19-003672 Salana Tyson vs. Alachua County Tax Collector Status: Closed Recommended Order on Tuesday, March 31, 2020.

Summary: Petitioner failed to prove that her dismissal was due to anything other than her own gross insubordination.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S ALANA T YSON ,

Petitioner ,

vs. Case No. 19 - 3672

A LACHUA C OUNTY T AX C OLLECTOR ,

Respondent .

/

R ECOMMENDED O RDER

Pur suant to notice, a final hearing was conducted in this case on

November 20 and 21, 2019, in Gainesville, Florida, before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge (ÑALJÒ) of the

Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Salana Tyson, pro se

21812 Northwest 210th Avenue

High Springs, Florida 326 43

For Respondent: William H. Andrews, Esquire

Gray Robinson, P.A.

Suite 1100

50 North Laura Street

Jacksonville, Florida 32202 - 3611

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent, Alachua County Tax Collector,

discriminated against Petiti oner based upon her race, in violation of section

760.10, Florida Statutes, 1 and/or whether Respondent retaliated against

Petitioner for the exercise of protected rights under section 760.10.

P RELIMINARY S TATEMENT

On June 1, 2018, Petitioner, Salana Tyson (ÑMs. TysonÒ or ÑPetitionerÒ),

filed with the Florida Commission on Human Relations ( Ñ FCHR Ò ) an

Employment Complaint of Discrimination against the Alachua County Tax

Collector (ÑTax CollectorÒ). Ms. Tyson alleged that she had been

discriminated against pu rsuant to chapter 760 and Title VII of the Federal

Civil Rights Act, based upon her race and color, and that the Tax Collector

had retaliated against her, resulting in the termination of her employment.

The FCHR conducted an investigation of Ms. Ty sonÔs al legations. On

June 5, 2019, the FCHR issued a written determination that there was no

reasonable cause to believe that an unlawful practice occurred. The FCHRÔs

amended determination stated as follows, in relevant part:

Complainant worked for Respondent mo st recently

as a Coordinator. She was employed with

Respondent for 24 years before she was terminated.

Complainant alleged that Respondent

discriminated against her due to her race and color,

and that Respondent retaliated against her for

engaging in a pro tected activity. However, the

investigation did not support her allegations. The

investigation revealed that Complainant was

insubordinate to her superiors, which led to her

termination. Although Complainant provided

affidavits attesting to her character a nd pleasant

nature as an employee, Respondent provided

affidavits stating that Complainant was difficult to

work with and that one customer specifically

requested that Complainant not interact with the

customer in the future. Complainant had been

1 Citations sh all be to Florida Statutes (2019) unless otherwise specified. Section 7 60.10 has

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

classifications protected from discri minatory employment practices. Ch. 2015 - 68, § 6, Laws of

Fla.

disciplin ed previously for her behavior and received

a low score in her performance review for

attendance. The investigation did not reveal any

evidence that Complainant was treated less

favorably than any other employee due to her race

or color. Additionally, the investigation did not

reveal that those in charge of Complainant's

employment were aware that she engaged in any

protected activity that could lead to unlawful

retaliation under the Florida Civil Rights Act.

Therefore, it is not reasonable to believe that

Respondent discriminated against Complainant.

On July 10, 2019, Ms. Tyson timely filed a Petition for Relief with the

FCHR. On July 11, 2019, the FCHR referred the case to the Division of

Administrative Hearings (ÑDOAHÒ) for the assignment of an ALJ and t he

conduct of a formal hearing. The final hearing was initially scheduled for

September 17 and 18, 2019. Petitioner filed a motion for continuance that

was granted by Order dated September 4, 2019. The hearing was rescheduled

for November 20 and 21, 2019, on which dates it was convened and

completed.

At the hearing, Ms. Tyson testified on her own behalf and presented the

testimony of: former Tax Collector employees Isaiah Minter, Toya Williams,

and Marina Bethany ; car dealer Anthony Brown; former Tax Coll ector

interns Ashley Depeiza and Amber Allen; Ms. DepeizaÔs mother, Gale

Depeiza; and current Tax Collector employees Shannon Blankenship, Colette

True, Kimberley Reshard, Brenda Martinez, Lori Carmichael, and Donna

Johnson. Ms. Tyson also offered rebuttal testimony. PetitionerÔs Composite

Exhibit 1 was admitted into evidence. Respondent presented the testimony of

Tax Collector John Power and Tax Collector employees Venus McCray,

Veronica Taylor, and Jon Costabile. Mr. Costabile also presented brief

rebutta l testimony. RespondentÔs Exhibits 1 through 34 were admitted into

evidence.

