20-002539 Marlena Seenaught vs. Morton Plant Hospital, Baycare Status: Closed Recommended Order on Monday, October 19, 2020.

Summary: Petitioner failed to establish she was subjected to severe and pervasive sexual harassment for which Respondent was liable or that her termination was in retaliation for complaining about the harassment.

practice against Marlena Seenaught (Ms. Seenaught or Petitioner ), on the

basis of her sex and in retaliation for engaging in a protected activity, in

violation of the Florida Civil Rights Act (FCRA).

P RELIMINARY S TATEMENT

On February 28, 2019 , Ms. S eenaught filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(Commission) , alleging that she was the victim of sexual harassment while

employed by Respondent . She further alleged that she was terminated by

Respond ent in retaliation for making a complaint about the sexual

harassment . On April 29, 2020 , the Commission notified Ms. Seenaught that

no reasonable cause existed to believe that Respondent committed an

unlawful employment practice.

On June 1, 2020 , Ms. See naught filed a Petition for Relief with the

Commission in which she re - alleged a discriminatory employment practice.

The Commission transmitted the Petition for Relief to DOAH to conduct a

chapter 120 evidentiary hearing.

At the final hearing, Ms. Seenaug ht testified on her own behalf and called

Anthony O’Donnell and Brian Seenaught as witnesses. Petitioner ’s E xhibits 1

through 4, 7, 8, 11, 13 - C, 13 - D, 13 - G, 13 - O, 14 through 16, and 22 were

admitted into evidence. Respondent called Georda Lee Finnegan, Hea ther

Nichole Hayes, Sean Phillip Christensen, Lolita Diaz, and Deborah Pasqua

as witnesses. Respondent’s E xhibits 3 through 5, 8 through 13, 19, 23, and 24

were admitted into evidence.

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

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

hearing submittals. On September 16 , 2020, the court reporter filed a t hree -

volume T ranscript of the final hearing with DOAH. Both parties timely

submitted Proposed Recommended O rders, which were duly considered in

preparing this Recommended Order.

F INDINGS OF F ACT

1. Morton Plant Hospital is a hospital located in Clearwater, Florida.

Morton Plant Hospital is part of the greater BayCare Health System.

2. Ms. Seenaught is a woman. She w as hired at Morton Plant Hospital as

a respiratory therapist in a “pool” position in the respiratory care d epartment

on November 13, 2017. Morton Plant Hospital hired Ms. Seenaught right out

of school.

3. Ms. Seenaught remained in the respiratory therapis t pool position

throughout her time at Morton Plant Hospital.

4. By all accounts, Ms. Seenaught was an excellent respiratory therapist.

Colleagues described her as a “go - getter” who eagerly sought to learn and

grow in her position.

5. Prior to her termina tion, Ms. Seenaught had never been subject to any

discipline by Morton Plant Hospital .

6. At all times relevant to Ms. Seenaught’s allegations, Heather Hayes

served as her supervisor. Sean Christensen served as her m anager , and the

manager of all respirat ory therapists. Georda Finnegan served as her

“charge” respiratory therapist.

7. Charge respiratory therapists are not technically supervisors; however,

they serve an important supervisor - like function. The charge respiratory

therapist is responsible for o rganizing and overseeing the daily workflows

and evaluating and handling any issues that come up during a shift, in

addition to other tasks. Charge respiratory therapists are also the first point

of contact for other respiratory therapists if they have pro blems, complaints,

or suggestions.

The Events of September 21, 2018

8. On a Friday evening, September 21, 2018, Ms. Seenaught attended an

after - work birthday celebration at a bar with several of her Morton Plant

Hospital co - workers. Mr. Bill Kapusta was in attendance.

9. Mr. Kapusta worked at Morton Plant Hospital as a respiratory

therapist. He was primarily assigned to the emergency department (ED) and

had been with that department for several years. Mr. Kapusta was well liked

and respected by the physi cians in the ED.

10. The unrefuted cre dible testimony of Ms. Seenaught established that,

while at the bar, Mr. Kapusta grabbed her buttocks without her permission.

Despite her effort to dissuade his advances, Mr. Kapusta repeatedly asked

her to have sex w ith him.

11. Ms. Seena ught shared what happened to her with several of her co -

workers, including Anthony O’Donnell, who was also present that night.

12. Mr. O’Donnell testified that he saw Mr. Kapusta touch Ms. Seenaught

on the back and approach her vari ous times that evening. He also testified

that Ms. Seenaught complained to him that Mr. Kapusta was hitting on her,

touching h er , and generally making her feel uncomfortable.

