19-003974 Latasha Mccleary vs. Cole, Scott, Kissane, P.A. Status: Closed Recommended Order on Friday, December 20, 2019.

Summary: Petitioner failed to prove that Respondent terminated her employment on the basis of her race; retaliated against her for engaging in protected activity; or subjected Petitioner to a hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATASHA MCCLEARY ,

Petitioner,

vs. Case No. 1 9 - 3974

COLE, SCOTT & KISSANE, P.A. ,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

November 6, 2019 , at sites in Tallahassee and Lauderdale Lakes ,

Florida.

APPEARANCES

For Petitioner: Reshad Favors , Esquire

Mosaic Law Firm

Tenth Floor

1875 Connecticut Avenue Northwest

Washington, DC 20009

For Respondent: Robert Alden Smith , Esquire

Cole, Scott & Kissane, P.A.

Tower Place , Suite 750

1900 Summit Tower Boulevard

Orlando , Florida 32810

Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A.

Second Floor

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issue s in this case are whether , in violation of the

Florida Civil Rights Act, Respondent terminated Petitioner 's

employment on th e basis of her race , or retaliated against her

for engaging in protected activit y; and whether Respondent

subjected Petitioner to a hostile work environment .

PRELIMINARY STATEMENT

On April 21, 2017, Petitioner Latasha McCleary filed a

Complain t with the Equal Employment Opportunity Commission and

the Florida Commission on Human Relations ( " FCHR " ), alleging

claims of race discrimination, retaliation, and harassment. The

FCHR investigated Ms. McCleary's c laims, and, on June 2 0 , 201 9 ,

issued a Determinatio n stating that no reasonable cause existed

to believe that an unlawful practice had occurred. Thereafter,

Ms. McCleary filed a Petition for Relief, which the FCHR

transmitted to the Division of Administrative Hearings ( " DOAH " )

on July 2 5 , 201 9 .

Initiall y, this case was set for final hearing on

October 1 , 201 9 . On Petitioner's motion, the final hearing was

continued to October 14 , 2019 ; it was later rescheduled, on

Respondent's unopposed motion, for November 6, 2019 . The

hearing took place on that day, with both parties present.

Ms. McCleary testified and called no other witnesses.

Petitioner's Exhibits 1 through 10 were received in evidence .

Respondent's Exhibits 1 through 23 were admitted as well.

Respondent elected not to call any witnesses.

Neither party opted to order the final hearing transcript.

At hearing, the undersigned set November 25, 2019, as the

deadline for fil ing proposed recommended orders. Each party

filed one, and these have been considered.

Unless otherwise indicated, citat ions to the official

statute law of the s tate of Florid a refer to Florida Statutes

201 9 .

FINDINGS OF FACT

1. Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a

law firm having offices throughout the state of Florida.

Petitioner Latasha McCleary ("McCle ary"), an African - American

woman, worked for CSK in its Orlando office as a legal assistant

from August 7, 201 7 , through July 31, 2018. However, b ecause

McCleary began taking medical leave on June 6, 2018, and never

returned to work , her last day in the office was June 5, 2018 .

Thus, the period of time in which McCleary actually functioned

as a regular CSK employee was ten months.

2. During her tenure with the firm, McCleary provided

secretarial and administrative support to several att orneys,

including partner Bartley Vickers and associates Jeremy Beasley

and Shawn Gibbons. McCleary's direct supervisor was the then

office manager, Lilliam Hernandez.

3. CSK regarded McCleary as a valued and high - performing

employee. Although, as wil l be discussed, McCleary complains

that she was subjected to unfair criticism dur ing the last weeks

of her time in CSK's Orlando office, she was never reprimanded,

disciplined, or subjected to an adverse employment action.

4. For the first nine months of her employment, McCleary

got along well with the attorneys for whom she worked , including

Mr. Vickers, and she has no complaints about their treatment of

her d uring this period . T he only noteworthy incident or

incidents of relevance to have occurred in th is time frame are a

secretary's use, on one or perhaps more occasions, of the "n -

word" in McCleary's presence.

5. An employee's use of this racial epithet in the

workplace is, of course, extremely offensive and inflammatory,

to say the least , and, if unchecked, could create a hostile work

environment. That did not happen here, however. The legal

assistant who made the offensive remark (apparently in the

presence of peers only, not supervisors or managers) apologized

to McCleary when the lat ter expressed her discomfort . McCleary

never reported the incident (s) in writing to the firm's

management, as the Employee Handbook required ÏÏ a fact from which

the undersigned infers that she accepted her co - worker's

apology ÏÏ and the bad behavior stopped . The upshot is that this

upsetting incident was resolved informally among the affected

employees without initiating an investigation by the firm , and a

nascent problem was nipped in the bud.