The two - volume Transcript of the final hearing was filed with DOAH on

February 4, 2020. Multiple extensions of the time for filing p roposed

r ecommended o rders were granted. In kee ping with the last Order Granting

Extension, the parties filed their Propo sed Recommended Orders on

March 10, 2020. The Proposed Recommended Orders have been duly

considered in the writing of this Recommended Order.

On March 17, 2020, Respondent filed a M otion to Strike Portions of

PetitionerÔs Proposed Recommended Order. The Motion is hereby denied.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. The Tax Collector is an emp loyer as that term is defined in section

760.02(7).

2. Ms. Tyson is an African American female who worked for the Tax

Collector from 1993 until her employment was terminated on June 22, 2017.

3. John Power is the elected Alachua County Tax Collector. Belo w him in

the chain of command is Jon Costabile, the Chief Deputy Tax Collector.

Directly below Mr. Costabile is Executive Director Donna Johnson.

4. The Tax Collector has four offices in Gainesville: Downtown, Southwest,

Northwest, and a Communication and Processing Center (the ÑCPCÒ). Each of

these offices is supervised by a branch Director who reports to Ms. Johnson.

Two supervisors called Coordinators directly report to each Director.

5. At the time of her dismissal, Ms. Tyson was a Coordinator at the

Do wntown office. The other C oordinator at the Downtown office was Veronica

Taylor, also an African America n female.

6. Ms. TysonÔs employee evaluations over the years were generally

positive as to her performance. However, she had a reputation, at least

amon g her fellow supervisory employees, of being temperamental and

difficult to work with. Her ultimate dismissal was based on her insubordinate

conduct, not her job performance.

7. The series of events leading to Ms. TysonÔs dismissal began in Spring

2017 , wh en the decision was made to move Lori Carmichael, the Director of

the Downtown office, to the CPC facility. This move created a vacancy in the

Downtown office.

8. For supervisory positions, the Tax Collector seeks to promote internally.

Mr. Costabile testi fied that the pool for the vacant Director position

comprised the current branch Coordin ators, including Ms. Tyson.

Mr. Costabile and Ms. Johnson consulted the Directors regarding their

recommendations for the position.

9. Mr. Costabile testified that Venu s McCray, a Coordinator in the

Southwest office, was the clear number one choice for the Downtown D irector

position. All of the Directors agreed on the choice of Ms. McCray, who is

African American. Not only was Ms. McCray the unanimous choice of the

other Directors, but she was senior to Ms. Tyson in the Tax CollectorÔs office.

10. Mr. Costabile testified that the Directors are a close knit group that

works closely together. Two of the Directors told him point - blank that they

did not want to work with Ms. Tyson. There were no specific complaints

about Ms. Tyson, just a general feeling that she was ÑstandoffishÒ and people

had to Ñwalk on eggshellsÒ around her.

11. Ms. Tyson testified that Ms. Carmichael recommended her for the

Downtown Director position. In her testimony, Ms. Carmichael was generally

positive about Ms. Tyson but did not confirm that she recommended her as

Director.

12. Ms. Carmichael did confirm Ms. TysonÔs testimony that, upon learning

of Ms. McCrayÔs promotion, Ms. Tyson asked Ms. Carmicha el why she was

passed over for promotion. Ms. Carmichael agreed to take up the issue with

Ms. Johnson, who told her that Ms. Tyson had a propensity for ignoring the

Directors and needed to make an effort to be more interactive and look people

in the eye. M s. Carmichael passed this information on to Ms. Tyson.

13. Ms. Tyson testified that Ms. Johnson was referring to occasions when

Directors from other offices would visit the Downtown office. She stated that

these were four white women who would not acknowle dge her when she

spoke to them, or at best would ÑsmirkÒ at her. Ms. Tyson felt insulted by

their behavior. She told Ms. Carmichael that Ms. JohnsonÔs advice was

demeaning, inhumane, and Ñslave - ish . Ò

14. Ms. McCray testified that she had Ñbumped headsÒ wit h Ms. Tyson in

the past and therefore had some reservations about accepting the Downtown

position. Her misgivings appeared justified when she went to the office to

shadow Ms. Carmichael before taking over her position. Ms. Carmichael was

not there when Ms. McCray arrived , so she spoke to Ms. Tyson and

Ms. Taylor, the two Coordinators in the Downtown office.

