19-005889 Lavender Suarez vs. Sarasota County Government Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, June 7, 2021.

Summary: Petitioner proved Respondent discriminated against her based on her gender and Respondent failed to establish a non-discriminatory reason for Petitioner?s termination; Petitioner is entitled to back pay and attorney?s fees, but not front pay.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L AVENDER S UAREZ ,

Petitioner ,

vs. Case No. 19 - 5889

S ARASOTA C OUNTY G OVERNMENT ,

Respondent .

/

R ECOMMENDED O RDER

On February 4, 2020, Hetal Desai, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), conducted a final hearing in

this matter in Sarasota, Florida.

A PPEARANCES

For Petitioner: Dusty Firm Aker, Esquire

Aker Law Firm, P.A.

240 South Pineapple Avenue , Suite 803

Sarasota, Florida 34236

For Respondent: Maria D. Korn, Esquire

Sarasota County Office of the Count y Attorney

1660 Ringling Boulevard , 2nd Floor

Sarasota, Florida 34236

S TATEMENT OF T HE I SSUE

Whether Respondent, Sarasota County Government (County), violated

section 760.10, Florida Statute s (2017 ) , 1 by discriminat ing against Petitioner,

Lavender Suarez, based on her race (African - American) and gender (female),

1 Unless otherwise indicated, all statutory and administrative rule references are to t he 2017

codifications of the Florida Statu t es and Florida Administrative Code.

when it terminated her employment; and , if so , what is the appropriate

remedy.

P RELIMINARY S TATEMENT

On August 16, 2018, Petitioner filed a Charge of Discrimination with the

Florida Commission of Human Relations (FCHR) alleging discrimination

based on " Race, " " Sex, " and " Retaliation. " Specifically, Petitioner, an African -

American female, alleged she was wrongfully terminated in violat ion of the

Florida Civil Right s Act (FCRA) without warning or a Performance

Improvement Plan (PIP), whereas white males were given PIPs and a n

oppo rtunity to improve .

On September 24, 2019, FCHR issued a " Determination: No Reasonable

Cause " and Petitione r filed a timely Petition for Relief to contest that

determination on October 29, 2019. The Petition for Relief again alleged

Petitioner was wrongfully terminated due to her race and gender, but no

longer alleged retaliation. 2 The Commission transmitted th e Petition to

DOAH, where it was assigned to the undersigned and noticed for a final

hearing.

At the final hearing , Petitioner offered her own testimony and the

testimony of Maria "Mary" Goldaraz, a white fema le and former County

employee. The County off ered the testimony of Michele Green, a white female

and the County ' s Employee and Labor Relations Manager; and Robert R.

Lewis, a white male and the County ' s Director of Government Relations.

Petitioner ' s Exhibits P1 through P15 and Respondent ' s Exhibits R 1 through

R10 were admitted without objection. Respondent's Exhibits R11 and R12

were conditionally admitted for limited purposes.

2 Although Respondent argues Petitioner was not subject to retaliation (Resp. PRO, ¶38), at

the hearing Petitione r's counsel stated she was no longer pursuing a retaliation cla im.

The Transcript of the hearing was filed on February 24, 2020. The parties

requested and were granted numerous extensions to f ile their proposed

r ecommended o rders (PROs) . Both parties filed their PROs on June 9, 2020,

which have been considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

P ARTIES

1. Petitioner is an African - American female who started her emp loyment

as a Manager II/Fiscal Manager with the Sarasota County Area Transit

(SCAT) on November 30, 2015. She remained in that position until she was

asked to resign in lieu of termination on August 17, 2017.

2. Respondent, the County, oversees SCAT. SCAT provides public

transportation services within Sarasota County via a fixed route bus system.

SCAT has approximately 247 employees including administrative staff, bus

operators, maintenance workers, and managerial staff.

3. Rocky Burke, a white male, was t he Director of SCAT during

Petitioner ' s employment. 3 Petitioner reported directly to Mr. Burke. In

addition, during the relevant time period, th ere were four other managers

who reported to Mr. Burke: Paratransit Operations Manager Gary Speidel,

Fixed Route Operations Manager Ricardo Ferris, Transit Planning Manager

Chris DeAnnuntis, and Fleet Maintenance Manager Jon Russo . Except for

Ms. Suarez, all the managers were white males.

4. The County ' s Human Resources Procedures and Guidelines Manual

(P&G) provid es the following policies regarding performance issues:

Chapter III: Compensation and Status

* * *

(c) Performance appraisals shall be conducted as

follows:

3 Mr . Burke resigned on September 5, 2017, less than a month after Petitioner left the

County.

* * *

3. Performance Improvement Plan (PIP)

A performance Improvement Plan appraisal may be

cond ucted at any time at the discretio n of the

immediate supervisor. Moreover, when an

employee ' s performance is observed as needing

improvement, the supervisor should conduct a

performance appraisal for the employee as soon as

possible.

