21-001408 Jennifer L. Landress vs. Fort Walton Beach Medical Center Status: Closed Recommended Order on Wednesday, December 29, 2021.

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

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ENNIFER L. L ANDRESS ,

Petitioner ,

vs. Case No. 2 1 - 1408

F ORT W ALTON B EACH M EDICAL C ENTER ,

Respondent .

/

R ECOMMENDED O RDER

On August 2, 2021 , Administrative Law Judge Robert J. Telfer III, of the

Florida Division of Administrative Hearings ( DOAH ), conducted an

evidentiary hearing pursuant to section 120.57(1), Florida Statutes (201 9 ), in

Tallahassee, Florida , via Zoom conference .

A PPEARANCES

For Petitioner: Jennifer L. Landress

7758 Ramona Drive

Navarre , Florida 32 566

For Respondent s : Cymoril M. White , Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy B oulevard

Tampa , Florida 3 3602

S TATEMENT OF T HE I SSUE S

W hether Respondent , Fort Walton Beach Medical Center (FWB M C) ,

engaged in employment discrimination and , thus , violated the Florida Civil

Rights Act (FCRA) , section 760.10, et seq. , Florida Statutes, by: (a) failing to

accommodate Petitioner , Jennifer L. Landress , because of her alleged

d isability; (b) subjecting Ms. Landress to a hostile work environment on the

basis of her sex; (c) constructively discharging Ms. Landress from

employment; and (d) retaliating against Ms. Landress , and , if so, the

appropriate penalty.

P RELIMINARY S TATEMENT

On September 29, 2020 , Ms. Landress filed a charge of discrimination

with the Florida Commission on Human Relations (FCHR), alleging that

Respondent discriminated and retaliated against her , in violation of the

F CR A . Ms. LandressÔs charge stated:

I believe I have been discriminated against pursuant

to Chapter 760 of the Florida Civil Rights Act, and/or

Title VII of the Federal Civil Rights Act, and/or the

Age Discrimination in Employment Act, and/or the

Americans with Disabilities Act as applicable for the

following reason(s) : Complainant (CP), began her

employment with Respondent in 10/2005 and held

the position of CV Services Specialist. CP was

subjected to disparate treatment, retaliation,

different terms and conditions of employment

because of her sex - fe male and disability. CPÔs sexual

harassment and other events started in 2013, but

what she experienced lasted through October 4,

2019. CP was on medical leave due to sexual

harassment from June 2019 Ï October 4, 2019, when

she resigned as her short - term di sability had run

out. CP was subjected to sexual harassment at the

hands of Dr. Al - Dehneh and subjected to

harassment at the hands of, but not limited to,

Chuck Hall the President of National Group at HCA,

Rob Grant, Andrea Oliver and Nurse Daria (Al -

Dehne h girlfriend). Mr. Hall followed CP into

VictoriaÔs Secret and his comment to Al - Dehneh

was, CP would not be on the market long, because

she had Ña rocking body.Ò Dr. Al - Dehneh stated he

was planning to request CPÔs husband sell her for

5,000. That inciden t was witnessed by Teri Parks

who worked in Cath Lab, He requested CP meet him

for sex, and when she didnÔt, he stated Ñyou are dead

to me,Ò Dr. Al - Dehneh frequently stated, Ñyou will

marry me,Ò and had CP followed from 2018 - 2019.

Dr. Al - Dehneh states havi ng CP followed because

her husband does not care about her and he would

often kick walls between offices and reading rooms

stating, ÑI canÔt let you live.Ò CP was on short - term

disability and was denied a reasonable

accommodation to work by Diane Ristom;

M s. Ristom also denied CP a promotion. Due to the

ongoing sexual harassment and hostile work

environment she was left with no choice but to

resign. CP states that harassment is still ongoing.

On March 26, 2021 , FCHR issued a ÑNotice of Determination of No

Cause,Ò finding that there was no reasonable cause to believe that

Respondent had committed unlawful discrimination on the bases of

disability, sex, and retaliation against Ms. Landress .

On April 23, 2021 , M s. Landress filed a Petition for Relief with FCHR,

again alleging that Respondent had engaged in employment discrimination

against her. FCHR transmitted the Petition to DOAH and assigned the

undersigned Administrative Law Judge (ALJ) to conduct an evidenti ary

hearing.

