19-005529 Paulette Lewis vs. Oakmonte Village Status: Closed Recommended Order on Tuesday, February 18, 2020.

Summary: Petitioner failed to establish that she was discriminated against based on her race, color, national origin, marital status, religion, age, or that she was retaliated against for engaging in a protected activity.

Lewis (Ms. Lewis or Petitioner ), on the basis of her race, color, national

origin, marital status, religion, age , and/or in retaliation for engaging in a

protected activity, i n violation of the Florida Civil Rights Act (FCRA).

P RELIMINARY S TATEMENT

On October 3, 2018, Ms. Lewis filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(Commission) , alleging that Oakmonte Village violated t he FCRA by

discriminating against her based on her race, color, national origin, marital status, religion, and age. Ms. Lewis also alleged that Oakmonte Village retaliated against her. On September 17, 2019, the Commission notified

Ms. Lewis that no reason able cause existed to believe that Oakmonte Village

committed an unlawful employment practice.

On October 9, 2019, Ms. Lewis filed a Petition for Relief with the

Commission in which she realleged a discriminatory employment practice.

The Commission transm itted the Petition for Relief to DOAH to conduct a

chapter 120 evidentiary hearing.

The final hearing was held on December 6, 2019, with both parties

present. At the final hearing, Ms. Lewis represented herself and testified on

her own behalf. Petitioner ’ s E xhibits 1 through 8 were admitted into

evidence.

2 Oakmonte Village called Ojanay Jones (Mr. Jones) and John

2 At the final hearing, Ms. Lewis offered her Jamaica - issued passpo rt into evidence as

Petitioner’s E xhibit 9. Ms. Lewis di d not provide a copy of the passport to the undersigned.

With no objection from Oakmonte Village, the undersigned left the record open for Ms. Lewis

to submit a copy of her passport. Ms. Lewis did not submit a copy of the passport. Ms. Lewis

sought to subm it the Jamaica - issued passport to prove her national origin. Ms. Lewis

credibly testified that she was Jamaican and the und ersigned accepts this as true. In

addition, the undersigned left the record open for Ms. Lew is to submit a legible copy of

Petitioner ’s E xhibit 5. After the conclusion of the hearing, Ms. Lewis submitted a new, albeit

also illegible, copy of Petitioner’s E xhibit 5.

Marshall (Mr. Marshall) as witnesses at the final hearing. Respondent ’s

E xhibits 1, 2, 4, 5, 6, and 8 through 13 were admitted into evidence.

At the close of the hearing, the parties were advised of a ten - day

timeframe following DOAH’s receipt of the hearing transcript to file post -

hearing submittals. On December 18, 2019, Ms. Lewis filed a Proposed Letter

of Recommendation, prior to the filing of the transcript. On January 10, 2020,

the court reporter filed a two - volume t ranscript of the final hearing with

DOAH. On the same day, Oakmonte Village submitted a Motion for

Extension of Time to file Proposed Recommended Order. The undersigned

granted th e motion and the deadline for the proposed recommended o rder s

was extended to January 31, 2020. On January 13, 2020, Ms. Lewis fil ed a

second Proposed Recommended Order. On January 31, 2020, Oakmonte

Village filed its Proposed Recommended Order. All three submissions were

duly considered in preparing this Recommended Order. 3

F INDINGS OF F ACT

1. Royal Senior Care Management is a healthcare facility campus

operating in Lake Mary, Florida. The campus includes an independent living

facility, an assisted living facility, and Oakmonte Village , which is a stand -

alone memory care facility that caters exclusively to residents suffering from

Alzheimer’s disease and dementia.

2. Ms. Lewis is a 52 - year - old black woman. She self - identifies as light -

skinned. Ms. Lewis te stified that her skin color is lighter than the other black

employees who worked for Oakmonte Village. She was born in Jamaica. She

is married and a Christian.

3 On January 2, 2020, Oakmonte Village filed Respondent’s Response to Notice of Ex Parte

Communication a nd Motion to Stri ke (in part) , directed to Peti tioner’s first post - hearing

filing . The motion sought to strike/disregard all references in Petitioner’s filing to a

settlement agreement. The motion was granted. References to a settlement w ere not

considered in the resolutio n of this case.

