20-004261 Rodolfo Gonzalez vs. Florida Department Of Health, Division Of Disability Determinations Status: Closed Recommended Order on Thursday, February 4, 2021.

Summary: Petitioner failed to establish that he suffered any adverse employment action that would sustain a claim of employment discrimination.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ODOLFO G ONZALEZ ,

Petitioner ,

vs. Case No. 20 - 4261

F LORIDA D EPARTMENT OF H EALTH ,

D IVISION OF D ISABILITY

D ETERMINATIONS ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on

December 2, 2020, via Zoom teleconference, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge (ÑALJÒ) of the Division of

Administ rative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Rodolfo Gonzalez, pro se

2000 Lohman Court

Tallahassee, Florida 32311

For Respondent Louise Wilhite - St. Laurent, General Counsel

Virginia Edwards, Esquire

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

The issue is wheth er Respondent discriminated against Petitioner based

on his race, national origin, age, sex, and/or disability in violation of section

760.10, Florida Statutes. 1

P RELIMINARY S TATEMENT

On February 21, 2020, Petitioner, Rodolfo Gonzalez (ÑPetitionerÒ or

ÑM r. GonzalezÒ), filed with the Florida Commission on Human Relations

(ÑFCHRÒ) an Employment Complaint of Discrimination against the

Department of Health, Division of Disability Determinations (ÑRespondentÒ

or Ñthe DivisionÒ). Mr. Gonzalez alleged that he ha d been discriminated

against pursuant to chapter 760 ; Title VII of the Federal Civil Rights Act ; the

Age Discrimination in Employment Act ; and/or the American s with

Disabilities Act, based upon his race, national origin, age, sex, and/or

disability/handica p.

The FCHR was unable to conciliate or make a reasonable determination

within 180 days of Mr. Gonzalez filing the complaint, and Mr. Gonzalez opted

to request a formal administrative hearing pursuant to sections 760.11(4)

and (8).

On September 21, 2020 , the FCHR referred the case to DOAH for the

assignment of an ALJ and the conduct of a formal hearing. The final hearing

was scheduled for December 2, 2020, on which date it was convened and

completed.

1 Citations sh all be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has

been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discri minatory employment practices. Ch. 2015 - 68, § 6, Laws of

Fla.

At the hearing, Mr. Gonzalez testified on his own beh alf. PetitionerÔs

Composite Exhibit A was admitted without objection. The Division presented

the testimony of Kimberly Jackson, an Operations Service Manager with the

Division; Sarah Evans, a Program Administrator with the Division; Brian

Garber, Director of the Division; Robin Rega, a Labor Relations Consultant

for the Department of Health; Brenshinita McGee, Equal Opportunity Office

Manager for the Department of Health; and Scarlett Buchanan, Human

Relations Manager for the Department of Health. The Divis ionÔs Exhibits A

through J and L through EE were admitted into evidence without objection.

The two - volume Transcript of the final hearing was filed with DOAH on

January 4, 2021. Respondent timely filed its Proposed Recommended Order

on January 14, 2021. P etitioner did not file a p roposed r ecommended o rder.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

P ARTIES

1. The Division is an employer as that term is defined in section 760.02(7).

2. Mr. Gonzalez is a white Cuban male older than 40 years old. Out of

respect for Mr. GonzalezÔs privacy, the Division stipulated that Mr. Gonzalez

suffers from a disability or handicap without requiring him to disclose its

nature at the hearin g.

3. Mr. Gonzalez has worked for the Division in Tallahassee since April 3,

2015. Mr. Gonzalez was initially hired in an Other Personal Services (ÑOPSÒ)

capacity as an Operations Analyst I. On June 3, 2016, Mr. Gonzalez received

a Career Service appointme nt to the same position, Operations Analyst I,

which remains his position at the Division. Mr. Gonzalez is a switchboard

operator.

O CTOBER 24, 2019, AND I TS A FTERMATH

4. While Mr. GonzalezÔs complaint broadened over time, the triggering

event to his confli ct with the Division was a meeting with his immediate

supervisor, Operations Service Manager Kimberly Jackson, and several

coworkers on the morning of October 24, 2019.

5. Early on the morning of October 24, 2019, Mr. Gonzalez phoned

Ms. Jackson to ask if he could take some time off work that morning.