Reporting the Sexual Harassment

13. The following Thursday ( September 27, 2018 ) , Ms. Seenaught reported

the sexual harassment incident to her charge respiratory therapist , Georda

Finnegan. As Ms. Seenaught’s charge respiratory therapist , Ms. Finnegan

served as the person Ms. See naught directly reported to during her work

shift.

14. Ms . Seenaught told Ms. Finnegan that Mr. Kapusta sexually harassed

her at the birthday celebration over the weekend. Ms. Finnegan told

Ms. Seenaught that since the harassment occurred outside of work, nothing

could be done.

15. At all times relevant, Morton Plant Hospital had a sexual harassment

policy in place. The policy set forth that Morton Plant Hospital prohibits

harassing, retaliatory, and discriminatory behavior in the workplace,

pursuant to its Harassment - Free Workplace Policy. Should harassment

occ ur, the policy explains who should report it and how it should be reported.

It states, in pertinent part :

Team member s who believe that they have been

harassed and/or discriminated against have a

responsibility to report such behavior immediately

to Team R esources, the department

m anager/director, Administration or by calling the

Corporate Responsibility Hotline at 1 - 877 - OUR -

DUTY.

As well, all known incidents of harassment and/or discrimination must be reported to Team Resources, department manager/directo r or

administration.

16. Team Resources is Morton Plant Hospital ’s human resources

department. Morton Plant Hospital ’s policies, including the Harassment - Free

Workplace Policy and the Hotline information, are readily available and

accessible to employees on Morton Plant Hospital ’s intranet.

17. It is not unusual that Ms. Seenaught would report the sexual

harassment she endured to Ms. Finnegan as her charge respiratory therapist .

According to Morton Plant Hospital’s policy, Respiratory Care Department

Expe ctations, c harge respiratory therapists are the first point of contact for

other respiratory therapists if they have problems, complaints, or suggestions.

18. However, Ms. Finnegan, as a charge respiratory therapist , is not one

of the individuals identifi ed in the Harassment - Free Workplace Policy as

someone who alleged harassment should be reported to. According to Morton

Plant Hospital’s Harassment - Free Workplace Policy, Ms. Seenaught was

required to report the incident to a supervisor, administration, or Team

Resources.

The Events of October 27, 2018

19. After reporting the sexual harassment incident to Ms. Finnegan ,

Ms. Seenaught avoid ed all contact with Mr . Kapusta . This was not difficult to

do because they did not work in the same department , and gen erally did not

come in regular contact with each other. Her first direct contact with

Mr. Kapusta, after the night at the bar, occurred on October 27, 2018.

20. On that day, Ms. Finnegan assigned Ms. Seenaught to work alongside

Mr. Kapusta as part of an ED orientation.

21. Since joining Morton Plant Hospital, Ms. Seenaught had been eager to

participate in orientation. Orientation is, essentially, a process in which a

respiratory therapist is assigned a preceptor who tr ains the respiratory

therapist i n a particular task/department. A respiratory therapist who

successfully completes a critical care orientation, which includes ED

orientation, receives an increase in pay.

22. Ms. Seenaught began her first day of ED orientation with Mr. Kapusta

on October 27 , 2018 . That morning , when Ms. Seenaught arrived to work,

Ms. Finnegan asked her to first report to “ the floors ” — that is, her regular

work — to provide respiratory care, because the department was understaffed

and she was needed .

23. Ms. Seenaught stayed on t he floors for most of the morning, b efore

heading down to the ED for orientation later that day. She spent the

afternoon going back and forth between the floors and the ED.

24. At some point t hat afternoon , Petitioner voluntarily accompanied

Mr . Kapusta an d another co - worker to lunch. Ms. Seenaught testified that

n othing inappropriate happened at lunch .

25. Towards the end of Ms. Seenaught ’s shift, at approximately 5:45 or

6:00 p.m., the ED received notice that a code blue patient would be arriving

in appro ximately five minutes. A code blue indicates that the patient is

experiencing cardiac arrest or some other condition affecting the patient’s

ability to breathe. The patient required intubation.

26. This particular patient was the father - in - law of one of t he hospital’s

doctors. As a result, the hospital staff prioritized this patient and “wanted to

make sure everything was going to run smoothly.”

27 . Several employees entered and exited the intubation room, helping to

prepare for this emergency procedure. Setting up the room for the intubation

took several minutes while the actual intubation took seconds to complete.

