20-002922 Mary F. Garrett vs. Eastern Florida State College Status: Closed Recommended Order on Thursday, November 12, 2020.

Summary: Petitioner failed to establish that Respondent engaged in discriminatory practices, retaliated against Petitioner, or subjected Petitioner to a hostile work environment, in violation of the Florida Civil Rights Act.

P RELIMINARY S TATEMENT

On June 3, 2019, Petitioner Mary F. Garrett filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (FCHR), alleging that EFSC discriminated against her, on the basis of her race, sex, and age, and retaliated against her. Ms. Garrett’s

Complaint stated:

Complainant, an African American Female, began her employment with Respondent in 09/2000 and holds the position of Coordinator of Undergraduate

Research. Claimant was subjected to retaliation,

disparate treatment, different terms and conditions

of employment and was held to a different standard because of her Age (53), Race - Black, Sex - Female.

Claimant performed the duties and responsibilities

of her position in an exceptional manner and was

not the subject of any disciplinary issues. Claimant was informed on 07/09/2018 by Ms. Darla Ferguson that her position (eLearning coordinator) with Eastern Florida State College (EFSC) was now

eliminated. Ms. Ferguson further st ated, there was

a job offer as coordinator in the Office of

Undergraduate Research (OUR) and indicated

“they found this position for you.” Claimant accepted the job and was told to report to the

Melbourne campus to meet with Dr. Sandy

Handfield and her new supervisor, on 7/10/2018.

When EFSC personnel were redirected after closure of the Patrick AFB Center EFSC location, Marian Shelpman and Justin Looney were given

different EFSC career opportunities. Justin Looney

was given the option to select from two po sitions as full - time faculty or manager at his preferred

campus location. Both positions offered to him were opportunities in career advancement and pay.

Marian Shelpman and Claimant were not given the

same consideration. When Justin Looney arrived at the Titusville campus, office personnel knew his

arrival date and had his office location ready to occupy. When Claimant arrived at the Melbourne

campus on 7/10/18, Dr. Handfield indicated she

received an email the afternoon of 7/9/18 of news of

her new positi on and impending arrival on 7/10.

The OUR office space was not ready for staff to

occupy. On 7/19/2018, the first meeting with

Herber and Spring were held in the OUR. They discussed expectations, goals, and action plans they wanted the OUR coordinator to w ork on.

Subsequent meetings became tenser with little

collaboration due to the approach used by the two

faculty members (Herber and Spring) to direct the OUR coordinator’s actions and Spring’s actions to build an environment for intimidation and control. W hen Claimant performed actions without their

knowledge or consent, the working relationship became even more strenuous, especially with Spring. Dr. Handfield was made aware of the work environment issues with Herber and Spring. On 4/2/2019, Claimant met wi th her Supervisor,

Dr. Handfield, to discuss the performance evaluation for the six - month probationary period of

7/9/2018 to 1/10/2019. The evaluation indicated development was needed in four areas to include productivity, written communication, team work ,

and valuing differences. Areas of improvement were noted as email etiquette, timely responses to students, and follow - through. She requested

evidence to support reasons for the low ratings on the evaluation and no evidence was presented.

Dr. Handfield i ndicated she sought input from

Herber and Spring to complete the performance

evaluation. She submitted a formal complaint on 4/23, met with Ms. Ferguson on 4/29, and expected the work environment to change.

Thereafter, on May 20, 2020, FCHR issued a “Dete rmination: No

Reasonable Cause,” that determined that no reasonable cause existed to

believe that an unlawful practice occurred. On June 24, 2020, Ms. Garrett

filed a Petition for Relief. The Petition for Relief alleged:

The petitioner received a negative 6 - month

evaluation in April 2018. Input by two faculty

members without full knowledge of the work or job

tasks performed by the petitioner supported the

evaluation. The subsequent corrective action plan was based on the recommendation of the two

faculty m embers. The written plan given to the

petitioner in November 2019 was a direct

collaborative effort between the campus provost and the two faculty members. A reversal of the commission’s determination is based on faculty are

prohibited from serving in the role of supervisor

over staff. The two faculty members received authority through the campus provost to serve as supervisor, make modifications to work environment, duties, and position requirements. No

other Eastern Florida State College offices or

depart ments permit faculty to have full authority

to make permanent changes to a staff member’s job description.

