21-002414 Donna J. Robinson vs. The Bureau Of Administrative Review Status: Closed Recommended Order on Friday, January 14, 2022.

Summary: Petitioner failed to establish that she was retaliated against for engaging in a protected activity.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D ONNA J. R OBINSON ,

Petitioner ,

vs. Case No. 21 - 2414

T HE B UREAU OF A DMINISTRATIVE R EVIEW ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted by Zoom Conference before

Administrative Law Judge Jodi - Ann V. Livingstone of the Division of

Administrative Hearings (DOAH), on November 16 , 2021.

A PPEARANCES

For Petitioner: Donna J. Robinson , pro s e

3018 Sera Bella Way

Kissimmee, Florida 34744

For Respondent: Corinne T. Porcher, Esquire

Florida Department of Highway

Safety a nd Motor Vehicles

2900 Apalachee Parkway, Suite A432

Tallahassee, Florida 32399

S TATE MENT OF T HE I SSUE

Whether Respondent, State of Florida, Department of Highway Safety

and Motor Vehicles , Bureau of Administrative Review (Department or

Respondent) , retaliated against Donna J. Robinson (Petitioner) for engaging

in a protected activity, in violation of the Florida Civil Rights Act (FCRA).

P RELIMINARY S TATEMENT

On January 11, 2021 , Petitioner filed an Employment Complaint of

Discrimination (FCHR Complaint) with the Florida Commission on Human

Relations ( FCHR). Petitioner checked the box ind icating "Retaliation" as the

basis of her complaint of employment discrimination. On June 30, 2021 ,

FCHR notified Petitioner that no reasonable cause existed to believe that

Respondent committed an unlawful employment practice.

On August 3, 2021 , Petitio ner filed a Petition for Relief (Petition) with

FCHR. On August 5, 2021, FCHR transmitted the Petition to DOAH to

conduct a chapter 120 evidentiary hearing. On August 11, 2021, the

Department filed a motion to dismiss Petitioner's Petition without prejudic e

to allow the filing of an amended petition. On August 13, 2021, the

undersigned issued an Order Requiring Amended Petition , requiring

Petitioner to submit an amended petition that complie d with section

120.569(2)(c) , Florida Statutes, and Florida Adminis trative Code Rule 28 -

106.201(2). On August 27, 2021, Petitioner filed an Amended Motion for

Petition for Relief (Amended Petition), which restated her complaint of

retaliation.

At the final hearing, Petitioner testified on her own behalf and called

Vince nt Robinson as a witness . Petitioner did not offer any exhibits into

evidence. Respondent called Karsona Atkinson, Magnus Hines, Deputy

Travis Ratagan, Vernon Howell, Sonia Colon, and Kimberly Sisko Ward as

witnesses. Respondent ' s Exhibits 1 through 5, 7 t hrough 23, and 26 were

admitted into evidence.

At the close of the hearing, Petitioner stated that she intended to order a

copy of the transcript ; however, at a stat u s conference held on December 2,

2021, she indicated she no longer intended to do so . O n December 2, 2021, the

undersigned issued an Order Setting Deadline for Post - Hearing Submittals ,

requiring the parties to submit p ost - hearing submittals on or before

January 3, 2022 . Both parties timely submitted post - hearing submittals ,

which were duly co nsidered in preparing this Recommended Order.

All references to the Florida Statutes and the Florida Administrative Code

are to the 2020 versions.

F INDINGS OF F ACT

1. Petitioner began her employment with the Department as a senior c lerk

in the Division o f Driver Licenses in March 2002.

2. She was promoted to the position of field hearing o fficer in the Bureau

of Administrative Review (BAR) in 2004.

3. As a f ield h earing o fficer, Petitioner ' s job duties included conducting

hardship hearings, formal and i nformal file reviews, show - cause hearings ,

and re - examination interviews.

4. In January 2020, Petitioner filed a complaint with FCHR, alleging the

Department retaliated against her under the Whistle - blower's Act. See

§§ 112.3187 through 112.31895, Fla. Sta t. The Whistle - blower's Act prohibits

retaliation against any person who has engaged in a protected activity under

the Act. Id.