15. Ms. Tyson asked Ms. McCray why she had not personally contacted

her to tell her about her promotion. Ms. McCray responded that she had been

told no t to discuss the promotion before the official announcement. This

answer did not satisfy Ms. Tyson. The conversation was uncomfortable

enough that Ms. Taylor felt compelled to walk away and give privacy to the

other two women.

16. After taking over as Dire ctor, Ms. McCray would have regular

meetings with her Coordinators. She testified that Ms. Taylor was positive

and cooperative but Ms. Tyson was consistently disagreeable. Ms. McCray

testified that she dreaded coming to work in the morning knowing she had to

deal with Ms. Tyson.

17. At a meeting on June 19, 2017, Ms. McCray was questioning her

Coordinators about the duties of office personnel, trying to get a feel for the

daily operation of the Downtown office. Ms. McCray testified that Ms. Tyson

studiously avoided making any eye contact with her. Ms. Tyson sat with her

head down. She doodled on a piece of paper while Ms. McCray spok e.

Ms. McCray asked Ms. Tyson to please do her the courtesy of looking her in

the eye. Ms. Tyson said, ÑI donÔt have to,Ò and c ontinued scribbling on the

paper.

18. Ms. Tyson testified that she was taking thorough notes during the

meeting. She stated that she takes pain medications for carpal tunnel

syndrome and wants to be sure she gets things right because she does not

want her superiors blaming mistakes on her medications. Ms. Tyson testified

that when Ms. McCray asked her to look her in the eye, she looked up and

asked Ms. McCray why she needed to look her in the eye while taking notes.

19. Ms. McCrayÔs version of the June 19, 2017, meeting is more believable.

Ms. McCray is credited with knowing the difference between avid notetaking

and idle scribbling. It is noted that even Ms. TysonÔs version of the meeting

presents Ms. Tyson as defensive and somewhat truculent toward her

sup erior.

20. Mr. Costabile testified that after she had been at the Downtown office

for a couple of weeks, Ms. McCray requested a meeting with Ms. Johnson and

him to discuss her difficulties with Ms. Tyson. Ms. McCray stated that she

might have to go back to being a Coordinator in a different office if the

situation did not improve. Mr. Costabile recalled Ms. McCray stating that she

did not want to be a Director if it was going to affect her health.

21. Mr. Power testified that Ms. Johnson came to him with c oncerns about

Ms. TysonÔs acceptance of Ms. McCray as her Director. Ms. Johnson reported

that Ms. Tyson was being very disrespectful and difficult to work with.

Mr. Power testified that he took this matter seriously because Ms. Johnson

does not come to him with personnel matters unless they are important.

22. Mr. Power testified that Ms. McCray herself spoke to him after a

morning meeting at the Northwest office. She told him that things were not

going well and he responded that he h ad heard about the probl em.

Ms. McCray told him that Ms. Tyson was being disrespectful, embarrassing ,

and disruptive. Mr. Power advised her to give the situation some time to sort

itself out.

23. The Downtown office opened to the public at 8:30 a.m. It was

Ms. McCrayÔs practice t o hold an all - employees meeting at 8:15 each

morning. On the morning of June 22, 2017, Mr. Power, Mr. Costabile, and

Ms. Johnson happened to be present at the meeting. Ms. McCray stood at the

front of the group, flanked by her Coordinators, Ms. Tyson and M s. Taylor.

24. Ms. McCray convened the meeting and announced that she wanted the

employees to set personal and professional goals for themselves. She

distributed Ñgoal sheetsÒ for each employee to fill out. This exercise served

the dual purpose of helping the employees establish priorities and helping

Ms. McCray get to know them better. The general feeling in the room was

enthusiastic support for Ms. McCrayÔs idea.

25. The meeting lasted about 15 minutes. Everyone in the room was

oriented toward , and listen ing to , Ms. Mc Cray, except for Ms. Tyson.

Ms. Tyson stood with her arms folded across her chest, ostentatiously turned

away from Ms. McCray. She stared at the ceiling, apparently uninterested,

while Ms. McCray spoke.

26. At the conclusion of her presentati on, Ms. McCray turned to her

Coordinators to ask if they had anything to add. She first asked Ms. Taylor,

who responded that she thought the goal setting exercise was a good idea.

