21-001406 Bonia Baptiste vs. Department Of Juvenile Justice Status: Closed Recommended Order on Monday, November 22, 2021.

Summary: Petitioner failed to prove that Respondent discriminated against her based on her sex, created a hostile work environment, or in retaliation for her participation in a protected activity.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ONIA B APTISTE ,

Petitioner ,

vs. Case No. 21 - 1406

D EPARTMENT OF J UVENILE J USTICE ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before J. Bruce Culpepper,

Administrative Law Judge of the Division of Administrative Hearings,

pursuant to sections 120.569 and 120.57(1), Florida Statutes (2021), 1 on

June 30 and July 30, 2021, by Zoom video conference, from Tallahassee,

Florida.

A PPEARANCES

For Petitioner: Paul Middle Platte, Esquire

Paul Platte, P.A.

611 South Fort Harrison Avenue, Suite 252

Clearwater, Florida 33756

For Respondent: Debora E. Fridie, Esquire

Depa rtment of Juvenile Justice

2737 Centerview Drive, Suite 3200

Tallahassee, Florida 32399 - 3100

1 All statutory references are to Florida Statutes (20 21 ), unless otherwise noted.

S TATEMENT OF T HE I SSUE

Whether Petitioner, Bonia Baptiste, was subject to an unlawful

employment practice by Respondent, the Florida Department of Juvenile

Justice, in violation of the Florida Civil Rights Act.

P RELIMINARY S TATEMENT

On October 2, 2020, Petitioner filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations (the

" Commission " ) alleging that Responden t, the Florida Department of Juvenile

Justice (the " Department " ) , violated the Florida Civil Rights Act ( " FCRA " ) by

discriminating against her based on her sex, age, race, and national origin, as

well as in retaliation for her practice of an activity prote cted by the FCRA.

Petitioner ' s Complaint of Discrimination followed a Technical Assistance

Questionnaire for Employment Complaint ("TAQ") that Petitioner filed with

the Commission on August 31, 2020.

On March 31, 2021, the Commission notified Petitioner that no reasonable

cause existed to believe that the Department had committed an unlawful

employment practice.

On April 23, 2021, Petitioner filed a Petition for Relief with the

Commission alleging a discriminatory employment practice. The Commission

tran smitted the Petition to the Division of Administrative Hearings

( " DOAH " ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on June 30 and July 30, 2021. At the final

hearing, Petitioner testified on her own behalf. The Department pr esented

the testimony of Darrell Furuseth, Dixie Fosler, Rodney Goss, Vincent Vurro,

and Adrian Mathena. Petitioner ' s Exhibit 12 was admitted into evidence. The

Department ' s Exhibits 1 through 1 3 and 15 were admitted into evidence. In

addition, following t he Department ' s motion, the undersigned took o fficial

r ecognition of Detention Services Statewide Facility Operating Procedure

5.06, as well as the Department ' s " Sexual Harassment and Discrimination

Policy, " FDJJ - 1003.22 , and " Sexual Harassment and Discrim ination

Procedures, " FDJJ - 1003.22 P .

A two - volume Transcript of the final hearing was filed on July 22, 2021,

and August 16, 2021. At the close of the hearing, the parties were advised of

a ten - day timeframe following receipt of the hearing transcript at D OAH to

file post - hearing submittals. Following receipt of the (second) Transcript,

Petitioner twice requested additional time to file a proposed recommended

order, both of which were granted. 2 Both parties timely filed Proposed

Recommended Orders, which we re duly considered in preparing this

Recommended Order.

F INDINGS OF F ACT

1. The Department is the Florida executive agency responsible for

" planning, coordinating, and managing the delivery of all programs and

services within the juvenile justice continuu m. " As described in section

20.316(1)(b), Florida Statutes, t he " juvenile justice continuum " includes:

[A] ll children - in - need - of - services programs;

families - in - need - of - services programs; other

prevention, early intervention, and diversion

programs; detenti on centers and related programs

and facilities; community - based residential

commitment and nonresidential programs; and

delinquency institutions provided or funded by the

department.

2 By requesting a deadline for filing a post - hearing submission beyond ten days after the

filing of the hearing transcript , the 30 - day time period for filing the Recommended Order was

waived. See Fla. Admin. Code R. 28 - 106.216(2).

2. The Department ' s statutory mission is to increase public safety by

reducing juvenile delinquency through effective prevention, intervention, and

treatment services that strengthen families and turn around the lives of

troubled youth. § 985.01, Fla. Stat. Pursuant to this mission, the

Department ' s Office of Detention Servi ces operates 21 detention centers

throughout the State of Florida. These detention centers provide for the care,

custody, and control of youth who are taken into custody and placed into

detention care. See § 985.255, Fla. Stat.

3 . Florida statutes establi sh a specific criterion for determining whether

juveniles (persons under the age of 18 , or any person who is alleged to have

committed a violation of law , which occur red prior to the time that person

reached the age of 18 ) are housed in a detention center. Upon placement in a

facility, juveniles are held during all stages of the juvenile justice process,

including while awaiting a court adjudication or disposition, or placement in

a residential facility. §§ 985.03(7), 985.03(18), 985.03(19), 985.24 , and

985 .255, Fla. Stat . , and Fla. Admin. Code R . 63G - 2.014.

4 . Petitioner is currently employed with the Department as a Juvenile

Justice Detention Officer II ( " Detention Officer " ). Petitioner is assigned to the

Collier Regional Juvenile Detention Center ( " Collie r Detention Center " )

located in Naples, Florida. The Collier Detention Center contains 40 beds and

houses juveniles detained by the surrounding Florida circuit courts.

5 . Petitioner is a Black female, who was born and raised in Haiti. At the

time of the fi nal hearing, Petitioner was 45 years old.

6 . Petitioner was initially hired by the Department on December 8, 2017,

as a Detention Officer I. She was promoted to Detention Officer II, with the

rank of Corporal, effective November 9, 2018.

7 . As a Detention Officer, Petitioner is responsible for the direct

supervision of the juveniles in the Collier Detention Center. Petitioner

explained that the Collier Detention Center houses troubled youth, who have

violated Florida law. Petitioner relayed that her primar y responsibility is to

ensure the youth are safe and secure in the detention facility.

8. Petitioner alleges that she experienced unlawful discrimination and

sexual harassment while she worked at the Collier Detention Center.

Petitioner ' s complaint focuse s on the alleged actions of Major Rodney Goss,

the Superintendent of the Collier Detention Center. Petitioner asserts that

Major Goss subjected her to sexual harassment, unlawful discrimination, and

retaliation based upon her sex, age, race, and national o rigin .

9 . Petitioner claims that she had no problems working at the Collier

Detention Center until she rejected Major Goss ' s unwelcome sexually

suggestive and demeaning comments, intimidation, jokes, and offensive

touching. During the final hearing, Peti tioner specifically described the

following incidents:

a. Staff Christmas Party : 3 Petitioner testified that she first experienced

sexual harassment at a Christmas staff cookout that took place in December

2018. Petitioner alleges that during that gathering , Major Goss comment ed

about her physical appearance. Petitioner explained that she was not on duty

that day. Therefore, she wore a dress to the party, instead of her uniform.