Mr. Gonzalez explained that his daughter was having her sick dog put to

sleep and that he wanted to be with her because the situation was very

emotional. During this conversation, Ms. Jackson told Mr. Gonzalez that she

was calling a meeting with all of the switchboard operators later that

morning. She left it up to Mr. Gonzalez whether he wanted to miss the

meeting.

6. Mr. Gonzalez testified that Ms. JacksonÔs manner of giving him the

option not to attend the m eeting was threatening. He testified that she said,

ÑWell, if you want to play it that way.Ò He took her message to be that he had

better not miss the meeting. Mr. Gonzalez came into work and attended the

meeting.

7. Ms. Jackson denied that she said Ñif yo u want to play it that wayÒ or

anything of the sort. She testified that she told Mr. Gonzalez that he could go

be with his daughter. Ms. Jackson was aware that another of her

subordinates would also be absent that morning. She planned to discuss the

meetin g topics with that employee later. She testified that it would not have

been a problem to include Mr. Gonzalez in that discussion.

8. At 7:41 a.m. on October 24, 2019, Ms. Jackson sent out a memorandum

informing her subordinates of the meeting to be held a t 9:00 a.m. The

memorandum went out after Ms. Jackson and Mr. Gonzalez spoke on the

phone. The timing led Mr. Gonzalez to allege that Ms. Jackson had called the

meeting in response to his request for leave, apparently from some malicious

desire to prevent him from being with his daughter.

9. Ms. Jackson testified that she had planned to call the meeting before

she spoke to M r . Gonzalez on the phone. The purpose of the meeting was to

remind staff of certain office procedures, such as the importance of arrivi ng

on time so that the switchboard could begin accepting calls promptly at

8:00 a.m. , and the prohibition on excessive personal cell phone use.

Ms. Jackson stated that she had no reason for wanting to keep Mr. Gonzalez

away from his family.

10. Mr. Gonzale z testified that the meeting was short, no more than five

minutes. He sat quietly and listened to Ms. Jackson. When she was finished,

he raised his hand to ask a question. Ms. Jackson continually interrupted,

making it impossible for him to ask his questio n. Mr. Gonzalez felt

embarrassed and demeaned in front of his fellow employees, but denied ever

responding aggressively or in an unprofessional manner. Ms. Jackson gave a

vague answer to his question. When he attempted to ask a second question,

Ms. Jackson shut down the meeting.

11. Ms. JacksonÔs version of the meeting was that Mr. Gonzalez was very

unprofessional. He was rude, aggressive, and interruptive. He did not wait

for Ms. Jackson to finish before he began peppering her with questions.

Mr. Gonzalez constantly asked her to point to agency rules or written policies

to support the directives she was giving. Ms. Jackson tried to explain that

these were just office procedures that any supervisor can establish, but

Mr. Gonzalez would not be satisfied. At o ne point, he pointed his finger at

Ms. Jackson and said, ÑMaÔam, I listened to you. Now youÔre going to listen to

me.Ò Ms. JacksonÔs version of events at the meeting is the more credible.

12. Ms. Jackson testified that two newly hired employees were presen t

and she was concerned they would come away with the impression that this

was how she conducted meetings.

13. Ms. Jackson testified that Mr. GonzalezÔs behavior at the meeting

prompted her to contact her direct superior, Program Administrator Sarah

Evans, to discuss the matter. Ms. Evans decided to informally investigate

what happened at the meeting.

14. First, Ms. Evans attempted to phone Mr. Gonzalez to get his version.

When she was unable to reach him by phone, Ms. Evans sent an email to

Mr. Gonzalez as king him to call her. Ms. Evans then proceeded to contact the

other employees who were at the meeting.

15. One employee, Tania Membreno, told Ms. Evans that she preferred

not to get involved in the matter. Two other employees, Adam Wiman and

Stacey Macon, confirmed Ms. JacksonÔs version of events. Mr. Wiman told

Ms. Evans that the meeting had been ÑawkwardÒ and that Mr. Gonzalez was

rude to Ms. Jackson, continually interrupting her. Mr. Macon told Ms. Evans

that he felt uncomfortable during the meeting beca use Mr. Gonzalez was

unprofessional and rude to Ms. Jackson.

