on Human Relations

4075 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 th e 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.