20-002271 Yoandra Lopez Garcia vs. Parsec, Inc. Status: Closed Recommended Order on Friday, January 29, 2021.

Summary: Petitioner's complaint based on pregnancy discrimination in the workplace was time-barred; and even if the complaint were timely, Petitioner did not prove unlawful discrimination by a preponderance of the evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Y OANDRA L OPEZ G ARCIA ,

Petitioner ,

vs. Case No. 20 - 2271

P ARSEC , I NC . ,

Respondent .

/

R ECOMMENDED O RDER

The final h earing in this matter was conducted before Administrative Law

Judge ("ALJ " ) Brittany O. Finkbeiner of the Division of Administrative

Hearings ( " DOAH " ), on September 2 and 3, 2020, via Zoom conference.

A PPEARANCES

For Petitioner: Javier A. Basnuevo, Esqu ire

Roberts, P.A.

2665 South Bayshore Drive, Suite 300

Coconut Grove, Florida 33133

For Respondent: Jennifer A. Schwartz, Esquire

Naveen Paul, Esquire

Jackson Lewis , PC

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, Florid a 33131

S TA TEMENT OF T HE I SSUE

The issue in this case is whether Respondent, Parsec, Inc. ( " Respondent "

or " Parsec " ) , is liable to Petitioner, Yoandra Lopez Garcia ( " Petitioner " or

" Ms. Lopez Garcia " ) , for discrimination based on pregnancy.

P RELIMINARY S TATEMENT

P etitioner filed a complaint with the Florida Commission on Human

Relations ( " Commission " ) on June 11, 2019, alleging that Respondent

discriminated against her pursuant to c hapter 760, Florida Statutes, the

Florida Civil Rights Act ( " FCRA " ), on the basis of her pregnancy.

The Commission conducted an investigation and, on April 9, 2020 , issued

a determination that there was no reasonable cause to conclude that an

unlawful employment practice occurred.

On May 11, 2020, Petitioner timely filed a Petition fo r Relief ( " Petition " ) ,

asserting that, after she announced her pregnancy in the workplace : 1) her

alleged promotion was rescinded; and 2) she was constructively discharged .

The Commission referred the Petition to DOAH on May 13, 2020, for the

assignment of an ALJ to conduct a formal administrative hearing under

section 120.57, Florida Statutes.

The final hearing occurred on September 2 and 3, 2020. Ms. Lopez Garcia

testified on her own behalf and presented the testimony of Cindy Johnson,

Jeffrey Bladen (" M r. Bladen") , and Dr. Sidiq Aldabbagh. PetitionerÔs Exhibits

4 , 6 through 10, and 12 through 15 were admitted into evidence. Respondent

presented the testimony of Cindy Johnson, Jeffrey Bladen, Joan Fardales

(" Mr. Fardales") , Amaurys Garcia ("Mr. Garcia") , and Lisandra Ochoa

Granado ("Ms. Ochoa") . RespondentÔs Exhibits 1 , 6 , 7 , 9 , 14 through 23, 25,

26, 30, and 31 were admitted into evidence.

The five - volume Transcript was filed with DOAH on December 3 , 2020.

Based on the ir joint motion for an extension of time, the parties were given

until January 12, 2021 , to file their proposed recommended orders. The

partiesÔ proposed recommended orders were timely filed in conformity with

the extended deadline; both were duly considered in the preparation of this

Recom mended Order .

All references to the Florida Statutes refer to the 2017 version, unless

otherwise stated.

F INDINGS OF F ACT

Based on the demeanor and credibility of the witnesses, the documentary

evidence admitted , and the record as a whole, the following facts are found:

The Parties and Complaint Allegations

1. Parsec is an intermodal transportation operator that contracts with

railroads to load and unload shipping containers.

2 . Parsec hired Ms. Lopez Garcia on November 18, 2013 , as an

administrative cl erk . At all times relevant to this proceeding , Petitioner held

the position of Administrative Manager at Parsec Ôs Miami Terminal .