Petitioner voiced that when Major Goss saw her in her outfit, he announced

that he would " catch a PREA [Prevention Rape Elimination Act] for that ass. "

b. Offensive Touching : O n February 6, 2019, Petitioner went to Major

Goss ' s office to discuss the actions of another Detention Officer, which

Petitioner found objectionable. According to Petitioner, after she walked into

his office, Major Goss told her to close the door. As she was closing the door,

Major Goss touched her breasts with his hands. At the final hearing,

Petitioner declared that Major Goss ' s " hand always has to get into my boobs. "

3 The Department asserts that the incidents that allegedly took place before August 31, 2019,

are not actionable because they occurred outside the 365 - day statutory time limit. The

undersigned, however, is considering these alleged incidents in this Recommended Order.

See para . 58 below.

c. Comment Regarding Petitioner ' s Haitian Accent : Petitioner allege d that

her immediate supervisor once made fun of her accent, which reflects her

Haitian background. On May 9, 2019, Petitioner met with Major Goss to

discuss the incident. During th is meeting, Petitioner asserted that Major

Goss remarked that her accent is " sexy, " and she should not worry about her

supervisor. Petitioner was very disappointed at Major Goss ' s indifferent

attitude. She felt that the comment was a serious matter. Major Goss,

however, took no action against Petitioner ' s supervisor.

d . Physical Contact : Petitioner complained that in or around August 2019,

Major Goss pushed her against a wall and moved so close to her body that

she felt his private parts.

e . Work Schedule M odification : On September 20, 2019, Petitioner asked

Major Goss about adjusting her work schedule so that she could have

Sundays and Mondays off. Petitioner told Major Goss that she " would do

anything " to get those two days off ( such as extra work ) . Petiti oner testified

that when Major Goss heard her plea, he replied, " You will do anything? " He

then laughed, walked to a white board in his office, and drew a picture of

female and a male having sex. Upon seeing Major Goss ' s drawing, Petitioner

expressed, " tha t ' s how you look at me? " She then called him a foul name and

left his office. Major Goss did not modify Petitioner ' s work schedule.

f . COVID Protective Equipment : On August 3, 2020, Major Goss failed to

respond to Petitioner ' s email regarding working with a COVID - 19 positive

youth. Petitioner specifically requested Major Goss provide her with Personal

Protective Equipment ( " PPE " ). At the final hearing, Petitioner conceded that

Major Goss did, e ventually, supply her with adequate PPE .

g . Verbal Harassment : On August 28, 2020, Petitioner encountered Major

Goss at work, where she claims he announced, " Are you still here? I ' m

working on firing you . " Major Goss allegedly made this statement in front of

other detention facility staff. (Major Goss did not fire Pet itioner.)

h . Request for Uniform : In September 2020, Petitioner requested a

uniform from Major Goss. She claims that he n ever gave her a new uniform ,

purportedly because she rejected his sexual advances.

i . Application for a Registered Behavior Technicia n Position : On August 3,

2020, Petitioner applied to become a Registered Behavior Technician ( " RBT " )

for the Collier Detention Center. She was not selected for the position.

Instead, the job was given to a younger Black person. Additional RBT

position s wer e given to two w hite male s . Petitioner believed that she was

qualified to become an RBT, as well as had seniority over the other two

employees who were selected for the opening.

j . Application for Facility Training Coordinator : Later, Petitioner applied

t o be a Facility Training Coordinator ( " FTC " ) for the Collier Detention

Center. The FTC position required a Detention Officer to assume additional

duties and responsibilities. It also awarded a five - percent raise. Petitioner

testified that Major Goss select ed a Department employee (a Black female)

from another detention facility as the Collier Detention Center FTC.

Petitioner believes that she was more qualified tha n the other employee.

Petitioner contends that Major Goss purposefully did not to promote her to

either the RBT or FTC positions in retaliation for her refusal to have sex with

him.

k . Detention Officer Promotions : Petitioner testified that she suspected

that the Collier Detention Center staff had to perform sexual favors for

promotions. To support this allegation, Petitioner reported that she heard

about a specific incident in May or June 2020 when another Detention Officer

danced provocatively in front of Major Goss. Major Goss then linked arms

with her, and they walked together into the detention facility breakroom.

l . Workers ' Compensation Injury : At the final hearing, Petitioner

described a disturbance at the Collier Detention Center on May 4, 2020, in

which she injured her knee interceding in a fight between two youths.

Petitioner immediately made a First Report of Injury or Illness to initiate a

workers ' compensation claim. On May 9, 2020, when she reported her

workers ' compensation - related injury to Major Goss , Petitioner alleges that

he told her that she was faking it, and there was nothing wrong with her

knee. He also exclaimed that she was " just too old. " Petitioner voiced that

Major Goss ' s comment about " faking " her knee injury was retaliation for

rejecting his desire to have sex with her. Despite Major Goss ' s alleged

statements, the Depar tment, by letter dated May 13, 2020, placed Petitioner

on alternate duty status. Petitioner was expected to perform duties, " which

have been assigned within the current physical restrictions outlined by your

physician. " On June 30, 2020, Major Goss was not ified that Petitioner had

reached maximum medical improvement, with a zero - percent impairment

rating.

1 0 . In addition to the above specific incidents, Petitioner testified that she

was " always afraid " of Major Goss. He cause d her anxiety and stress. She

ex pressed that she felt threatened by him because she feared that whenever

he came near her , he would talk about sex or ask her for sex. She feels that

he looked at her like a sex object. Petitioner expressed that she wants to

succeed at her job, and " not ha ve to sleep with anyone to get there . "

Consequently, she tr ied to avoid Major Goss at work.

11. Petitioner further declared that her work environment was full of

sexual incidents involving other Department employees. Petitioner alleged

that Major Goss touc hed her breasts on " multiple " occasions, then would tell

her that it was an accident.

1 2 . Finally, Petitioner claimed that in the summer of 2020, she went to

Major Goss and threatened to report him " to Tallahassee. " Major Goss,

however, dismissed her prono uncement stating, " Who are they going to

believe? " Petitioner asserts that her reprimands only occurred after she

rejected Major Goss ' s sexual advances.

1 3 . On August 28, 2020, Petitioner filed a formal sexual harassment

complaint with the Department.

1 4 . Currently, Petitioner still works as a Detention Officer at the Collier

Detention Center. However, Petitioner declared that Major Goss ' s actions

have severely, adversely affected her ability to perform her job.

1 5 . Petitioner also believes that the Depar tment has discredited or

outright ignored her complaints of discrimination and harassment. Petitioner

testified that she did not report the incidents of harassment before

August 2020 because she was afraid that she would lose her job or be

punished at work . But now that she has notified the Department, Petitioner

is very frustrated that the Department has not ma d e any adjustment or

change to her job duties or status based on her complaints against Major

Goss. At the final hearing, Petitioner pleaded that sh e simply cannot work

under Major Goss anymore. She assert ed that the Department is setting her

up for failure.

1 6 . Petitioner also wants the Department to be held accountable for Major

Goss ' s unacceptable behavior. Petitioner declared that no women who wor k

at the Collier Detention Center should feel threatened based on their sex.