6. The watershed moment in this case occurred on M ay 7,

2018 , at the beginning of McCleary's tenth month with CSK. An

expert witness retained by CSK was scheduled to conduct an on -

site inspection that day but failed to appear, forcing a last -

minute cancelation which caused opposing counsel to incur travel

expenses that CSK had to reimburse. McCleary mistakenly had

failed , on the previous business day , to confirm the expert's

availability, as the firm's routine required, and thus , she bore

some responsibility for the unwanted results . That said, there

is no evidenc e that this situation was other than a relatively

minor inconvenience that could be fixed, learned from, and

forgotten .

7. When the problem came to light on May 7, 2018,

Ms. Hernandez, the office manager, sent an email to McCleary

reminding her that the inspection "should have been confirmed"

beforehand to avoid a "waste[] [of] time and money." McCleary

apologized for making a "human error" and promised it would not

happen again.

8. On May 9, 2018, Mr. Vickers, the partner, sent an email

to McCleary and Mr. Gibbons, the associate, telling them that

"some form of confirmation is needed" "for confirming inspection

dates." He added: "This is a mistake that I imagine will not

happen again, and I am glad we can move past it and look to the

future without these types of issues again."

9. The only thing remarkable about these emails is how

unremarkable they are. Two points of interest will be

mentioned. First, as just suggested, th e tone of each message

was neither derogatory n or personal, but measured and

professional . There was a touch of criticism, to be sure, as

would be expected , but the criticism was constructive in nature,

not harsh or angry in tone. Second, McCleary was no t the only

one called to account . Mr. Vickers ' s email was directed as much

to the associate attorney as to McCleary .

10. The next day, Thursday, May 10, 2018, Mr. Vickers

conducted a training meeting for the legal assistants in his

group, which McCleary attended. There were a number of topics

on the agenda, covering a range of administrative tasks that CSK

expected its litigation support staff to carry out. Although

Mr. Vickers brought up t hat week 's scheduling snafu as an

example of miscommunication - driven consequences , n o evidence

suggests that McCleary's mistake had prompted th e meeting.

Further, McCleary was not identified in the meeting as having

been at fault or involved in the incident. McCleary , however,

complains that she was "singled out" d uring the meeting, "80%

[of which , she maintains, ] covered what happened with [her] in

regar ds to the May 7th re - inspection. " T he greater weight of

the evidence does not support her characterization of the

training session.

11. According to McCleary, Mr. Vickers, who had been a

good boss for the previous nine months, suddenly turned into a

tyrant around May 10 , 2018 . McCleary alleged in an email

written a few weeks later, on June 1, 2018, that soon after the

canceled inspection, Mr. Vickers had begun ask ing her "idiotic

questions to be sure [she knew] her job," and been constantly

micromanaging [her] with multiple emails" accusing her of making

numerous mistakes. Yet, although this entire period spans just

18 business days, McCleary produced none of Mr. Vickers's

alleged, accusatory emails. The greater weight of the evidence

does not support McCleary's allegations concerning Mr. Vickers's

treatment of her during the month of May 2018.

12. Sometime near the end of M ay , McCleary sent out

notices of taking deposition duces tecum that did not have the

document requests attached. McCleary was not solely to blame

for this oversight; the attorney handling the case should have

reviewed the papers to make sure that everything was in order

before service. Still, as the legal assistant, McCleary should

have spotted the omission and brought it to the attorney's

attention. On the morning of May 31, 2018, after the problem

had been discovered, Mr. Vickers sent an email to McCleary and

Mr. Beasley, the associate, adm onishing them to "stay focused"

when preparing deposition notices for service.

13. Similar to the canceled inspection earlier in the

month, the incom plete deposition notices were a problem that CSK

obvio usly would rather have avoided; inattention to detail ,

moreover, is something any reasonable employer should want to

correct. There is no evidence, however, that CSK generally, or

Mr. Vickers in particular, made a big deal about th is incident.

Mr. Vickers told McCleary and the associate that he hoped "it

would not happen again" ÏÏ and that, it seems, would be that.

14. Except it wasn't. Later that day, May 31, 2018,

McCleary spoke to the office administrator, Johnson Thomas.

During this conversation, McCleary complained about working for

Mr. Vickers and asked to be transferred to a different group of

attorneys. On Friday, June 1, 2018, McCleary again contacted

Mr. Thomas, sending him the email mentioned above. This email

was the first written notice that CSK received from McC leary

concerning her com plaints about Mr. Vickers. In the email,

McCleary did not allege racial discrimination, per se, but she

did include some language which clearly indicated that such a

charge might be forthcoming: "I refuse to subject myself to

further retaliation , oppress ion and disrespect from Mr. Vickers.