3 . On June 11, 2019, Petitioner filed a complaint , under penalty of

perjury, with the Commission. PetitionerÔs complaint claim s, in its entirety:

I am a female. I was discriminated against because

of my gender (pregnancy). I began working for

Respondent on November 23, 2013, as an

Administrative Manager. I was given a promotion

after being discriminated against. When I

complained to the Regional Manager that

individuals with no knowledge or seniority were

given positions that I had applied for and I was

never given an interview, the Regional Manager

" offered " me the position. While I was in training

and had fully trained someone e lse in my old

position, I found out that I was pregnant. My

supervisor, (Terminal Manager) demoted me

without telling me and brought in a family member

to occupy my position for no reason other than the

fact that I was pregnant. I went out on maternity

lea ve and my supervisor asked me if I was going to

come back to work in my old position. I told him

" no " and I felt I had no other choice but to quit my

job.

ParsecÔs Structure

4 . Aside from PetitionerÔs administrative position, the duties of which she

perfo rmed inside the office, ParsecÔs Miami T erminal also employed Gate

Inspectors and Load Out Clerks, which were also categorized as office

positions. ParsecÔs operations also required a number of outdoor, or " yard "

positions, including Ground Person/Tie - Down , Hitch Verifier, Driver, and

Crane Operator. Finally, ParsecÔs Miami Terminal ha d the following

supervisory positions: Lead Man, Yard Supervisor, and Terminal Manager.

5 . The Terminal Manager position was the highest - level position at

ParsecÔs Miami Termi nal.

6 . Mr. Bladen was ParsecÔs General Manager. Mr. Fardales was the

Regional Manager for ParsecÔs Florida locations. Mr. Fardales had also

worked as ParsecÔs Terminal Manager in the Miami Terminal.

7 . At Parsec, it was not uncommon for employees to tra in for other

positions in addition to their present job duties. If an employee voiced an

interest in a different position or a promotion within the company, additional

training was commonly accommodated.

PetitionerÔs Desired Promotion and Training

8 . In her role as Administrative Manager, Petitioner was the highest - level

administrative employee in ParsecÔs Miami terminal. However, because it

was an administrative position inside the office, the Administrative Manager

position was not eligible for promotio n to higher - level supervisory positions at

Parsec, which required training outdoors, or " in the yard. "

9 . The Terminal Manager position at the Miami Terminal required

overseeing all of the operations and personnel in the terminal, including

office, gate, a nd yard operations. Additionally, the Terminal Manager ha d to

have the necessary training , skill , and ability to physically perform the duties

of all other positions in the yard.

10 . In order to sufficiently master all of the duties that were supervised

a nd performed by the Terminal Manager, at least two years of experience in

the yard was necessary.

11 . Around April of 2017, Petitioner went to lunch with Mr. Bladen and

Mr. Fardales. During that lunch, Petitioner expressed her desire to become

the Termina l Manager. Mr. Bladen and Mr. Fardales agreed to allow

Petitioner to train in the yard to give her the opportunity to acquire the yard

experience she would need to move up within the company. At that time,

there was an open Yard Supervisor position at the Miami Terminal.

Mr. Fardales intended to consider Petitioner for the Yard Supervisor position

if she completed the requisite training.

12 . Petitioner was not promoted to, or offered, the Terminal Manager

position. Her job classification of Administrative Manager at Parsec never

changed. Petitioner was, however, allowed to train in the yard to give her the

opportunity to earn a promotion in the future.

13 . In August of 2017, Parsec hired Ms. Ochoa , whom Petitioner

recommend ed for the position , to assist Pe titioner with her job duties in the

office, thereby allowing Petitioner to train in the yard.

PetitionerÔs Pregnancy and Cessation of Training

14 . In September of 2017, Ms. Lopez Garcia learned that she was

pregnant. Her testimony as to when she informed Mr. Fardales of her

pregnancy was inconsistent . During the hearing, Petitioner first testified that

she informed Mr. Fardales of her pregnancy in November, then she testified

that she told him in the beginning of December, or a few days before he

allegedly removed her from the training program.