* * *

The alleged acts of discrimination were performed with malice and intent to harm the career and personal reputation of the petitioner. The

pe rsecution, undue stress, and adverse employment

actions were a direct result of personal prejudices

and not based on quality of petitioner’s work as coordinator in the Office of Undergraduate Research. The statute stipulates individuals within

the state ha ve freedom from discrimination because

of race, color, religion, sex, national origin, age,

handicap, or marital status and thereby to protect their interest in personal dignity. The respondents allegedly committed public acts through electronic

emails, co mmittee meetings, and faculty meetings

to disrobe the petitioner of personal dignity.

* * *

The petitioner requests 6 - month employment

evaluation removed and destroyed from employee

records, promotion to position of director or higher, back - pay to accomm odate the current pay salary for

said position beginning July 8, 2018 to current

date, and acknowledgement of completion of 6 -

month corrective action plan.

On June 25, 2020, FCHR transmitted the Petition to the Division and

assigned the undersigned Admini strative Law Judge (ALJ) to conduct an

evidentiary hearing.

The undersigned conducted the final hearing on September 14, 2020.

Ms. Garrett testified on her own behalf and called no additional witnesses.

Because she had not timely exchanged proposed exhib its with Respondent,

pursuant to the July 21, 2020 , Order of Pre - hearing Instructions, and had not

timely provided the proposed exhibits to the Division, pursuant to the

August 28, 2020, Amended Notice of Hearing, the undersigned prohibited the

introducti on of any of Ms. Garrett’s exhibits. EFSC called no witnesses and

introduced no exhibits at the final hearing.

The one - volume Transcript of the hearing was filed with the Division on

October 12, 2020. On October 22, 2020, the parties timely submitted prop osed

recommended orders, which the undersigned has considered in the

preparation of this Recommended Order.

All statutory references are to the 2018 codification of the Florida

Statutes, unless otherwise indicated.

F INDINGS OF F ACT

1. Ms. Garrett is a 53 - year - old African American woman. EFSC is a public

college in Brevard County, Florida. For the time period relevant to this

matter, EFSC is, and has been, her employer.

2. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC

eliminated her positi on as e - Learning Coordinator.

3. EFSC did not fill Ms. Garrett’s position i n the e - Learning department;

rather, the prior job duties were assigned to other members in the e - Learning

department.

4. After eliminating the position of e - Learning Coordinator, E FSC offered

Ms. Garrett the position of Coordinator of the Office of Undergraduate

Research (OUR).

5. The OUR department supports and promotes research opportunities

among undergraduate research students through EFSC’s four campuses.

6. Ms. Garrett accepte d EFSC’s offer, and Ms. Garrett became EFSC’s

first employee to hold the position as Coordinator of OUR.

7. In lieu of offering Ms. Garrett the position of Coordinator of OUR,

EFSC could have laid off Ms. Garrett following the elimination of her position

a s e - Learning Coordinator. However, rather than laying her off, EFSC found

a new position for Ms. Garrett.

8. Following her transfer to the position as Coordinator of OUR,

Ms. Garrett’s salary and benefits remained unchanged from her prior

position as e - Le arning Coordinator.

9. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott

Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as

Coordinator of OUR.

10. At that meeting, Dr. Handfield — who was Ms. Garrett’s new

supervisor — inf ormed Ms. Garrett that Dr. Spring and Mr. Herber were the

founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR,

Dr. Spring and Mr. Herber, who were full - time faculty members, oversaw the

OUR program.

11. Dr. Handfield also informed Ms. Ga rrett that should she have any

questions regarding her position as Coordinator of OUR, she should consult

with Dr. Spring and Mr. Herber.