* * *

Chapter IV: Di scipline

4.03 Corrective Counseling

(1) Whenever an employee ' s performance or

conduct falls below an acceptable level, the

supervisor should inform the employee promptly of

the deficiency and provide counsel, instruction and

assistance to the employee.

5 . Michele Green, w ho oversees employee relations for the County,

testified that Ð with the exception of theft or something extremely serious

wa rranting immediate termination Ð the County makes every effort to advise

employees in advance of shortcomings so they have an opportunity to

improve prior to termination. The County, she explained, trains supervisors

to counsel and coach their e mployees to help them succeed.

M S . S UAREZ ' J OB H ISTORY AND D UTIES

6. As SCAT ' s Fiscal Manager, Ms. Suarez was responsible for pr oviding

fiscal and budgetary project management, including grants analysis and

oversight of federal and state financial requirements for compliance. She also

managed a staff of four direct reports including Mary Goldaraz, who served

as a Procurement and Co ntracts Coordinator; and Barbara Garrett, who

served as an Information Technology (IT) p rofessional.

7. The unrefuted testimony establishes Mr. Burke treated Ms. Suarez

differently than he treated the four white male managers. For example,

Mr. Burke would come around Petitioner ' s desk several times a day asking

what she was doing and monitoring her whereabouts; h e did not d o that with

the other man a gers. Mr. Burke also had regular one - on - one meetings with

the white male managers but did not have reg ular me etings with Ms. Suarez.

If Ms. Suarez tried to meet with him, he would brush her off and tell her

everything was fine. Whereas Mr. Burke sought input fro m the white male

man a gers, if Ms. Suarez made a suggestion or recommendatio n he would

dismiss it or not respon d .

8. Ms. Suarez also noted Mr. Burke allowed one of the other manage rs ,

Mr. Speidel, to belittle and berate her. Ms. Suarez testified she was afraid to

go to Mr. Burke because she felt he would always take Mr. Speidel's side over

hers.

9. Ms. Golda r a z regularly heard Mr . Speidel yelling at Ms. Suarez and

experienced t his behavior from him herself. She felt that although this was

unprofessional behavior, Mr. Burke allowed it in the workplace because he

was grooming Mr. S peidel for the position of Dir ector .

10 . At one point , Petitioner had a vacant position she needed to fill in her

staff. Ms. Suarez wanted to hire a candidate who had been unanimously

recommended by a selection committee. Mr. Burke refused to hire that

candidate without any explanatio n . The candidate w as an African American

female. In contrast, when filling another position, the selection committee ' s

recommended candidate had a felony conviction and other issues that became

apparent a fter a background check . Mr. Burke told Ms. Suarez t o hire th at

candidate despite his history . That candidate was a white male.

11 . Ms. Suarez testified about another incident where she was in her office

with the door closed with a black supervisor who worked at SCAT. When

Mr. Burke found out, he questioned Ms. Suarez and asked her what they

were discussing. To her knowledge, he had never done that with any of the

male managers who met with employees in their offices behind closed doors.

12 . Ms. Goldaraz corroborated Petitioner ' s testimony regarding

Mr. Burk e ' s negative attitude toward Pet itioner, and women in general.

Ms. Goldaraz worked next to Ms. Suarez ' office and regularly witnessed the

interactions between Mr. Burke and Ms. Suarez. She testified that Mr. Burke

treated Ms. Suarez differently than he did the male managers. He discounted

her suggestions and implemented a " good ole boy system " where he met

regularly with the male manag ers, but not with Ms. Suarez.

13 . After Ms. Suarez was forced to resign, Ms. Goldaraz took her position.

Ms. Goldaraz testi fied Mr. Burke was dismissive with her as well. He would

not give her credit for her ideas and suggestions, but would give the male

managers credit.

14 . The County put on no evidence contradicting the version of events or

description of Mr. Burke ' s behavi or credibly presented by Ms. Suarez and

Ms. Goldaraz.

L IBERTY P ASS P ROGRAM AND A UDITS

15 . Ms. Suarez also ha d responsibilities related to the Liberty Pass

Program (Liberty Pass) , which distributed 30 - day transit passes for ride rs at

discounted rates. The L iberty passes were offered by SCAT to low - income

and/or homeless riders who prov ide d appropriate documentation. The

documentation to asse ss eligibility for Liberty Pass could be submitted at

either the SCAT Administrative Office or one of 19 third - party ag encies

a pproved to distribute Liberty passes .