15 . On October 6, 2017, an email was sent from PetitionerÔs email account

to Mr. Fardales , wherein Petitioner informed Mr. Fardales that she was

changing her shift because she had an appointment for an ultrasound.

M r. Fardales testified credibly that he knew by that time that Petitioner was

pregnant and assumed that the ultrasound was related to her pregnancy.

Ms. Lopez Garcia testified that she may not have been the sender of the

email, although it was from her acco unt. Ms. Lopez Garcia also suggested

that the ultrasound referenced in the email may not have been related to her

pregnancy, but instead related to a completely different medical issue

affecting her leg . PetitionerÔs obstetrician, Dr. Aldabbagh, however, t estified

that Petitioner had an appointment with him on the date of the email, which

included an abdominal ul t rasound. PetitionerÔs testimony on this topic was

not persuasive when balanced with other, more credible , contradictory

evidence.

16 . Ms. Lopez Garcia testified that Mr. Fardales called her into his office

and told her that she would no longer be training in the yard , but would

instead return to her duties inside the office. Petitioner further testified that

Ms. Ochoa overheard the conversation, a nd when Petitioner left

Mr. FardalesÔ s office, Petitioner and Ms. Ochoa both cried. Ms. Ochoa,

however, testified that this event never took place and that she would have

recalled it if it had. Ms. Lopez GarciaÔs testimony on this topic is rejected to

the extent that it conflicts with the testimony of Ms. Ochoa.

17 . Although Petitioner claims that Mr. Fardales removed her from the

training program against her will because of her pregnancy, she testified that

she never asked him for an explanation. Addition ally, Petitioner never

notified ParsecÔs h uman r esources department to complain about her removal

from training. Parsec had anti - discrimination policies in place, which

included a reporting procedure for employees. There is no evidence in the

record that P etitioner mentioned alleged discriminated to anyone prior to

filing her complaint with the Commission. Mr. Fardales testified that

Petitioner left the training program voluntarily, but he did not remember her

specific reasons. ParsecÔs Corporate Representa tive testified that Petitioner

asked to stop training in the yard because of complications with her

pregnancy. The evidence did not conclusively establish why Petitioner

stopped training. The evidence also did not establish exactly when Petitioner

stopped training in the yard, but the evidence did establish that she had

ceased training by December 2017.

18 . After she stopped training in the yard, Petitioner continued

performing her duties in the office.

19 . In February of 2018, Petitioner went on maternit y leave due to

complications with her pregnancy.

20 . Parsec approved PetitionerÔs request for leave under the Family and

Medical Leave Act ( " FMLA " ) , from February 26, 2018 , through May 20, 2018.

21 . Parsec approved PetitionerÔs request for non - FMLA medic al leave from

May 21, 2018 , through June 20, 2018.

Hiring of New Terminal Manager

22 . In December of 2017, Mr. Fardales hired Mr. Garcia as the Terminal

Manager at ParsecÔs Miami Terminal. Mr. Garcia first began working for

Parsec, in a yard position, in 1997. Subsequently, Mr. Garcia spent years in

other yard positions at Parsec, including six months as a

Tie - Down Person and four years as a Crane Operator . He also drove tractors

and held the position of Lead Man for Parsec. Mr. Garcia performed similar

d uties for another intermodal company for ten years, between 2002 and 2012;

again at Parsec from 2012 - 2013; and at a different company as a railcar

inspector from 2013 - 2017. Mr. Fardales hired Mr. Garcia for the Terminal

Manager position, having determined that he was the most qualified for the

position based on his experience. Mr. Fardales testified credibly that he is not

related to Mr. Garcia. Petitioner did not present any evidence that

Mr. Garcia was related to Mr. Fardales, although a familial relation ship was

alleged in her complaint to the Commission.

23 . Several other individuals applied for the Terminal Manager position,

including Ms. Lopez Garcia. Ms. Lopez Garcia was not selected for the

position because she did not have the requisite qualificati ons.

24 . The other individuals whom Mr. Fardales interviewed for the

Terminal Manager position, but were not selected, include: Jorge Fernandez,

Raciel Crespo, Lazaro Paredes, Ariel Peraza, and Jorge Torres. All of the

other applicants for the Terminal Ma nager position were non - pregnant and

male .