28. As part of her ED orientation, Ms. Seenaught was required to

participate in the intubation procedure with Mr. Kapusta as her guide. There

were approximately 15 persons in the room during the procedure . This

included a physician, who was the person immediately responsible for the

intubation.

29 . Ms. Seenaught testified that during part of the procedure,

Mr. Kapusta stood very close behind h er. She alleges that she could feel his

breath on her neck and that he “must have been bending down ” for this to

happen as he was about a foot taller than she is.

30 . Ms. Seen a ught claims Mr. Kapusta stood behind her for about 30 to 40

seconds.

31 . At t he onset of the intubation, Ms. Seenaught helped the physician, by

passing him necessary equipment. She was not standing in the correct

position to allow for her to easily pass the equipment, so the physician became frustrated with her. Mr. Kapusta quickly took over and assisted w ith

the rest of the procedure. Ms. Seenaught could not have assisted with the intubation for more than a few seconds, as the entire procedure took less than one minute.

32. During the procedure, Mr. Kapusta did not say anything i nappropriate

to Ms. Seenaught or touch her inappropriately.

33. Ms. Seenaught did not report to Ms. Finnegan or anyone else that

Mr. Kapusta acted inappropriately during the intubation by standing too

closely to her . Also, e ven though Ms. Seenaught was assigned to continue her

ED orientation with Mr. Kapusta the following day, she did not ask Ms.

Finnegan or anyone else to be reassigned. Instead, she finished the ED

orientation that evening and went home.

34. After leaving work that day, Ms. Seenaught vented to her co - worker ,

Krista, through a series of text messages. Ms. Seenaught complained that she

was “just feeling disappointed” with how the orientation went. She

complained about her interactions with the physician, who she recalled

“snatched” somet hing out of her hand. She described the nurses as “rude” and

state d that the personnel in the ED “aren’t nice to new faces.” She made no

mention to Krista, who she referred to as her “work mommy,” that Mr.

Kapusta engaged in any inappropriate behavior that day.

3 5 . The undersigned does not find credible Ms. Seenaught’s testimony

that Mr. Kapusta sexually harassed her during the intubation on October 27,

2018.

Events of October 28, 2018

3 6 . On October 28, 2018, Ms. Seenaught was schedul ed to continue her

ori entation in the ED from the previous day with Mr. Kapusta. However, as

on the previous day, her regular department was significantly understaffed.

T here were nine respiratory therapists available, but the workload required

11. Ms. Finnegan asked Ms. Seenau ght to again start off by working on the

floors.

3 7 . To help coordinate the workflow , Ms. Seenaught was assigned a work

phone , which she was expected to carry with her at all times . The department

assigned work phones, as needed, to coordinate assignments and call

respiratory therapists in the event of an emergency and to dole out for

emergencies and reassignment s. Respiratory therapists also used the work

phone s to contact other respiratory therapists to see if they needed

assistance. Ms. Seenaught was al so assigned a workstation on wheels (WOW

device).

3 8 . Later that morning, Ms. Finnegan approached Ms. Seenaught and

directed her to join Mr. Kapusta in the ED to continue her orientation.

3 9 . Ms. Seenaught refused. Ms. Seenaught walked away from

Ms. Finne gan and entered an elevator. Surprised, as she had never had

another employee blatantly refuse an assignment, Ms. Finnegan tried to ask

Ms. Seenaught why. Ms. Seenuaght allowed t he elevator doors to close while

Ms. Finnegan was still trying to ask the ques tion . As a result, Ms. Finnegan

was given no explanation for why Ms . Seenaught refused to report to the ED .

40. Instead of reporting to the ED , Ms. Seenaught continued to provide

patient care on the floors , despite the fact that her charge respiratory

ther apist had given her a different assignment .

4 1 . Ms. Finnegan repeatedly attempted to contact Ms. Seenaught by

calling her on her assigned work phone. Ms. Seenaught did not answer any of

the calls.

4 2 . Ms. Seenaught did, however, use her work phone to cal l Mr. Kapusta

to tell him that she would not be joining him in the ED and would remain on the floors. Ms. Seenaught testified that Mr. Kapusta said that he was okay

with her not returning to the ED , as it was “dead.”

4 3 . Ms. Finnegan , as charge respirator y therapist, had the authority to

decide Ms. Seenaught ’s work assignment for the rest of her shift. Mr.

Kapusta had no such authority.

4 4 . A pproximately 45 minutes after Ms. Seenaught evaded Ms. Finnegan’s

question by letting the elevator doors close, Ms. Finnegan found Ms.

Seenaught in a patient’s room on Witt 5 . Ms. Finnegan had been searching

for Ms. Seenaught the entire time.