12. As of the date of the final hearing, Ms. Garrett remained employed by

EFSC as the Coordinator of OUR, and continue s to receive the same salary

and benefits that she received when she was the e - Learning Coordinator.

Allegations of Adverse Employment Action

13. EFSC originally intended for the Coordinator of OUR to be a Director,

and possess a doctorate degree. However, EFSC later changed this position to

Coordinator, which did not require a doctorate degree, and which had a lower

salary.

14. Ms. Garrett never applied for the Director of OUR position, and she

does not have a doctorate degree.

15. Ms. Garrett testified co ncerning her belief for the reason that EFSC

transferred her to the Coordinator of OUR position, stating:

I believe they did that because the intent was to put me in a position that was beyond my reach so

that when I had issues and problems, they could us e that and tie it with this position in order to say

that I could not do the job.

16. On April 12, 2019, Ms. Garrett received a six - month performance

evaluation covering her first six months in her position as Coordinator of

OUR. Dr. Handfield provided th e performance evaluation approximately four

months after the performance period ended.

17. The performance evaluation indicated that Ms. Garrett was deficient

in the areas of teamwork, valuing differences, and communication.

18. Following the performance e valuation, Ms. Garrett did not lose any

pay or benefits, and nothing adverse happened to Ms. Garrett as a result of

the performance evaluation.

19. Ms. Garrett testified that she believed Dr. Handfield gave her that

evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or

gender. She further testified as follows:

Q. Okay. But just to be clear, not gender, age, or

race. You think it’s retaliation, what she did, correct?

A. Correct.

Q. Okay. And what was she retaliating against yo u

for in your view or what facts do you have that it

was for retaliation?

A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance

review period, which would have been July 9th,

2018, until January 9th, 2019.

Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the

six months before that; is that what you’re saying?

A. Yes

20. In January 2019, Ms. Garrett requested that she use Canvas shell

computer software to enable her to build an orientation outline. EFSC denied

this request, because it would not generate money.

Allegations of Comparator

21. Ms. Garrett identified Justin Looney, a 38 - year - old white male, as a

comparator in support o f her discrimination claim. 1

22. Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee

working as an Academic Services Coordinator at EFSC’s Patrick Air Force

Base campus; upon the closing of that campus, EFSC eliminated

Mr. Looney’s position a nd, similarly to Ms. Garrett, transferred him to a

newly - created position in which he received the same salary and benefits.

1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible

comparator, stating that she was a white female. However, Ms. Garrett failed to introduce

an y additional facts or evidence concerning Ms. Sheltman’s status or to explain how the

undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that

Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter.

23. Ms. Garrett contends that EFSC treated Mr. Looney differently,

during his transfer, in that EFSC provided Mr. Looney more notic e time

between the elimination of his prior position and the transfer to his new

position.

24. Ms. Garrett also contends that EFSC treated Mr. Looney differently

than her because Mr. Looney was Dr. Handfield’s son - in - law.

Allegations of Hostile Work Enviro nment

25. Ms . Garrett testified that at the July 10, 2018, meeting, Dr. Spring

commented about the uncleanliness of the OUR office, and recommended that

Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett

also testified that she de clined to assist Dr. Spring in hanging posters on the

wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that

the OUR signage was covered up on the outside of the building, and asked

Ms. Garrett to correct this.

26. Ms. Garrett test ified that in subsequent meetings with Dr. Handfield,

she “shared [her] concerns regarding the work environment[,]” and stated

that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.”

27. Ms. Garrett testified that Dr. Spring micromanaged her role as the

Coordinator of OUR; for example, Dr. Spring continued to process online

student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also tes tified that Dr. Spring opened the OUR online student

forms too early, which prevented Ms. Garrett from matching faculty mentors

with student applicants.

2

28. Ms. Garrett also testified that Dr. Spring made decisions concerning

the OUR without consulting wi th her.

29. Ms. Garrett testified that Dr. Spring would send her e - mails asking if

Ms. Garrett had completed the work requested of her.