1 7 . Despite her tense working relationship with Major Goss, Petitioner

testified that she is a good worker. As proof of her effectiveness, Petitioner

produced her performance eval uation for 2019 - 2020, in which she was given

an overall rating of " Commendable. " In the evaluation, Major Goss

specifically commente d , " Cpl. Baptiste is an exceptional employee within the

department, " and that she " is always reliable [and] does more than j ust get

by. " Petitioner ' s direct supervisor, Captain Samuel Sainval, added that

Petitioner " has the capability to perform at a high level. [Petitioner] is

reliable and shows up to work as scheduled. " Petitioner was awarded either

an " above expectation " or " meets expectation " in all five rating categories.

1 8 . The Department denies that Major Goss, or any other Department

employee, subjected Petitioner to unlawful employment practices based upon

her sex, age, race, or national origin, or in retaliation. At the final hearing,

t he Department maintained that it does not condone or tolerate sexually

offensive or harassing behavior by its employees.

1 9 . The Department initially called Major Goss to testify. As

Superintendent o f the Collier Detention Center, Majo r Goss is responsible for

the operation, safety, and security of the detention facility. In his role, Major

Goss is the ultimate supervis or for all Detention Officers and Department

employees at the Collier Detention Center , including Petitioner.

20 . Majo r Goss has worked for the Department since 2011, when he was

hired as a Detention Officer I. He steadily advanced through the Department

ranks until he was promoted to Superintendent of the Collier Detention

Center in January 2019. Major Goss is also Black .

2 1. At the final hearing, Major Goss firmly denied Petitioner ' s allegations

of discrimination and sexual harassment. Regarding Petitioner ' s specific

charges:

a . Comment Regarding Petitioner ' s Haitian Accent : Major Goss recalled

Petitioner ' s complaint tha t a staff member had belittled her Haitian a ccent.

Major Goss stated that he elected to handle the incident internally a s a

" management " concern . Major Goss testified that he addressed Petitioner ' s

issues with the direct supervisor who allegedly made the d isparaging

comment. Major Goss expressed that they reviewed how to act professionally,

as well as properly interact with subordinates in the work environment. In

addition, Major Goss arranged for a meeting between Petitioner and her

supervisor to discuss h er discomfort with his actions. Major Goss relayed that

he elected not to reprimand or remove Petitioner ' s supervisor. Major Goss

testified that he did not believe that the supervisor ' s comment rose to the

level of discrimination against P etitioner ' s natio nal origin. Major Goss

further denied that he personally ever discriminated against Petitioner

because of her accent or national origin .

b . C OVID Protective Equipment : Major Goss remembered that Petitioner

once emailed him with concerns regarding possible exposure to youth with

COVID in the facility. Major Goss explained that he maintains the PPE for

the detention facility in a central location. Major Goss t estified that he

promptly brought PPE to Petitioner following her request . Therefore, he

believed th at he adequately resolved the issue.

c . Request for Uniform : Major Goss acknowledged that Petitioner emailed

him in September 2020 regarding her uniform. To the best of his memory,

Petitioner had not been wearing the proper uniform pants. Therefore, she

wa s out of compliance. Major Goss stated that he was able to requisition the

appropriate pants for Petitioner. Accordingly, he believe d he resolved her

issue.

d . Detention Officer Promotions : Major Goss admitted that on one

occasion he walked arm - in - arm with a Detention Officer into the Collier

Detention Center breakroom. Major Goss urged that there was nothing

sexual about their actions, and at no point were they outside the sight of

other Department employees. At most, Major Goss represented that they

w ere simply joking around .

22 . Major Goss staunchly refuted Petitioner ' s accusations regarding the

following alleged incidents . He roundly stat ed that they " never happened . "

a. Staff Christmas Party : Major Goss denied that he made any comments

about Petitioner ' s appearance or attire during the staff Christmas party in

December 2018.

b . Offensive Touching : Major Goss denied that he inappropriately touched

Petitioner in his office on February 6, 2019 , or at any other time .

c . Work Schedule Modification : Major Gos s denied Petitioner ' s allegation

that he drew a picture of two people having sex on the dry erase board in his

office.

d . Verbal Harassment : Major Goss denied that he had any conversation

with Petitioner in which he announced that he was firing her . Neithe r did he

ever ask her, " Why are you still working here ? "

e . Workers ' Compensation Injury : Major Goss admitted that he was aware

that Petitioner suffered a knee injury in May 2020. Major Goss denied that

he had a follow - up discussion with Petitioner in whi ch he told her that she

was " too old. "

23 . Vincent Vurro is Chief, Detention Services South Region, for the

Department. In t his role, Mr. Vurro oversees the administration and

operation for the Detention Services South Region, including personnel issues

an d day - to - day support. Chief Vurro relayed that the South Region includes

seven detention facilities, including the Collier Detention Center.

24 . Chief Vurro testified regarding several disciplinary actions that the

Department took against Petitioner in 202 0. Chief Vurro relayed that, per

Department procedures, request s to discipline Detention Officers are routed

from the detention facility superintendents up to the South Regional office.

Therefore, Chief Vurro was personally aware of, and able to testif y re garding,

the following disciplinary actions against Petitioner:

25 . Oral Reprimand, January 2, 2020 :

a. Chief Vurro relayed that Petitioner received an oral reprimand on

January 2, 2020 . The reprimand w as based on a report that Petitioner

engaged in a ver bal argument with a co - worker during a shift change

briefing. Chief Vurro explained that, prior to shift change s at d etention

facilities , Detention Officers meet to discuss the upcoming day, as well as

share pertinent information. Chief Vurro asserted that the oral reprimand

was warranted because Petitioner ' s " unprofessional " conduct was disruptive

and could have affected staff performance. Chief Vurro stated that

Petitioner ' s actions violated Facility Operating Procedure 1.05, which

requires employees to b e " courteous, considerate, respectful and prompt in

dealing with an d serving the public and co - workers. "

b. Major Goss reiterated Chief Vurro ' s testimony on the importance of

orderly shift changes . Major Goss voiced that the Collier Detention Center is

ma nned 24 hours a day. Therefore, he must ensure that Detention Officers

properly coordinate any work issues when starting their duty days. Major

Goss explained that each of the three work shifts at his facility overlap s by

approximately 30 minutes. During t his time, Detention Officers discuss any

outstanding concerns . Consequently, he felt compelled to reprimand

Petitioner based on the disruption she caused during the shift change. He

believed that the oral reprimand was necessary and proper.

26 . Written Re primand, May 7, 2020 : Chief Vurro relayed that Petitioner

received a written reprimand on May 7, 2020, for failing to timely radio in a

" Code Whit e " after she observed a youth who threatened to intentionally

harm herself. 4 Following his review of a video o f the encounter, Chief Vurro

determined that Petitioner did not instantly act to assist the youth in danger.

Petitioner lost sight of the youth when she decided to use a phone to call for

assistance, instead of her Department - issued radio that should have been

carried on her belt.

27 . Written Reprimand, May 29, 2020 : Chief Vurro testified that, on

May 29, 2020, Petitioner was given a written reprimand based on her failure

to carry her Department - issued radio while on duty. The discipline was based

on an in cident that occurred when Petitioner was conducting eight - minute

checks through her area of the facility. Petitioner encountered a youth who

was exhibiting suicidal behavior. Petitioner, however, had removed her radio

from her belt and left it some distanc e away. Therefore, Petitioner had to

request another youth call for assistance with her radio while she responded

to the situation. Petitioner was disciplined for inefficiency or inability to

safely perform assigned duties and failure to have immediate acc ess to a

radio.