16. When Ms. Evans eventually reached Mr. Gonzalez by phone, he

refused to give her any information about the meeting without a union

representative and Robin Rega, a Department of Health Labor R elations

Consultant, present. Mr. Gonzalez hung up on Ms. Evans.

17. Ms. Evans and Ms. Jackson prepared a Ñsupervisor counseling

memorandumÒ to be presented to Mr. Gonzalez because of his behavior at the

October 24, 2019, meeting. On October 31, 2019, Ms. Evans and Ms. Jackson

met with Mr. Gonzalez and explained that they were providing him with the

memorandum as a reminder to remain professional and courteous in the

office. Mr. Gonzalez reacted by stating that he was never unprofessional. He

attempted to veer the conversation off onto a discussion of another employee

whom he believed was unprofessional. Mr. Gonzalez refused to sign the

memorandum, though Ms. Evans explained that his signature would only

indicate that he had received the document, not that he agreed with its

contents. Mr. Gonzalez did agree to take a copy of the memorandum before he

left the meeting.

18. The supervisor counseling memorandum was not made part of

Mr. GonzalezÔs employment record and did not constitute adverse

employment actio n or disciplinary action against Mr. Gonzalez. It was merely

a reminder to Mr. Gonzalez of the behavior and deportment expected of

Division employees.

19. The Department of HealthÔs personnel policy defines ÑcounselingÒ as

Ñ[a] discussion between a supervi sor and an employee that identifies a

problem, clarifies expectations and consequences, and provides direction for

the resolution of the problem.Ò The Department of HealthÔs personnel policy

does not treat counseling as disciplinary action. Meetings held b y supervisors

to counsel employees are not considered investigatory interviews , and

employees covered by a collective bargaining agreement do not have the right

to union representation during counseling meetings.

T HE G RIEVANCE AND E MPLOYMENT C OMPLAINT OF D ISCRIMINATION

20. The supervisor counseling memorandum gave Mr. Gonzalez 60 days to

respond in writing, if he wished. Mr. Gonzalez decided to file a formal Career

Service employee grievance pursuant to section 110.227(4), Florida Statutes.

On November 4, 2019, Mr. Gonzalez obtained a grievance form and a copy of

the Department of HealthÔs employee grievance policy from Ms. Rega. On

November 12, 2019, Mr. Gonzalez forwarded his completed Career Service

employee grievance form , with attached exhibits , to Ms . Jackson via email,

with copies to Ms. Evans, Ms. Rega, Mr. GonzalezÔs union representative, and

a representative of the FCHR.

21. On its face, Mr. GonzalezÔs grievance complained of Ñdiscrimination of

age, gender, ethnic [sic].Ò The six - page narrative at tached to the grievance

gave Mr. GonzalezÔs version of the events of October 24, 2019, and the

subsequent supervisor counseling memorandum.

22. The narrative also alleged that Ms. Jackson had arranged the

furniture in Mr. GonzalezÔs office in a way that a ggravated his

claustrophobia , then refused to allow him to move the furniture. He alleged

that Ms. Jackson would not approve his request to take annual leave over the

Christmas holidays. He alleged that Ms. Jackson had wrongly asserted that

she possessed t he authority to deny Mr. GonzalezÔs Family Medical Leave Act

(ÑFMLAÒ) leave requests. He alleged that the Division had unfairly cut his

pay when he moved from OPS to Career Service. Finally, Mr. Gonzalez

alleged that persons unknown were sabotaging his eff orts to obtain other jobs

within the Department of Health. Specifically, he believed he was being

denied a veteranÔs preference in his applications for other positions in the

agency. 2

23. Mr. GonzalezÔs narrative did not explain how any of the actions of

which he complained constituted age, gender, or ethnic discrimination, aside

from the fact that Kimberly Jackson is a black female. The only solution

requested by Mr. Gonzalez in his grievance was for individuals in the

Division to ÑQuit harassment, stalki ng, and scrutiny; Treatment like other

employees; Get my original starting pay, and 10% for violating veterans

preference.Ò

24. The Department of HealthÔs grievance policy and section 110.227(4)

specifically exclude discrimination claims from the Career Service grievance

process. Discrimination claims are routed to the agencyÔs Equal Opportunity

Office. On that jurisdictional basis, Ms. Jackson denied the grievance on

November 18, 2019.