2 M s. Garrett also testified that Mr. Herber was not involved in micromanaging her role as

the Coordinator of OUR.

30. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should

be doing, and would become vocal with her dis satisfaction of Ms. Garrett’s job

performance.

31. Ms. Garrett testified that she did not know why Dr. Spring engaged in

any of these actions.

32. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified

that her work atmosphere became “more t ense … in terms of Dr. Spring and

Mr. Herber starting to make comments about allegations about my work.”

She further testified that after this meeting, Dr. Handfield “started issuing

directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and

Mr. Herber for input prior going to other EFSC campuses to host information

tables.

33. Ms. Garrett claimed that she was subjected to a hostile work

environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say dis paraging comments during the

meeting.” For example, “[t]hey would talk across me and I did not reply.”

34. Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett

testified that Dr. Handfield openly discussed supervision of the OUR with

Dr. Sprin g and Mr. Herber.

Findings of Ultimate Fact

35. Ms. Garrett presented no persuasive action that EFSC’s decisions

concerning, or actions affecting, her, directly or indirectly, were motivated in

any way by race - based, sex - based, or age - based discriminatory animus. There

is no competent, persuasive evidence in the record, direct or circumstantial,

upon which the undersigned could make a finding of unlawful race, sex, or

age discrimination.

36. Ms. Garrett presented no persuasive evidence that EFSC’s actions

s ubjected her to harassment based on race, sex, or age. There is no

competent, persuasive evidence in the record, direct or circumstantial, upon

which the undersigned could make a finding of unlawful race, sex, or age

harassment.

37. Ms. Garrett presented n o persuasive evidence that EFSC

discriminated against her because she opposed an unlawful employment

practice, or because she made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under the FCRA.

Ther e is no competent, persuasive evidence in the record, direct or

circumstantial, upon which the undersigned could make a finding of unlawful retaliation.

38. Ms. Garrett presented no persuasive evidence that EFSC’s action s

were sufficiently severe or persua sive to alter the terms and conditions of her

employment to create a hostile work environment. There is no competent,

persuasive evidence in the record upon which the undersigned could make a

finding of hostile work environment.

C ONCLUSIONS OF L AW

39. The Division has jurisdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016

(providing upon a petition for relief from an unl awful employment practice, a

hearing shall be conducted by an administrative law judge. ).

40. The FCRA protects individuals from discrimination and retaliation in

the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in

pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, becau se of

such individual’s race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital status.

* * *

(7) It is an unlawful employment practice for an employer … to discriminate against any person

because that person has opposed any pra ctice

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.

41. Because the FCRA is pattern ed after federal anti - discrimination laws,

such as Title VII of the Civil Rights Act of 1964 (Title VII), courts rely on

federal Title VII cases when analyzing race discrimination and retaliation

claims brought pursuant to the FCRA. See Ponce v. City of Na ples, 2017 WL

4574649, at *4 (M.D. Fla. Oct. 13, 2017); Harper v. Blockbuster Entm’t Corp. ,

139 F.3d 1385, 1387 (11th Cir. 1998)(finding that complaint fails for the same reasons under Title VII and the FCRA); Valenzuela v. GlobeGround N. Am.,

LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

42. The burden of proof in an administrative proceeding is on Ms. Garrett

as the complainant. See Dep’t of Banking & Fin., Div. of Sec. & Investor Prot.

v. Osborne Ste r n & Co., 670 So. 2d 932, 935 (Fla. 1996)(“The general rule is

that a party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.”). To show a violation of the FCRA,

Ms. Garrett must establish, by a preponderance of the evidence, a prima facie

case of discrimination, retali ation, or hostile work environment. See St. Louis

v. Fla. Int’ l . Univ., 60 So. 3d 455, 458 - 59 (Fla. 3d DCA 2011)(reversing jury

verdict awarding damages on FCRA racial discrimination and retaliation claims where employee failed to show similarly situated e mployees outside

his protected class were treated more favorably). A “prima facie” case means

it is legally sufficient to establish a fact or that a violation happened , unless

disproved.