The undersigned originally noticed this matter for final hearing on

June 14, 2021. On May 25, 2021, FWBMC filed an Unopposed Motion for

Status Conference, which indicated that Ms. Landress had requested a

continuance of the final hearing. Th e undersigned conducted a telephonic

status conference on June 4, 2021, and , thereafter, entered an Order

Rescheduling Hearing by Zoom Conference and noticed this matter for final

hearing on August 2, 2021.

T he undersigned conducted the final hearing on August 2, 2021 , by Z oom

conference . Petitioner testified on her own behalf and presented the

testimony of Dr. Eric Sandwith, Dr. Anthony Al - Dehneh, Teri Park, and

Dr. Leon Chen . The undersigned admitted PetitionerÔs Exhibits P1 through

P6 into evidence. Ju lie Sanders and Dianne Ristom testified on behalf of

Respondent. The undersigned admitted RespondentÔs Exhibits R3, R5, R7,

R11, R12, and R13 into evidence.

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

October 15, 2021 . On Octobe r 20, 2021, the parties filed a Joint Motion for

Extension of Time in which they requested up to November 22, 2021, to file

their proposed recommended orders . On October 21, 2021, the undersigned

entered an Order Granting Extension of T ime to Submit Propos ed

Recommended Orders, allowing the parties until November 22, 2021, to file

proposed recommended orders. On November 16, 2021, Ms. Landress sent a

letter to the undersigned, requesting an additional extension of ti m e to file a

proposed recommended order b ecause of health issues and further requested

the ability to submit additional evidence. On November 17, 2021, the

undersigned entered an Order Granting PetitionerÔs Second Motion for an

Extension to File Proposed Recommended Orders and Denying Request to

Open Hearing Record, which allowed the parties until December 6, 2021, to

file proposed recommended orders and denied Ms. LandressÔs request to

submit additional evidence. On December 6, 2021 , the parties timely

submitted proposed recommended orde r s , which the undersigned has

considered in the preparation of this Recommended Order.

All statutory references are to the 201 9 codification of the Florida Statutes

unless otherwise indicated.

F INDINGS OF F ACT

1. FW BM C hir ed Ms. Landress on October 31, 2005, and employed her for

approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress

resigned her employment with FW B MC on October 4, 2019.

2 . During her employment with FWBMC, Ms. Landress reported to either

Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant,

the former Director of Cardiovascular Services.

3. Between August 30, 2018, and October 4, 2019, FWBMC also employed

Ms. Sanders, Human Resources Business Partner, and Ms. Clark,

Cardiovascular T ech.

4. FWBMC never employed Dr. Al - De h neh (or the other physicians who

testified at the final hearing Ð Dr. Sandwith and Dr. Chen). Dr. Al - Dehneh

has privileges to use FWBMC to provide services to the patients who come to

FWBMC to receive care.

5. Neither Dr. Al - Dehneh nor any of the physicians who testified at the

final hearing were supervisors of Ms. Landress. Further, Dr. Al - Dehneh :

never had a role in Ms. LandressÔs discipline or schedule; never evaluated her

performance; and did not exercise any contr ol over Ms. Landress or affect the

terms or conditions of her employment with FWBMC.

FWBMCÔs Policies Concerning Discrimination and Sexual Harassment

6. FWBMC has a policy entitled ÑEqual Employment

Opportunity/Harassment,Ò which is included in the employee handbook, as

well as on its ÑHR AnswersÒ online portal and intranet.

7. The ÑEqual Employment Opportunity/HarassmentÒ policy states, in

part:

Equal employment opportunities are provided to all

employees and applicants for employment without

regar d to race, color, religion, gender, gender

identity, national origin, age, disability, sexual

orientation, genetic information, or protected

veteran status with applicable federal, state and

local laws.

This policy applies to all terms and conditions of

e mployment, including, but not limited to, hiring,

placement, promotion, termination, layoff, transfer,

leaves of absence, compensation and training.

* * *

Any form of unlawful employee harassment based

on race, color, religion, gender, gender identity ,

national origin, age, disability, sexual orientation,

protected veteran status or any other status in any

group protected by federal, state or local law is

strictly prohibited. Improper interference with the

ability of employees to perform their expected job

duties is not tolerated. Each member of

management is responsible for creating an

atmosphere free of discrimination and harassment,

sexual or otherwise. Further, employees are

responsible for respecting the rights of their co -

workers.