25. Brenshinita McGee, Manager of the Department of HealthÔs Equal

Op portunity Office, testified that her office investigated the allegations

contained in Mr. GonzalezÔs grievance. However, before an investigative

memorandum could be completed, Mr. Gonzalez filed an Employment

Complaint of Discrimination with the FCHR. This action changed the Equal

2 Mr. GonzalezÔs narrative also included allegations that a Division employee was stalking

him and that he was under intense survei llance by his superiors following the issuance of the

supervisor guidance memorandum. Mr. Gonzalez presented no testimony or other evidence

regarding these allegations, which are therefore found to have been abandoned.

Opportunity OfficeÔs role from investigating an internal complaint to

responding on behalf of the Department of Health to an external complaint.

26. On February 21, 2020, Mr. Gonzalez filed his Employment Complaint

of Discriminat ion with the FCHR, attaching a copy of his grievance and all

supporting information that had previously been sent to Ms. Jackson.

27. On February 28, 2020, Ms. McGee sent an email to Kendricka

Howard, an Investigation Manager with the FCHR, requesting clar ification

as to the issues associated with Mr. GonzalezÔs case. Ms. Howard responded:

ÑThe issues associated with this case are: Discipline, Failure to

Accommodate, Failure to Hire, Failure to Promote, Terms/Conditions and

Wages.Ò

D ISCIPLINE

28. The onl y record evidence of anything resembling a disciplinary action

against Mr. Gonzalez was the supervisor counseling memorandum. As found

above, a supervisor counseling memorandum is not disciplinary action. There

is no evidence that Mr. Gonzalez has ever bee n disciplined by the Division.

Mr. Gonzalez suffered no adverse employment action as a result of the

supervisor counseling memorandum or the meeting with his supervisors on

October 31, 2019.

F AILURE TO A CCOMMODATE

29. The Division stipulated that Mr. Gonz alez suffers from a disability or

handicap. However, no evidence was presented to show that Mr. Gonzalez

ever requested an accommodation from the Department of HealthÔs Equal

Opportunity Office or that the Department of Health failed to accommodate

him. Th e closest thing to an accommodation claim was Mr. GonzalezÔs

allegation that Ms. Jackson would not allow him to move the furniture in his

office to alleviate his claustrophobia. At the hearing, Ms. Jackson reasonably

explained that all Division office empl oyees are prohibited from moving their

own furniture for reasons of personal safety. If employees wish to move their

furniture, they must submit a request to the maintenance department.

Ms. Jackson had no objection to Mr. Gonzalez reordering the furniture in his

office.

F AILURE TO H IRE OR P ROMOTE

30. Mr. Gonzalez alleges that he was denied the veteranÔs preference

mandated by section 295.07, Florida Statutes, and Florida Administrative

Code C hapter 55A - 7, when applying for other positions within the

Depart ment of Health. In support of this claim, Mr. Gonzalez referenced

applying for three positions between February and March 2018. 3

31. In February 2018, Mr. Gonzalez applied for a Regulatory Specialist II

position in the Department of HealthÔs Office of Med ical Marijuana Use. At

the hearing, it was established that the Office of Medical Marijuana Use is

separate and distinct from the Division. No one in the Division had any

decision making authority or advisory role as to who was chosen for the

Office of Med ical Marijuana Use position. There was no evidence that the

Division committed any adverse employment action or discriminated against

Mr. Gonzalez with respect to his application for the Office of Medical

Marijuana Use position.

32. In March 2018, Mr. Gon zalez applied for a Medical Disability

Examiner position with the Division. In accordance with statutory and rule

requirements, Mr. Gonzalez received an additional five points as a veteranÔs

preference, but failed to score well enough on the work sample po rtion of the

interview to warrant an in - person interview. There was no evidence that the

Division committed any adverse employment action or discriminated against

3 In all of these applications, Mr. G onzalez declined to provide information as to his gender,

race, ethnicity, or age. As to these job applications, Mr. Gonzalez did not claim unfair

treatment on any basis other than the veteranÔs preference.

Mr. Gonzalez with respect to his application for the Medical Disability

Examiner position.