4 5 . Ms. Finnegan told Ms. Seenaught that she had been looking for her

and asked why she turned her phone off. Alt hough Ms. Seen aught had just

used her phone to call Mr. Kapusta, Ms. Seenaught claimed that her phone

had died and that she had not received any calls from Ms. Finnegan during

the 45 - minute period.

4 6 . Ms. Finnegan again told Ms. Seenaught that she should go to the ED

to resume her orientation. And again, Ms. Seenaught refused without

offering any explanation . Ms. Finnegan asked her if something happened

during orientation and Ms. Seenaught said “no . ” Ms. Seenaught told Ms.

Finnegan that she wanted to remain on the floo rs. When Ms. Finnegan

continued to direct Ms. Seenaught to return to the ED, Ms. Seenaught told

her she was going to cancel her orientation, and that she was going to talk to

Mr. Christensen.

4 7 . Ms. Seenaught was aware that Ms. Finnegan was the authority on

whether or not she could continue to work the floors or return to the ED.

Ms. Seenaught testified that Ms. Finnegan “ would have the last say - so unless

Sean or Heather were present. ”

4 8 . After announcing she was going to cancel her orientation,

Ms. Seenaught began to cry and asked Ms. Finnegan if she could remain on

the floors instead of returning to the ED. Ms. Finnegan denied

Ms. Seenaught’s request but offered her a break to compose herself , after

which she needed to report to the ED . Ms. Seenaught declined the offer; she

told Ms . Finnegan that she was leaving. She said she was calling her mother

to pick her up and would be contacting Mr. Christensen.

4 9 . Ms. Seenau ght exited the building, leaving her assigned phone and

WOW device unatt ended on Witt 5 . She sent a message via Facebook

Messenger to her co - worker , Lolita Diaz, asking Ms. Diaz to retrieve the

phone and WOW device from Witt 5 and return them to the department.

50 . Per Morton Plant Hospital’s Respiratory Department Expectation s

policy , a respiratory therapist is required to complete a detailed report for the

next shift if the c harge respiratory t herapist approve s a respiratory

therapist’ s request to leave early. This d etailed report serves to inform the

respiratory therapist ta king over on the next shift about any patient care or

other issues occuring during the prior shift.

51 . Prior to leaving the hospital, Ms. Seenaught also contacted

Mr. Christe nsen by email to inform him that she was leaving. As

Mr. Christensen was not on d uty that day, he did not immediately receive

Ms. Seenaught’s email and did not realize she emailed him until the next

day .

5 2 . Although Ms. Finnegan claims she did not know that Ms. Seenaught

left the hospital with no intention of returning that day, the undersigned

does not find her testimony on this point credible.

53 . Ms. Seenaught refused to follow Ms. Finnegan’s work assignment,

announced she was leaving (even though her shift was not over), calling her

mother to pick her up, and telling Mr. Christen sen. Regardless, Ms. Finnegan

did not give Ms. Seenaught permission to leave early, as Ms. Seenaught

admits .

54 . Even more importantly, Ms. Seenaught never told Ms. Finnegan that

anything happened during her shift that day , that she endured any sexual

har assment the day before, or that she felt uncomfortable with her

orientation placement with Mr. Kapusta.

55 . Ms. Finnegan believed that Ms. Seenaught refused to go to the ED and

ultimately left work because she was frustrated about not getting the full 12

h ours of ED orientation on Saturday and Sunday that she was initially

scheduled for.

56 . This is supported by the totality of the credible evidence in the record.

Ms. Seenaught was frustrated that her orientation had already been pushed

back three times and she was upset about having to go back and forth

between the floors and the ED. Although in her hearing testimony, she

claimed that she was uncomfortable being assigned to work with

Mr. Kapusta for ED orientation , this claim is contradicted by her actions and

not supported by evidence.

57 . As she did the evening before, Ms. Seenaught turned to her co - worker

and “work mommy,” Krista, to ve nt about the day’s events. In text message s

sent after she left work , Ms . Seenaught wrote the following t o Krista :

Oh Krista. I think I’m having not a bad day but a

bad month. We are staffed with 9 people for the

weekend and I’ve been doing floor treatments while

trying to orient yesterday so I didn’t even bother going to the ER today. They had since May to

s chedule me appropriately and I’m always getting

screwed over or at least that’s how I feel I’m not

finishing my orientation which I’m sure they’ll be pissed about. I’m over management. They hired so

many new people telling me that’s the true reason I

got p ushed back 3 times and out of the 8 or 9 new

people there’s not even enough people on our weekend and we are losing Tanya soon I normally

don’t get upset too easily but as of late I think

everything has been bothering me .