3. At all times relevant to Ms. Lewis’s complaint , Mr. Jones was the

d irector of Resident Care a t Oakmonte Village. Mr. Jon es is a 42 - year - old

black man. He is of American and Jamaican descent. He is currently married,

but was not married at all times relevant to the allegat ions in Ms. Lewis’s

complaint. Mr. Jones’s current wife, who was his then rom antic companion, is

half - Jamaican.

4. Mr. Jones r eports directly to Mr. Marshall. Mr. Marshall is the d irector

of Oakmonte Village.

5. Mr. Jones and Mr. Marshall conducted a joint interview of Ms. Lewis

for the position of resident caregiver. Mr. Jones and Mr. Marshall,

c ollectively, agreed to hire Ms. Lewis. 4

6. Ms. Lewis began working for Oakmonte Village in November 2017 ,

starting as a part - time resident caregiver . O n December 10, 2017, her

employment status was changed from part - time to full - time. Ms. L ewis was a

resident caregiver throughout her time with Oakmonte Village. By all

accounts, Ms. Lewis was an excellent caregiver, with no marked deficiencies

in her job performance.

7. Oakmo n te Village hires both resident caregivers and medication

technician s to care for its residents. At the time Ms. Lewis was hired,

resident caregivers were paid $9.00 per hour and medication technicians

were paid $10.00 per hour. Ms. Lewis was hired at a rate of pay of $9.50 per

hour, more than a typical resident caregiver. She was not hired as a

medication technician because she did not have the required certification.

8. Oakmonte Village offer s medication technician training to its resident

caregivers when it has a need for more medication technicians . Oakmonte

Village als o offers recertification training to its certified medication

technicians. These trainings are conducted at Oakmonte Village by an

4 Ms. Lewis testified that Mr. Jones and Mr. Marshall were aware that she was Jamaican

when they hired her. Ms. Lewis also testified that she believed Mr. Jones desired to be

Jamaican and had an affinity for Jamaican culture. T hese facts of fered by Ms. Lewis are

inconsistent with her claim of discrimination based on her national origin.

affiliated company. If a resident caregiver successfully complete s certification

training, he or she is reclassified as a med ication technician and given a

raise. Not all resident caregivers can be trained upon request. Certification

training is provided by Oakmonte Village based on facili ty needs. Oakmonte

Village typically requires two to three medication technicians per work shift.

If Oakmonte Village loses a medication technician, because of a resignation

or shift change , it fills the vacancy with a new medication technician by

training and certifying a resident caregiver .

9. Employees are not allowed to enroll in the medicat ion technician

certification training on their own; they must be nominated by Mr. Jones.

T here are no strict requirements for the nomination. Mr. Jones testified that

he makes the nomination decision based on the employee’s work ethic, skills,

and level o f responsibility, among other things. Mr. Jones also considers the

facility’s needs.

10. Ms. Lewis testifi ed that, upon hire, Mr. Jones told her that in 60 days,

she would be promoted to a medi c ation technician. Mr. Jones and Mr.

Marshall credibly testifi ed that they tell all new employees that a medication

technician certification is a potential means to get a pay increase , but no

assurance is given, because none can be given, that certification will definitely be offered to a particular caregiver on a pa rticular timetable. It is

based on facility need and that need changes.

1 1 . Ms. Lewis was not nominated to complete the medication technician

certification. In April 201 8 , Ms. Lewis saw a list of care givers who were

nominated by Mr. Jones to complete the c ertification. S he added her name to

the list , which was inappropriate because she was not authorized to nominate

herself . When Mr. Jones noticed the list had been revised, he removed

Ms. Lewis from the list.

1 2 . As Ms. Lewis was not nominat ed to attend the training, she was,

essentially, prevented from getting a raise. Ms. Lewis testified that

Oakmonte Village’s failure to nominate her for the medication technician

training in April 2018 was based on a discriminatory act .

1 3 . Ms. Lewis offered no evidence t o prove that she was treated

differently, with respect to a nomination to complete a medication technician

certification training, than any other similarly situated employee outside of

her protected classes, or that she was not nominated because of her rac e,

color, national origin, marital status, religion, and/or age.

1 4. Newly hired Oakmonte Village employees are on probation for 90

days. Oakmonte Village directors are strongly encouraged, but are not

required, to formally discuss an employee’s job perfor mance after the 90 - day

probationary period. After employee s successfully complete the 90 - day

probationar y period, they are considered permanent employee s.