25 . Jorge Fernandez worked at Parsec for approximately ten years and

had experience as a Gate Inspector, Load Out Clerk, Ground Person, and

Driver. Mr. Fardales did not select him for the Terminal Manager position .

26 . Raciel Crespo had over ten years of experience working for Parsec,

including working as a Gate Inspector, Ground Person, Driver, and Crane

Operator. Mr. Fardales did not select him for the Terminal Manager position.

27 . Lazaro Paredes had over twenty years of experience in ParsecÔs

industry. He had experience in load - out, grounding, driving, and supervisory

duties in the yard. Mr. Fardales did not select him for the Terminal Manager

position.

28 . Ariel Peraza had between eight and ten years of experie nce in ParsecÔs

industry. He had worked as a Gate Inspector, Ground Man, Driver, And

Crane Operator . Mr. Fardales did not select him for the Terminal Manager

position.

29 . Jorge Torres had between three and five years of experience in

ParsecÔs industry. He had worked as a Ground Man, Driver, Lead Man, and

Supervisor. Mr. Fardales did not select him for the Terminal Manager

position.

Alleged Discriminatory Comments

30 . Ms. Lopez Garcia testified that Mr. Fardales made comments to her or

in her presence on a number of occasions that were generally disparaging to

women in the workplace ; and specifically with respect to pregnancy,

motherhood, and sexual orientation. Petitioner did not identify other

witnesses to Mr. FardalesÔ s alleged discriminatory comments, no r did any

witness in this case corroborate her testimony on the comments. Mr. Fardales

denied ever making any of the alleged disparaging comments about women in

the workplace. Given the totality of the evidence, or lack thereof, about the

negative comments about women , PetitionerÔs testimony on the subject lacks

credibility and is rejected.

PetitionerÔs Resignation

31 . Ms. Ochoa testified that she knew Petitioner planned to leave Parsec

prior to PetitionerÔs resignation. Ms. Ochoa declined to pursue anoth er job

opportunity to remain at Parsec based on her belief that Petitioner would not

be returning, thereby allowing Ms. Ochoa to remain in PetitionerÔs previous

position permanently. Ms. Ochoa believed that Petitioner resigned because

she had a daughter; s he had her whole life in front of her; she had another

business to take care of , specifically , a beauty salon ; and Parsec was no

longer important to her.

32 . On her 2019 tax return , Petitioner listed herself as the proprietor of a

beauty salon. Petitioner testified, however, that the tax return was

inaccurate in this respect and she did not know how such a mistake could

have been made, because her taxes were done by an accountant. Ms. Lopez

GarciaÔs denial of any accountability for, or knowledge of, the in formation

contained in her tax return was not believable, and therefore undermined her

credibility.

33 . On May 30, 2018, while she was still out on maternity leave,

Ms. Lopez Garcia called Mr. Fardales. Although Ms. Lopez Garcia and

Mr. Fardales recalled d ifferent accounts of their phone conversation, both

agreed that Petitioner resigned from Parsec during the call. Ms. Lopez Garcia

testified that she resigned because Mr. Fardales refused to let her resume

training in the yard when she returned from materni ty leave. Mr. Fardales,

however, denies that they discussed PetitionerÔs training status at all during

the conversation. Further, Petitioner testified that although she resigned, she

told Mr. Fardales that she would reconsider contingent on him changing hi s

mind about removing her from training in the yard. The details of the content

of the conversation were not conclusively established.

34 . Mr. Fardales documented PetitionerÔs verbal resignation in an email

dated May 30, 2018. On the same day, Ms. Ochoa d rafted a separation letter

regarding PetitionerÔs employment to send to ParsecÔs corporate office in

Cincinnati. She did so at the direction of Mr. Fardales.