33. In March 2018, Mr. Gonzalez applied for a Management Review

Specialist position with the Division. The notice for the position specifically

stated: ÑCurrent employment with the Division of Disability Determinations

processing federal Social Security cl aims is required.Ò At all times during his

employment with the Department of Health , Mr. Gonzalez has been a

switchboard operator for the Division. He did not meet the minimum

qualifications for the Management Review Specialist position. There was no

evide nce that the Division committed any adverse employment action or

discriminated against Mr. Gonzalez with respect to his application for the

Management Review Specialist Position.

T ERMS , C ONDITIONS , AND W AGES

34. Mr. GonzalezÔs reduction in salary after hi s voluntary transition from

OPS to Career Service was neither adverse employment action nor

discriminatory. This reduction in salary was consistent with the DivisionÔs

practice for all employees. The Director of the Division, Brian Garber,

testified that O PS switchboard operators are paid slightly more than Career

Service operators to compensate for the facts that OPS employees do not get

paid time off for holidays, do not accrue sick leave or annual leave, and do not

participate in the State of FloridaÔs r etirement system. When an OPS

operator transitions into Career Service, his or her salary is reduced , but

other benefits are obtained that offset the salary reduction.

35. Mr. Gonzalez did not dispute that he received benefits when he

transferred from OPS to Career Service, including paid leave, paid holidays,

discounted insurance options, and retirement benefits. Mr. Garber testified

that he specifically requested that Mr. Gonzalez be paid more than other

starting switchboard operators because he speaks Sp anish. There was no

evidence that the Division committed any adverse employment action or

discriminated against Mr. Gonzalez with respect to his wages as a Career

Service employee.

36. Mr. Gonzalez claimed that a vacation request was not approved Ñuntil

[h e] had to take measures to HR.Ò On October 16, 2019, Mr. Gonzalez

submitted a request for annual leave the week of Christmas 2019.

Ms. Jackson approved his request on November 18, 2019, six days after

Mr. Gonzalez filed his complaint with the FCHR.

37. At the hearing, Ms. Jackson explained the delay in approving

Mr. GonzalezÔs leave. As the Christmas and New YearÔs holidays approach,

Ms. Jackson asks all of her subordinates to submit their leave requests by a

date certain so that she can arrange for all po sitions to be covered during that

period. She did not approve Mr. GonzalezÔs request until all of her other

subordinates had submitted their requests.

38. Ms. Jackson also noted that approval of Mr. GonzalezÔs particular

request was contingent upon his acc umulating sufficient leave hours before

the requested vacation time arrived. In any event, there was no evidence that

Mr. Gonzalez was treated disparately or discriminatorily as to his leave

requests. The record established that Ms. Jackson has approved ev ery

request Mr. Gonzalez has made to use annual leave.

39. Mr. Gonzalez claimed disparate and discriminatory treatment in how

his workload is determined, alleging that he was given much more work than

the other switchboard operators. The credible evidence reflected that

Mr. GonzalezÔs workload is distributed evenly with other switchboard

operators.

40. Mr. GonzalezÔs claim about Ms. JacksonÔs interfering with his right to

take FMLA leave was premised on nothing more than a misunderstanding.

On August 21, 20 19, at 2:53 p.m., Mr. Gonzalez sent an email to Ms. Jackson

stating that he would be absent from work on September 6, 2019, due to a

medical procedure. The text of the email did not mention FMLA, though the

subject line did read, ÑMedical Procedure/FMLA.Ò Ms. Jackson overlooked the

subject line and responded to the text, inquiring whether Mr. Gonzalez had

submitted a leave request for the date in question. When Mr. Gonzalez

responded in the negative, Ms. Jackson nonetheless approved the leave, still

not rea lizing it was FMLA leave and her approval was not required. The

approval was given at 3:08 p.m. , on August 21, 2019, 15 minutes after

Mr. Gonzalez sent his initial email. At the hearing, Ms. Jackson

acknowledged her error. Mr. Gonzalez made no showing that he suffered any

actual harm from Ms. JacksonÔs mistake.