43. The “preponderance of the evidence” standard is the “greater weig ht”

of the evidence, or evidence that “more likely than not” tends to prove the fact

at issue. This means that if the undersigned found the parties presented

equally competent substantial evidence, Ms. Garrett would not have proved

her claims by the “great er weight” of the evidence, and would not prevail in

this proceeding. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

Race, Sex, and Age Discrimination

44. A Title VII plaintiff may establish a claim of unlawful race, sex, and

age discrimination o r disparate treatment through either direct or

circumstantial evidence. See Robertson v. Interactive College of

Technology/Interactive Learning Sys., 743 Fed. Appx. 269, 275 (11th Cir.

July 16, 2018). The Eleventh Circuit has defined direct evidence of

dis crimination as “evidence which, if believed, would prove the existence of

discrimination without inference or presumption.” Holif i eld v. Reno, 115 F.3d

1555, 1561 (11th Cir. 1997).

45. Ms. Garrett presented no direct evidence of discrimination based on

rac e, sex, or age.

46. When reviewing race discrimination claims supported by

circumstantial evidence, courts follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 - 04, 93 S. Ct. 1817, 37 L. Ed. 2d 668

(1973). This framework inv olves a three - step process. Ms. Garrett must first

establish a prima facie case of discrimination. If Ms. Garrett does so, a

presumption of discrimination arises against EFSC. Then, EFSC has the

burden to articulate a legitimate, non - discriminatory reason for its action. If

EFSC can articulate such a reason, Ms. Garrett’s presumption of

discrimination evaporates. Finally, Ms. Garrett has the burden of proving

that EFSC’s legitimate reason was pretext for discrimination. A “pretext” is a

reason given in its justification for conduct that is not the real reason. See

McDonnell Douglas Corp., 411 U.S. at 802; Scholz v. RDV Sports, Inc., 710

So. 2d 618, 624 (Fla. 5th DCA 1998).

47. In order to establish a prima facie case of discrimination or disparate

treatment, Ms. Garrett must s ho w that: (a) she belongs to a protected class;

(b) she was subject to an adverse employment action; (c) her employer treated

similarly situated employees outside of her protected class more favorably;

and (d) that she was qualified to do the job. See McDonnell Douglas Corp., 411 U.S. at 802 - 04; Burke - Fowler v. Orange Cty. , 447 F.3d 1319, 1323 (11th

Cir. 2006).

48. Ms. Garrett belongs to a pro tected class: African - American f emale,

age 53.

49. Establishing whether an “adverse employment action” occurred is a

crucial component in any discrimination claim under the FCRA, because without it, there is no relief. See Davis v. Town of Lake Park, Fla. , 245 F.3d

1232, 1235 (11th Cir. 2001)(holding that an adverse employment action is required to obtain relief under Title VII’s anti - discrimination clause). To

show she suffered an “adverse employment action,” Ms. Garrett must “show a

serious and material change in the terms, conditions, or privileges of employment.” Id. at 1239.

50. Ms. Garrett did not establish that EFSC subjected her to an adverse

employment action. Ms. Garrett’s testimony is devoid of any allegation that EFSC’s transfer of Ms. Garrett from e - Learning Coordinator to Coordinator

of OUR was because of her race, sex, or age. Further, Ms. Garrett did not lose salary or benefits as a result of this transfer. See Collins v. Miami - Dade Cty. ,

361 F. Supp. 2d 1362, 1371 - 72 (S.D. Fla. 2005)(finding that an employee’s

transfer without any evidence that she suffered a loss in salary or other ta ngible benefits is insufficient to qualify as an adverse employment action).