5. In October 2020, FCHR issued a Notice of Termination of Investigation

in which it provided that its investigation did not su bstantiate the allegation

that the Department retaliated against Petitioner within the meaning of the

Whistle - blower's Act.

6. In January 20 2 1, Petitioner filed another complaint with FCHR

through which she alleged that she was the victim of retaliation b y the

Department, in violation of the FCRA, and provided the narrative below as

support for the allegation:

I have been working in a hostile work environment

for some time now and it has escalated since filing

a previous complaint with the Florida Commissi on

on Human Relations. Ms. Atkinson (office

administrator) told a newly hired attorney (Dawn

Jarvis), to have nothing to do with me because I did

not know how to do my job. In October 2020,

Ms. Atkinson continued to provoke and retaliate

against me. Some e xamples of this include

Ms. Atkinson entering my office space uninvited

and in a threatening manner. After we had a

difference of opinion and she burped in my face,

stared at me for five seconds before quietly saying

excuse me. Ms. Atkinson did not attempt to cover

her mouth. I became very concerned for my health

and my family's wellbeing during these pandemic

times. Ms. Atkinson's behavior caused me great

anxiety and I believed my safety could have been

compromised. I contacted law enforcement to

protect m y safety and wellbeing. I believed that

was the best course of action that I could have

taken. This action did not disturb the office setting

in any manner. I initiated a formal complaint with

law enforcement regarding the incident. I also

reported Ms. Atk inson's conduct in an internal

office complaint on October 6, 2020. I also

requested federally protected leave to quarantine

because of the incident. On October 9, 2020, I was

placed on Administrative Duty at home without

reason or unknown work duties that I should be

performing until an investigation is completed.

7. On October 5, 2020, Petitioner's supervisor, Karsona Atkinson

(Ms. Atkinson), entered Petitioner's office without a mask to discuss a work -

related matter.

8. Petitioner testified that durin g the conversation, Ms. Atkinson burped

within six inches of her face and then quietly said "excuse me."

9. Petitioner testified that she feared for her wellbeing because she

believed Ms. Atkinson may have been infected with COVID - 19 .

10. On October 7, 20 20, Petitioner called the Orange County Sheriff's

Office to report the alleged burping incident. The sheriff's office agreed to

send a n officer to the BAR office to speak to Petitioner. For reasons that are

unclear to the undersigned, the sheriff's office did not send an officer.

11. On October 8, 2020, three days after the alleged burping incident,

Petitioner contacted the sheriff's office again. She repeated her complaint

about Ms. Atkinson burping in her presence and said that it caused her to

feel unsaf e at her office. The sheriff's office agreed to send the next available

officer to the BAR office.

12. Sheriff Deputy Travis Ratagan reported to the BAR office on October 8

and spoke to Petitioner. He also spoke to Ms. Atkinson and Mr. Magnus

Hines. At tha t time, Mr. Hines was the Chief of BAR and Ms. Atkinson's

supervisor.

13. After speaking with the parties involved, Deputy Ratagan determined

that a crime did not occur and that the incident as reported by Petitioner did

not require police intervention.

1 4. At the final hearing, Ms. Atkinson testifi ed that she entered

Petitioner's office without wearing a mask on October 5, 2020, to discuss a

work - related matter, but did not burp. Ms. Atkinson's testimony on this

matter was credible and is credited.

15. P etitioner's complaint that Ms. Atkinson burped in her office was one

of a series of complaints she has made to and about the Department

throughout her employment .

16. Petitioner complained that a tax collector's office in Kissimmee,

Florida, conspired with BAR employees to create a duplicate driver license

record for her husband , Vincent Robinson.

17. The Department investigated the claim and determined that a

duplicate record for Mr. Robinson did not exist in the Florida Driver License

Information System Ð the Department ' s database where such records are

stored.

18. Petitioner complained that her former supervisor, Vernon Howell, was

spying on her at her home; her co workers were recording and listening to

private conversations she had with her husband; her cell ular phone

conversations were being "tapped" by coworkers and placed on the " black

market " ; her home was under surveillance by various entities and

individuals ; her car's tires were slash ed by coworkers; and her coworkers

were stealing her credit card information by listening in on her phone calls .