He is creating a hostile working relationship between us. I

cannot concentrate on work and am in need of immediate

transfer." ( e mphasis added) .

15. The following Tuesday, June 5, 2018, CSK approved

McCleary's reques t to be transferred, assigning her to the work

group headed by partner Melissa Crowley. When the announcement

was made, Ms. Crowley sent an email to McCleary stating,

"Welcome Latasha! I look forward to working with you."

16. McCleary never reporte d for duty under Ms. Crowley.

Instead, she took a sick day on June 6, 2018, and applied for

unpaid medical leave. Despite McCleary's having present ed

somewhat nonspecific reasons, such as heart palpitations and

anxiety, the firm granted McCleary's applic ation and placed her

on medical leave through July 11, 2018. In mid - July, McCleary

provided CSK with a note from her mental health counselor in

support of a request to extend the unpaid medical leave until

September 5, 2018. On July 12, 2018, the firm in formed McCleary

that it would not be able to keep her position open that long

without hiring a replacement, but agreed to let her remain on

leave until July 31, 2018. CSK made it clear to McCleary that

she needed to return to work on August 1, 2018, or fa ce

dismiss al on grounds of abandonment.

17. McCleary did not return to work on August 1, 2018, and

the firm terminated her employment.

Ultimate Factual Determinations

1 8 . There is no persuasive evidence that CSK took any

actions against McCleary motivated by discriminatory animus , or

created (or acquiesced to the creation of) a hostile work

environment . Indeed, there is no competent, persuasive evidence

in the record, direct or circumstantial, upon which a f inding of

unlawful racial discrimination could be made.

19 . There is no persuasive evidence that CSK took any

retaliatory action against McCleary for having opposed or sought

redress for an unlawful employment practice .

20 . Ultimately, therefore, it is d etermined that CSK did

not discriminate unlawfully against McCleary on any basis.

CONCLUSIONS OF LAW

21 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569 and 120.57(1),

Florida Statutes.

22 . As stated in C ity 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 follows 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 Beach v.

Marcell , 890 So. 2d 1227, 1230 n.1

(Fla. 4th DCA 2005).

23 . Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer:

To discharge or to fail or refuse to hire

any individual, or otherwise to discriminate

against any individual with r espect to

compensation, terms, conditions, or

privileges of employment, because of such

individual ' s race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

24 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the initial bur den of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. If, however, the complainant

succeeds in making a prima facie case, then the burden shifts

to the accused employer to articulate a legitimate,

nondiscriminatory reason for its complained - of conduct. If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merel y a pretext for discrimination. Id. ; St. Mary ' s Honor Ctr .

v. Hicks , 509 U.S. 502, 506 - 07 (1993).

25 . Under the foregoing framework, McCleary bears the

burden of establishing her prima facie case by a preponderance

of the evidence and must show, among other elements, that:

( i ) she was subjected to an adverse employment action; and

( ii ) similarly - situated employees outside of her protected class

were treated differently . Schrock v. Publix Sup er Mkts . , Inc . ,

653 F. App ' x 662, 663 (11th Cir. 2016); see, e.g. , Holland v.

Gee , 677 F.3d 1047, 1055 (11th Cir. 2012)(Title VII); Chapman v.

AI Transp. , 229 F.3d 1012, 102 4 (11th Cir. 2000)(ADEA).

2 6 . In this matter, the evidence does not establish a

prima facie case of discrimination based on race because

McCleary failed to prove that she was subjected to an adverse

employment action. All that happened to McCleary was that, in

May 2018, s he received some negative feedback from her boss,

Mr. Vickers, following a couple of relatively minor mistakes,

which, although unrelated, reflected some inattention to detail

on her part. McCleary was not disciplined, berated, harshly

criticized , or reprimanded for these errors. Nor wa s she made

the scapegoat, as, i n both instances , associate attorneys were

also taken to task for dropping the ball . These were

commonplace employment interactions, not adverse employment

actions.

27. McCleary likewise fail ed to identify any other

similarly - situated employees outside of her protected class who

were treated more favorably. She has argued that Mr. Vickers

subjected her to heightened levels of scrutiny as compared to

other legal assistants, but this is too general a charge to be

probative and , in any event , was not proved.

28 . McCleary's failure to make out a prima facie case

of discrimination ended the inquiry. Because the burden

never shifted to CSK to articulate a legitimate,

nondiscriminatory reason for its conduct, it was not necessary

to make any findings of fact in this regard.