51. Ms. Garrett also did not establish that EFSC subjected her to an

adverse employment action when it denied her request to use the Canvas

shell software to build an orientation outline. Ms. Garrett’s own testimony

reflected that this request was denied “based on the fact that the college will

not generate money and by not generating money they didn’t have the means

in order to pay the faculty.” Not only did Ms. Garrett fail to es tablish that

EFSC’s decision was because of her race, sex, or age, she additionally failed to

establish that this denial resulted in “a serious and material change in the

terms, conditions, or privileges of [her] employment.” Davis, 245 F.3d at

1239.

52. A dditionally, Ms. Garrett did not establish that EFSC treated any

similarly - situated employees outside of her protected class more favorably. If

a petitioner fails to identify similarly - situated employees outside of her

protected class who the employer trea ts more favorably, her “case must fail

because the burden is on [her] to establish his prima facie case.” Jones v.

Bessmer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), modified on

other grounds, 151 F.3d 1321 (11th Cir. 1998); Mac Papers v. Boyd, N o. 1D19 -

2008, 2020 WL 6110622, at *2 (Fla. 1st DCA Oct. 16, 2020) (holding that the

plaintiff’s prima facie case under the McDonnell Douglas framework was

negated when the plaintiff only presented evidence of a legally inadequate

comparator). Ms. Garrett’s argument that Mr. Looney, a 38 - year - old white

m ale, was treated more favorably than Ms. Garrett upon the elimination of

his position and transfer to a new position, fails for the following reasons:

(a) Ms. Garrett’s testimony about Mr. Looney was hearsay, and cannot form

the basis for such a finding; and (b) Ms. Garrett’s hearsay testimony actually

revealed that Mr. Looney was treated similarly, in that he was transferred to a newly - created position at the same salary and benefits as his previous

position, and the potentially additional notice time between the elimination

of his prior position and transfer to his new position is not a “serious and

material change” in the terms, conditions, or privileges of employment.

53. Ms. Garrett failed to establish a p rima facie case of unlawful

discrimination or disparate treatment based on her race, sex, or age.

Retaliation

54. To establish a prima facie case of retaliation, Ms. Garrett must show

that: (a) she was engaged in statutorily protected expression or conduc t;

(b) she suffered an adverse employment action; and (c) there is a causal

relationship between the two events. Holifield, 115 F.3d at 1566.

55. In order to satisfy the “statutorily protected expression or conduct”

requirement, Ms. Garrett must establish that her opposition to unlawful

employment practices was sufficient to communicate to EFSC that she

believed that EFSC was engaged in unlawful discriminatory conduct. See

Murphy v. City of Aventura, 616 F. Supp. 2d 1267, 1279 (S.D. Fla. 2009);

Webb v. R&B Holding Co., Inc., 992 F. Supp. 1382, 1389 (S.D. Fla. 1998).

56. If Ms. Garrett establishes a prima facie case of retaliation, the burden

then shifts to EFSC to articulate a legitimate, non - discriminatory reason for

its action. See Addison v. Fla. Dep’t o f Corr., 683 Fed. Appx. 770, 774 (11th

Cir. 2017); Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000). This burden is a very light one. See Holifield, 115 F.3d at 1564.

57. If EFSC meets this burden, the burden then shifts back to

Ms. Garrett, to show that EFSC’s proffered reason is mere pretext. See James

v. Total Sols., Inc., 691 Fed Appx. 572, 574 (11th Cir. 2017); Quigg v. Thomas

Cty. Sch. Dist. , 814 F.3d 1227, 1237 (11th Cir. 2016).

58. Ms. Garrett contends that Dr. Handfield’s six - month performance

evaluation was in retaliation for the interactions that Ms. Garrett had with Dr. Handfield, Dr. Spring, and Mr. Herber during the previous six months

after her transfer to the position of Coordinator of OUR.

59. Ms. Garrett’s interaction s with Dr. Handfield, Dr. Spring, and

Mr. Herber do not amount to protected activity under either the participation clause or the opposition clause of the FCRA. The participation clause only “protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating

in an employer’s internal, in - house investigation, conducted apart from a

formal charge with the EEOC.” EEOC v. Total Sys. Servs., Inc., 221 F.3d

1171, 1174 (11th Cir. 2000). Ms. Garrett did not file her FCHR Charge until

after her interactions with Dr. Handfield, Dr. Spring, and Mr. Herber, and

thus, her interactions are not protected activity under the participation

clause.