19. Petitioner presented the testimony of her husband, Mr. Robinson.

Mr. Robinson testified that his wife's tires were punctured. Mr. Robinson also

testified that his supervisor, who has no connection to the Department or

Petitioner, told him that he, too, could hear private recorded conversations

between Mr. Robinson and Petitioner.

20 . The Department found no merit to Petitioner's complaints . At the

hearing, Petitioner presented no credible evidence to su pport them ; the

testimony of Petitioner and her husband was not credible and is not credited.

21. After Petitioner called law enforcement to report the alleged burping

incident, Mr. Hines referred Petitioner's allegations as an issue of concern to

the De partment ' s Office of Employee Relations (OER).

22. Sonia Colon, a manager in the OER , was assigned to review

Petitioner 's history of complaints.

23. Department Policy Number 5.06 establishes policies and procedures to

determine whether an employee is phys ically or psychologically able to

perform essential job duties, or if the employee's behavior presents a risk to

themselves, other persons, or property.

24. Ms. Colon consulted with Kimberly Ward ( Chief of Personnel Service s )

and Petitioner's supervisors, and determined that Petitioner should undergo

a Fitness for Duty evaluation (FFD evaluation ) pursuant to Department

Policy 5.06.

25. In accordance with Department Policy Number 5.06, Petitioner was

placed on paid administrative duty while awaiting the ou tcome of the FFD

evaluation and final resolution of the matter .

26. Petitioner was referred to Dr. Shauna Laughna, a Florida - licensed

psychologist who is b oard - c ertified in Police and Public Safety Psychology, to

submit to an FFD evaluation.

27. On Novemb er 18, 2020, Dr. Laughna conducted Petitioner ' s FFD

evaluation. On November 30, 2020, Dr. Laughna submitted a completed FFD

evaluation report to the Department for review.

28. Dr. Laughna concluded that Petitioner has a mental condition that

render s her " unfit " to perform the essential functions of her position as a

hearing officer. Dr. Laughna also concluded that there was no known

accommodation that could be provided by the Department for the condition

that made Petitioner unfit for her position .

29. In a letter dated January 14, 2021, the Department notified Petitioner

that it intended to dismiss her from her position as a hearing officer, based on

the results of the FFD evaluation. The Department's letter provided that

within five business days of recei pt of the letter , Petitioner could request to

attend a predetermination conference to make an oral or written statement.

The letter also provided that Petitioner would be dismissed no sooner than

ten days from receipt of the letter .

30. On February 11, 202 1, prior to any final action by the Department,

Petitioner submitted a letter of resignation to the Department by email . The

l et ter indicated that Petitioner's resignation was effective February 11 , 2021,

at 5:00 p.m.

31 . Petitioner failed to prove that th e Department' s decision to require

that she undergo an FFD evaluation and its subsequent letter advising that

it intended to terminate her were in retaliation for engaging in a protected

activity . Accordingly, Petitioner failed to meet her burden of provin g that the

Department committed an unlawful employment action against her in

violation of the FCRA .

C ONCLUSIONS OF L AW

32 . DOAH has jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida

Statutes. See also Fla. Admin. Code R. 60Y - 4.016.

33. Petitioner alleges that the Department retaliated against her for

engaging in a protected activity , in violation of the FCRA.

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

s tatutory directive to the contrary, is on the party asserting the affirmative of

the issue. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981);

see also Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996).

35 . Section 760.10(7) provides the following, in relevant part:

It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organization to

discriminate against any person because that

person has opposed any 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.

36. The Department is an " employer " within the meaning of the FCRA.

§ 760.02(7), Fla. Stat.

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

as amended. Accordingly, Florida courts hold that federal decisions

cons truing 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 , 68 5 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

38 . Petitioner has the burden of establishing by a preponderance of

evidence a prima facie case of unlawful retaliation. See Burlington N. &

Santa Fe Ry . Co. v. White , 548 U.S. 53 (2006).

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

retaliation, Petitioner must establish that: (1) she engaged in a protected

activity; (2) she suffered an adverse employment action; and (3) there was a

causal relationship between the two events. Pennington v. City of Huntsville ,

261 F.3d 1262, 1266 (11th Cir. 2001). To establish this causal relationship,

Petitioner must prove " that the unlawful retaliation would not have occurred

in the absence of the alleged wrongful action or actions of the employer. "

Univ. of Te x. S.W. Med. Ctr. v. Nassar , 570 U.S. 338, 360 (2013).