35 . When Petitioner resigned, ParsecÔs h uman r esources department did

not record the resignation as being effective immediately in order to afford

Petitioner the continued coverage of her short - term disability benefits for the

remainder of her maternity leave. PetitionerÔs medical certification from her

physician indicated that Petitioner could retur n to work on Wednesday, June

20, 2018. Human Resources made the decision to deem PetitionerÔs

resignation effective on Friday, June 22, 2018 , so that she would receive

short - term disability benefits for a full week.

C ONCLUSIONS OF L AW

36 . DOAH has person al and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 12 0.57(1) .

37 . In considering the proof offered to establish the facts of this case , th e

undersigned is bound by the limitations on the use of hearsay evidence in

admini strative proceedings , as set forth in s ection 120.57(1)(c), which states ,

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

explaining other evidence, but it shall not be sufficient in itself to support a

finding unless it would be admiss ible over objection in civil actions. "

38 . Findings of F act were made, however, with respect to the non - hearsay

statements and conversations that relate to potential discrimination. Such

statements or conversations were admitted as verbal acts having

indep endent legal significance in proving , or disproving , PetitionerÔs claim of

discrimination . Because the determination of whether certain verbal acts

occurred in this case , as part of the factual predicate underlying the c laim

against Respondent, they have i ndependent legal significance and were not

offered for the truth of the matter s asserted. See A.J. v. State , 677 So. 2d 935

(Fla 4th DCA 1996) ; C ephas v. State Dep ' t. of HR S , 719 So. 2d 7 (Fla. 2d DCA

1998).

Timeliness of Petitioner Ôs Complaint

39 . Parsec asserts that Ms. Lopez GarciaÔs claim is time - barred because

she filed her c omplaint with the Commission beyond the statutory deadline.

40 . A person aggrieved by a violation of the FCRA " may file a complaint

with the [C]ommission within 365 days of the al leged violation. " § 760.11(1),

Fla. Stat.

41 . " [D]iscrete discriminatory acts are not actionable if time - barred, even

when they are related to acts alleged in timely filed charges. " Nat'l R.R.

Passenger Corp., v. Morgan , 536 U.S. 1 0 1, 102 (2002). Failure to promote and

denial of training are both discrete acts of discrimination. Id. at 11 5 . A time -

barred act cannot justify filing a complaint for an act of termination that was

not independently discriminatory. Id . at 113.

42 . " [ T] he limitations period begin s running at the time the employee is

notified that the decision was made to engage in the discriminatory

employment practice , not when the effects of the decision began. "

Del . State Coll . v . Ricks , 449 U.S. 250, 259, (1 980) . The pendency of a

grievance, or another method of collateral review of an employment decision,

does not toll the limitations period. Id. at 251. According to PetitionerÔs

testimony, she was removed from training by December 2017 ; then

Mr. Fardales c onfirmed that decision during their conversation on May 30,

2018. Even if PetitionerÔs version of events were credible, she could not revive

a claim by reiterating her request for training where it had already been

denied. PetitionerÔs complaint was still untimely because the June 11, 2019 ,

filing of her complaint is more than 365 days from Mr. FardalesÔ s purported

May 30, 2018 , comments.

43 . Because it is undisputed that Petitioner left, or was removed from, the

training program in December of 2017, and P etitioner did not file her

complaint with the Commission until June 11, 2019, her claim is time - barred.

The alleged discriminatory act occurred outside of the 365 - day period,

making it immaterial to the resolution of this case , whether or not Petitioner

wa s awaiting a decision on Parsec Ôs intention to allow her to return to the

training program at the time her employment officially ended .

44 . Even if Ms. Lopez GarciaÔs complaint were timely, her claim would

still fail on the merits, based on the following analysis.

Merits of Petitioner Ôs Claim

45 . The burden of proof in this proceeding is on Ms. Lopez Garcia as the

p etitioner . See DepÔt of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996). To prove a violation of the

FCRA, Ms. Lopez Garcia must establish a prima facie case of discrimination

by a preponderance of the evidence. See Valenzuela v. GlobeGround N. Am .,

LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009). A preponderance of the evidence is

defined as " the greate r weight of the evidence, " or evidence that " more likely

than not " tends to prove a certain proposition . S. Fla. Water Mgmt. Dist. v.

RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014).

46 . The FCRA prohibits discrimination in the workplace. Among other

th ings, the FCRA makes it unlawful for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such in dividualÔs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

§ 760.10(1)(a), Fla. Stat.

47 . The FCRA, as amended, is patterned after Title VII of the Civil Rights

Act of 1964 and 1991 ( " Title VII " ). Thus, federal de cisional authority

interpreting Title VII is applicable to cases arising under the FCRA. Johnson

v. Great Expressions Dental Ctrs. of Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d

DCA 2014).

48 . A plaintiff can establish a prima facie case for discrimination either by

direct or circumstantial evidence. Direct evidence requires actual proof that

the employer acted with a discriminatory motive when making the

employment d ecision in question. Scholz v. RDV Sports, Inc., 710 So. 2d 618,

624 (Fla. 5th DCA 1998) . C ircumstantial evidence, on the other hand,

requires a petitioner to satisfy the four - prong test established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) . Here, PetitionerÔs claim is based

entirely on circumstantial evidence.

49 . " An individual pregnant worker who seeks to show disparate

treatment through indirect evidence may do so through application of the

McDonnell Douglas framework . " Young v. UPS , Inc. , 575 U.S. 206, 135 S. Ct.

1338 , 1353 (2015) . Based on the United States Supreme CourtÔs analysis in

McDonnell Douglas , in order to establish a prima facie case based on

circumstantial evidence, Petitioner must show that s he:

1) belongs to a protected class;

2) was qualified to do the job;

3) was su bjected to an adverse employment

action; and

4) the employer treated similarly situated

employees outside the class more favorably.

McDonnel Douglas, 411 U.S. at 802 - 03.

50 . If Petitioner were to satisfy all four prongs of the McDonnell

Douglas framework, then th e burden would shift to Respondent to produce

evidence of a legitimate, non - discriminatory reason for its adverse

employment action . Id.

51 . Petitioner satisfied the first prong by a preponderance of the evidence.

She established that she was part of a p rotected class within the meaning of

the FCRA, which plainly prohibits discrimination, in pertinent part, based on

" pregnancy. " It is undisputed that Petitioner was pregnant at the time she

ceased training in the yard at Parsec.

52 . Petitioner satisfied t he second prong by a preponderance of the

evidence. Where a petitioner presents evidence to show that she has satisfied

a respondentÔs objectively verifiable qualifications, then it is incumbent on

the respondent to introduce its subjective evaluation in r ebuttal to eliminate

this prong. Vessels v. Atl . Indep . Sch . Sys . , 408 F. 3d 763 (11th Cir. 2005). The

evidence established that Ms. Lopez Garcia was not qualified for the

Terminal Manager position, which she sought. However, a preponderance of

the evidenc e shows that she was qualified simply to be trained for a

promotion, which is relevant because PetitionerÔs claim is based, in part, on

her removal from training in furtherance of becoming qualified for a future

promotion. Demonstrating a prima facie case is not onerous. See Samedi v.

Miami - Dade Cty , 134 F. Supp. 2d 1320, 1345 (S.D. Fla. 2001); Wexler v.

WhiteÔs Fine Furniture , Inc ., 317 F. 3d 564 ( 6th Cir. 2003)(At the prima facie

stage of an employment discrimination action , based on circumstantial

eviden ce , the inquiry should focus on criteria such as demonstrated

possession of the required general skills) . Based on ParsecÔs general policy of

accommodating employee s who voiced an interest in a different position , or a

promotion within the company through on - the - job training , the evidence

shows that Petitioner was qualified for the training program .

53 . Petitioner did not satisfy the third prong , by a preponderance of the

evidence, because the evidence did not establish that she was subjected to an

advers e employment action. Although Ms. Lopez Garcia admittedly resigned

from her position at Parsec, she claims that she was constructively

discharged. In order to prevail on her claim of constructive discharge,

Petitioner must show, under an objective standard , that Respondent " made

working conditions so difficult that a reasonable person would feel compelled

to resign. " Webb v. Fla. Health Care Mgmt. Corp , 804 So. 2d 422 , 424 (Fla.