60. The opposition clause requires that an employee “show that she

reasonably believed that she was opposing a violation of Title VII by her

employer.” Allen v. Ambu - Stat, LLC, 799 F. App’x 703, 711 (11th Cir. 2020)

(internal quotations omitted). Ms. Garrett’s testimony failed to establish that

she opposed any unlawful employment practice by EFSC during her

interactions with Dr. Handfield, Dr. Spring, and Mr. Herber. Instead, her

testimony shows that these interactions consisted of personality conflicts

with her supervisor and coworkers, which do not constitute unlawful

employment practices. See Faragher v. City of Boca Raton, 524 U.S. 775, 778

(1998)(holding that “the ordinary tribulations of the workplace” do not

constitute actionable harassment).

61. Additionally, Ms. Garrett’s testimony failed to establish a causal

connection between her interactions with Dr. Handfield, Dr. Spring, and

Mr. Herber, and the performance evaluation she contends was retaliatory. Ms. Garrett testified that these interactions were six months prior to her performance evaluation. “In the absence of other evidence tending to show

causation, if there is a substantial delay between the protected expression and the adverse action, the complaint of retaliation fails as a matter of law.” Thomas v. Cooper Lighting, Inc., 506 F .3d 1361, 1364 (11th Cir. 2007).

Significantly, “[a] three to four month disparity between the statutorily

protected expression and the adverse employment action is not enough,” to satisfy causation. Id.

62. Ms. Garrett failed to establish a prima facie ca se of retaliation.

Hostile Work Environment

63. To establish a prima facie case of hostile work environment,

Ms. Garrett must show that: (a) she is a member of a protected class; (b) she

was “subjected to unwelcome harassment”; (c) the harassment was bas ed

upon a protected trait; (d) the harassment was “severe or pervasive enough to

alter the terms and conditions of employment and create a hostile or abusive

working environment”; and (e) the employer is liable for the hostile work environment through eith er vicarious or direct liability. Jones v. UPS Ground

Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). To be clear, “[i]t is a bedrock

principle that not all objectionable conduct or language amounts to

discrimination under Title VII.” Id. at 1297 (internal quotations omitted).

Rather, “only conduct that is ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.” Id. Accordingly,

“[i]nnocuous statements or conduct, or boorish ones that do not relate to the

[pro tected trait] of the actor or of the offended party (the plaintiff), are not

counted.” Id.

64. Ms. Garrett failed to establish that any actions and conduct she

experienced at EFSC were based on her protected status, i.e., race, sex, or

age. Her testimony n ever established this critical element (and, as noted

previously, she presented no additional evidence beyond her testimony).

65. Ms. Garrett’s testimony failed to establish that “the workplace is

permeated with discriminatory intimidation, ridicule, and i nsult, that is

sufficiently severe or pervasive to alter conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993) (internal quotations and citations omitted).

66. Ms. Garrett’s failure to establish that the alleged hostile work

environment was based on her race, sex, or age, and that the alleged

harassment was sufficiently severe or pervasive to alter the terms of her employment, creating a hostile work environment, ends the unde rsigned’s

analysis of her hostile work environment claim. The undersigned concludes

that Ms. Garrett has failed to establish a prima facie case of hostile work

environment.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, t he

undersigned hereby R ECOMMEND S that the Florida Commission on Human

Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief.

D ONE A ND E NTERED this 12th day of November, 2020 , in Tallahassee,

Leon County, Florida.

R OBERT J. T EL FER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

this 12th day of November, 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Mary F. Garrett

Apartment 2508

2741 Caribbean Isle Boulevard

Melbourne, Florida 32935

(eServed)

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Roo m 110

4075 Esplanade Way

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 Recommended Order. Any exceptions to this Recommended

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

case.