29 . McCleary asserts that CSK refused to exten d her unpaid

sick leave in retaliation for her complaint about Mr. Vickers's

purported harassment. Under the Florida Civil Rights Act ' s

( " FCRA " ) opposition clause, CSK is prohibited from retaliating

against McCleary because she has opposed an unlawful employment

practice. § 760.10(7), Fla. Stat. Meanwhile, under the FCRA ' s

participation clause, CSK is prohibited from retaliating against

an empl oyee because he or she " has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under [the FCRA]. " Id.

3 0 . To establish a prima facie case of retaliation ,

McCleary must demonstrate that: ( i ) s he engaged in statutorily

protected activity; ( ii ) she suffered a materially adverse

action; and ( iii ) a causal relationship existed between her

protected activity and the adverse action. Goldsmith v. Bagby

Elevator Co., Inc . , 513 F.3 d 1261, 1277 (11th Cir. 2008). If

McCleary establishes a prima facie case, the burden shifts to

CSK to rebut the presumption by articulating a legitimate non -

retaliatory reason for the materially adverse action. Id.

McCleary then must demonstrate that t he articulated reason is a

pretext to mask an improper motive. Id . In other words,

McCleary must show that her alleged protected activity was a

" but for " cause of her termination. Univ. of Tex. Sw. Med. Ctr.

v. Nassar , 570 U.S. 338 (2013).

31 . Assuming for argument's sake that McCleary engaged in

a statutorily protected activity on May 31 and June 1, 2018, by

notif ying the firm about her issues with Mr. Vickers, what

happened next was that CSK approved her request for a transfer

and then appro ved her request for unpaid medical leaveue,

McCleary's later request for additional medical leave was denied

in part; but it was also approved in part, with result that CSK

granted McCleary nearly two months of unpaid medical leave.

This strikes the undersigned as actually rather generous under

the circumstances, given that McCleary had not provided

documentation of a specific chronic illness. Regardless,

receiving approximately two - thirds of something one has asked

for in a negotiation is generally considered a win ; it is

certainly not indicative of a materially adverse action.

McCleary 's fail ure to prove that she suffered a materially

adverse action is a sufficient reason to conclude that a prima

facie case of retaliation was not shown.

32. Fina lly, McCleary asserts a claim of hostile work

environment. To establish such a claim , McCleary must prove

that " the workplace is permeated with discriminatory

intimidation, ridicule, and insult, [which] is sufficiently

severe or pervasive to alter the con ditions of the victim ' s

employment and create an abusive working environment. " Harris

v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993).

33 . When, as here in part (with respect to a colleague's

use of a racial epithet in McCleary's presence) , the alleged

harassment is committed by coworkers, non - supervisory employees,

or third parties, the p etitioner must demonstrate that the

r espondent " knew, or reasonably should h ave known, of the

harassment and failed to take prompt remedial actions. "

See Allen v. Tyson Foods, Inc. , 121 F. 3d 642, 647

(11th Cir. 1997) (citing Faragher v. City of Boca Raton , 111 F.3d

1530, 1535, 1538 (11th Cir. 1997)). The remedial action must be

reasonably calculated to prevent the misconduct from recurring.

Kilgore v. Tho mpson & Brock Mgmt., Inc. , 93 F.3d 7 52, 753 - 54

(11th Cir. 1996).

34 . McCleary failed to establish a h ostile work

environment claim because there was no credible evidence of

harassment, much less harassment that was sufficiently severe or

pervasive to alter a " term, condition, or privilege " of

employment and create an abusive working environment.

Overhearing another, non - supervisory employee use the "n - word"

understandably upset McCleary, but she failed to prove that CSK

knew or should hav e known about this incident. Plus, it should

be added, there was no persuasive evidence that the use of the

"n - word" was a pervasive problem at the firm ; rather, the

employee at fault ceased uttering the term when McCleary voiced

her disapproval . A few i solated incidents do not amount to

pervasive harassment . See Johnson v. Rice , 237 F. Supp. 2d 1330

(M.D. Fla. 2 002)(harasser ' s conduct held not to be objectively

pervasive whe re he made sexual comments and jokes over a period

of six months).

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order finding CSK not liable for race

discrimination, retaliation, or creating a hostile work

environment.

DONE AND ENTERED this 20th day of December , 201 9 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 20th day of December , 201 9 .

COPIES FURNISHED :

Reshad Favors, Esquire

Mosaic Law Firm

Tenth Floor

1875 Connecticut Avenue Northw est

Washington, DC 20009

( eServed)

Robert Alden Swift, Esquire

Cole, Scott & Kissane, P.A.

Tower Place, Suite 750

1900 Summit Tower Boulevard

Orlando, Florida 32810

(eServed)

Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A.

Second Floor

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

(eServed)

Tammy S . Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Co mmission 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 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.