* * *

Well I left work a nd sure I will get written up and

Georda made a big deal about me trying to help the

floor and unit people and told me go back to the ER even though she asked me to help this morning and said she will have to tell Sean so I told her go ahead

and tell Sean because I’m trying to help everyone

they need the help I don’t see what I did wrong and she got all ballistic so I’m turning off my phone .

58 . Ms. Seenaught made it clear that she was unhappy with how her

orientation was playing out. She was frustrated a t having to split her time

between orientation and working on the floors .

59. Ms. Seenaught did not include a single reference to Mr. Kapusta in her

complaints to her “work mommy” about all that went wrong at work. She said

nothing about Mr. Kapusta or an y discomfort she had working with him in

the ED orientation.

Ms. Seenaught’s Termination

60 . On October 29, 2018, Mr. Christensen sent a text message to

Ms. Seenaught to inform her that she was being removed from the schedule

pending an investig ation into the events that occurred on October 2 8, 2018 .

61 . In response, Ms. Seenaught again turned to Krista. She told her about

being removed from the schedule and expressed how hurt she was by it.

Ms. Seenaught told Krista that she wanted to do orient ation at a later time

when she did not “have to be back and forth between floors and orientation.”

62 . During this conversation on October 29, 2018, Ms. Seenaught

mentioned to Krista, for the first time, that Mr. Kapusta grabbed her

buttocks and asked her to have sex while they were at a bar for a party in

September. Ms. Seenaught told Krista that although Mr. Kapusta was not

behaving unprofessionally during the orientation, she did not feel that he was properly orienting her, that he seemed uncomfortable, and that it felt

“awkward.”

63 . On Oc t ober 29, 2018, Ms. Hayes, Mr. Christensen, and Ms. Seenaught

met to discuss Ms. Seenaught leaving work early without Ms. Finnegan’s

permission on October 28 , 2018 .

64 . During the meeting, Ms. Seenaught explained tha t she expressed to

Ms. Finnegan that she wanted to cancel her orientation and remain on the

floors. She left the hospital when Ms. Finnegan denied her request to stay on

the floors. She also expressed that she felt uncomfortable working with Mr. Kapusta an d revealed to Mr. Christensen that Mr. Kapusta had sexually

harassed her at a bar the previous month. Mr. Christensen had not heard of

this until that moment.

65 . Mr. Christensen asked Ms. Seenaught if Mr. Kapusta had ever done

anything at work to make he r feel uncomfortable. Ms. Seenaught said no.

66 . F ollowing the meeting, Mr. Christensen and Ms. Hayes contacted

Team Member Relations Coordinator Anjanette Dickey to discuss

Ms. Seenaught ’s actions on October 28 , 2018, and the allegations r egarding

Mr. Kapusta.

67 . On November 1, 2018, Mr. Christensen, Ms. Hayes, and Ms. Dickey

met with Ms. Seenaught and provided her with a termination form that set

forth the following :

On Sunday 10/28/2018. You left work unauthorized

before completing your shift without handing your

phone off or appropriately notifying leadership,

which is in violation of policy MPH_130. You left your phone and your WOW on Witt 5, and did not

return it to the appropriate area.

When discussed with you, you stated you texte d

your co - workers you were leaving, but, you did not

ask or advise leadership that you wanted to leave, because you were not happy with your assignment. Already being short staffed during this day your actions resulted in patient abandonment and goes again st the BayCare Code of Conduct - Doing the

Right Thing.

You were hired on an as needed basis (Pool) by BayCare on 11/13/2017. Per BayCare Policy 212 Pool/PRN you are not subject to the progressive

discipline process. BayCare does not believe it

would be be neficial for either party to continue your

employment based on the event that occurred.

68 . Ms. Seenaught told Ms. Finnegan that she intended to leave work . She

did not ask for permission to leave early, nor did she receive permission to do

so. The reason s stated in the termination form were well - founded .

69 . Ms. Seenaught testified that she believed Ms. Finnegan had the

authority to cancel her orientation or not. But Ms. Seenaught certainly had

no authority to dictate her assignment to Ms. Finnegan. Ms. Seenaught

refused her assignment and abandoned her post without permission to do so.

70 . Ms. Seenaught could have made a request to a higher authority to

cancel her orientation, or, in the alterative, request permission from a higher

authority to leave wo rk for the day. She initiated such a procedure when she

contact ed Mr. Christensen by email, but did not await an answer or

authorization from him to cancel her orientation or leave work early . Nor did

she submit a similar request to her other supervisor, M s. Hayes.