The following i s prohibited:

Ŭ Unwelcome sexual advances, requests for

sexual favors, and all other verbal or physical

conduct of a sexual or otherwise offensive

nature È .

Ŭ Behaviors that engender a hostile or offensive

work environment will not be tolerated. These

be haviors may include, but are not limited to,

offensive comments, jokes, innuendos and other

sexually oriented or culturally

insensitive/inappropriate statements, printed

material, material distributed through electronic

media or items posted on walls or bu lletin boards.

8. FWBMC also has a policy entitled ÑComplaint Procedures,Ò which is

contained in the employee handbook, as well as on its ÑHR AnswersÒ online

portal and intranet.

9. The ÑComplaint ProceduresÒ policy states, in part:

If you experience any job - related harassment based

on race, national origin, religion, gender, gender

identity, color, disability, age or other factor

prohibited by federal, state or local statute, or you

believe you have been treated in an unlawful,

discr iminatory manner, promptly report the

incident to your manager or Human Resources, who

will investigate the matter and take appropriate

action. If you believe it would be inappropriate to

discuss the matter with your manager or Human

Resources, you may byp ass your manager or Human

Resources and report it directly for investigation at

The Ethics Line at [phone number].

10. Ms. Landress testified that she received a copy of the employee

handbook, read the policies contained in it Ð including the policy concer ning

ÑEqual Employment Opportunity/Har a ssmentÒ and ÑComplaint

ProceduresÒ Ð and knew of and utilized them.

11. Ms. Sanders testified that if FWBMC, after investigation by its human

resources department, substantiates a claim of harassment or discrimination

by a physician, it would provide its investigative findings to the medical staff

office, who would then refer the physician to a peer review process that could

culminate in an appropriate action with respect to that physicianÔs hospital

privileges.

12. Th e undisputed evidence at the final hearing revealed that

Ms. Landress reported to FWBMCÔs human resources department that she

was subjected to discrimination and harassment in August 2018, and again

in March 2019.

Allegations of Harassment and Hostile Work Environment

13. Ms. Landress testified that Dr. Al - Dehneh began sexually harassing

her starting in 2013. On August 30, 2018, she met with Ms. Sanders and

Ms. Ristom and discussed this allegation.

14. Ms. Sanders testified of the allegations made by Ms. Landress at the

August 30, 2018, meeting:

That Dr. Al - Dehneh had asked Rob to find women

for him and to get Ms. Landress to sleep with him.

She also indicated that Dr. Al - Dehneh was listening

to her conversations via some sort of recording or

monitoring de vice in her computer. She felt that

Dr. Al - Dehneh had bugged her home through Siri

and had accessed her medical records here at the

facility.

She was afraid for her life and had a gun. She also

felt that Dr. Al - Dehneh was watching her home and

that she to ld us a story about a lady on a bike who

said that she was dead to her. She was afraid to go

to the police about Dr. Al - Dehneh because she had

been told that he was a mobster. And then she did

admit to us at one point that she had started

developing feelin gs for Dr. Al - Dehneh.

15. Ms. Ristom also testified concerning the allegations made by

Ms. Landress at the August 30, 2018, meeting:

She said that Dr. Al - Dehneh had said to her to let

him know when she was ready to get married. She

said that Rob was task ed with getting women and

obtaining sex for Dr. Al - Dehneh. And, you know,

during that time Jennifer told me that Ï told Julie

Sanders and I that she had started developing

feelings for him, for Dr. Al - Dehneh.

And in addition, she felt like her neighbor wa s

watching her and providing information back to

Dr. Al - Dehneh about her activities at home. Also,

she said that she was afraid to report him because

she felt like she Ï she understood him to be a

mobster. She said he was listening to her through a

listeni ng device when she was at home through, like,

a Siri, a radio kind of device because he would say

things that he would only know if he was able to hear

her at home.

She told us about a heavyset lady on a bicycle who

told her that she was a dead lady, that Jennifer was

a dead lady, but that that woman was not going to

be the one to kill her because Jennifer had been nice

to her. She said that she was afraid to go to the police

because she believed Dr. Al - Dehneh to be a mobster

and that he owned the police a nd the hospital as

well. She said that she was defending herself Ï felt

like she needed to defend herself and had been

carrying a gun and keeping it on her nightstand as

well. She told us that she hadnÔt slept in months,

that she was taking medication to h elp her but that

she was having difficulty concentrating.