4 th DCA 2001)(citing Steel e v. Offshore Shipbuilding, Inc., 867 F.2d 1311,

1317 (11th Cir.1989) ; McCaw Cellular Comm . of Fla., Inc. v. Kwiatek, 763 So.

2d 1063, 1066 (Fla. 4th DCA 1999 ) ) . When an employee resigns, it is

presume d that the resignation was voluntary. MacLean v. City of S t.

Petersburg , 194 F. Supp. 2d 1290, 1300 (M.D. Fla. 2002). " An employee has

the responsibility to act reasonably before choosing to resign, and then

labeling that resignation as a constructive disc harge. " Id. (citing Matthews v.

City of Gulfport , 72 F.Supp.2d 1328, 1338 (M.D. Fla. 1999)(citing Garner v.

Wal - Mart Stores, Inc ., 807 F.2d 1536, 1539 (11th Cir. 1987)). In the present

case, Petitioner did not present any evidence that her working conditio ns

were objectively difficult, or that would tend to rebut the presumption that

her resignation was voluntary in any way.

54 . In order to satisfy the fourth prong , Petitioner must show that she was

treated less favorably than similarly situated individual s outside her class,

through an analysis of valid comparators. Sitting en banc , the Eleventh

Circuit recently held that comparators must be " similarly situated in all

material respects. " Lewis v. City of Union City, Ga . , 918 F. 3d 1213, 1218

(11th Cir. 201 9). A comparator analysis is necessary at the prima facie stage

of a discrimination case because, by its very nature, " discrimination is a

comparative concept . " Id. at 1223 . " It is only by demonstrating that her

employer has treated Ól ike Ô employees Ó diffe rently Ô Ð i.e. , through an

assessment of comparators Ð that a plaintiff can supply the missing link and

provide a valid basis for inferring unlawful discrimination . " Id. In the present

case, Ms. Lopez Garcia did not prove that she was treated less favorably th an

other individuals outside her class. To the contrary, all of the applicants who

were competing for the same Terminal Manager position as Petitioner were

non - pregnant males. The evidence was clear on its face that Petitioner ha d

less relevant experience than any of the other unsuccessful applicants for the

position. Mr. Fardales believed that the individual he hired for the position

was the most qualified. The undersigned is " not in the business of adjudging

whether employment decisions are prudent or fai r. Instead, [the] sole concern

is whether unlawful discriminatory animus motivates a challenged

employment decision. " Damon v. Fleming Supermarkets o f Fla., Inc. , 196

F.3d 1354, 1361 (11th Cir. 1999) . An analysis of PetitionerÔs comparators does

not reveal that any decisions made by Parsec with respect to her employment

were motivated by discriminatory animus.

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

inquiry. Kidd v. Mando Am. Corp ., 731 F. 3d 1196, 1202 (11th Cir. 2013).

Peti tioner has not made a prima facie showing, by a preponderance of the

evidence, that Respondent discriminated against her based on her pregnancy.

R ECOMMENDATION

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

R ECOMMENDED that FCHR en ter a final order dismissing the Petition for

Relief.

D ONE A ND E NTERED this 2 9 th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Javier A. Basnuevo, Esquire

Florida Commission on Human Relations Roberts, P.A.

4075 Esplanade Way , Room 110 Suite 300

Tallahassee, Florida 32399 - 7020 2665 South Bayshore Drive

Coconut Grove, Florida 33133

Jamie Goetz - Anderson, Esquire

Jackson Lewis, P.C. Jennifer A. Schwartz, Esquire

PNC Center 26th Floor Jackson Lewis PC

201 East Fifth Street One Bis cayne Tower, Suite 3500

Cincinnati, Ohio 45202 2 South Biscayne Boulevard

Miami, Florida 33131

Naveen Paul, Esquire

Jackson Lewis, PC Cheyanne Costilla, General Counsel

Suite 3500 Florida Commission on Human Relations

2 South Biscayne Boulevard 4075 Esplanade Way, Room 110

Miami, Florida 33131 Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All pa rties 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.