Ms. McCray then asked Ms. Tyson if she had anything to add. Without

looking away from the ceiling or turning toward Ms. McCray, she said,

ÑNope.Ò

27. The testimony of Mr. Power, Mr. Costabile, Ms. McCra y, and

Ms. Taylor all agreed on the facts as set forth in the previous two paragraphs.

Ms. Tyson stood in front of all the Downtow n employees and all her superiors

in the Tax CollectorÔs office in a manner clearly intended to convey contempt

for Ms. McCray . Each of these witnesses heard Ms. Tyson answer ÑnopeÒ to

Ms. McCrayÔs question. 2

28. Ms. Tyson testified that she was turned awa y from Ms. McCray

because she was speaking to another employee. She stated that her arms are

always crossed because of her severe pain. She testified that the state of her

C5 and C7 vertebrae make it impossible for he r to look at the ceiling for

15 minutes . She stated that it is Ñnot m y natureÒ to turn away from

Ms. McCray and that Ñ Ó nopeÔ is not in my vocabulary.Ò Given the unanimity of

the contrary testimony, Ms. TysonÔs version of the June 22, 2017, meeting

cannot be credited.

29. Mr. Power testified tha t Ms. TysonÔs behavior at the meeting left him

aghast. Her body language indicated she was removing herself from the

meeting, though as a supervisor she was expected to set an example for the

front line employees . Mr. Power stated that he Ñabout fell on th e floorÒ when

Ms. Tyson said ÑnopeÒ in answer to Ms. McCrayÔs question.

30. After the meeting, Mr. Power retired to his office to ponder his options

as to Ms. Tyson. He had been hearing reports about Ms. TysonÔs behavior for

the past month and now he had seen it with his own eyes. Ms. Tyson was a

leader in the organization and had blatantly shown disrespect to a member of

senior management in front of all the Downtown staff. She was advertising

her opinion that no one should listen to Ms. McCray.

31. Mr. P ower decided that Ms. TysonÔs employment should be

terminated. He directed Mr. Costabile to release Ms. Tyson from the Tax

CollectorÔs office.

32. Mr. Costabile prepared the paperwork and convened the termination

meeting with Ms. Tyson. Also present at the meeting was Human Resources

Administrator Linda Power, whose only function was to serve as a witness.

2 It is possible to answer ÑnopeÒ in a way that conveys a pos itive attitude toward the

questioner. However, each of these witnesses demonstrated the contemptuous manner in

which Ms. Tyson spoke the word.

The meeting was brief. Mr. Costabile told Ms. Tyson that her insubordination

was a serious matter. He stated that every employee needs to accept change,

but Ms. Tyson was apparently unable to acc ept Ms. McCrayÔs promotion.

Ms. Tyson was a member of management and was expected to set an example

for her subordinates.

33. The Tax CollectorÔs policy is to offer an employment resignation

agreement, waiver , an d release when a long - term employee is terminated for

cause, in lieu of termination. The agreement includes a severance package.

Ms. Tyson declined to accept the offer to resign. Mr. Costabile terminated her

employment effectively immediately.

34. Ms. Tyso n testified that Mr. Costabile told her that she was being

fired for failing to look Donna Johnson in the eye at the morning meeting.

Ms. Tyson responded that Donna Johnson wasnÔt speaking at the meeting.

ÑWhy would I be looking her in the eye?Ò She testif ied that Mr. Costabile told

her she was bringing down the morale of the office and that people were

complaining.

35. Mr. Costabile credibly denied telling Ms. Tyson she was being fired for

not looking someone in the eye.

36. Ms. TysonÔs position as Coordi nator was ultimately filled by Christie

Tyson, a white woman who is not related to Ms. Tyson. Ms. McCray testified

that Ms. Johnson asked her whether she thought the job should go to

Christie Tyson or to Regina Gainey, an African American woman.

Ms. McCray testified that she recommended Christie Tyson, based on prior

experience of working with her. Ms. Taylor, the other Coordinator in the

Downtown office, also recommended Christie Tyson. 3

3 Ms. Tyson made an issue of the fact that Christie Tyson and Donna Johnson share a

grandson. However, given the unanimity of the recomm endation, it is found that

Ms. Johnson did not improperly favor Christie Tyson. Furthermore, whether Ms. TysonÔs

replacement had a familial relationship with one of her former superiors has nothing to do

with whether Ms. Tyson was t erminated on the basis of her race.