1 5 . Ms. Lewis testified that during her time at Oakmonte Village, she was

not given a three - month or six - month evaluation. A formal evaluation is not

required at the three - month mark. O a kmonte Village conducted an informal

evaluation of Ms. Lewis after her 90 - day probationary period (at the three -

month mark). Mr. Marshall testified that he informally dis cussed Ms. Lewis’s

job performance with Mr. Jones and that they agreed that Ms. Lewis was

doing a “fantastic” job and warranted permanent status. As a result,

Ms. Lewis was removed from probationary status and made a permanent

employee. It is undisputed th at Ms. Lewis contin ued to work at Oakmonte

Village for several months after her 90 - day probationary period ended.

Oakmonte Village does not conduct a six - month evaluation. After the three -

month (90 - day) evaluation, which may be formal or informal, the next

evaluation that Oakmonte Village conducts is at the one - year mark.

1 6 . Ms. Lewis failed to offer evidence showing how Oakmonte Village’s

failure to provide a formal evaluation at the three - month or six - mont h mark

adversely affected her or constituted a di scriminator y act . Further, Ms. Lewis

offered no evidence showing that she was treated differently, with respect to

evaluations, than any other similarly situated employee outside of her

protected classes, or that Oakmonte Village ’s failure to provide a for mal

evaluation was because of her race, color, national origin, marital status,

religion, and/or age.

1 7 . Oakmonte Village employees who work 64 hours or more per pay

period (or 32 hours or more per week) are considered full - time employees.

Full - time emp loyees have extra benefits , including paid time off.

1 8 . Ms. Lewis reported directly to Mr. Jones. Mr. Jones was in charge of

setting her schedule.

1 9 . During the weeks of June 17 through 23, June 24 through 30, and July

1 through 7, 2018, Ms. Lewis wa s scheduled to work two days (16 hours) per

week. As M s . Lewis was a full - time employee, this amounted to a 50 percent

reduction in her scheduled hours.

20 . On June 15, 2018, Ms. Lewis emailed Mr. Marshall to complain about

her reduced scheduled hours . Mr. Marshall was on vacation when he received

the email, but agreed to discuss the matter with her when he returned. On

June 16, 2018, Ms. Lewis emailed Mr. Jones to com plain about her reduced

scheduled hours. Mr. Jones told Ms. Lewis that he and Mr. Marshall would

discuss her hours with her the following Monday. Mr. Marshall testified that

upon his return to work, he discussed Ms. Lewis’s reduced hours with

Mr. Jones and directed him to increase her hours to at least 32 hours per

week. Ms. Lewis corroborated that this was accomplished when she testified

that Mr. Jones called her in to work on several days to make up her reduced hours.

2 1 . For the week of June 17 through 23, Ms. Lewis worked and was paid

for 16 hours. For the week of June 24 through 30, a lthoug h she was initially

scheduled to work for 16 hours, after Mr. Marshall spoke with Mr. Jones, Ms. Lewis worked and was paid for 40 hours. For the week of July 1 through

7 , Ms. Lewis worked and was p aid for 27.25 hours. Ms. Lewis’s last day at

Oakmonte Vill age was July 5, 2018. She was scheduled to wor k eight hours

on July 7, 2018. Had she worked on July 7, her total hours worked for the

week of July 1 through July 7 would have been 35.25 hours.

2 2 . Ms. Lewis testified that the reason her hours were cut in June was

due to Mr. Jones’s disdain for her because of her national origin, religion,

color, and because she was a poet. 5 Contrary to that description, Ms. Lewis

testified that, during a meeting with Mr. Jones about her reduced hours, he

told her that her hours were reduced because she was confrontational and not

a team player.

2 3 . Ms. Lewis testified that she was the only Jamaican working at

Oakmonte Village and that no other employees experienced a reduction in hours during this time. Ms. Lewis did not p resent any evidence at the final

hearing, outside of her own assertions, that she was treated differently, with

respect to scheduling of hours, than any other similarly situated employee outside of her protected classes, or that the reduction in work hours was

because of her race, color, national origin, marital status, religion, and/or age.

In fact, except for one week in June 2018, Ms. Lewis worked and was paid for

more than 32 hours each week.

2 4 . Oakmonte Village operates continuously with three empl oyee shifts:

6:00 a.m. to 2:30 p.m.; 2:00 p.m. to 10:30 p.m.; and 10 :00 p.m. to 6:30 a.m. On

July 4, 2018, Mr. Jones asked Ms. Lewis to come in to work the 1 0 :0 0 p.m. to

6:30 a.m. shift (the night shift ). She was not initially scheduled to work that

day, a nd generally d id not work the night shift, but in an effort to provide her

more hours, she was asked to come in.