28 . Upon questioning, Chief Vurro conceded that he never personally

discussed with Petitioner the circumstances behind the above incidents.

4 Facility Operating Procedure 5.06 establishes color codes for Detention Officers to use to

announce emergencies during radio communications. A " Code White " represents " Cut Down;

Knife for Life required. " Chief Adrian Mathena explained that in civilian parlance, " Code

White " stands for a medical emergency, and " Cut Down " means a suicide attempt.

Instead, he decided that the reprimands were warranted based on the

evidence present ed to him, whi ch primarily consisted of video recordings of

the May 7 and May 9 incidents.

29 . Application for Registered Behavior Technician :

a. Chief Vurro was also involved in Petitioner ' s application to be an RBT.

Chief Vurro described an RBT a s an officer who wou ld assist in a detention

facilit y ' s behavior modification program. Chief Vurro explained that he did

not consider the RBT position to be a promotion. He testified that the job did

not award a salary increase or bonus. Instead, the applicant selected for th e

position would simply receive a certification.

b. Major Goss further detailed that the Collier Detention Facility had

created three RBT positions , one for each work shift. He also proclaimed that

he did not directly select wh ich Detention Officers w ere to fill the RBT

openings . Instead, he simply reviewed names submitted to him from the

immediate supervisors, then signed off on their recommendations. Major

Goss stated that he did not have any information as to why the supervisors

did not recommend Petiti oner for one of the three RBTs. Further , like Chief

Vurro, Major Goss did not consider the RBT position to be a promotion

because it did not entitle a Detention Officer to more pay or rank. Rather , the

Detention Officer merely participated in an RBT certif ication course . At that

point , the Detention Officer would be prepared to use their RBT training to

perform additional duties.

30 . Application for Facility Training Coordinator :

a. Regarding Petitioner ' s application to be an FTC , Chief Vurro testified

t hat Major Goss selected the Detention Officer s who were to be considered for

the position, then he (Chief Vurro) approved the pick . As for the specific

reason Petitioner was not selected, Chief Vurro stated that, to qualify as an

FTC, the Detention Officer must have served as a Detention Officer II for at

least three years. Chief Vurro asserted that, at the time Petitioner applied,

she had less than the required time in grade. Therefore, she did not qualify

for the opening . On the other hand, t he Detention Officer who he ultimately

chose for the role did have the required service time.

b. Major Goss repeated Chief Vurro ' s testimony that he did not select who

filled the FTC position. Instead, Major Goss gathered the application s, then

forwarded them to Chief Vurro as the regional director. Major Goss

maintained that he did not have personal knowledge as to why Chief Vurro

did not choose Petitioner as the Collier Detention Center FTC. Major Goss

offered that he heard that some of the applicants did not have suf ficient time

in grade to qualify for the position. Major Goss further acknowledged that the

FTC position came with a five - percent raise.

31 . Adrian Mathena is the Chief of Policy Development and Planning for

Detention Services for the Office of Detention Services. In his role,

Mr. Mathena has knowledge of the mission and duties of the Department ' s

d etention s ervices, specifically regarding the budget, operation, and

management of j uvenile d etention f acilities. Chief Mathena is also involved

in detention fa cility personnel decisions.

32. Chief Mathena expressed that Detention Services exists to make a

positive impact on juveniles in custody. Accordingly, Detention Services

endeavors to provide a safe, secure, and humane environment to the youth

entrusted to Department supervision.

33 . Regarding Petitioner ' s written reprimands in May 2020 , Chief

Mathena explained that the Department require s Detention Officers to

maintain their radios on their persons at all time. Chief Mathena explained

that Detention Officer s must have immediate access to their radios in case

they need to call for assistance .

34 . Regarding Petitioner ' s application for the FTC position, Chief

Mathena concurred with Chief Vurro ' s testimony that the Department

required three years of Detention Officer II experience prior to acceptance

into the program. Chief Mathena professed that the FTC program is " highly

selective. " Chief Mathena also echoed Chief Vurro ' s testimony that the

program required the Detention Officer to assume additional responsib ilities ,

which would bestow a five - percent boost in pay.

35 . Regarding Petitioner ' s application to be an RBT, Chief Mathena

relayed that , when the program initially started, the Department envisioned

one technician in every d etention f acility. However, th is arrangement soon

proved problematic. Consequently, at this time, the Department no longer

offers th e RBT certification or position.

36 . Department Investigation :

a. Following Petitioner ' s formal complaint of sexual harassment to the

Department on Augu st 28, 2020, t he Department opened an internal

investigation into Petitioner ' s allegations against Major Goss. To describe

and explain the Department ' s investigation proce ss and conclusions, the

Department called several witnesses from the Department ' s Off ice of

Inspector General ( " OIG " ).

b. Darrell Furuseth is Chief of Investigations for the OIG. In his role,

Chief Furuseth coordinated and supervised the investigation into Petitioner ' s

allegations of sexual harassment and unlawful discrimination.

c . Chief Furuseth began his testimony by e xplain ing that Petitioner ' s

complaint, like all sexual harassment allegations and complaints within the

Department, was channeled through the Department ' s Central

Communication Center ( the " CCC " ). Chief Furuseth relayed tha t, on

August 28, 2020, the CCC received a phone call reporting sexual harassment

b y a Department employee. The Reporting Person ( the caller) was Bonia

Baptiste (Petitioner), and she identified Rodney E. Goss (Major Goss) as the

subject of her complaint. As supporting background information, Petitioner

declared that Major Goss " made comments about her breasts. " She further

a ccused him of embarrass ing her " in front of the other staff by threatening to

terminate her , " and once " push ing [ her ] into a corner as h e walked by. "

Petitioner also stated that she suspected that staff at the Collier Detention

Center were " performing se x acts in exchange for advancement. " Finally,

Petitioner questioned the selection of another Detention Officer for employee

of the month.

d . Thereafter, the OIG initiated an investigation into Petitioner ' s

allegations. Specifically, the OIG investigated Major Goss for " Improper

Conduct; Sexual Harassment (staff on staff). " As part of the investigation, the

OIG interviewed both Petitioner an d Major Goss. The OIG further

interviewed Petitioner ' s direct supervisor (CPT Sainval), as well as six of

Petitioner ' s fellow Detention Officers from the Collier Detention Center.

e . Upon completion of the investigation, o n October 9, 2020, the OIG

conven ed a n EEO Resolution Panel to determine whether " cause " existed to

substantiate Petitioner ' s complaint. T he Resolution Panel concluded that

" there was ' No Cause ' to believe alleged sexual harassment occurred. "

f. Chief Furuseth , who served on the Resolut ion Panel, explained that the

Resolution Panel looked for specific corroborating evidence or witnesses to

confirm Petitioner ' s complaint. T hey found none. 5 Neither did the

investigation uncover any photographs or videos supporting Petitioner ' s

allegations. Chief Furuseth urged that in reaching its conclusion, the

Resolution Panel objectively looked at the totality of the investigation and

considered all the witness statements.

g . On October 20, 2020, the OIG prepared a written Report of

Investigation stati ng, " Based on the lack of evidence, it was determined that

a subsequent investigation was not warranted. "

5 Two interviewees whose statements are included in the Report of Investigation expressed

that Petitioner complained to them that Major Goss sexually harassed her. However, the two

interviewees directly denied ever h aving personally observed Major Goss treat Petitioner

improperly or having any personal knowledge of inappropriate conduct on the part of Major

Goss. These recorded accounts, while generally bolstering Petitioner ' s accusations of

interoffice strife , are cl early hearsay in that they are out - of - court statements by two

individuals who did not appear at the final hearing. Consequently, the comments are

insufficiently reliable to serve as a basis for a factual finding. See § 120.57(1)(c), Fla. Stat.