71 . Ms. Seenaught repeatedly testified that Ms. Finnegan had a

responsibility to escalate her desire to cancel her orientation. While there

may have been other options for Ms. Seenaught to explore canceling or

restructuring her orientation, such as asking Ms. Finnegan to check with

supervisors, in the meantime, Ms. Seenaught was responsible for doing her

job and following the assignment she was given. Indeed, whether

Ms. Seenaught was in orientation or not, Ms. Seenaught did not ha ve

permission to leave ; a nd even if she did, she did not follow the proper

protocols for leaving early (which included returning your phone and WOW

device and giving a detailed report) .

72 . As a pool employee, Ms. Seenaught was not entitled to Morton Plan t

Hospital ’s progressive discipline or appeal processes. Ms. Seenaught sought

to appeal her termination. Deborah Pasqua mistakenly told her, at first, that

she could do so , because Ms. Pasqua did not realize that Ms. Seenaught was a

pool employe e. When Ms. Pasqua determined Ms . Seenaught was a pool

employee, she informed Ms. Seenaught that she was not entitled to the

appeal process, but that she could submit a written statement for inclusion in

her personnel file .

73 . Ms. Pasqua also offered Ms. Seenaught t he opportunity to meet with

Director Michelle Maher regarding her concerns. Ms. Seenaught asked to

bring a representative with her to the meeting with Director Maher. Morton

Plant Hospital ’s Appeal Policy explicitly states that “[a] team member is not

perm itted to be represented by a third party (e.g. legal counsel, relative,

friend, etc.) during the appeal process.” When Ms. Seenaught was told that

she would not be able to be accompanied by a representative, she declined the meeting, but still submitted he r written statement.

Ultimate Findings of Fact

74 . Mr. Kapusta sexually harassed Ms. Seenaught on one occasion at an

after - work social gathering at a bar. Ms. Seenaught reported the incident to

Ms. Finnegan. Ms. Finnegan did not to escalate the complaint because the

incident occurred outside of the workplace . Ms. Seenaught’s testimony that

Mr. Kapusta breathed on her neck during an intubation procedure, thereby

sexually harassing her again, is not credible.

75 . Ms. Seenaught failed to prove that she was s ubjected to a hostile work

environment based on an isolated incident at a single after - work social

gathering at a bar.

76 . Ms. Seenaught failed to prove that Mr. Kapusta sexually harassed her

at work, that she was subjected to a hostile work environment, or that she was terminated because she complained about the harassment.

77 . Accordingly, Ms. Seenaught failed to meet her burden of proving that

Morton Plant Hospital committed an unlawful employment action against

her in violation of the FCRA.

C ONCLUSION S OF L AW

78 . DOAH 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 also Fla. Admin. Code R. 60Y - 4.016.

79 . Ms. Seenaught initiated this proceeding, alleging that Respondent

subject ed her to sexual harassment in violation of the FCRA . She also alleged

that she was retaliated against for complaining about the sexual harassment.

The analysis herein rests on whether Respondent should be held responsible for Mr. K apusta’s sexual harassment of Ms. Seenaught and whether

Respondent terminated Ms. Seenaught for reporting the harassment.

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

determines 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 occurred, the ALJ “shall issue an

appropriate recommended order to th e commission prohibiting the practice

and recommending affirmative relief from the effects of the practice,

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

81 . The burden of proof in an administrative 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).

82 . Respon dent is an “ employer ” within the meaning of the FCRA.

§ 760.02(7), Fla. Stat.

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

as amended. Accordingly, Florida courts hold that federal decisions

construing Title VII are applicab le 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. 1 st DCA

1996).

84 . The FCRA prohibits discrimination in the workplace. 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 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.

85 . The FCRA does not mention sexual harassment. Nevertheless, courts

have recognized that the phrase “terms, conditions, or privileges of

employment” evinces an intent to strike at the entire spectrum of disparate

treatment of men and women in employment, which i ncludes requiring

people to work in a discriminatorily hostile or abusive environment. Harris v.

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

Hostile Work Environment

86 . There are two types of sexual harassment cases: (1) quid pro quo

cases , which are “b ased on threats which are carried out” or fulfilled ; and

(2) hostile environment cases , which are based on “bothersome attentions or

sexual remarks that are sufficiently severe or pervasive to create a hostile

work environment.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 75 1

(1998) . In the instant case, Ms. Seenaught alleges she was subjected to a

hostile work environment .