37. Ms. Tyson believed that her dismissal had been in the works sinc e

April , and that Christie Tyson had been ÑgroomedÒ to take her place. She saw

a nefarious connection between Ms. JohnsonÔs advice that she greet and look

the Directors in the eye and Ms. McCrayÔs request that she look her in the

eye at the June 19 meeting . She offered no supporting evidence for her

intuitions.

38. Ms. Tyson testified that because the Tax CollectorÔs office was

planning to fire her, a black woman, they needed another black woman to

take her place in order to fend off public complaint. She f urther testified,

without support, that Ms. McCray was a useful pawn in that regard, willing

to lie about her interactions with Ms. Tyson to advance her own career.

39. Ms. Tyson testified that after being told multiple times to look people

in the eye, she was sure that something was up. She stated that she went to

Veronica TaylorÔs office and told her she knew she would not be around much

longer. Ms. Taylor did not confirm this incident in her testimony.

40. Ms. Tyson testified that, a day or so after her conversation with

Ms. Taylor, she accidentally bumped into Mr. Power in the office , and he said

to her, ÑYou look like the type that will fight.Ò Ms. Tyson stated that this

scared her because she did not know why he would say that. She went to her

office a nd scoured her notes looking for what she had done wrong. She

tearfully phoned her mother and asked for her prayers because she was about

to be fired.

41. Mr. Power flatly and credibly denied telling Ms. Tyson that she looked

like she would fight.

42. Ms. Tyson presented the testimony of other Tax Collector employees

who believed there was an element of racism in the running of the office.

Isaiah Minter, an African American male, worked in the Tax CollectorÔs office

in a non - supervisory capacity from 2013 t o 2015. Ms. Tyson was his

Coordinator. He testified that he came to the job with a bachelorÔs degree

from the University of Florida and experience as a driverÔs license examiner.

He expected to advance quickly. He was upset when Ms. Johnson told him

that h e would have to prove himself and that it might take five years for him

to be promoted into a supervisory job. He was offended that Mr. Power told

him he was needed at the front desk. Mr. Minter left the Tax CollectorÔs office

in good standing to take a jo b at the Veterans Administration.

43. Moranda Bethley, an African American female, worked in the Tax

CollectorÔs office from December 2003 until March 2017. She worked with

Ms. Tyson at the Northwest and Downtown office s . Ms. Bethley described

Ms. Tyson as a Ñsaint,Ò always friendly, personable, positive, and helpful.

44. Ms. Bethley testified that there was no room for black people to

advance in the Tax CollectorÔs office. The supervisors would tell the black

employees they were doing a good job, keep up the good work, but would

never offer a promotion. The white supervisors were less interested in

helping than in pointing the finger at the employee seeking help. Ms. Bethley

would seek out the assistance of Ms. Tyson rather than her own supervisor

because of the latterÔs negativity.

45. Ms. Bethley resigned in lieu of termination as a result of her

persistent practice of disruptive behavior in the workplace, culminating in a

weeks - long conflict with a fellow employee that could not be resolved and that

esca lated to the point that management concluded that Ms. BethleyÔs

employment was no longer tenable. The weight given to Ms. BethleyÔs

testimony as to the atmosphere of the office is lessened by the evidence of her

own unprofessional behavior.

46. Toya Willia ms, an African American female, worked at the Tax

CollectorÔs office from 2013 until May 11, 2017. Ms. Tyson supervised her for

at least part of that time. She found it unsettling that in her two interviews

for positions with the agency, she met with two w hite males and five white

females. She asked questions about the racial mix of personnel and was

assured that progress would come. Ms. Williams testified that in her four

years, she never served under a Director of color.

47. Ms. Williams initially worked at the Southwest office, where there was

a lot of Ñcliquish foolery.Ò The Director was incompetent, unable to explain

the work they were doing. Venus McCray was one of the Coordinators and

was the only knowledgeable supervisor i n the office. At one point,

Ms. McCray asked the employees to stop coming to her for help so often,

because the Director and the other Coordinator had noticed that no one ever

sought their assistance.

48. Ms. Williams immediately felt a difference when she moved to the

Downtown offi ce. There were frequent morning meetings and Ms. Tyson went

out of her way to greet everyone in the morning. Ms. Tyson was good for

morale. If an employee made a mistake, she used it as a teaching method

rather than an opportunity to castigate the employee .