See also Dam ask v. Ryabchenko , -- So.3d -- , WL 4979083 (Fla. 4th DCA Oct. 27,

2021)( " Inadmissible hearsay cannot be competent, substantial evidence. " ); and Mace v. M&T

Bank , 292 So. 3d 1215, 1226 (Fla. 2d DCA 2020).

37 . Dixie Fosler is the Assistant Secretary for Detention Services for the

Department. In her role, Ms. Fosler oversees operations for all 21 Detent ion

Centers in Florida. Ms. Fosler testified regarding the operation and

management of the detention facilities, as well as personnel policies and

procedures governing detention facilities and office r s. Ms. Fosler also served

on the EEO Resolution Panel th at investigated Petitioner ' s allegations of

sexual harassment.

38. Ms. Fosler initially expressed that the Department will not tolerate

sexual harassment, and sexual harassment by Department employees is a

terminable offense. That being said, Ms. Fosler re presented that the OIG ' s

investigation into Petitioner ' s complaint did not uncover any evidence to

corroborate Petitioner ' s allegations. Neither did the investigation contain any

witness statements supporting Petitioner ' s claims.

39 . On the other hand, Ms. Fosler relayed that the Resolution Panel had

several concerns regarding other conduct by Major Goss. First, during the

investigation, Major Goss described a recent encounter with Petitioner when

she looked upon him with disgust. Reacting to her look, Majo r Goss uttered,

" The feeling is mutual. " The Resolution Panel was alarmed at Major Goss ' s

open declaration of " disgust " at a Department employee. The Resolution

Panel felt that Major Goss ' s expressed negative attitude towards a Detention

Officer was unprof essional. Second, the Resolution Panel was troubled when

it learned that Major Goss walked arm - in - arm with a subordinate into the

Collier Detention Center breakroom suggesting that the two of them might

engage in a romantic rendezvous Ï even in a joking ma nner. The Resolution

Panel believed that Major Goss ' s actions were " too playful " for a supervisor to

engage in.

40 . Based on these accounts, the Department issued Major Goss a written

reprimand, dated October 20, 2020, for " unacceptable behavior. " The

Dep artment specifically determined that Major Goss ' s conduct was

" considered a violation of law or agency rules, and unbecoming for a public

employee. " The written reprimand warned Major Goss that, as

Superintendent, he is " expected to always demonstrate a pr ofessional

demeanor and act in a respectful manner. "

4 1. During the final hearing, Major Goss acknowledged his written

reprimand . However, he pointed out that he was not punished for any

discrimination or harassment involving Petitioner. Major Goss further stated

that he received no discipline beyond the written reprimand. However, he

relayed that the Department required him to attend sexual harassment

training. Further, the Department installed cameras in the administration

area, breakroom, and the superin tendent ' s office at the Collier Detention

Center to alleviate any concerns regarding possible future misconduct.

42 . Petitioner, in response to testimony describing her reprimands,

assert ed that the Department ' s disciplinary action w as not proper. Instead ,

Petitioner declared that she was reprimand ed only because she refused to

have sex with Major Goss. At the final hearing, Petitioner pointed out that all

the reprimands occurred after the alleged sexual harassment began.

43 . Regarding the January 2, 2020, oral reprimand, Petitioner confirmed

that this disciplinary action followed an argument she had with another

Detention Officer during a shift change . At the final hearing, Petitioner

explained that she was trying to diffuse a personal conflict with the ot her

employee. Petitioner asserted that this reprimand was not justified because

her actions did not place any youth in danger. Petitioner further commented

that Major Goss " makes a problem out of everything because I won ' t have sex

with him. "

44 . Regarding the May 7, 2020, written reprimand, Petitioner recounted

that she had attempted to call for help during the incident , but her radio did

not work. Therefore, she was forced to use a phone to call for assistance.

Consequently, Pe titioner contended the disci pline was not warranted.

45 . Regarding the May 29, 2020, written reprimand, Petitioner asserted

that when she saw a juvenile at risk of harm ing herself, she immediately

reacted. She only requested t he other youth call for help because she was

struggling to manage the situation. Petitioner further stated that she had

previously removed her radio from her belt because she had completed her

eight - minute bed check, and all the youth were safe and secure. Petitioner

added that other Detention Officers did not al ways carry their radios on their

belts.

46 . Based on the competent substantial evidence in the record, the

preponderance of the evidence does not establish that t he Department

discriminated against Petitioner based on h er race, sex, national origin , or

a ge, or in retaliation for participating in a protected activity. The most

persuasive evidence presented during the final hearing does not corroborate

Petitioner ' s allegations of discrimination or sexual harassment. On the

contrary, t he testimony from t he D epartment witnesses, in particular, Major

Goss, is credible and is credited. Further, the evidence establishes that

Petitioner was disciplined appropriately and not as retaliation for her

complaint. Accordingly, Petitioner failed to meet her burden of prov ing that

t he Department committed an unlawful employment action against h er in

violation of the FCRA.

C ONCLUSIONS OF L AW

47. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this cause pursuant to section s 120.569,

120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y -

4.016.

48. Petitioner brings thi s matter alleging that the Department:

1) discriminated against her based on her sex in violation of the FCRA, 6

2) created a hostile wo rk environment through sexual harassment , and

3) retaliated against her based on her participation in a protected activity.

49. The FCRA protects individuals from discrimination in the workplace.

§§ 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 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, beca use of

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

pregnancy, national origin, age, handicap, or

marital status.

50. The FCRA also protects employees from certain retaliatory acts. The

FCRA ' s anti - retaliation provision is found in section 760.10(7) and states:

It is an unlawful employment practice for an

employer È to discriminate against any person

because that person has opposed any practice

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.

6 Petitioner als o asserted that the Department discr iminated against h er based on h er r ace

( Black ), national origin ( Haitian), and age (45 years old). However, the evidence in the record

does not support a claim that the Department made any employment decisions (adverse or

otherwise) or discriminated agains t Petitioner based on these protected classifications.

Further, to the extent that Major Goss may have expressed that Petitioner was injured

because she was " too old " or that her Haitian accent was " sexy, " t he undersigned finds th ese

isolated comments mo re accurately fall into the category of " stray remarks . " See Parris v.

Keystone Foods, LLC , 959 F. Supp. 2d 1291, 1308 (N.D. Ala. 2013)( " Stray remarks in the

work place ... unrelated to the decisional process itself [cannot] suffice to satisfy the

plaintif f ' s burden. " ) ; and Rojas v. Florida , 285 F.3d 1339, 1343 (11th Cir. 2002)( " [A]n isolated

comment, unrelated to the decision to fire [the plaintiff], it, alone, is insufficient to establish

a material fact on pretext. " ) As such, these alleged statements, al one, do not sustain an

action under the FCRA.