41. Mr. Gonzalez alleged that he has been Ñgiven a difficult time when [he

tries] to make up [his] time from doctorÔs appointments.Ò This allegation was

not supported by record evidence. Ms. Jackson employs a request and

approval process for all employees who wish to Ñadjust their time,Ò i.e., make

modifications from the normal 8:00 a.m. to 5:00 p.m. schedule. The record

evidence shows instances in which Mr. Gonzalez properly requested to adjust

his t ime and other instances in which he made time adjustments without

prior approval from Ms. Jackson. In neither situation was Mr. Gonzalez

Ñgiven a difficult timeÒ by Ms. Jackson. To the contrary, the evidence

indicates great forbearance by Ms. Jackson in al lowing Mr. Gonzalez to

adjust his time for doctorÔs appointments.

42. Ms. Jackson has no control over the availability of overtime hours.

When she is notified by her superiors that overtime is available in her

section, Ms. Jackson makes it available equall y to all of her subordinate

employees. The record indicates that Mr. Gonzalez has both accepted and

declined the offers of overtime. There was no evidence that Mr. Gonzalez has

ever been denied an opportunity to utilize overtime when it was available.

C OM PARATOR E MPLOYEES

43. Mr. Gonzalez has not shown that any other employee outside of the

protected classes claimed in his FCHR complaint have been treated

differently than he has. Mr. Gonzalez actually highlighted the fact that he

and several of his OPS cou nterparts were treated equally when they moved

over to Career Service as a group in 2016. The evidence supports a finding

that the policies and procedures implemented and reinforced by Ms. Jackson

and her supervisors in the Division apply equally to all em ployees.

S UMMARY OF F INDINGS

44. In sum, Mr. GonzalezÔs complaints bespeak a general dissatisfaction

with the decisions of his supervisors, in particular his immediate superior,

Ms. Jackson. However, disagreements with those in authority do not support

c laims of discrimination, particularly where the employee cannot establish

that he or she has suffered any adverse effects from the disputed decisions.

Mr. Gonzalez failed to establish that he was subjected to any adverse

employment action by the Division.

45. Mr. Gonzalez offered no evidence that he was treated differently than

any other similarly situated employee.

C ONCLUSIONS OF L AW

46. DOAH has jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

47. The Florida Civil Rights Act of 1992 (the Ñ Florida Civil Rights Act Ò or

the Ñ FCRA Ò ), chapter 760, prohibits discrimination in the workplace.

48. Section 760.10 states the following, in relevant part:

(1) It is an unlawful employment practice for an

e mployer:

(a) 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, s ex, national

origin, age, handicap, or marital status.

(b) To limit, segregate, or classify employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of

employment opportunities, or adversely affect any

indivi dualÔs status as an employee, because of such

individualÔs race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital status.

49. The Division is an Ñ employer Ò as defined in section 760.02(7), which

provides the following:

(7) Ñ Empl oyer Ò means any person employing 15 or

more employees for each working day in each of 20

or more calendar weeks in the current or preceding

calendar year, and any agent of such a person.

50. Florida courts have determined that federal case law applies to claims

arising under the FCRA, and as such, the United States Supreme Court's

model for employment discrimination cases set forth in McDonnell Douglas

Corp oration v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),

applies to claims arising un der section 760.10, absent direct evidence of

discrimination. See Harper v. Blockbuster EntmÔt Corp. , 139 F.3d 1385, 1387

(11th Cir. 1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361

(S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996); Fla. DepÔt of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

51. Ñ Direct evidence is Óevidence, which if believed, proves existence of fact

in issue without inference or presumption.ÔÒ Rollins v. TechSouth, Inc . , 833

F.2d 1525, 1528 n.6 (11th Cir. 1987)( quoting BlackÔs Law Dictionary 413 (5th

ed. 1979)). In Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person Ô s age presents direct evidence

of discrimination. [ Young v. Gen. Foods Corp . , 840

Young Court

made clear that remarks merely referring to

characteristics associated with increasing age, or

facially neutral comments from which a plain tiff

has inferred discriminatory intent, are not directly

probative of discrimination. Id . Rather, courts have

found only the most blatant remarks, whose intent

could be nothing other than to discriminate on the

basis of age, to constitute direct evidence of

discrimination.