49. Ms. Williams testified to being shocked when Mr. Power referred to

the Downtown office as the Ñghetto officeÒ at a morning meeting. She

wondered whether he gave it that name because it was in a decrepit old

building, or because it was the only office with two black Coordinators and

was located in a part of town where many black people lived.

50. Ms. Williams resigned from the Tax CollectorÔs office as an employee

in good standing to accept another job.

51. Amber Allen, an African American female, work ed as an intern at the

Tax CollectorÔs office from 2013 through March 2016. Ms. Allen testified that

she worked with Ms. Tyson at the Downtown office and that Ms. Tyson was

the only reason she stayed as long as she did. Ms. Tyson encouraged her to

focus on her work instead of office politics and the racism of the white

supervisors.

52. Ms. Allen testified that one day she changed into flat shoes before

going out into the street for her lunch hour. Ms. Johnson told her that her

overall demeanor, appearance , and hair style were too relaxed for the Tax

CollectorÔs professional environment. Ms. Allen stated that on that day, she

had pinned up her hair on one side. The other side was in an Afro style.

53. Ms. Allen testified that she spent the rest of that lunch h our on the

phone crying to her mother, asking why she was required to gauge how black

she was allowed to look at work. She wanted to quit the job, but Ms. Tyson

took her into her office and counseled her to advocate for herself in the office,

but not in a disrespectful or demeaning way.

54. Ms. Allen testified that Ms. Johnson never made any more comments

about her relaxed appearance but that she did make comments about her

hair. Ms. Allen found this especially galling because her white counterparts

would a rrive at work with hair so wet that it soaked the backs of their chairs

and their shirts, but Ms. Johnson said not hing. Ms. Allen stated that

Ms. JohnsonÔs comments made her feel small.

55. Ms. Allen testified that she was a lso at the meeting at which

Mr. Power referred to the Downtown office as the ghetto office. Mr. Power

stated that the office dealt with many different types of people, many of them

unsavory. He also mentioned that much of the Downtown client base came

from the east side of Gainesville, k nown as a minority area. Ms. Allen was

certain that Mr. Power was not referring to the physical condition of the

building , but the people who were being served in the building. She testified

that a number of black employees found the comments Ñdisgusting.Ò

56. Mr. Power testified that he indeed referred to the Downtown office as

the ghetto office at a morning meeting. He stated that he used that term

because the building was in a Ñdeplorable condition,Ò like a building in a

ghetto. It was embarrassing to th e staff. One day, a rat fell through the

ceiling in the middle of work. Mr. Power testified that his use of ÑghettoÒ

referred only to the building, not to any of the buildingÔs customers. He stated

that he would not use Ñeast sideÒ as a pejorative term, if for no other reason

than because he lives on the east side.

57. Copious evidence was presented attesting to Mr. PowerÔs personal and

professional involvement in the African American community of Alachua

County. There is little question that Mr. Power does not harbor any

animosity or personal discriminatory feelings toward African Americans.

However, this finding is not inconsistent with Ms. TysonÔs allegation that

there is an element of institutional racism at work in the Tax CollectorÔs

office.

58. The te stimony of PetitionerÔs supporting witnesses should not be

minimized. It is clear that the Tax Collector has at least a perception

problem. Rightly or wrongly, some African American employees believe that

their working environment and path to advancement a re tai nted by racism.

It might prove fruitful for Mr. Power to institute a program of institutional

soul - searching on the question.

59. That being said, the purpose of this proceeding is not to undertake a

systemic analysis of racism in the Tax CollectorÔs office. This proceeding is

limited to the question of whether the adverse employment action taken

against Ms. Tyson was an act of racial discrimination. The overwhelming

evidence is that it was not.

60. Ms. Tyson presented no persuasive evidence that comp arable

employees outside of her protected group were treated differently. She

alleged that a white supervisor named Valerie Jerkins had a practice of

clocking in to the workplace then leaving without clocking out, thus stealing

time from the Tax Collector , without being subject to any adverse

employment action . Ms. Tyson had no firsthand knowledge of this alleged

behavior.

61. The only employee claiming direct knowledge of Ms. JerkinsÔ s behavior

was Ms. Bethley, who claimed that she reported the matter to Ms. Johnson.

None of the supervisory employees who testified, including Ms. Johnson, had

any recollection of having received a report or complaint of Ms. Jerkins

stealing time.

62. Mr. Costabile testified as to a former employee named Tracy Jones, a

Cauca sian woman who held several positions in the Tax CollectorÔs office and

was a Director at the time her employment w as terminated in June 2018.