51. Section 760.11(7) permits a party for whom the Commission

determines that there is not reasonable cause to believe that a violation of

the FCRA ha s occurred to request an admin istrative hearing before DOAH.

Following the hearing, if the Administrative Law Judge ( " ALJ " ) finds that a

discriminatory act has occurred, the ALJ " shall issue an appropriate

recommended order to the commission prohibiting th e practice and

recommending affirmative relief from the effects of the practice, including

back pay. " § 760.11(7), Fla. Stat.

52. The burden of proof in an administrative proceeding, absent a

statutory directive to the contrary, is on the party asserting t he 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)( " The general rule is that a party

asser ting the affirmative of an issue has the burden of presenting evidence as

to that issue. " ). Thus, Petitioner bears the burden of proving her allegations

of discrimination or harassment. The preponderance of the evidence standard

is applicable to this matte r. § 120.57(1)(j), Fla. Stat.

53. 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 applicable 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. 1st DCA

1996).

54. Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela , 18 So. 3d at 22. Direct evidence is evidence that, if

believed, would prove the existence of discriminatory intent behind the

employment decision without any inference or presumption. Denney v. C ity of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno , 115

F.3 d 1555, 1561 (11th Cir. 1997). Courts have held that "' only the most

blatant remarks, whose intent could be nothing other than to discriminateÈ '

will constitute direct evidence of discrimination. " Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations

omitted).

55. The record in this matter does not contain direct evidence of sex

discrim ination on the part of the Department. Simila rly, the record in this

proceeding contains no statistical evidence of discrimination by the

Department .

56. In the absence of direct or statistical evidence of discriminatory intent,

Petitioner must rely on circumstantial evidence to pr ove a claim of

disc rimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and

its progeny ; Va lenzuela , 18 So. 3d at 21 - 22; and St. Louis v. Fla. Int ' l Univ. ,

60 So. 3d 455, 458 (Fla. 3d DCA 2011).

57 . T he ultimate burden of persuading the trier of fact that " the

[respondent] intentionally discriminated against the [petitioner] remains at

all times with the [petitioner]. " Tex. Dep ' t of Cmty. Aff. v. Burdine , 450 U.S.

248, 252 - 256 (1981) ; Valenzuela , 18 So. 3d at 22.

58 . Continuing Violation Doctrine :

a. As an init ial procedural concern , the Department assert s that this

matter should be limited to conduct that allegedly took place no earlier than

August 30, 2019. The Department bases its argument on the fact that

Petitioner formally filed her discrimination complain t with the Commission

(the TAQ) on August 31, 2020. Consequently, t he Department contends that

all discrete acts of sexual harassment, unlawful discrimination, or retaliation

that occurred prior to one year from this date ( August 30, 2019 ) must be

excluded from consideration as time - barred pursuant to section 760.11(1).

Section 760.11(1) states:

Any person aggrieved by a violation of ss. 760.01 -

760.10 may file a complaint with the commission

within 365 days of the alleged violation, naming

the employer, È a nd describing the violation.

In light of this limited time period , the Department argues that Petitioner ' s

allegations of Major Goss ' s alleged misconduct at the staff Christmas party

(December 2018), the offensive touching (February 6, 2019), his comment

a bout Petitioner ' s " sexy " accent (May 9, 2019), and the physical contact

(August 2019) are untimely and no longer actionable.

b . T he Department is correct that, ordinarily, Petitioner ' s complaint

should be limited to alleged discrimination that occur with in the 365 - day

period preceding the day Petitioner filed her complaint with the Commission.

Woodham v. Blue Cross & Blue Shield of Fla . , Inc ., 829 So. 2d 891, 894 (Fla.

2002)( " As a prerequisite to bringing a civil action based upon an alleged

violation of the FCRA, the claimant is required to file a complaint with the

FCHR within 365 days of the alleged violation. " ); Avila v. Childers , 212 F.

Supp. 3d 1182, 1188 (N.D. Fla. 2016) ( " Discrimination claims under the

FRCA [ s ic] must be filed within 365 days of t he alleged unlawful employment

practice. " ); and Wolf v. MWH Constructors, Inc. , 34 F. Supp. 3d 1213, 1222

(M.D. Fla. 2014)(a plaintiff cannot recover for discrete acts of discrimination

and retaliation that occur outside the applicable statutory time perio d set

forth in section 760.11(1), i.e. , 365 days). Discrete discriminatory acts, such as

termination, failure to promote, etc., are not actionable if time barred, even

when they are related to acts alleged in timely filed charges. Each discrete

discriminat ory act starts a new clock for filing charges alleging that act. Nat ' l

R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113 (2002).

c . However, the " continuing violation doctrine " offers an exception to this

limitation period and allows a petitioner to asse rt otherwise time - barred

claim s where at least one violation occurred within the allowable filing

period. Hipp v. Liberty Nat ' l Life Ins. Co. , 252 F.3d 1208, 1221 (11th Cir.

2001). " In determining whether a discriminatory employment practice

constitutes a continuing violation, [the court] must distinguish between the

present consequence of a one - time violation, which does not extend the

limitations period, and the continuation of the violation into the present,

which does. " EEOC v. Joe ' s Stone Crabs, Inc. , 296 F.3d 1265, 1271 (11th Cir.

2002). A petitioner must maintain that " a pattern of discrimination or an

employment practice presently exists to perpetuate the alleged wrong. "

Jacobs v. Bd. of Regents , 473 F. Supp. 663, 669 (S.D. Fla. 1979).

d . On its fa ce, Petitioner ' s testimony describes an offensive work

environment in which a n ongoing series of sexually harassing actions and

comments began in December 2018 and continued, unabated, through

September 2020. Therefore, in reviewing Petitioner ' s allegation s, the

undersigned determines that all of the alleged incidents described herein flow

out of the same alleged wrongful actions and motivations that fall within the

applicable statutory time period. Accordingly, all of Petitioner ' s cognizable

complaints are reviewed in the scope of this action.

59. Turning to Petitioner ' s specific allegations, b ased on the testimony

presented at the final hearing, Petitioner primarily asserts a sexual

harassment claim against the Department . " Sexual harassment is a form of

s ex discrimination prohibited by the Florida Civil Rights Act, so that an

employee may assert a claim for sexual harassment under section 760.10,

Florida Statutes. " Branch - McKenzie v. Broward Cnty . Sch. Bd. , 254 So. 3d

1007, 1012 (Fla. 4th DCA 2018) ; and Ma ldonado v. Publix Supermarkets , 939

So. 2d 290, 293 (Fla. 4th DCA 2006). There are two types of sexual

harassment cases: (1) quid pro quo, which are "' based on threats which are

carried out ' or fulfilled; " and (2) hostile environment, which are based on

" b othersome attentions or sexual remarks that are sufficiently severe or

pervasive to create a hostile work environment. " Branch - McK e nzie , 254 So.

3d at 1012 (citing Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 751 (1998) ) .

60. Quid Pro Quo :

a. Petiti oner asserts that Major Goss ' s conduct is " classic " quid pro quo

sexual harassment. According to Petitioner, Major Goss signaled to Petitioner

that he wanted to have sex with her. Petitioner rejected his overtures.