16 . Liberty Pass had its challenges. In May 2015, before Petitioner began

working for the County, the County ' s Board of County Commissioners (BCC),

authorized SCAT to discont inue L iberty Pass . The Federal Trans it

Administration required SCAT to perform a Fare Equity Analysis and SCAT

hired a consultant to assess the impact of changes in the program on certain

minority and low income populations.

17 . In September 2016, the County issu ed an audit report on SCAT's

administration of Liberty P ass . The scope of this audit was from October

2014 (before Ms. Suarez was hired a t the County) to June 8, 2016. The audit

found there were problems with riders obtaining duplicate Liberty passes and

with the third - party agencies not obtaining the necessary information before

enr olling riders for the program. Eventually, SCAT eliminated the third -

party distributors, and thereafter a Liberty pass could only be obtained at the

SCAT headquarters or the County Health Department.

18 . Ac cording to Petitioner's yearly evaluation for 2016, given in January

2017, Mr. Burke rated her as either " Successful " or " Exceeds Expectations " in

all five relevant categories. Related to Liberty Pass, the evaluation listed as

accomplishments: (1) successf ully completing the Liberty Pass Audit, (2)

obtaining approval from the BCC in September 2016 for a " Liberty Pass

Increase, " and (3) collaborating with the consultant to finalize the Libe rty

Pass Fare Equity Analysis. Mr. Burke did not give Ms. Suarez the possible

rating of "Needs Improvement," nor did he provide her with any negative or

constructive comments . 4

19 . In response to the iss ues raised in the Liberty Pass A udit, Ms. Suarez

had instructed Ms. Garrett, the IT p rofessional on her staff, to prepare a

spreadsheet to tra ck the issuance of the Liberty p asses. It is unclear whether

Ms. Garrett completed the spreadsheet, but at some point Mr. Burke

transferred Ms. Garrett (along with her IT position ) and the spreadsheet

tracking project from Ms. Suarez ' over sight to Mr. Speidel . This spreadsheet

was never submitted to the auditor.

20 . After the initial Liberty Pass Audit , Ms. Suarez was meeting regularly

with Deborah Martin, the auditor, regar ding the Liberty Pass issues, and

other SCAT audits related to Bus Operations Cash Handling and B us Pass

Inventory and Reviews. At no time did Ms. Martin or anyone co mplain to

Petitioner that she was not providing adequate information or that she was

not addressing the issues for which she was responsible. There was n o

4 Ms. Suarez also did not receive the other possible ratings of " Outstanding " ( the highest

rating ) , or " Unsatisfactory " ( the lowest rating ) .

evidence Ms. Martin or anyone else complained about Ms. Suarez ' work on

the SCAT audits.

21 . On August 15, 2017, Mr. Burke asked Ms. Suarez if she would resign

from the Fiscal Manager positi on and take a lesser position. Ms. Suarez was

surprised, and ask ed Mr. Burke for something specific in writ ing regarding

her performance. Mr. Burke refus ed to put anything in writing. When she

asked if his request was related to the audit s , Mr. Burke stated it was not.

Rather, he told her that other departments had los t confidence in her and he

had as well.

22 . Two days later, on August 17, 2017, Mr. Burke advised Petitioner that

if she did not r esign she would be terminated. Under duress, Ms. Suarez

signed and submitted a resignation letter that day.

23 . At the time o f her forced resignation, Ms. Suarez was actively working

o n issues related to the audit s . Ms. Goldaraz took over as the Fiscal Manager

and completed the work related to the audit s . Ms. Goldaraz was able to

complete all the outstandin g work that needed to be done. She stated there

were a few standard things that needed to be fini shed up and she was able to

do them quickl y. There was noth ing " major " left on the audit. Ms. Goldaraz

" met with the auditors È and kind of wrapped it up. It wasn ' t really a huge

de al. "

24 . At the hearing , the County relied on an untitled spreadsheet a nd a

follow - up audit report as grounds for Petitioner ' s termination. 5 The

spreads heet purportedly was a list of a udits , with columns for " Opportunities

for Improvement, " " Management Res ponses, " and " Updated Responses. " The

spreadsheet had some portions highlighted. There was no explanation by the

County as to who prepared the spreadsheet , whether it was accurate ,

whether it was the most recent version, what its purpose was , or why it was

5 The copy of t he spreadsheet admitted into evidence is illegible due to its miniscule type and

font.

relevant. The undersigned finds the spreadsheet wholly unreliably and not

credible evidence.

25 . The County also relies on a follow - up audit report issued December

2017, months after Ms. Suarez and Mr. Burke left the County ' s employment.

Although this fol low - up audit has numerous outstanding issues that

remain ed " open, " there is no proof Petit ioner was responsible for the open

items.

26 . Robert Lewis was the interim director of SCAT from October 2017 to

January 4, 2020, coming in after Mr. Burke and Ms. S uarez had left. He did

not work with either of them. Although he was aware of the audit, Mr. Lewis

had no personal knowledge of SCAT oper ations prior to October 17, 2017.