Petitioner offered no evidence that would satisfy the stringent standard of

direct evidence of discrimination. It is not uncommon for a petitioner to have

no direct evidence because Ñdirect evidence of intent is often unavailable.Ò

Shea ly v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). Accordingly, those

who claim to be victims of discrimination Ñare permitted to establish their

case through inferential and circumstantial proof.Ò Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

52. Circumstantial evidence is evidence that is susceptible to more than

one reasonable interpretation or inference. E.E.O.C. v. W . Customer Mgmt.

Grp . , LLC , 899 F. Supp. 2d 1241 (N.D. Fla. 2012). In the employment

discrimination context, evide nce that suggests, but does not dispositively

prove, a discriminatory motive is, by definition, circumstantial evidence.

Hawthorne v. Baptist Hosp., Inc. , 448 Fed.Appx. 965, 967 - 68 (11th Cir. 2011);

Burrell v. Bd. of Tr s . o f Ga. Military Coll. , 125 F.3d 13 90, 1393 - 94 (11th Cir.

1997).

53. Under the McDonnell analysis, in employment discrimination cases,

Petitioner has the burden of establishing, by a preponderance of evidence, a

prima facie case of unlawful d iscrimination. If the prima facie case is

establ ished, the burden shifts to the employer to rebut this preliminary

showing by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to Petiti oner to show by a preponderance of

evidence that the employer Ô s offered reasons for its adverse employment

decision were pretextual. See Texas DepÔt of Cmty. Aff. v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). ÑThe inquiry into pretext

centers on the employerÔs beliefs, not the employeeÔs beliefsÈ.Ò Alvarez v.

Royal Atl . Developers, Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010)(the issue is

whether the employer was dissatisfied with the employee for a non -

discriminatory reason, not whether that reason was unfair or mistaken).

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

discrimination under chapter 760, Petitioner must establish that: (1) he is a

member of the protected group; (2) he was subject to and adverse

employment action; (3) the Division treated similarly situated employees

outside of his protected classifications more favorably; and (4) Petitioner was

qualified to do the job and/or was performing his job at a level that met the

employerÔs legitimate expectations. See , e.g ., Jiles v. United Parcel Serv., Inc .,

360 Fed. Appx. 61, 64 (11th Cir. 2010); Burke - Fowler v. Orange Cty . , 447 F.3d

1319, 1323 (11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc ., 330 F.3d

1313, 1316 (11th Cir. 2003); Williams v. Vitro Servs. Corp ., 144 F.3d 1438,

1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp ., 40 F. Supp. 2d 1369,

1374 - 75 (S.D. Fla. 1999).

55. Petitioner has failed to prove a prima facie case of unlawful

employment discrimination.

56. Petitioner is a white Cuban male old er than 40 years old and suffers

from a disability or handicap.

57. Petitioner continues to hold the job of switchboard operator at the

Division and is therefore presumed to be performing his job at a level that

meets his employerÔs legitimate expectations .

58. However, Petitioner has failed to establish that he was subject to an

adverse employment action or that the Division treated similarly situated

employees outside of his protected classifications more favorably.

59. ÑAn employment action is considered ÓadverseÔ only if it results in some

tangible, negative effect on the plaintiffÔs employment.Ò Lucas v. W.W.

Grainger, Inc. , 257 F.3d 1249, 1261 (11th Cir. 2001). Petitioner is required to

show a serious and material change in terms, conditions, or privil eges of

employment. Matias v. Sears Home Improvement Prods. , 391 Fed. Appx. 782,

785 - 86 (11th Cir. 2010). A transfer of employment without evidence of loss in

salary or tangible benefits is insufficient to support a tangible, negative effect

on employment. Collins v. Miami - Dade Cty . , 361 F. Supp. 2d 1362 (S.D. Fla.

2005).

60. The evidence failed to establish that Petitioner suffered any tangible

negative effect in his employment. No adverse employment action was ever

taken against Petitioner. He was promote d into Career Service from OPS,

with a higher starting salary due to his ability to speak Spanish. His FMLA

rights have been respected by his employer. His leave requests and requests

to work, or not work, overtime have been honored. PetitionerÔs subjectiv e

view of his treatment by Ms. Jackson is unsupported by objective facts.