Thereafter, Major Goss (and the Departmen t) imposed on Petitioner a

number of unfavorable employment actions , including several " bogus "

reprimands, denying her promotion opportunities, and refusing to modify her

work schedule.

b. Quid pro quo sexual harassment is evident when " the employee ' s

re fusal to submit to a supervisor ' s sexual demands results in a tangible

employment action being taken against her. " Hulsey v. Pride Rests . , LLC , 367

F.3d 1238, 1245 (11th Cir. 2004) . A tangible employment action is " a

significant hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in

benefits. " Id. ; and Johnson v. Booker T. Washington Broad. Serv., Inc. , 234

F.3d 501, 512 (11th Cir. 2000) . An employer is liable under Title VII if " it

(even unknowingly) permits a supervisor to take a tangible employment

action against an employee because she refused to give in to his sexual

overtures. " Hulsey , 367 F.3d at 1245 .

c . At the final hearing, Petitioner ' s testimony, in isolation, included

sufficient information to assert quid pro quo sexual harassment. However,

based on the evidence in the record, P etitioner did not carry h er ultimate

burden of proving either the alleged sexual advances by Major Goss, or that

she suffered a tangibl e adverse employment action because she turned down

the same. On the contrary, the competent substantial evidence does not

connect (or prove a connection between) Petitioner ' s gender with, 1) the

Department ' s decision not to promote her, 2) the Department ' s decision to

issue Petitioner three reprimands in 2020, or 3) Major Goss ' s decision not to

modify her work hours .

d. Instead, the facts adduced at the evidentiary hearing establish that the

Department ' s decisions concerning Petitioner were not attribut ab le to

wrongful harassment or based on a discriminatory animus. Regarding the

promotion decision, the Department witnesses (Vurro, Goss, and Mathena)

provided cogent and logical reasons why Petitioner was not selected for either

the FTC or RBT positions. Ch ief Vurro persuasively testified that the FTC

post required the applicant to have three years of Detention Officer II

experience. (Indisputably, Petitioner did not possess that time in grade when

she applied, and therefore, was not qualified for the job.) As far as the RBT

position, Major Goss credibly explained that he filled the RBT jobs based on

the recommendations from the detention facility supervisors. No evidence

links his selection of other candidates for RBT positions with a d iscriminatory

motive o r Petitioner ' s sex. In addition, the Department witnesses raised a

valid point that an RBT certification should not be considered a promotion

because it does not represent a change in job responsibilities or a tangible

employment benefit. 7 Further, Petitio ner did not demonstrate that the

Department ' s explanations of the selections for the FTC and RBT p osition s

are false, implausible, inconsistent, or not worthy of credence.

e. Regarding Petitioner ' s three reprimands in 2020, the Department

witnesses (Vurr o, Goss, and Mathena) convincingly set forth legitimate non -

discriminatory grounds why the Department disciplined Petitioner, none of

which are related to an (allegedly) inappropriate interaction between

Petitioner and Major Goss. Each reason (disruption o f a shift change, failure

to properly assist a youth in danger, and failure to properly carry her

Department - issued radio on two occasions , which impacted the safety of the

detention facility, as well as violated Department Facility Operating

Procedure s) i s supported by testimony, as well as acknowledged by

Petitioner. Further, Petitioner did not prove that the reasons the Department

cited were false or implausible. Neither did Petitioner prove that either a

protected class (her race, sex, national origin, or age) or her refusal to have

sex with Major Goss were the real reasons for the discipline.

7 Failure to promote is a distinct claim that may be asserted under the FCRA. Denney , 247

F.3d at 1183. However, a failure to promote claim fails for the same reason as cited above,

i.e., Petitioner was not qualified for the FTC position, and Petitioner did not prove that

unlawful discrimination based on Petitioner ' s sex was the real reas on she was not awarded

the RBT position.

f. Finally, regarding Petitioner ' s work hours, although little testimony was

offered to explain why Major Goss did not adjust Petitioner ' s schedule, again,

the evi dence does not support Petitioner ' s allegation that Major Goss denied

her request because she refused his sexual advances. Consequently,

Petitioner did not present sufficient evidence to prove quid pro quo sexual

harassment on the part of Major Goss or the Department.

61 . Hostile Work Environment :

a. The undersigned reaches a similar conclusion regarding a hostile work

environment claim. " The ' discriminat [ ion ] ' prohibited by Title VII includes

the creation of a hostile work environment. " Short v. Immokalee Water &

Sewer Dist. , 165 F. Supp. 3d 1129, 1141 (M.D. Fla. 2016) ; and Reeves v. C.H.

Robinson Worldwide, Inc. , 594 F.3d 798 , 807 (11th Cir. 2010) . To establish a

prima facie case of a hostile work environment under the FCRA, Petitioner

must show that: (1) she belongs to a protected group; (2) she was subjected to

unwelcome harassment; (3) the harassment was based on the protected

characteristic; (4) the harassment was sufficiently severe or pervasive to alter

the terms and conditions of her employment and create a discriminatorily

abusive working environment; and (5) her employer is responsible for such

environment under a theory of either vicarious or direct liability. Trask v.

Sec ' y, Dep ' t of Veterans Affs. , 822 F.3d 1179, 1195 (11th Cir. 2016); Blizzard

v. Appliance Direct, Inc ., 16 So. 3d 922, 927 (Fla. 5th DCA 2009) . When an

employee contends that there is sexual harassment by a direct supervisor,

the employee does not have to prove the fifth element to hold the employer

liable. Branch - McKenzie , 254 So. 3d at 1012.

b. Petitioner ' s hostile work environment claim fails for the s ame reason as

her quid pro quo charge. C onsistent with the above findings of fact and

credibility determinations, Petitioner failed to prove by the greater weight of

the evidence th at she was subjected to unwelcomed harassment from Major

Goss.

c. While Petitioner spoke with conviction when describing her experiences

working at the Collier Detention Center, and she levied very serious

accusations against Major Goss, the competent sub stantial evidence

presented at the final hearing does not corroborate her allegations. None of

the witnesses who testified observed the wrongful conduct Petitioner alleges

Major Goss engaged in. Specifically, no evidence or testimony was introduced

that di rectly substantiates Petitioner ' s allegation that Major Goss,

1) improperly commented on Petitioner ' s accent or apparel, 2) verbally

harassed Petitioner, 3) wrongfully contacted or touched Petitioner,

4) unnecessarily delayed providing Petitioner PPE or un iform components, or

in any other manner subjected Petitioner to a discriminatory, hostile, or a

sexually harassing work environment.

d. On the contrary, the Department witnesses, in particular Major Goss,

credibly explained the non - discriminatory nature o f the incidents which were

admitted, and persuasively denied the alleged misconduct that Major Goss

refuted. Petitioner did not present convincing evidence that the Department

witnesses testified untruthfully. Accordingly, in light of all the facts and

tes timony adduced at the final hearing, the evidence in the record is

insufficient to establish that Petitioner wa s discriminated against or sexually

harassed at the Collier Detention Center.