Ms. Johnson had asked Ms. Jones to accept a reassignment. Ms. Jones

proceeded to announce her displeasure to othe r employees and customers.

Ms. Jones was dismissed for insubordination.

63. In summary, it is found that the decision to terminate Ms. TysonÔs

employment was based entirely on her own behavior. It is clear that

Ms. TysonÔs bitterness at being passed over f or the DirectorÔs job poisoned her

relationship with Ms. McCray and led her to behave in a manner so

startlingly unprofessional that Mr. Power saw no option but to dismiss her. 4

64. Ms. Tyson offered no evidence that, prior to her termination, she

opposed any discriminatory practices at the Tax CollectorÔs office, or that she

participated in an investigation, proceeding, or hearing challenging

discriminatory practices at the Tax CollectorÔs office . Ms. Tyson offered no

evidence to support her allegation tha t the Tax Collector retaliated against

her for engaging in protected activity.

65. Ms. Tyson offered no credible evidence disputing the legitimate, non -

discriminatory reason given by the Tax Collector for her termination.

66. Ms. Tyson offered no credible evidence that the Tax CollectorÔs stated

reason for her termination was a pretext for discrimination based on her race

or color.

67. Ms. Tyson offered no credible evidence that the Tax Collector

discriminated against her because of her race or color in v iolation of section

760.10.

C ONCLUSIONS OF L AW

68. The Division of Administrative Hearings has jurisdiction of the subject

matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

4 The undersigned has not ignored Ms. TysonÔs testimony that she was not upset at being

passed over for the promotion because Ms. McCray was senior to her in the organization.

When assessed in light of her behavior towar d Ms. McCray, Ms. TysonÔs testimony on this

point is not credible.

69. The Florida Civil Rights Act of 1992 (the Ñ Fl orida Civil Rights Act Ò or

the Ñ FCRA Ò ), chapter 760, prohibits discrimination in the workplace.

70. 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 t o hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual's race, color, religion, sex, national

origin, age, handicap, or marital sta tus.

* * *

(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 e mployment 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.

71. The Tax Collector is an Ñ employer Ò as defined in sect ion 760.02(7),

which provides the following:

(7) Ñ Employer Ò 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.

72. Florida co urts 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, 9 3 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under section 760.10, absent direct

evidence of discrimination. See Harper v. Blockbuster EntmÔt 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. DepÔt of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

73. Ñ Direct evidence is Óevidence, which if believed, proves existence of fact

in issue without inference or presumption.ÔÒ Rollins v. TechSouth, Inc. , 833

F.2d 1525, 1528 n.6 (11th Cir. 1987)( quoting BlackÔs Law Dictionary , 413 (5th

ed. 1979)). In Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Cou rt has held that not every comment

concerning a person's age presents direct evidence

of discrimination. [ Young v. Gen. Foods Corp . , 840

Young Court

made clear that remarks merely referring to

characteristics associated with increasing age, or

facially neutral comments from which a plaintiff

has inferred discriminatory intent, are not directly

probative of discrimination. Id . Rather, courts have

found only the most blatant remarks, whose intent

could be nothing other tha n to discriminate on the

basis of age, to constitute direct evidence of

discrimination.

Petitioner offered no evidence that would satisfy the stringent standard of

direct evidence of discrimination.

74. Under the McDonnell analysis, in employment discrimi nation cases,

Petitioner has the burden of establishing, by a preponderance of evidence, a

prima facie case of unlawful d iscrimination. 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 DepÔt of Cmty. Aff. v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

75. In order to prove a prima facie case of unlawful employment

discrimination under chapter 760, Petitioner m ust establish that: (1) she is a

member of the protected group; (2) she was subject to adverse employment

action; (3) the Tax Collector treated similarly situated employees outside of

her protected classifications more favorably; and (4) Petitioner was qua lified

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

legitimate expectations. See , e.g., Jiles v. United Parcel Serv ., Inc ., 360 Fed.

Appx. 61, 64 (11th Cir. 2010); Burke - Fowler v. Orange Cty , 447 F.3d 1319,

1323 (1 1th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc ., 330 F.3d 1313,

1316 (11th Cir. 2003); Williams v. Vitro 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).

76. Petitioner has faile d to prove a prima facie case of unlawful

employment discrimination.

77. Petitioner is an African American female and is therefore a member of

a protected group.