61. A person suffers Ñ disparate treatment Ò in his or her employment, in

violation of Title VII Ð and, by extension, the FCRA Ð when he or she is

singled out and treated less favorably, o n the basis of his or her status as a

member of a protected class than other employees who are otherwise

similarly situated in all relevant respects. Johnson v. Great Expressions

Dental Ctrs. of Fla. , P.A., 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014);

Valenzu ela v. Globeground N . Am . , LLC , 18 So. 3d 17, 23 (Fla. 3d DCA 2009).

62. It should be noted, however, that in a proceeding under the FCRA, the

court is Ñ not in the business of adjudging whether employment decisions are

prudent or fair. Instead, [the court Ô s] sole concern is whether unlawful

discriminatory animus motivates a challenged employment decision. Ò Damon

v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999).

Not everything that makes an employee unhappy is an actionable adverse

action for purposes of the FCRA. Davis v. Town of Lake Park , 245 F.3d 1232,

1238 (11th Cir. 2001).

63. The evidence failed to establish that any similarly situated employees

outside of PetitionerÔs protected classifications were treated more favorably.

Pe titioner offered no named comparators aside from a few of his fellow

employees who moved from OPS to Career Service at the same time he did.

PetitionerÔs point was not that these employees had been treated differently

from him but that they had all been tr eated the same in having their salaries

reduced.

64. To prevail on a failure to accommodate claim, Petitioner must

demonstrate that: (1) he was a qualified individual with a disability; (2) he

made a specific request for a reasonable accommodation; and (3 ) the employer

failed to provide the reasonable accommodation, or engage in the requisite

interactive process in order to identify a reasonable accommodation.

D'Onofrio v. Costco Wholesale Corp. , 964 F.3d 1014, 1021 (11th Cir. 2020); see

also 42 U.S.C. § 1 2112(b); and Lucas , 257 F.3d at 1255 ( Ñ An employer

unlawfully discriminates against a qualified individual with a disability

when the employer fails to provide Ó reasonable accommodations Ô for the

disability -- unless doing so would impose undue hardship on t he employer. Ò ).

The third prong examines whether, but for Petitioner Ô s disability, he would

have been subjected to the alleged discrimination. Alboniga v. Sch . Bd. of

Broward C ty . , 87 F. Supp. 3d 1319, 1338 (S.D. Fla. 2015); and Holly v.

Clairson Indus . , L .L.C. , 492 F.3d 1247, 1263, n.17 (11th Cir. 2007)(The

petitioner Ñ bears the burden of showing not only that [the employer] failed to

reasonably accommodate his disability, but that, but for [the employer Ô s]

failure to accommodate his disability, he would n ot have been terminated. Ò ).

65. ÑThe duty to provide a reasonable accommodation is not triggered

unless a specific demand for an accommodation has been made.Ò Gaston v.

Bellingrath Gardens & Home, Inc. , 167 F.3d 1361, 1363 (11th Cir. 1999).

66. The closes t thing to an accommodation claim was PetitionerÔs

assertion that he was not allowed to move his furniture despite his

claustrophobia. The evidence plainly indicated that the Division had a

general and sensible safety prohibition on employees moving their own

furniture. Ms. Jackson never said that Petitioner could not request

maintenance to come in and move his furniture for him. There was no

credible evidence to support a failure to accommodate claim.

R ECOMMENDATION

Based upon the foregoing Findings of Fa ct and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that the Department of Health, Division of Disability

Determinations did not commit any unlawful employment practices and

dismissing the Petition for Relief filed in this case.

D ONE A ND E NTERED this 4th day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

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 4th day of February , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Rodolfo Gonzalez

Florida Commission on Human Relations 2000 Lohman Court

Room 110 Tallahassee, Florida 32311

4075 Esplanade Way

Tallahassee, Florida 3239 9 - 7020 Louise Wilhite - St Laurent, General

Counsel

Dee Dee McGee, EO Manager Department of Health

Department of Health Bin A - 02

Office of the General Counsel 4052 Bald Cypress Way

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399

Tallahassee, Florida 32399

Virginia Edwards, Esquire Cheyanne Costilla, General Counsel

Department of Health Florida Commi ssion on Human Relations

Prosecution Services Unit Room 110

Bin A - 02 4075 Esplanade Way

4052 Bald Cypress Way Tallahassee, Florida 32399 - 7020

Tallahas see, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

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

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

case.