62. Retaliation :

a. Finally, Petitioner did not meet her burden of proving that the

Department retaliated against her based on her participation in an activity

protected by the FCRA. Petitioner specifically alleges that the Department

mistreated her after she filed a workers ' compensation claim, and after she

submitted he r sexual harassment complaint.

b. The FCRA provides that no person shall discriminate against any

individual because such individual has opposed an unlawful employment act

or practice. Stewart v. Happy Herman ' s Cheshire Bridge, Inc. , 117 F.3d 1278,

1287 ( 11th Cir. 1997) ; see also 42 U.S.C. § 12203(a) and § 760.10(7) , Fla. Stat.

c. When a petitioner produces only circumstantial evidence of retaliation

(as in this matter), Florida courts use the burden shifting framework set forth

in McDonnell Douglas . Furc ron v. Mail Ctrs. Plus, LLC , 843 F.3d 1295, 131 0

(11th Cir. 2016) . To establish a prima facie case of retaliation, Petitioner

must demonstrate that: (1) she engaged in statutorily protected activity;

(2) she suffered an adverse employment action; and (3) a causal link exists

between the protected activity and the adverse employment action. Furcron ,

I d. ; and Kidd v. Mando Am. Corp. , 731 F.3d 1196 (11th Cir. 201 3). T he

failure to satisfy any of these elements is fatal to a complaint of retaliation.

Higdon v. Jackson , 393 F.3d 1211, 1219 (11th Cir. 2004).

d . For an action to be " adverse " in the context of retaliation, it " must be

harmful to the point that [it] could well dissuade a reasonable worker from

making or supporting a charge of discrimination. " Wolf v . MWH Constructors,

Inc. , 34 F. Supp. 3d 1213, 1227 (M.D. Fla. 2014); Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006) ; see, e.g., Trask , 822 F.3d at 1194 ( " A

work reassignment may constitute an adverse employment action when the

change is ' so substantial and material that it È alter[s] the terms, conditions,

and privileges of employment . '" ); and Lucas v. W. W. Grainger, Inc. , 257 F.3d

1249, 1261 (11th Cir. 2001)(negative performance evaluations that did not

result in any effect on the empl oyee ' s employment did not constitute " adverse

employment action. " ).

e . In order to establish a " causal connection, " T itle VII (and FCRA)

retaliation claims require the petitioner to prove that the protected activity

was the " but - for " cause of the adverse employment action. Ceus v. City of

Tampa , 803 Fed. Appx. 235, 248 (11th Cir. 2020) ( citing Univ. of T e x. SW

Med. Ctr. v. Nassar , 133 S. Ct. 2517 (2013) ) . This standard demands " proof

that the unlawful retaliation would not have occurred in the absence of t he

alleged wrongful action or actions of the employer. " Nassar , 133 S. Ct. at

2533. In other words, Petitioner must demonstrate that the complained - of

employment decisions would not have occurred " b ut - for " the Department ' s

actual intent to retaliate agains t her because she participated in the

protected activity. See Trask , 822 F.3d at 1194.

f. While working at the Collier Detention Center, Petitioner alleges that

she engaged in two actions that could serve as protected activities. First, in

May 2020, Petit ioner reported an on - the - job injury for which she filed a

workers ' compensation claim. Second, in August 2020, Petitioner formally

submitted a complaint to the Department alleging sexual harassment by

Major Goss. Based on the evidence in the record, howeve r, Petitioner did not

establish a prima facie case of retaliation regarding either activity .

g. Petitioner has not proven that she suffered an " adverse employment

action " that is " causally connected " to either activity. The two " retaliatory "

acts about wh ich Petitioner complains include her written reprimands in

May 2020 and the Department ' s decision not to promote her to the RBT and

FTC positions. No evidence in the record shows that these " adverse

employment actions " are in any way connected to Petitione r ' s two protected

activities. Regarding her workers ' compensation claim, on May 13, 2020,

within days after disclos ing her injury, the Department (following the advice

of her physician) placed Petitioner on alternate duty. Petitioner was allowed

to remain in alternate duty status until she reached maximum medical

improvement in June 2020.

h. Further, the Department presented credibl e legitimate non -

discriminatory bases for disciplining Petitioner with the written reprimands

(failure to maintain her radio on her person, and relying on another youth

detainee to call in the emergency), as well as legitimate non - discriminatory

reasons for not promoting Petitioner (she lacked the necessary qualifications

and the detention facility supervisors (not Major Goss) rec ommended other

Detention Officers to fill the positions.) Additionally, e ven assuming that

Petitioner established a prima facie case of retaliation , she has not shown

that the Department ' s explanations for its actions are merely " pretext, " and

that its tru e motivation s w ere based on her filing a workers ' compensation

and a sexual harassment complaint with the Commission. Accordingly,

Petitioner did not prove that the Department retaliated against her based on

her exercise of a protected activity.

63 . Pet itioner clearly expressed that she experienced some form of conflict

in her work environment. However, the undersigned is mindful that

interoffice strife, alone, is not sufficient to establish a hostile work

environment claim under the FCRA or Title VII. S ee e.g. , McCollum v. Bolger ,

794 F.2d 602, 610 (11th Cir. 1986)( " Title VII prohibits discrimination; it is

not a shield against harsh treatment at the work place. Personal animosity is

not the equivalent of sex discrimination È . The plaintiff cannot turn a

personal feud into a sex discrimination case È . " ). Title VII is not a " general

civility code. " Gupta v. Fla. Bd. of Regents , 212 F.3d 571, 583 (11th Cir. 2000).

Harassment constitutes employment discrimination only if the " workplace is

permeated with di scriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the victim ' s

employment and create an abusive work environment. " Harris v. Forklift Sys.

Inc. , 510 U.S. 17, 21 (1993); see also Gray v. City of Jacksonville , 492 F. App ' x

1, 10 - 11 (11th Cir. 2012)( " In the contemporary American workplace, some

measure of conflict between employers and employees Ð wrought by the

personal and professional stressors that naturally occasion a group of

individuals wor king together in close quarters Ð is inevitable. " ); and Butler v.

Ala. DOT , 536 F.3d 1209, 1213 (11th Cir. 2008)( " [N]ot every uncalled for,

ugly, racist statement by a co - worker is an unlawful employment practice. " ) .

64. In sum, t he evidence and testimony p resented in this matter is not

sufficient to sustain a claim of sexual harassment . Consequently, Petitioner

failed to meet her ultimate burden of proving that t he Department

discriminated against or harassed her based on her race, sex, national origin,

or age , or in retaliation for protected activity . Accordingly, Petitioner ' s

Petition for Relief must be dismissed.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that Petitioner, Bonia Baptiste , did not prove that

Respondent, the Florida Department of Juvenile Justice , committed an

unlawful employment practice against her; and dismissing her Petition for

Relief from an unlawful employme nt practice.

D ONE A ND E NTERED this 22nd day of November , 2021 , in Tallahassee,

Leon County, Florida.

S

J. B RUCE C ULPEPPER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Paul Middle Platte, Esquire

Florida Commission on Human Relations Paul Platte, P.A.

4075 Esplanade Way , Room 110 Suite 252

Tallahassee, Florida 32399 - 7020 611 South Fort Harrison Avenue

Clearwater, Florida 33756

Debora E. Fridie, Esq uire

Department of Juvenile Justice Stanley Gorsica , General Counsel

2737 Centerview Drive , Suite 3200 Flo rida Commi ssion on Human Relations

Tallahassee, Florida 32399 - 3100 4075 Esplanade Way, Room 110

Tallahassee, 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 except ions to this Recommended

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

case.