78. Petitioner was fired from her position with the Tax Collector and was

therefore subject to an adverse employment action.

79. As to the question of disparate treatment, the applicable standard was

set forth in Maniccia v. Brown , 171 F.3d 1364, 1368 - 69 (11th Cir. 1999):

Ñ In determining whether employees are similarly

situated for purposes of esta blishing 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. Ò Jones v. Bessemer Carraway Med. Ctr. , 137

F.3d 1306, 1311 (1 1th Cir.), opinio n modified by

151 F.3d 1321 (1998) (quoting Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997)). Ñ The most

important factors in the disciplinary context are the

nature of the offenses committed and the nature of

the punishments imposed. Ò Id. (internal quotations

and citations omitted). We require that the quantity

and quality of the comparator Ô s misconduct be

nearly identical to prevent courts from second -

guessing employers Ô reasonable decisions and

confusing apples with oranges. See Dartmouth

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

Cir. 1989) ( Ñ Exact correlation is neither likely nor

necessary, but the cases must be fair congeners. In

other words, apples should be compared to

apples. Ò ).[ 5 ] ( e mphasis added).

80. Petitioner offered no evidence as to disparate treatment of similarly

situated employees outside of her protected classification, aside from

allegations that a white supervisory employee, Valerie Jerkins, had stole n

time from the Tax Collector with impunity. The allegation was not

adeq uately substantiated. The Tax Collector offered evidence that a

Caucasian Director, Tracy Jones, was fired for insubordination that was

substantially similar to the actions that led to Ms. TysonÔs dismissal. Having

failed to establish the disparate treatme nt element, Petitioner has not

established a prima facie case of employment discrimination.

81. The evidence demonstrated that Petitioner was not performing her job

at a level that met her employerÔs legitimate expectations. Ms. Tyson was

insubordinate to her superiors and disruptive to the workplace. Her behavior

in meetings with Ms. McCray prior to June 22, 2017, had caused Mr. Power,

Mr. Costabile, and Ms. Johnson to take notice and become concerned with the

situation in the Downtown office. When Ms. Ty son exercised the stunningly

poor judgment to openly flout her contempt for Ms. McCray at an all - hands

meeting attended by all of her superiors in the Tax CollectorÔs office,

Mr. Power saw no alternative to terminating her employment. One could

cavil that Mr. Power might have done more to salvage the career of a long -

5 The Eleventh Circuit has questioned the Ñ nearly identical Ò standard enunciated in

Maniccia , but has, in recent years, reaffirmed its adherence to it. See, e.g., Brown v.

Jacobs EngÔg, 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.

time employee, but one could not argue that Mr. Power was motivated by

anything other than the morale and good order of his office or that Ms. Tyson

had not earned the discipline she received.

82. Even if Petitioner had met the burden, Respondent presented ample

evidence of legitimate, non - discriminatory reasons for P etitioner's

termination. All of the factors set forth in the preceding paragraph, combined

with Ms. TysonÔs history of being a dif ficult employee, demonstrate that the

Tax Collector ha d more than adequate reason to terminate Ms. TysonÔs

employment becaus e of her deleterious effect on the workplace.

83. As to PetitionerÔs retaliation claim, the court in Blizzard v. Appliance

Direct, I nc. , 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 protected

activ ity; (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

EntmÔt 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 Transp. , 325 F.3d 12 05, 1212

(10th Cir. 2003). The plaintiff must then respond

by demonstrating that defendant's asserted reasons

for the adverse action are pretextual. Id .

84. Petitioner made no evidentiary showing that any employment or post -

employment action by the Tax Co llector was causally related to any

statutorily protected activity she took while an employee. There was no

evidence that Ms. Tyson ever lodged a formal complaint about discrimination

in the workplace or even complained to a superior about discriminatory

t reatment. She made no showing that the adverse employment action was

causally related to any protected activity. As a matter of proof, it is concluded

that Ms. Tyson abandoned the retaliation claim.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that the Alachua County Tax Commissioner did not

commit any unlawful employment practices and dismissing the Petition for

Relief filed in this case.

D ONE A ND E NTERED this 31at day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

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 31st day of March , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

William H. Andrews, Esquire

Gray Robinson

Suite 1100

50 North Laura Street

Jacksonville, Florida 32202 - 3611

(eServed)

Salana Tyson

21812 Northwest 210th Avenue

High Springs, Florida 3264 3

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions with in 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.