Furthermore, he had no knowledge of what had been provided to the auditor

by SCAT , or how the SCAT audits were conducted. Mr. Lewis could not

testify which department was responsible for the open items in the follow - up

audit report, and admitted he was not aware of which manager was assigned

to which open item. Mr. Lewis was not aware of w hat items may have been

left open by the white male managers . Given there was no explanation of the

December 2017 follow - up audit report, the undersigned finds it unreliable

and not credible evidence.

27 . Because she was regularly meeting with the auditor, Ms. Suarez had

personal knowledge of some of the open items listed in the follow - up audit

report, even though she was not familiar wit h the report itself. The follow - up

audit listed four open items and two partially open items. She was

responsible for two of the items. The first dealt with managing th e fare

money on a daily basis. She testified she implemented a policy addressing

this issue as there was not an exist ing policy when she was hired. The second

open item for which she was responsi ble related to cash variances.

Ms. Suarez testified she had finalized the reports reconciling the daily

deposits; prior to her coming to S CAT, they were not done daily. She could

not testify as to why these items remained l isted as open or what had

happened after her de parture when Ms. Goldaraz began working with the

auditors.

28 . The remaining open and partially open items related to " v ault access "

and " monitoring. " Ms. Suarez testified she was not responsible for the vault

or the security system that moni tors the lock boxes and vault. Rather, these

were items that were the responsibility of the maintenance and the bus

operations departments, which were overseen by Mr. Ferris and Mr. Russo.

Even though these two managers had open items in the follow - up audit

report, the y were not terminated.

29 . Ms. Suarez testified she received no indication from Mr. Burke, the

auditor, or anyone else that there were problems with he r handling of these

open item s . Prior to August 15, 2017, Mr. Burke gave her no indicat ion he

was disapp ointed in her performance or that she needed to improve or

change. Similarly, Ms. Goldaraz ' unrefu ted testimony was that Ms. Suarez

was totally capable as the Fiscal Manager , worked hard, and was very

dedicated. There was no evidence of actual or perceived deficiencies in

Ms. Suarez ' performance .

M R . D E A NNUNTIS AS A C OMPARATOR

30. Like Petitioner, Mr. DeAnnuntis held the position of Manager II and

reported to Mr. Burke. Mr. DeAnnuntis was hired at SCAT a few months

before Petitioner was hired, at a similar (alb eit slightly higher) salary as

Petitioner. Mr. DeAnnuntis also managed a staff of three positions. Although

he did not have the identical duties of Petitioner, as the Manager of Tran sit

Planning he had similar compliance duties as he was responsible f or SCAT's

planning budget and compliance with federal, regional , and local

transportation planning requirements.

31. On December 29, 2016, Mr. DeAnnuntis was provided a two - page

document titled "Performance Review Comments" (c omments) from

Mr. Burke. Thes e comments outlined specific areas in which Mr. DeAnnuntis

was to improve and suggestions as to h ow to make these improvements.

Mr. Burke suggested that he and Mr. DeAnnuntis have daily in - person

meetings. Mr. Burke also provided a list of outside res ource s to help

Mr. DeAnnuntis. Ms. Suarez never received any similar c omments from

Mr. Burke.

32. The c omments document was not labeled a "Performance

Improvement Plan " (PIP) , nor did it set out a time frame for him to

accomplish certain goals. It did not indic ate that Mr. DeAnnuntis would

suffer any repercussions if he did not take the advice given by Mr. Burke. As

such, the undersigned does not find this document was a PIP. Rather the

c omments were consistent with those required by the County as described by

M s. Gree n and codified in P&G section 4.03 requiring supervisors counsel

and coach an employee if his or her performance falls below an acceptable

level.

33 . Almost th ree months after receiving the c omments, on March 23,

2017, Mr. DeAnnuntis resigned. Unl ike Ms. Suarez' forced resignation, t here

was no evidence M r. DeAnnuntis was asked to resign after he was provided

the c omments or that his eventual resignation was in lieu of termination .

Furthermore, the unrebutted evidence established no one had ever di scussed

poor performance or any other issues with Petitioner prior to her forced

resignation .

P OST - R ESIGNATION

34 . At the time of her forced resignation in lieu of termination , Ms. Suarez

was earning a salary of approximately $71,427 a year at the County .

35 . After she left the County, Ms. Suarez immediately started applying for

positions on various computer sites. While she attempted to find a permanent

position, she worked for a temporary agency earning $10,557.

36 . On February 25, 2018, Ms. Suarez bega n permanent employment with

Community Health, Inc. , at a starting salary of $64,500. Her loss of earnings

during the period from her forced resignation until she found this posit ion

was approximately $35,713. Ms. Suarez mitigated her damages. Subtracting

o ut the amount she earned while temping , her interim losses total $25,156.