16. The testimony of Ms. Landress more or less confirmed that she made

those allegations that Ms. Sanders and Ms. Ristom testified were made at the

August 30, 2018, meeting , and that those allegations formed the basis for her

Petition for Relief . She added that Dr. Al - Dehneh ÑconstantlyÒ harassed her,

that she believed he started a rumor at the hospital that she had herpes, and

that he had her ÑfollowedÒ to a local mall . Ms. Landress denied that she had

romantic feelings for Dr. Al - Dehneh, but stated that she Ñhad a great working

relationship with him for a long time.Ò

17. Dr. Al - Dehneh testified and denied all of Ms. LandressÔs allegations,

including: asking Ms. Landress to let him know when she was ready to get

married; offering to ÑbuyÒ Ms. Landress from her husband; threatening to

have Ms. Landress fired; having Ms. Landress followed; putting a ÑhitÒ out on

Ms. Landress; making comments about Ms. Landress to other physicians;

spreading a rumor that Ms. Landress had herpes; calling Ms. LandressÔs

treating physician, Dr. Chen, for information about her; and accessing

Ms. LandressÔs medical records.

18. According to Ms. Landress, Dr. Sandwith and Ms. Park were

witnesses who could corrobor ate many of her allegations concerning

Dr. Al - Dehneh. Both denied each and every allegation.

19. Dr. Sandwith testified that he never saw Ms. Landress and

Dr. Al - Dehneh together; denied talking to Dr. Al - Dehneh about

Ms. Landress; denied ever seeing or h earing Dr. Al - Dehneh harass or act

inappropriately with Ms. Landress or any other hospital staff; and denied

hearing rumors concerning Ms. Landress, Dr. Al - Dehneh, their alleged

relationship, or that Ms. Landress had herpes.

20. Ms. Park, who worked with Ms. Landress : testified that she never

heard any rumors that Dr. Al - Dehneh was having sexual relationships with

other women; denied witnessing Dr. Al - Dehneh tell Ms. Landress that he was

going to call Ms. LandressÔs husband and offer $5,000 for her; denied talking

with Ms. Landress about being sexually harassed; denied hearing rumors

about Ms. Landress and Dr. Al - Dehneh; denied hearing rumors that

Ms. Landress had herpes; and denied telling Ms. Landress to stay away from

Dr. Al - Dehneh.

21. According to Ms. Landress, she also discussed her allegations of sexual

harassment with her orthopedic physician, Dr. Chen, on numerous occasions.

Dr. Chen testified that during one of Ms. LandressÔs appointments,

I recall you telling me just occurrences at home, of

what happened in the workplace between yourself

and a certain physician on staff at the Ï at the

Walton Beach Medical Center. Yeah, and there was

situations or there were occurrences that were Ï

upsetting to you and they were providing some sorts

of distress.

He further testified that Ms. Landress Ñspoke È about the herpes.Ò

22. Dr. Chen testified that he may have heard FWBMC staff discussing

the alleged herpes rumor, but could not recall from whom he heard those

rumors, and admitted that the rumors could have come from Ms. Landress

herself.

23. Dr. Chen testified that he never witnessed Dr. Al - Dehneh acting

inappropriately towards Ms. Landress, and that he never heard any other

physician at FWBMC discuss any rumors concerning Ms. Landress or

Dr. Al - Dehneh.

F WBMC Investigation of Complaint of Harassment and Hostile Work

Environment

24. At the conclusion of the August 30, 2018, meeting, Ms. Sanders

immediately investigated Ms. LandressÔs claims by interviewing

Dr. Al - Dehneh that same day, and by interviewing other employees who

could potentially substantiate Ms. LandressÔs claims. However, Ms. Sanders

was unable to find any witness who corroborated any of Ms. LandressÔs

allegations.

25. Ms. Sanders testified, as part of her investigation, that she determined

that Dr. Al - Dehneh did not have any remote access or log - in capabilities to

access Ms. LandressÔs computer.

26. Ms. Sanders further testified, as part of the investigation, that she

confirmed that Dr. Al - Dehneh never had access, nor tried to access,

Ms. LandressÔs medical records.

27. During the investigation, Ms. Ristom testified that she offered to move

Ms. LandressÔs office to distance her from the individuals allegedly involved,

including Dr. Al - Dehneh . Ms. Landress declined this offer.