87 . Where harassment is perpetrated by a co - worker, as opposed to a

supervisor or manager , in order to establish a case of hos tile work

environment sexual harassment , Ms. Seenaught must show that: (1) she is a

member of protected group; (2) she was subjected to unwelcome sexual

harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) harassment was based on her sex;

(4) harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment; and (5) that Morton Plant Hospital kne w or should have known

about the harassment and took insufficient remedial action, and as such,

should be held liable. Maldonado v. Publix Supermarkets , 939 So. 2d 290,

293 - 94 (Fla. 4th DCA 2006).

8 8 . Elements (1), (2), and (3) have been met. Ms. Seenaught is a woman

and is, therefore, a member of a protected group. It has also been established

that Ms. Seenaught was subjected to unwelcomed sexual harassment by

Mr. Kapusta when he repeatedly asked her for sex and grabbed her buttocks

during one after - work p arty at a bar . The sexual harassment she complained

about was based on her sex.

89 . However, consistent with the findings of fact and credibility

determinations above, Ms. Seenaught failed to prove by the greater weight of

the evidence that she was sexuall y harassed in the workplace — the

harassment occurred during a non - work related birthday celebration at a bar.

Although Ms. Seenaught testified that Mr. Kapusta sexually harassed her at

work, during an emergent intubation procedure, with 15 other employees

p resent, by breathing on her neck, the undersigned did not find this part of

her testimony credible. The sum of the persuasive evidence showed that the

sole incident of sexual harassment against Ms. Seenaught by Mr. Kapusta

occurred outside of work.

90 . Ev en if both alleged incidents were accepted as factual, the two

incidents would not rise to the level of severe and pervasive harassment that

would alter the terms and conditions of her employment with Morton Plant

Hospital. “[A] sexually objectionable envi ronment must be both objectively

and subjectively offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so.” Faragher v.

Boca Raton , 524 U.S. 775, 787 (1998).

91 . Generally, courts conside r four factors to determine, from an objective

standpoint, whether the alleged conduct is sufficiently severe and pervasive

to alter the terms and conditions of employment . T hese factors are: ( 1) the

frequency of the conduct; ( 2) severity of the conduct; ( 3) whether the conduct

was physically threatening or humiliating; and ( 4) whether the conduct

unreasonably interfered with the employee ’ s job performance.

92 . Ms. Seenaught was sexually harassed on one occasion at a birthday

party in a bar, not at work. Mr . Kapusta’s conduct was absolutely

inappropriate. During the alleged second incident, Ms. Seenaught testified

that Mr. Kapusta did not touch her or make any inappropriate comments.

Except for their interactions during the prematurely terminated orientation ,

Ms. Seenaught testified that she did not have any meaningful contact with

Mr. Kapusta at work. She rarely had occasion to even run into him. The

orientation on October 28 , 2018, was her first time working with him after

the bar incident .

93 . Ms. Seenaug ht told Krista, Ms. Finnegan, and Mr. Christensen, all at

separate times and under different circumstances, that Mr. Kapusta did not

engage in any inappropriate behavior at work.

94 . Ms. Seenaught did not endure conduct that was sufficiently severe and

pe rvasive to support an action for hostile work environment ; Ms. Seenaught’s

allegations amounted to two incidents, neither being so severe as to have

interfered with a reasonable person’s job performance. And, she only proved

one of these allegations — the in cident that was not at the workplace and that

was not shown to have any carryover effect on the workplace.

95 . Ms. Seenaught did not establish her hostile work environment claim .

Retaliation

96 . Ms. Seenaught also failed to prove the claim of retaliation. Section

760.10 (7) provides, in relevant part:

It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organization to discriminate against any person because that person has opposed any pr actice 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

investigation, proceeding, or hearing under this section.

97 . Petitioner did not introdu ce any direct or statistical evidence that

proves Respondent fired her in retaliation for Petitioner’s complaint to

Ms. Finnegan about Mr. Kapusta’s sexual harassment at the bar. Absent any

direct or statistical evidence of retaliation , Ms. Seenaught must prove her

allegation of retaliation by circumstantial evidence. Circumstantial evidence

of retaliation is subject to the burden - shifting analysis established in

McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973) .

98 . Under the McDonnell Dou glas analysis, Ms. Seenaught has the initial

burden of establishing , by a preponderance of the evidence , a prima facie case

of unlawful retaliation. See Burlington N. & Santa Fe Ry Co. v. White , 548

U.S. 53 (2006).