37 . Ms. Suarez received an annual increase a year later on February 4,

2019, raising her salary to approximately $68,275. Her annual salary for

2017 with the Respondent would have b een $71,427, a difference of $6,927.18

annually for the first year (2018) and $3,152.64 annually thereafter.

C ONCLUSIONS OF L AW

38 . The Division of Administrative Hearings has jurisdiction 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 Fla. Admin. Code R. 60Y -

4.016.

39 . Pursuant to section 760.10(1)(a), it is an unlawful employment

practice for an employer to " discharge or to fail or refuse to hire any

individual, or other wise to discriminate against any individual with respect

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. " 6

40 . As there is no direct evidence in this case, Ms. Suarez must rely on

circumstantial evidence of discriminatory intent to prove her discrimination

claim. Using the shifting burden of proof pattern established in McDonnell

Douglas Corp oration v. Green , 411 U.S. 792 ( 1973), first, Petitioner has the

burden of proving a prima facie case of discrimination. Second, if Petitioner

sufficiently establishes a prima facie case, the burden shifts to Respondent to

" articulate some legitimate, nondiscriminatory reason " for its ac tion. Third, if

Respondent satisfies this burden, Petitioner has the opportunity to prove that

6 Florida courts have held that because the FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended, federal case law dealing with Title VII is ap plicable. See,

e.g., Valenzuela v. GlobeGround N. Am. , LLC, 18 So. 3d 17, 21 - 22 (Fla. 3d DCA

2009) ( gender ) ; Thompson v. Baptist Hosp. of Miami, Inc ., 279 F. App ' x 884, 888 n.5 (11th Cir.

2008) ( race) .

the legitimate reasons asserted by Respondent are really a pretext. See

Valenzuela , 18 So. 3d at 22 (gender discrimination claim).

41 . " Demonstrating a prima fa cie case is not onerous; it requires only that

the plaintiff establish facts adequate to permit an inference of

discrimination. " Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

Petitioner must establish a prima facie case by a preponderance of the

evidence. Id. ; see also § 120.57(1)(j), Fla. Stat. ( " Findings of fact shall be

based upon a preponderance of the evidence, except in penal or licensure

proceedings or except as otherwise provided by statute and shall be based

exclusively on the evidence o f record and on mat ters officially recognized. " ). It

simply requires evidence that more likely than not tends to prove a certain

proposition.

D ISPARATE T REATMENT

42 . Ms. Suarez points to the fact she was treated differently than

Mr. DeAnnuntis, a white mal e , as evidence of discrimination. This " disparate

treatment " claim is the most easily understood type of discrimination. See

Schultz v. Royal Caribbean Cruises, Ltd. , 2020 WL 3035233, at *23 (S.D. Fla.

June 5, 2020) (citations and quotations o mitted). Disp arate treatment occurs

when an employer treats an employee less favorably than others because of

his or her race, color, religion, sex, or national origin. Id. To establish a prima

facie case of disparate treatment, Ms. Suarez must demonstrate that she:

( 1) belongs to a protected class;

(2) suffered an adverse employment action;

(3) was qualified to do her job; and

(4) was treated less favorably than similarly

situated employees outside of the protected class.

Alvarez v. Lakeland Area Mass Transit Dist ., 2020 WL 3473286, at *10 (M.D.

Fla. June 25, 2020).

4 3 . Recently the U.S. Supreme Court revisited the general meaning of

gender discrimination and specifically addressed the standard for disparate

treatment cases:

[T]he question becomes: What did " discr iminate "

mean in 1964? As it turns out, it meant then

roughly what it means today: " To make a difference

in treatment or favor (of one as compared with

others). " Webster ' s New International Dictionary

745 (2d ed. 1954). To " discriminate against " a

person, then, would seem to mean treating that

individual worse than others who are similarly

situated. See Burlington N. & S. F. R. Co. v. White ,

548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345

(2006). In so - called " disparate treatment " cases like

today ' s, this Court has also held that the difference

in treatment based on sex must be intentional.

See , e.g., Watson v. Fort Worth Bank & Trust , 487

U.S. 977, 986, 108 S.Ct. 2777, 101 L.Ed.2d 827

(1988). So, taken together, an employer who

intentionally treats a perso n worse because of sex Ð

such as by firing the person for actions or attributes

it would tolerate in an individual of another sex Ð

discriminates against that person in violation of

Title VII . (emphasis added).

Bostock v. Clayton Cty., G a. , No. 17 - 1618, 2020 WL 3146686, at *5 (U.S.

June 15, 2020)(holding sexual identity discrimination is actionable under

Title VII).