28. Ms. Sand ers completed her investigation of Ms. LandressÔs claims of

sexual harassment and hostile work environment on September 18, 2018,

and informed Ms. Landress that FWBMC could not substantiate her claims.

Subsequent Events

29. On September 20, 2018, Ms. Land ress suffered an anxiety attack and

went home from work early. When Ms. Sanders and Ms. Ristom learned of

the anxiety attack, they attempted to speak with Ms. Landress in her office

and told her to take the weekend off to deal with her anxiety. Both

Ms. Sa nders and Ms. Ristom testified that Landress did not attribute her

anxiety attack to the alleged past sexual harassment incidents with

Dr. Al - Dehneh , nor any new incidents of harassment.

30. Ms. Landress Ôs testimony concerning the anxiety attack and

subsequent leave was as follows:

Predominately because I really wanted to come

home and take medication because I couldnÔt

stand Ï I Ï I just couldnÔt get past people in the

hospital constantly talking about me having herpes.

I mean, itÔs kind of like if you were walking in the

building and thatÔs all you heard, you want to get out

of there.

31. As previously noted, the FW B MC invest igation did not substantiate

Ms. LandressÔs allegation concerning hospital rumors that she had herpes.

Further, there was no testimony or evidence presented at the final hearing,

outside of Ms. LandressÔs testimony, that confirmed this allegation.

32. Ms. Landress soon returned to work and did not report another

incident of harassment until March 2019.

33. On March 1, 2019, Ms. Landress reported that a nurse practitioner,

who she claimed worked for Dr. Al - Dehneh, took a photo of Ms. Landress on

her cellph one when she walked by Ms. LandressÔs office. Ms. Landress

testified that she ÑassumedÒ the nurse practitioner took the photo for

Dr. Al - Dehneh. Ms. Landress further testified that she never saw the photo.

34. Ms. Ristom and Ms. Sanders met with Ms. Land ress concerning this

allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable

to substantiate this claim or that she was being harassed by Dr. Al - Dehneh

or his nurse practitioner.

35. Ms. Landress did not report any other incidents of har assment after

March 1, 2019.

Leave (s) of Absence

36. FWBMC approved Ms. Landress for a paid leave of absence from

June 10, 2019, until she resigned on October 4, 2019.

37. FWBMC granted this leave for two separate reasons: for an orthopedic

condition, an d for a mental health condition. Initially, Ms. Landress was

placed on leave for her claims of stress, anxiety, and post traumatic stress

disorder related to the alleged harassment. Then, on September 9, 2019,

Ms. Landress submitted a separate claim becaus e of pain in her right elbow.

38. Dr. Chen, Ms. LandressÔs treating orthopedic physician, informed

FWBMC that her anticipated return work date was October 7, 2019 , with

restrictions, such as Ñno repetitive use of right arm to include typing, mouse

use, [and] writing.Ò

39. After Dr. Chen cleared Ms. Landress to return to work, with

restrictions, Ms. Sanders reminded Ms. Landress that she could not return

until her mental health counselor also cleared her.

40. Ms. LandressÔs mental health counselor never cleared her to return to

work.

41. In July 2019 Ð during her leave of absence for a mental health

condition Ð Ms. Landress requested, to Ms. Ristom, the opportunity to work

from home.

42. FWBMC denied Ms. LandressÔs accommodation request ; Ms. Sanders

testif ied:

At that time we werenÔt able to accommodate the

work from home request. There was concerns

around protecting patient medical records and her

ability to work with the staff and the physicians

when she needed to ask questions.

43. On September 2 0, 201 9, while Ms. Landress remained on leave,

Ms. Ristom received an email from Q - Centrix, a third - party data

management provider that collaborates with healthcare providers, such as

FWBMC. The September 30, 2019, email requested that FWBMC terminate

Ms. Landre ss as an employee so that Q - Centrix could employ Ms. Landress in

a full - time position.

44. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did

not reply to the September 2 0, 2019, email from Q - Centrix until FWBMC

could confirm from Ms. L andress that it was her intention to resign her

position with FWBMC.

45. On September 27, 2019, Q - Centrix emailed another request to

FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke

with Ms. Landress about this request.