2 5 . During the July 4 to 5 night shift, Ms. Lewis worked alongside Monica

Nurse (Ms. Nurse) , Adrianna Rivera (Ms. Rivera) , and Shanece Newman

( Ms. Newman) . Ms. Lewis testified that shortly after she arrived, she noticed

Ms. Newman asleep at a desk, where she remained aslee p for approximately

two hours. Ms. Rivera asked Ms. Lewis to provide care to one of

5 Ms. Lewis testified at length that Mr. Jones disliked her becaus e she was a poet and a

writer. Writer/poet is not a protected class under the FCRA.

Ms. Newman’s assigned residents. After te nding to the resident, Ms. Lewis

complained to Ms. Rivera about having to help Ms. Newman while also

carrying out her own duties. This complaint instigated a verbal altercation

between Ms. Lewis and Ms. Rivera. Ms. Nurse and Ms. Newman quickly

joined the a rgument. Ms. Le wis testified that all three co workers began

screaming at her. Feeling threate ne d, Ms. Lewis called 9 - 1 - 1. As Ms. Lewis

spoke to the 9 - 1 - 1 operator, Ms. Rivera contacted Mr. Marshall by telephone.

A police officer arrived at the scene. Ms. L ewis testified that, by speaker

phone, Mr. Marshall told her to return her emergency keys (which allowed

her entrance to the building) and told her that she was fired. Mr. Marshall

disputes this testimony. Mr. Marshall credibly testified that, by phone,

Ms . Lewis told him that she could no longer work under those conditions and

that she resigned. The persuasive and credible evidence presented at the

hearing demonstrated that Ms. Lewis resigned because of the conflict with her coworkers.

2 6 . On July 5, 2018, Mr. Marshall emailed Ms. Lewis stating: “Thank you

for your service I will mail your final check[.]” In response, Ms. Lewis

emailed: “John my safety comes first. Sorry you didn’t see it that way. May

God bless Oakmonte Village[.]”

2 7 . Ms. Lewis asserted during the final hearing that the events of the

July 4 to July 5 night shift were planned by Mr. Jones and Mr. Marshall. Ms.

Lewis testified that she was “set up” by Mr. Jones and Mr. Marshall so that

the other thre e employees working that night w ould “j ump” her. Mr. Jones

and Mr. Marshall denied these allegations.

2 8 . Ms. Lewis presented no credible evidence that Mr. Jones and

Mr. Marshall orchestrated the alleged “set up.” Further, even if this

allegation w ere true, Ms. Lewis presented no evidence to pr ove that the “set

up” was because of her race, color, national origin, marital status, religion,

and/or age.

2 9 . Ms. Lewis asserts that during her time at Oakmonte Village, she

experienced persistent discrimination. 6 Ms. Lewis generally complained that

Oak monte Village had a hostile work environment. Ms. Lewis described an

incident in November 2017, during her interview for the position for which

she was hired, when Mr. Jones seemed taken aback by her non - existent

criminal history. Ms. Lewis also testified that Mr. Jones once asked her “who the F do you think you are that your co workers have to say please and thank

you?”

30 . Ms. Lewis also had other personal conflicts with a few of her

co workers. Ms. Lewis complained, specifically, about her relationship wit h

Ms. Debbie Perry (Ms. Perry). Ms. Perry is a 53 - year - old black woman. Ms.

Lewis testified that Ms. Perry frequently cursed at her and once intentionally bumped into her. Ms. Lewis complained to Mr. Marshall about her

interactions with Ms. Perry. Mr. Mars hall met with Ms. Lewis to discuss the

issue and directed her to speak to him s hould the issue arise again.

Mr. Marshall testified that he also spoke to Ms. Perry. Mr. Marshall

indicated that after he met with them separately, Ms. Lewis presented no

additi onal complaints about Ms. Perry.

3 1 . Ms. Lewis did not claim that either Ms. Perry’s alleged harassment, or

Oakmonte Village’s response to Ms. Lewis’s complaint, was because of Ms. Lewis’s race, color, national origin, marital status, religion, and/or age .

3 2 . On or about July 3, 2018, a state agency conducted an investigation of

Oakmonte Village . The nature of the investigation is unknown as no evidence

about the type of or reason for the investigation was offered at the hearing .