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

retaliation, Ms. Seenaught 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 Hu ntsville , 261 F.3d 1262, 1266 (11th Cir. 2001). To establish this

causal relationship, Ms. Seenaught 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. S . W . 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).

100 . Failure to establish a prima facie case of retaliation ends the

analysis. If Ms. Se enaught establishes a prima facie case, she would create a

presumption of retaliation . At that point, the burden shift would to the

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

adverse action. Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th

DCA 2009). 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

product ion, not persuasion, to demonstrate to the trier of fact that the

decision was non - discriminatory. Id. This burden of production is

“exceedingly light.” Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir. 1997).

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 Honor Ctr. v. Hicks , 509 U.S. 502

(U.S. 1993).

101 . If the employer meets its burden, the presumption of d iscrimination

disappears. The burden would then shift back to Ms. Seenaught to prove that

the employer’s proffered reason was not the true reason but merely a

“pretext” for discrimination. Combs v. Plantation Patterns , 106 F.3d 1519,

1538 (11th Cir. 1997); Valenzuela , 18 So. 3d at 25.

102 . In order to satisfy this final step of the process, Ms. Seenaught would

have to show “directly that a discriminatory reason more likely than not

motivated the decision, or indirectly by showing that the proffered reason f or

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 - 56 (1981 )). The

proffered explanation would be unworthy of belief if Ms. Seenaught

demonstrates “such weaknesses, impl ausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could find them unworthy

of credence.” Combs , 106 F.3d at 1538; see also Reeves v. Sanderson Plumbing

Prods., Inc. , 530 U.S. 133, 143 (2000). Ms. Seenaught would have to 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.”).

103 . Despite the shifting burdens of proof, the ultimate bur den of

persuading the trier of fact that Respondent retalia ted against Petitioner

remains at all times with Petitioner. See Burdine , 450 U.S. at 253;

Valenzuela , 18 So. 3d at 22.

104 . Ms. Seenaught established that she suffered an adverse employment

action when she was terminated by Respondent , and that she engaged in a

protected activity when she reported her sexual harassment to Ms. Finnegan and Mr. Christensen .

105 . To prove the third element, Ms. Seenaught was required to prove a

causal connection betw een the protected activity and the adverse

employment decision. This causal link element is construed broadly, and may

be established by a demonstration that the employer was aware of the

protected conduct and that the protected activity and the adverse ac tion were

not “ completely unrelated.” Williams v. Ala. Dep’t of Indus. Rels ., 684 Fed.

Appx. 888, 894 (11th Cir. 2017). Petitioner satisfies this third element if

(1) Respondent was aware of h er protected expression or activity; and

(2) there was a close temporal proximity between this awareness and the

adverse action. Id. at 894. “A close temporal proximity between the protected

expression and an adverse action is sufficient circumstantial evidence of a

causal connection for purposes of a pri ma facie case.” Higdon v. Jackson , 393

F.3d 1211, 1220 (11th Cir. 2004). Here, although the persons responsible for

Ms. Seenaught’s termination were not aware of the alleged sexual

harassment until the October 29, 2018 meeting , after the disciplinary proce ss

was already underway, Ms. Seenaught was terminated only a few days later.

106 . Since Petitio n er established a prima facie case of retaliation,

Respondent must articulate a legitimate, nondiscriminatory , and non -

retaliatory reason for the adverse action .

107 . The sum of the persuasive, credible testimony at the hearing

demonstrated that Ms. Seenaught was terminated because she left work

without permission on October 28 , 2018 , and failed to return her phone and

WOW device .

108 . Respondent provided convi ncing , legitimate, nondiscriminatory , and

non - retaliatory reason s for firing Petitioner and Petitioner did not s how the

reasons provided were not worthy of belief .

Conclusion

10 9 . Ms. Seenaught failed to establish that she was subjected to a hostile

work e nvironment, or that she was retaliated against for engaging in a

protected activity. Accordingly, Ms. Seenaught ’s Petition for Relief must be

dismissed.

R ECOMMENDATION

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

R ECOMMENDED tha t the Florida Commission on Human Relations issue a

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

D ONE A ND E NTERED this 19th day of October , 2020 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of Octo ber , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Marlena Jacinta Seenaught

6201 Hillside Avenue

Seminole, Florida 33772

(eServed)

Ashley A. Tinsley, Esquire

Johnson Jackson PLLC

100 North Tampa Street , Suite 2310

Tampa, Florida 33602

(eServed)

Kevin D. Johnson, Esquire

Johnson Jackson P LLC

100 North Tampa Street , Suite 2310

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, Genera l Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Rec ommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.