46. On October 4, 2019, Ms. Landress Ð who still had not received

clearance to return to work at FWBMC from her mental health counselor Ð

submitted a letter of resignation to Ms. Sanders. Her letter of resignation

stated that she and her mental health counselor agree d that her ÑPTSD is too

great to return.Ò Her letter further stated that because FWBMC denied her

request to work from home, she had accepted a position with Ñanother

company.Ò

47. The October 4, 2019, letter of resignation attached four additional

pages of what Ms. Landress contends were the events that led her to resign.

The first page listed the allegations of sexual harassment by Dr. Al - Dehneh

that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the

August 30, 2018, meeting. The remaining three pages listed various

allegations that Ms. Landress did not report to FWBMC and did not include

in her charge of discrimination with FCHR.

Findings of Ultimate Fact

48. Ms. Landress presented no persuasive evidence that FWBMCÔs

decisions concerning, or actions affecting, her, directly or indirectly, were

motivated in any way by sex - based or disability - based discriminatory

animus. There is no competent, persuasive evidence in the record, direct or

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

sex - based or disability - based discrimination.

49. Ms. Landress presented no persuasive evidence that FWBMCÔs actions

subjected her to harassment based on sex. There is no competent, persuasive

evidence in the record, direct or circum stantial, upon which the undersigned

could make a finding of unlawful sexual harassment.

50. Ms. Landress presented no persuasive evidence that FWBMC

discriminated against her because she opposed an unlawful employment

practice, or because she made a char ge, testified, assisted, or participated in

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

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

circumstantial, upon which the undersigned could make a finding of unlaw ful

retaliation.

51. Ms. Landress presented no persuasive evidence that FWBMCÔs actions

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

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

persuasive evide nce in the record, direct or circumstantial, upon which the

undersigned could make a finding of hostile work environment.

52. Finally, Ms. Landress presented no persuasive evidence that her

working conditions at FWBMC were so intolerable that a reasonable person

in her condition would have been compelled to resign. There is no competent,

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

undersigned could make a finding of constructive discharge.

C ONCLUSIONS OF L AW

53 . The Divisi on has jurisdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569, 120.57(1), and

760. 11(7) , Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016

(providing upon a petition for relief from an unlawful em ployment practice, a

hearing shall be conducted by an administrative law judge).

54. The FCRA protects individuals from discrimination and retaliation in

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

pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or fail or refuse to hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

suc h individualÔs race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital

status.

* * *

(7) 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.

55. Because the FCRA is patterned af ter federal anti - discrimination laws,

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

federal Title VII cases when analyzing discrimination and retaliation claims

brought pursuant to the FCRA. See Ponce v. City of Naples, 2017 WL

4574649, at *4 (M.D. Fla. Oct. 13, 2017); Harper v. Blockbuster Ent . Corp. ,

139 F.3d 1385, 1387 (11th Cir. 1998) (finding that complaint fails for the

same reasons under Title VII and the FCRA); Valenzuela v. GlobeGround N.

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

56. The burden of proof in an administrative proceeding is on

Ms. Landress as the complainant. See DepÔt of Banking & Fin., Div. of Sec. &

Inv . Prot. v. Osborne Ste r n & Co., 670 So. 2d 932, 935 (Fla. 1996) (ÑThe

general rule is that a p arty asserting the affirmative of an issue has the

burden of presenting evidence as to that issue.Ò). To show a violation of the

FCRA, Ms. Landress must establish, by a preponderance of the evidence, a

prima facie case of discrimination, retaliation, or ho stile work environment.

See St. Louis v. Fla. IntÔ l . Univ., 60 So. 3d 455, 458 - 59 (Fla. 3d DCA 2011)

(reversing jury verdict awarding damages on FCRA racial discrimination and

retaliation claims where employee failed to show similarly situated

employees ou tside his protected class were treated more favorably). A Ñprima

facieÒ case means it is legally sufficient to establish a fact or that a violation

happened unless disproved.

57. The Ñpreponderance of the evidenceÒ standard is the Ñgreater weightÒ

of the evidence, or evidence that Ñmore likely than notÒ tends to prove the fact

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

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

her claims by the Ñgreater weightÒ of the evidence, and would not prevail in

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

Discrimination / Failure to Accommodate

58. The Americans with Disabilities Act (ADA) prohibits employers from

discriminating against a Ñq ualified individualÒ on the basis of the individualÔs

disability. Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000). Disability

discrimination claims under the FCRA are analyzed using the same

framework as ADA claims. See Holly v. Clairson Indus., LLC, 492 F.3d 1247,

1255 (11th Cir. 2007).