Ms. Lewis testified that rumors swirled at Oakmonte Village about a possible “informant.” Ms. Lewis testified that she was not the informant and she

6 Ms. Lewis offered several anecdotal circumstances, in addition to the ones provided in

paragraph 29, such as whether Oakmonte Village’s work schedule listed her as a caregiver or

medication technician , which she suggested were somehow discriminatory. None of h er

examples were persuasive. None could reasonably be considered evidence of discrimination

because of her race, color, national origin, marital status, religion, and /or age .

presented no evidence that her coworkers or supervisors believed she was the

informant.

3 3 . Ms. Lewis suggested that Oakmonte Villa ge retaliated against her for

participating in a protected activity, but she did not identify a protected

activity on which she is relying t o make this claim , nor did she specify what

action was taken in retaliation for the unidentified protected activity.

3 4 . Ms. Lewis alleged several bases for discrimination, including race,

color, national origin, marital status, religion, and age , but did not present a

persuasive case of discrimination based on any of those protected classes .

Information related to clai ms based on her marital status and religion was

not mentioned in any relevant detail at the hearing.

3 5 . Ms. Lewis failed to prove that Oakmonte Village’s reduction of her

work hours, its decision to not nominate her for the medication technician certific ation training, and its failure to formally evaluate her were based on

race, color, national origin, marital status, religion, and/or age discrimination , n or did she prove that any other similarly situated employee s

outside her protected cl asses w ere treat ed more favorably . Accordingly,

Ms. Lewis failed to meet her burden of proving that Oakmonte Village

committed an unlawful employment action against her in violation of the FCRA.

C ONCLUSIONS OF L AW

3 6 . The Division of Administrative Hearings has jurisdict ion over the

parties and the subject matter of this cause pursuant to sections 120.569,

120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y -

4.016.

3 7 . Ms. Lewis initiated this proceeding, alleging that Oakmonte Village

discriminate d against her based on her race, color, national origin, marital

status, religion, and age in violation of the FCRA . She also alleges that she

was retaliated against for participating in a protected activity.

3 8 . The FCRA prohibits discrimination in the w orkplace. See §§ 760.10

and 760.11, Fla. Stat. Section 760.10(1)(a) states 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 respec t 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.

3 9 . Section 760.11(7) permits a party for whom the Commiss ion

determi nes that there is no reasonable cause to believe that a violation of the

FCRA has occurred to request an administrative hearing before DOAH.

Following an administrative hearing, if the Administrative Law Judge (ALJ)

finds that a discriminatory act has occu rred, the ALJ “shall issue an

appropriate recommended order to the commission prohibiting the practice

and recommending affirmative relief from the effects of the practice,

including back pay.” § 760.11(7), Fla. Stat.

40 . The burden of proof in an administ rative proceeding, absent a

statutory directive to the contrary, is on the party asserting the affirmative of the issue. Dep’t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981);

see also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern

& Co. , 670 So. 2d 932, 935 (Fla. 1996).

4 1 . Oakmonte Village is an “ employer ” within the meaning of the FCRA.

§ 760.02(7), Fla. Stat.

4 2 . The FCRA is patterned after Title VII of the Civil R ights Act of 1964,

as amended. Accordingly, Flori da courts hold that federal decisions

construing Title VII are applicable when considering claims under the FCRA.

Harper v. Blockbuster Entm’t Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998);

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA

2009); and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

4 3 . Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela , 18 So. 3d at 22. Direct evidence is evidence that, if

believed, would pro ve the existence of discriminatory intent behind the

employment decision without any inference or presumption. Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno , 115

F.3d 1555, 1561 (11th Cir. 1997). “ [ D ] irect evide nce is composed of ‘only the

most blatant remarks, whose intent could be nothing other than to

discriminate’ on the basis of some impermissible factor.” Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11 th Cir. 1999) .

4 4 . Ms. Lewis presented no direct evidence of discrimination. Similarly,

the record in this proceeding contains no statistical evidence of

discrimination by Oakmonte Village.

4 5 . Instead, Ms. Lewis relies on circumstantial evidence of discrimination

to prove her case. For discrimination claims inv olving circumstantial

evidence, Florida courts follow the three - part, burden - shifting framework set

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

4 6 . Under the McDonnell Douglas framework, Ms. Lewis bears the initial

burden of establishin g, by a preponderance of the evidence, a prima facie case

of discrimination based on her race, color, national origin, marital status,

religion, and/or age. To establish a prima facie case, Ms. Lewis must show

that: (1) she belongs to a protected class; (2 ) s he was qualified for her

position; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly - situated employees outside of her protected class

more favorably than she was treated. See McDonnell Douglas , 411 U.S. at

80 2 - 04; Burke - Fowler v. Orange Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006).