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

If Petitioner establishes a prima facie case, she would create a presumption

of discrimination . At that point, the burden would shift to the employer to

articulate a legitimate, non - discriminatory reason for taking the adverse

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

2009). The reason for the employer ' s decision should be clear, reasonably

specific, and worthy of credence. Dep ' t of Corr. v. Chandler , 582 So. 2d 1183,

1186 (Fla. 1st DCA 1991). The employer has the burden of production, not

persuasion, to demonstrate to the trier of fact that the decision was non -

discriminatory. Id. This burde n of production is " exceedingly light. " Holifield

v. Reno , 115 F.3d 1555, 1564 (11th Cir. 1997). The employer only needs to

produce evidence of a reason for its decision. It is not required to persuade

the trier of fact that its decision was actually motiv ated by the reason given.

St. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

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

disappears. The burden would then shift back to Petitioner to prove that the

employer ' s proffered re ason was not the true reason but merely a " pretext "

for discrimin ation . Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th

Cir. 1997); Valenzuela , 18 So. 3d at 25.

42 . In order to satisfy this final step of the process, Petitioner would have

to show " directly that a discriminatory reason more likely than not motivated

the decision, or indirectly by showing that the proffered reason for the ...

decision is not worthy of belief. " Chandler , 582 So. 2d at 1186 (citing Tex.

Dep ' t of Cmty. Aff. v. Burdine , 4 50 U.S. 248, 252 - 56 (1981)).

43 . Petitioner has not established a prima facie case of retaliat ory

discrimination . Petitioner engaged in a protected activity when she filed a

whistle - blower complaint with FCHR in October 2020. Petitioner, however,

presente d no evidence that the Department took any adverse employment

action against h er because of that filing.

44. Petitioner was subject to adverse employment actions from the

Department when she was required to undergo an FFD evaluation and ,

subsequently , r ecommended for termination. But she provided no evidence

that the adverse employment actions were caused by her engagement in a

protected activity.

45 . Since Petitioner failed to establish a prima facie case of retaliation,

Respondent need not make any fu rther arguments. However, even if

Petitioner did establish a prima facie case, the Department articulated

legitimate, non - discriminatory reason s for requir ing Petitioner to undergo an

FFD evaluation and recommend ing that she be terminated . The Department

p resented credible evidence that its decision to require Petitioner to undergo

an FFD evaluation was based on a series of strange, unsubstantiated

complaints against her coworkers which culminated in law enforcement being

called to the BAR office. The Depar tment also presented convincing, credible

evidence that the decision to recommend that Petitioner be terminated was

based on an FFD evaluation that determined that Petitioner was unable to

carry out her required duties. Petitioner failed to show that the D epartment' s

reason s w ere pretext s for discrimination.

46 . The Department provided convincing, legitimate, nondiscriminatory,

and non - retaliatory reason s for its adverse actions against Petitioner and

Petitioner did not show the reason s provided w ere not w orthy of belief.

47. Petitioner failed to establish that she was retaliated against for

engaging in a protected activity .

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Huma n Relations enter a

final order dismissing the Petition and the Amended Petition of Petitioner,

Donna J. Robinson .

D ONE A ND E NTERED this 14th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Christie Sue Utt, General Counsel

Florida Commissio n on Human Relations Florida Department Highway

4075 Esplanade Way , Room 110 Safety and Motor Vehicles

Tallahassee, Florida 32399 - 7020 2900 Apalachee Parkway, Suite A432

Tallahassee, Florida 32399

Donna J. Robinson

3018 Sera Bella Way

Kissimmee, Florida 34744

Corinne T. Porcher, Esquire Stanley Gorsica, Gen eral Co unsel

Florida Department of Highway Florida Commission on Human Relations

Safety and Motor Vehicles 4075 Esplanade Way , Room 110

2900 Apalachee Parkway , Suite A432 Tallahassee, Florida 32399 - 7020

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 Recommen ded

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

case.