59. To establish a prima facie case of disability discrimination,

Ms. Landress must show: (a) she is disabled; (b) she is a qualified individual;

and (c) she was subjected to unlawful discrimination becau se of her

disability. Garrison v. City of Tallahassee, 664 Fed. Appx. 823, 825 - 26 (N.D.

Fla. Nov. 9, 2016). Failure to reasonably accommodate a disability may

constitute unlawful discrimination. Id.

60. A qualified individual is someone who can perform the essential

functions of her job, with or without reasonable accommodation. Id . at 826.

The essential functions of a position Ñare the fundamental job duties of a

position that an individual with a disability is actually required to perform.Ò

Holly , 492 F.3 d at 1257. Whether a function is ÑessentialÒ is determined on a

case - by - case basis. Id.

61. Ms. Landress Ñmust show that either [s]he can perform the essential

functions of [her] job without accommodation, or, failing that, show that [s]he

can perform the essential functions of [her] job with a reasonable

accommodation.Ò Bagwell v. Morgan C n ty. CommÔn, 676 Fed. Appx. 863,

865 (11th Cir. 2017). If Ms. Landress is Ñunable to perform an essential

function of [her] È job, even with an accommodation, [s]he is, b y definition,

not a qualified individual and, therefore, not coveredÒ under the ADA or the

FCRA. Id.

62. Ms. Landress Ñbears the burden of identifying an accommodation, and

of demonstrating that the accommodation allows [her] to perform the jobÔs

essential functions.Ò Id. A Ñsubstantial weight [is given] to an employerÔs

judgment as to which functions are essential.Ò Id.

63. Ms. LandressÔs preferred accommodation was to work from home.

However, the requested accommodation would eliminate essential functions

of her job because FWBMC was not able to adequately protect the patient

medical records that Ms. Lan dress would need to access in her position, and

because FWBMC was concerned with her ability to work with staff and

physicians remotely.

64. Additionally, Ms. Landress presented no evidence that her mental

health counselor would have released her back to work if FWBMC allowed

her to work from home. Ms. Landress could not perform the essential

functions of her job if she was not released back to work.

65. The undersigned notes that FWBMC placed Ms. Landress on paid

leave for her physical and mental health conditions.

66. The undersigned concludes that Ms. Landress failed to demonstrate

that her requested accommodation would allow her to perform her jobÔs

essential functions, and , thus, her claim for disability discrimination and

failure to accommodate must fail.

Hostile Work Environment

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

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

was Ñsubjected to unwelcome harassmentÒ; (c) the harassment was based

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

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

working environmentÒ; and (e) the employer is liable for the hostile work

environment through either vicarious or direct liability. Jones v. UPS Ground

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

principle that not all objectionable conduct or language amounts to

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

Rather, Ñonly conduct that is Óbased onÔ a protected category, such as race,

may be considere d in a hostile work environment analysis.Ò Id. Accordingly,

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

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

counted.Ò Id.

68. Ms. Landress faile d to establish that any actions and conduct she

experienced at FWBMC were based on her protected status, i.e., sex.

6 9 . Ms. LandressÔ s testimony failed to establish that Ñthe workplace is

permeated with discriminatory intimidation, ridicule, and insult, t hat is

sufficiently severe or pervasive to alter conditions of the victimÔs employment

and create an abusive working environment.Ò Harris v. Forklift Sys., Inc.,

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

70. The undersigned notes that no witness confirmed or corroborated

Ms. LandressÔs allegations. The undersigned further notes that Ms. Landress

introduced no evidence to establish a hostile work environment. The

undersigned evaluated her testimony as well, and finds that it was ne ither

persuasive nor plausible.

71 . Ms. LandressÔs failure to establish that the alleged hostile work

environment was based on her sex, and that the alleged harassment was

sufficiently severe or pervasive to alter the terms of her employment, creating

a h ostile work environment, ends the undersignedÔs analysis of her hostile

work environment claim. The undersigned concludes that Ms. Landress has

failed to establish a prima facie case of hostile work environment.

Constructive Discharge

72. Ms. Landress ma y bring a claim for constructive discharge when her

working conditions are Ñso intolerable that a reasonable person in [her

position] would have been compelled to resign.Ò Stancombe v. New Process

Steel LP, 652 Fed. Appx. 729, 737 (11th Cir. 2016). Proving constructive

discharge Ñis a more onerous task than establishing a hostile work

environment claim.Ò Id.