4 7 . To establish a prima facie case of age discrimination under the federal

Age Discrimination in Employment Act (ADEA), the complainant must show

that: (1) she was a member of a pro tected age group (i.e., over 40); (2) she was

subject to an adverse employment action; (3) she was qualified for the job;

and (4) she was replaced by a younger person. See Benson v. Tocco, Inc. , 113

F.3d 1203, 1207 (11th Cir. 1997) .

4 8 . However, in cases a lleging age discrimination under section

760.10(1)(a), the Commission has concluded that unlike cases brought under

ADEA, the age of 40 has no significance in the interpretation of the FCRA . The Commission has determined that to demonstrate the last elemen t of a

prima facie case of age discrimination under Florida law, it is sufficient for

Petitioner to show that s he was treated less favorably than similarly situated

individuals of a “different” age as opposed to a “younger” age. See Ellis v. Am.

Aluminum , Case No. 14 - 5355 ( Fla. DOAH July 14, 2015), modified , Case No.

15 - 059 (Fla. FCHR Sep t . 17, 2015).

49 . Failure to establish a prima facie case of discrimination ends the

analysis. If Ms. Lewis establishes a prima facie case, she creates a

presumption of dis crimination. At that point, the burden shifts to the

employer to articulate a legitimate, non - discriminatory reason for taking the

adverse action. Valenzuela , 18 So. 3d at 22. The reason for the employer’s

decision should be clear, reasonably specific, and worthy of credence. Dep’t of

Corr. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer

has the burden of production, not persuasion, to demonstrate to the trier of

fact that the decision was non - discriminatory. Id. This burden of producti on

is “exceedingly light.” Holifield , 115 F.3d at 1564. The employer only needs to

produce evidence of a reason for its decision. It is not required to persuade

the trier of fact that its decision was actually motivated by the reason given.

St. Mary’s Hono r Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

5 0 . If the employer meets its burden, the presumption of discrimination

disappears. The burden then shifts back to Ms. Lewis to prove that the

employer’s proffered reason was not the true reason but merely a “pret ext”

for discrimination. Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th

Cir. 1997); Valenzuela , 18 So. 3d at 25.

5 1 . In order to satisfy this final step of the process, Ms. Lewis must show

“directly that a discriminatory reason more likely than no t motivated the

decision, or indirectly by showing that the proffered reason for the . . .

decision is not worthy of belief.” Chandler , 582 So. 2d at 1186 (citing Tex.

Dep’t of Cmty. Aff. v. Burdine , 450 U.S. 248, 252 - 256 (1981)). The proffered

explanation is unworthy of belief if Ms. Lewis demonstrates “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions

in the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could find them unworthy of cr edence.” Combs , 106 F.3d at 1538;

see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000).

Ms. Lewis must prove that the reasons articulated were false and that

discrimination was the real reason for the action. City of Miami v. Hervis , 65

So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary’s Honor Ctr . , 509 U.S.

at 515)(“[A] reason cannot be proved to be ‘a pretext for discrimination ’

unless it is shown both that the reason was false, and that discrimination

was the real reason.”).

5 2 . Despite the shifting burdens of proof, the ultimate burden of

persuading the trier of fact that Respondent intentionally discriminated

against Petitioner remains at all times with Petitioner . See Burdine , 450 U.S.

at 253; Valenzuela , 18 So. 3d at 22.

5 3 . Applying the burden - shifting framework to the facts found in this

matter, Ms. Lewis failed to establish a prima facie case that Oakmonte

Village discriminated against her based on her race, color, national origin,

marital status, religion, and/or age.

5 4 . Ms. Lewis established three of the four elements. Ms. Lewis

sufficiently demonstrated that she belongs to one or more protected class es ,

was qualified to perform as a resident caregiver, and was subjected to an adverse employment action by not being nomin ated for medication technician

training and by a reduction of her work hours. 7 However, Ms. Lewis failed to

establish the fourth element in the prima facie case — that Oakmonte Village

treated similarly situated employees outside her protected class es more

f avorably or that the adverse action s were based on her race, color, national

origin, marital status, religion, and/or age .