4 4 . There is no dis pute as to the first element: Ms. Suarez is female and

African - American . Regarding the second element, she provided she suffere d

an adverse action when she was force d to resign from her position. 7

7 Although not argued by the County , generally a resign ation does not qualify as an adverse

action , but an employee may show she suffered an adverse action if her resignation was

involuntary. See Borden v. Birmingham Heart Clinic, P.C. , 2020 WL 2557918, at *5 (N.D.

Ala. May 20, 2020) (citing Hargray v. City of Hallandale , 57 F.3d 1560, 1568 (11th Cir.

1995)). Two situations can make a resignation involuntary: " (1) where the employer forces

the resi gnation by coercion or duress; or (2) where the employer obtains the resignation by

deceiving or misrepresenting a material fact to the employee." Hargray , 57 F.3d at 1568 .

Here, Mr. Burke told Ms. Suarez that if she did not resign she would be terminated, a nd thus

the resignation was in voluntary. Id.

Additionally, she put on more than sufficient evidence regarding the third

element : she w as qualified for her position.

4 5 . To meet the fourth " comparator " element of a disparate treatm ent

claim, Petitioner must show she is similarly situated in all relevant respects

to Mr. DeAnnuntis, the employee she claims as given preferential treatment.

See Woods v. Cent. Fellowship Christian Acad. , 545 F. App ' x 939, 945 (11th

Cir. 2013). More speci fically, to be valid comparators for disparate discipline,

such as termination, they must have " (1) dealt with the same supervisor,

(2) been subject to the same standards, and (3) engaged in the same conduct

without such differentiating or mitigating circu mstances that would

distinguish their conduct or the employer ' s treatment of them for it. "

Sanguinetti v. United Parcel Serv., Inc. , 114 F. Supp. 2d 1313, 1317 (S.D. Fla.

2000).

4 6 . Here, Petitioner established both she and Mr. DeAnnuntis were

supervised b y Mr. Burke and were subject to the same policies regarding

evaluations. They we re hired around the same time. Both eventually had the

same amount of direct reports and similar salaries . Although there was

insufficient evidence to establish what job - relate d deficiencies, if any,

Ms. Suarez had, there was no evidence of distinguishing circumstance s that

would warrant the different treatment between Mr. DeAnnuntis and

Ms. Suarez. Thus, Petitioner established Mr. DeAnnuntis as a true

comparator.

4 7 . Mr. DeAnnu ntis was similarly situated to Ms. Suarez, but was given

constructive comments and was not forced to resign; whereas she was give n

no warning of any performance issues, and was forced to resign with one

day ' s notice. Again, the County gave no reason justif ying this difference in

treatment. Therefore, Ms. Suarez established the fourth and final element of

her disparate treatment claim.

4 8 . But the analysis does not stop there. Not only does there need to be

differential treatment, the treatment must also be intentionally ba sed on her

gender and/or race. There is more than a preponderance of the evidence that

Mr. Burke ' s treatment of Ms. Suarez was deliberate and th at it was based on

her gender. As discussed above, the unrebutted testimony of both Ms. Suarez

a nd Ms. Goldaraz established Mr. Burke treated women differently than men

in substantial way s. He provided professional support through one - on - one

meetings and performance comments to his male managers; he did not do the

same with femal e managers. He valued his male managers and was

dismissive to Ms. Suarez and Ms. Goldaraz.

4 9 . There is not enough evidence, however, that would establish his

treatment toward Ms. Suarez was based on race. Although there was

anecdotal evidence about being questioned when she s poke with a black

supervisor and Ms. Suarez was replaced by Ms. Goldaraz, who is white, this

is not enough to establish Mr. Burke was raci ally motivated in his actions.

Ms. Goldaraz testified that once she became a manager, she also was treated

differently than the other male manag ers. Consequently, although

Ms. Suarez has met her burden of establishing a prima facie case of disparate

treatment based on her gender, she has not met her burden of establishing

racial discrimination.

C OUNTY ' S R EASON FOR T ERMINA TION 8

50 . Regardless, having met her burden of establishing a prima facie

gender discrimination claim under McDonnell Douglas , the burden now shifts

to the County to provide a legitimate non - discriminatory reason for the

adverse employment action, Ms. Suar ez ' termination. The employer ' s burden,

at this stage, is an " exceedingly light " one of production, not persuasion,

which means the employer " need only produce evidence that could allow a

8 Without any citations to statute or case law, Respondent simply ar gues Petitioner, an at -

will employee, was separated because Mr. Burke and others had lost confidence in her.

(Resp. PRO, ¶36). The County does not argue Petitioner did not suffer an adverse action or

that Mr. DeAnnuntis is not similarly situated. Therefor e, the County has waived these

defenses. They are addressed above to offer a complete analysis.

rational fact finder to conclude that [the employee ' s] discharge was not made

for a discriminatory reason. " Schultz , 2020 WL 3035233, at *28.