73. Other courts have held that an employeeÔs decision to wait to resign

until after she has found another job weighs against a finding of constructiv e

discharge. See, e.g., Giakoumakis v. Maronda Homes , Inc. , 2010 WL

11507432, at *7 (M.D. Fla. Mar. 26, 2010) (holding Ñthe facts surrounding

[employeeÔs] resignation weigh against a constructive discharge È she did

not resign until she found another job È .Ò); Gonima v. Manatee C n ty. Sch.

Bd. , 2007 WL 1222577 (M.D. Fla. Apr. 24, 2007) (holding that employee

failed to prove constructive discharge because he Ñremained at his job È long

after he contemplated finding another employment. Ò ).

74. Additionally, the Eleventh Circuit has held that an employeeÔs

decision to resign, rather than face an unpleasant alternative, is voluntary,

and not constructive discharge. Conney - Manning v. Thomas C n ty. Bd. of

CommÔrs, 730 Fed. Appx. 883 (11th Cir. 20 18).

75. Ms. Landress failed to present evidence to establish a constructive

discharge claim. By the time she submitted her letter of resignation on

October 4, 2019, she had already accepted a full - time work - from - home

position with Q - Centrix. Additionally , she presented no credible, persuasive

evidence that she was subjected to harassment that would have risen to the

level of intolerableness that would have compelled her to resign. The

undersigned concludes that Ms. Landress has failed to establish a

const ructive discharge claim.

Retaliation

76 . To establish a prima facie case of retaliation, Ms. Landress must show

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

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

relationship between the two events. Williams v. Motorola, Inc. , 303 F.3d

1284, 1291 (11th Cir. 2002) .

77 . In order to satisfy the Ñstatutorily protected expression or conductÒ

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

employment practices was sufficient to communicate to FWBMC that she

believed that FWBMC was engaged in unlawful discriminatory conduct.

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

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

78 . If Ms. Landress establishes a prima facie case of retaliation, the

burden then shifts to FWBMC to articulate a legitimate, non - discriminatory

reason for its action. See Addison v. Fla. DepÔt of Corr., 683 Fed. Appx. 770,

774 (11th Cir. 2017); Sierminski v. Transouth Fin. Corp., 216 F.3d 945,

950 (11th Cir. 2000).

79 . If FWBMC meets this burden, the burden then shifts back to

Ms. Landress , to show that FWBMCÔs proffered reason is mere pretext. See

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

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

80 . Ms. LandressÔs interactions with Ms. Sanders and Ms. Ristom do not

amount to protected activity under either the participation cl ause or the

opposition clause of the FCRA. The participation clause only Ñprotects

proceedings and activities which occur in conjunction with or after the filing

of a formal charge with the EEOC; it does not include participating in an

employerÔs internal, in - house investigation, conducted apart from a formal

charge with the EEOC.Ò EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171,

1174 (11th Cir. 2000). Ms. Landress did not file her FCHR c harge until

after her interactions with Ms. Sanders and Ms. Ristom , and thus, her

interactions are not protected activity under the participation clause.

81. None of the terms or conditions of Ms. LandressÔs employment

changed following the August 30, 2018, meeting, where she reported

allegations of sexual harassment to Ms. Sanders and Ms. Ristom. Her

employment with FWBMC continued, with the same conditions, terms,

privileges, and responsibilities, until she resigned on October 4, 2019.

8 2. The undersigned concludes that Ms. Landress failed to establish a

prima facie case o f retaliation.

R ECOMMENDATION

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

undersigned hereby R ECOMMEND S that the Florida Commission on Human

Relations issue a final order dismissing Jennifer L. LandressÔs Petition for

Relief.

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

Leon County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of December, 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Jennifer Lynn Landress

Florida Commission on Human Relations 7758 Ramona Drive

Room 110 Navarre, Florida 32566

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020 Cymoril M. White, Esquire

Ford & Harrison, LLP

Tracey K. Jaensch, Esquire 101 E ast Kennedy B oulevard

Ford & Harrison LLP Suite 900

Suite 900 Tampa, Florida 33602

101 East Kennedy Boulevard

Tampa, Florida 33602

Stanley Gorsica, Gen eral Co unsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

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 exceptions to this Recommended

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

case.