5 5 . Accordingly, Ms. Lewis failed to establish a prima facie case under the

McDonnell Douglas framework. Because she failed to establ ish a prima facie

case of discrimination, it is unnecessary to discuss burdens related to pretext. Ms. Lewis did not prove that the workplace troubles she experienced were in

any way because of her race, color, national origin, marital status, religion,

an d/or age.

5 6 . Ms. Lewis also failed on the claim of retaliation. Section 760.10 (7)

provides the following, in relevant part:

It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organiz ation to

discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section,

or because that person has made a charge, testified,

assisted, or participated in any manner in an investigat ion, proceeding, or hearing under this

section.

7 To prove an “adverse employment action,” Ms. Lewis “must show a serious and mat erial

change in the terms, conditions, or privileges of employment.” Davis v. Town of Lake Park,

245 F.3d 1232, 1239 (11th Cir. 2001). “The employer’s action must impact the ‘terms,

conditions, or privileges’ of the plaintiff’s job in a real and demonstrab le way.” Id. An

employment action “is considered ‘adverse’ only if it results in some tangible, negative effect on the plaintiff’s employment.” Lucas v. W. W. Grainger, Inc. , 257 F.3d 1249, 1261 (11th Cir.

2001) (negative performance evaluations that did n ot result in any effect on the employee’s

employment did not constitute “adverse employment action.”). The challenged employment action must be “materially adverse as viewed by a reasonable person in the circumstances.” Davis , 245 F.3d at 1239 ; see also B utler v. Ala. Dep’t of Transp. , 536 F.3d 1209, 1215 (11th

Cir. 2008). Oakmonte Village’s reduction of Ms. Lewis’s work hours and its decision to not nominate her for the medication technician training were adverse actions. Both negatively affected her pay. Oakmonte Village’s failure to provide an evaluation to Ms. Lewis did not

amount to an adverse action. Likewise, Ms. Lewis did not prove that she was terminated.

Her voluntary resignation was not an adverse employment action.

5 7 . Because the McDonnell Douglas analysis also applies in employment

retaliation cases, Ms. Lewis has the initial burden of establishing , by a

preponderance of the evidence , a prima facie case of unlawful r etaliation. See

Burlington N. & Santa Fe Ry Co. v. White , 548 U.S. 53 (2006).

5 8 . In order to prove a prima facie case of unlawful employment

retaliation, Ms. Lewis must establish that: (1) she engaged in a protected

activity; (2) she suffered an adverse employment action; and (3) there was a

causal relationship between the two events . Pennington v. City of Huntsville ,

261 F.3d 1262, 1266 (11th Cir. 2001). To establish this causal relationship, Ms. Lewis must prove “that the unlawful retaliation would not have occurred

in the absence of the alleged wrongful action or actions of the employer.”

Univ. of Tex. SW Med. Ctr. v. Nassar , 570 U.S. 338, 360 (2013). This standard

has also been called “but - for causation.” Frazier - White v. Gee , 818 F.3d 1249,

1258 (11th Cir. 2016).

59 . Ms. Lewis established that she suffered adverse employment action s

by not being nominated to take the medication technician training and by the

reduction of her work hours, but she failed to establish that she engaged in a

protected activi ty or that the adverse actions were caused by unlawful

retaliation . Uncontradicted testimony at the hearing demonstrated that

Ms. Lewis complained to Mr. Marshall and Mr. Jones about Ms. Perry’s

behavior; however, there is no evidence that Ms. Perry’s beha vior towards

Ms. Lewis was caused by Ms. Lewis’s race, color, national origin, marital

status, religion, and/or age or that she complained of such. Similarly, there

was testimony concerning a state investigation of the facility, but there was

no evidence o n what the alleged informant complained about or that Oakmonte Village believed Ms. Lewis was the informant.

6 0 . Ms. Lewis failed to establish that she was discriminated against based

on her race, color, national origin, marital status, religion, age , or t hat she

was retaliated against for engaging in a protected activity. Accordingly,

Ms. Lewis’s Petition for Relief must be dismissed.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commissi on on Human Relations issue a

final order dismissing Ms. Lewis’s Petition for Relief.

D ONE A ND E NTERED this 18th day of February , 2020 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

Division of Administrative H earings

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 18th day of February , 2020 .

C OPIES F U RNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Paulette Lewis

1658 April Avenue

Deltona, Florida 32725

Timothy Tack, Esquire

Fisher Phillips

Suite 23 50

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties ha ve 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.