51 . As an initial matter, the County repeatedly argues Ms. Suarez was an

" at - will " employee and therefore was not entitled to any warning or

constructive comm ents prior to her termin ation. The fact that Petitioner is an

at - will employee does not prevent her from pr oving her discrimination claim.

See generally , Knight v. Palm City Millwork & Supply Co. , 78 F. Supp. 2d

1345, 1348 (S.D. Fla. 1999)( " we hold that an at - will employee under Florida

law may maintain a [ ] cause of action for employment di scrimination based

on race. " ). Th is is especially so when a white male " at - will " employee is

allowed to remain employed despite his performance issues, while

Ms. Suarez, an African - American fe male was terminated.

52 . The County asserts that the reason Ms. Suarez was terminated was

because of performance issue s. Obvi ously, poor job performance is a

legitimate, nondiscriminatory reason for terminating an employee. See

Copley v. Bax Glob., Inc. , 80 F. Supp. 2d 1342, 1351 (S.D. Fla. 2000). But

there must be evidence of such poor performance. Here , there was none.

53 . As explained above, the County relied solely upon two exhibits to show

Ms. Suarez had performance issues: an unreadable sprea dsheet o f unknown

origin, and a follow - up audit report that was issued after Ms. Suarez was no

longer at the County . These documents were inherently unreliable and did

not establish that Ms . Suarez had performance issues.

5 4 . Moreover, neither of the witnesses who testified for the County had

any firsthand knowledge of Ms. Suarez ' alleged performance issues. There

was hearsay evidence that Mr. Burke had told Ms. Green that other

departments and he had lost confidence in Ms. Suarez, bu t this fact was not

supported by any non - hearsay evidence. 9 There was no non - hearsay evidence

of who lost confidence in Ms. Suarez, why he or she might have lost

confidence, or if the loss of confidence was warranted. Ms. Green, who

participated in Petitioner ' s termination, could have shed light on this, but did

not.

5 5 . Without any credible evidence, the County has failed to meet its

burden of production that the termination was based on Petitioner's poor

performance (or a warranted "loss of confidence"). A s such, Ms. Suarez has

prove n her termination was discriminatory based on her gender.

P RETEXT

5 6 . Even if the County had met its burden of producing a legitimate non -

discriminatory reason for her termination, the burden would then shift back

to Petitioner to establish this reason wa s a pretext. To show pretext,

Petitioner must identify " weaknesses, inconsistencies, or contradictions in

the County ' s articulated legitimate reasons for its action so that a reasonable

factfinder would find them unworthy of credence. " Alvarez v. Royal Atl .

Developers, Inc. , 610 F.3 d 1253, 1265 (11th Cir. 2010).

5 7 . Ms. Suarez could meet this burden by presenting evidence that

employees outside her protected class were involved " in acts of comparable

seriousness [but] were nevertheless retained . " See McDon nell Douglas , 411

U.S. at 804 Ï 05. Ultimately, Ms. Suarez can show the County ' s proffered

reason is a pretext because it (1) should not be believed, or (2) when

considering all the evidence, that it is more likely that the discriminatory

reason motivated th e decision than the employer ' s proffered reason. See

Bielawski v. Davis Roberts Boeller & Rife, P.A. , 2020 WL 2838811, at *5, n.4

(M.D. Fla. June 1, 2020).

9 Although " [h]earsay evidence may be used for the purpose of supplementing or explaining

other evidence, [] it shall not be sufficient in itself to suppo rt a f inding unless it would be

a dmissible over objection in civil actions. " § 120.57(1)(c), Fla. Stat.

5 8 . Ms. Suarez has provided sufficient evidence for the undersigned to

find that the proffered reaso n for her termination, po or performance or "loss

of confidence , was a pretext. First, if Ms. Suarez was performing poorly, why

was she not told by Mr. Burke that she needed to improve? Why was she not

given counseling and coa ching or performance comments? Why were there no

negative comments in her performance evaluation? These weaknesses poke

holes at the County ' s proffered reason.

5 9 . Second, assuming the follow - up audit was evidence that Ms. Suarez

was responsible for some of the outstanding issues at SC AT, it also

established other managers had issues as well. Ms. Suarez, the lone female

ma nager, was the only one fired. The County has not given any reason

Ms. Suarez was terminated for alleged deficiencies and Mr. DeAnnuntis was

not terminated despite his documented defici encies . Nor did it explain why

Ms. Suarez was terminated for open items in the follow - up audit, but

Mr. Ferris and Mr. Russo were not. This difference in treatment be tween the

male managers and Ms. Suarez certainly makes the County ' s reli ance on the

audit s suspect.

60 . Finally, Mr. Burke specifically told Ms. Suarez that she was not being

terminated because of the audit, but rather because departmen ts and he had

lost confidence in her. He then refused to put that reason in writing or

expla in wh y he had lost confidence . The County has not presented any

evidence contradicting Ms. Suarez' version of her forced resignation .

61 . Considering all the evidence (and the lack thereof ), the undersigned

finds Petitioner has shown enough weaknesses in t he County ' s purported

reason of poor performance or "loss of confidence" to establish it was a

pretext.

R EMEDY

6 2 . Having established the County discriminated against her based on her

gender, Ms. Suarez seeks damages in the form of compensatory damages,

ba ck pay, front pay , and attorney's fees . Section 760.11(6) provides, in

relevant part:

If the administrative law judge, after the hearing,

finds that a violation of the Florida Civil Rights Act

of 1992 has occurred, the administrative law judge

shall issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief from the

effects of the practice, including back pay .

* * *

In any action or proceeding under this subsection,

the Commission, in i ts discretion, may allow the

prevailing party a reasonable attorney ' s fee as part

of the costs.

63 . Unlike in a civil legal proceeding brought pursuant to section

760.11(4)(a) , Petition er cannot be awarded compensatory damages in an

administrative proceed ing brought pursuant to section 760.11(4)(b) . Compare

§ 760.11(5) ( allowing a civil court to "award compensatory damages,

including, but not limited to, damages for mental anguish, loss of dignity, and

any other intangible injuries, and punitive damages. ") .

64. Regarding back pay, " once a plaintiff has proven discrimination, back

pay should be awarded ' unless special circumstances are present. '" Lengen v.

Dep ' t of Transp. , 903 F.2d 1464, (11th C ir. 1990)(quotations omitted). The

County has not argued that s pecial circumstances would prevent an award of

back pay in this case, nor is there any evidence that back pay should not be

awarded to Ms. Suarez.

6 5 . As such, M s. Suarez should be awarded lost wages before finding a

permanent position, plus the difference in pay from the time she began the

job and the date of this Recommended Order , for a total amount of

approximately $36,550.

6 6 . Front pay is not explicitly listed in the statutory remedy language in

section 760.11(6). Under federal law interpreting Title VII of the Civil Rights

Act of 1991, front pay is an equitable remedy. See EEOC v. W&O, Inc. , 200

F.3d 600, 619 (11th Cir. 2000)( noting that in addition to back pay, prevailing

employees are presumptively entitled to eithe r reinstatement or front pay).

Eve n though administrative law judges have limited equitable powers, FCHR

has held that front pay is an appropriate remedy under the FCRA where

reinstatement is not an option . In Whitehead v. Miracle Hill Nursing and

Convalescent Home Inc. , 1994 WL 1028127, a t *10 (Fla. FCHR April 17,

1995), FCHR held

[F]ront pay is compensation for future economic

loss stemming from present discrimination that

cannot be remedied by traditional rightful - place

relief such as hiring, promotion or reinstatement.

Some of the fac tors which make rightful - place relief

inappropriate include a lack of reasonable prospect

that Petitioner can obtain comparable employment,

the existence of an employer - employee relationship

that is pervaded with hostility, and the existence of

a relativel y short period of time for which front pay

is to be awarded . (emphasis added).

6 7 . Assuming front pay is an authorized remedy under the FCRA,

Petitioner provided no evidence as to whether the County could reinstate her

or that such re instatement was inapp ropriate. To the contrary, there is no

apparent reason that Ms. Suarez could not be reinstated to her former

position. Mr. Burke is no longer the head of SCAT and there was no evidence

that there would be a hostile environment if Petitioner returned to the

County. Practically, however, Petitioner has found comparable employment

and presumably the County has someone in Petitioner ' s former position. As

such, front pay is not appropriate in this situation.

68. Petitioner is entitled to the costs incurred in pu rsuing this

administrative proceeding, including reasonable attorney's fees. § 760.1 1(6 ) ,

Fla. Stat .

R ECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a

Fi nal Order :

1. Finding the Sarasota County Government discriminated against

Lavender Suarez based on her gender;

2. Awarding Petitioner $36,550 in back pay ; and

3. Awarding reasonable attorney ' s fees as part of the costs.

D ONE A ND E NTERED this 15th day of July, 2020 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

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.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July , 2020 .

C OPIES F URNISHED :

Dusty Firm Aker, Esquire

Aker Law Firm, P.A.

240 South Pineapple Avenue , Suite 803

Sarasota, Florida 34236

(eServed)

Tammy S. B arton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Maria D. Korn, Esquire

Sarasota County Office of the County Attorney

1660 Ringling Boulevard , 2nd Floor

Sarasota, Florida 34 236

(eServed)

Cheyanne Costilla, Gen eral 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 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.