22-000016 Lauren Alexis Mitchell vs. Aerotek Status: Closed Recommended Order on Tuesday, April 5, 2022.

Summary: Petitioner did not demonstrate that she suffered employment discrimination or that Respondent retaliated against her for engaging in a protected activity.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L AUREN A LEXIS M ITCHELL ,

Petitioner ,

vs. Case No. 22 - 0016

A EROTEK ,

Respondent .

/

R ECOMMENDED O RDER

On March 8, 202 2, Administrative Law Judge Lisa Shearer Nelson of the

Florida Division of Administrative Hearings (DOAH) conducted a hearing

pursuant to section 120.57(1), Florida Statutes, by Zoom technology.

A PPEARANCES

For Petitioner: Lauren Alexis Mitchell

Apartment 205

495 Mercury Avenue Southeast

Palm Bay, Florida 32909

For Respondent: Mary C. Biscoe - Hall, Esquire

Nelson Mullins Riley & Scarborough, LLP

Su ite 1600

100 South Charles Street

Baltimore, Maryland 21201

S TATEMENT OF T HE I SSUE

The issue to be resolved in this proceeding is whether Respondent,

Aerotek, Inc. (Aerotek), discriminated against Petitioner, Lauren Mitchell,

with respect to her employment in violation of FloridaÔs Civil Rights Act .

P RELIMINARY S TATEMENT

On June 14, 2021, Petitioner filed a complaint of discrimination with the

Florida Commission on Human Relations (Commission), alleging that

Respondent discriminated against her based on a disability, and retaliated

against her, in violation of section 760.10 , Florida Statutes. Her complaint

specifically alleged that she was fired because she unknowingly came to work

with COVID - 19 before she tested positive for the illness.

On December 6, 2021, the Commission filed a Determination of No

Reasonable Cause, and provided to Petitioner an explanation of her rights

should she disagree with the CommissionÔs de cision . On January 3, 2022,

Petitioner filed a Petition for Relief, which the Commission forwarded to

DOAH for the assignment of an administrative law judge.

The hearing was scheduled for March 8, 2022, to be conducted using Zoom

technology. Petitioner was not represented by counsel, so a telephone pre -

hearing conference was conducted in order to explain to Petitioner how the

hearing would be conducted and to g ive her the opportunity to ask questions

regarding the process. During the prehearing conference, the undersigned

asked Petitioner to specify the nature of her disability, because COVID - 19 ,

without more , might not be considered a disability. Petitioner ind icated that

her disability dealt with her mental processing ability, because she suffers

from Attention Deficit Hyperactivity Disorder (ADHD).

The hearing commenced as scheduled on March 8, 2022. At that time,

Petitioner indicated that her disability wa s COVI D - 19 with complications

related to diabetes.

At hearing, Petitioner testified on her own behalf and presented

PetitionerÔs Exhibits numbered 1 through 4. Rhiannon Boyce testified for

Respondent, and RespondentÔs Exhibits numbered 1 thr o ugh 6 were ad mitted

into evidence.

The proceedings were recorded but no transcript was ordered or filed. The

parties were advised that the deadline for filing proposed recommended

orders would be ten days following the hearing, i.e., March 18, 2022.

Respondent filed its Proposed Recommended Order on March 16, 2022,

and Petitioner filed her Proposed Recommended Order on March 18, 2022.

Both have been carefully considered in the preparation of this Recommended

Order. All references to the Florida Statutes are to the 20 20 codification, and

all emphasis is supplied unless otherwise indicated.

F INDINGS OF F ACT

1. Lauren Mitchell is an African - American female . She asserts that she

belongs to a protected class because she is disabled. Among other medical

issues not relevant to these proceedings, Ms. Mitchell suffers from Type II

diabetes.

2. Aerotek is a recruiting and staffing company that recruits and places

workers with client companies who need temporary employees. Workers

placed by Aerotek with client companies are paid and provided benefits by

Aerotek, and are considered to be AerotekÔs employees.

3. On or about April 13, 2021, Rhi a nn o n Boyce, a recruiter for Aerotek,

contacted Petitioner about a job opportunity as an administrative assistant

with one of its client comp anies, Holiday Builders. After interviewing for the

position, Petitioner was offered a job on April 16, 2021.

4. During the interview process, applicants are advised that the

employment is on an Ñat - willÒ basis. The Aerotek client companies provide all

sup ervision to employees recruited and supplied by Aerotek, and make the

decisions to accept, reject, retain, or terminate an employee provided to them.

5 . As a recruiting and staffing company, Aerotek handle s the ÑonboardingÒ

process for new workers provided to its clients. New workers are provided

onboarding forms in two to three emails. The new worker is provided a link to

an employment portal where documents requiring his or her electronic

signature can be accessed. In order to enter the portal, the new wo rker must

provide specific information, and no one else can sign in for the new worker.

6. Part of the process involve s review and acknowledgment of a personÔs

employment agreement with Aerotek; AerotekÔs Safety Agreement; and

AerotekÔs Employee Handbook. These documents are acknowledged by

electronic signature and must be completed before the new worker can begin

employment.

7. Petitioner accessed the portal and completed the paperwork required to

begin employment. Among the documents bearing PetitionerÔs electronic

signature is the employment agreement between Petitioner and Aerotek. The

employment agreement states in pertinent part:

Scope of Employment with Aerotek, Inc. Ï You

understand that your employment with Aerotek,

Inc. will be co - extensive with the Assignment. In

other words, your employment with Aerotek, Inc.

begins when you first work for the Client on the

Assignment, and ends if and when the Assignment

is ended by the Client or otherwise. Following the

end of the Assignment, while you may rema in

eligible for future assignments with other Aerotek,

Inc., clients, you will not be employed with Aerotek,

Inc . unless and until you are re - hired and assigned

to another client. You further understand that

following the ending of the Assignment, while yo u

may remain eligible for new assignments with

Aerotek, Inc. clients, Aerotek, Inc. has no obligation

to find you additional assignments and has no

ability to compel any client to hire you.

8. The employment agreement indicates that Petitioner signed it

e lectronically on April 16, 2021, and it was accepted by Aerotek, Inc. , by

Heather Brinkley, on April 23, 2021. Petitioner initially denied signing this

document, and does not remember th e paragraph in the employment

agreement quoted above . Petitioner sugge sted that there must be a ÑglitchÒ in

the program, and that someone else could have signed into the system in her

stead. However, Petitioner did not present any evidence to support this

speculative theory.

9. Ms. Boyce testified that each employment file i n the portal is audited

for completeness, and that if documents remained unsigned, AerotekÔs

administrative section would notify the recruiter and the recruiter would be

responsible for contacting the new employee to complete the pape r work.

Ñ G litchesÒ woul d most likely be discovered when the files are audited.

10. The more persuasive evidence indicates that Petitioner signed the

employment agreement electronically, but did not read it closely. H ad

Petitioner not signed the employment agreement, she would n ot have been

cleared to begin employment .

11. Petitioner testified that she advised Aerotek that she had diabetes

during the onboarding process, in some of the paperwork she completed.

However, she did not provide a copy of any paperwork submitted that

ind icated she suffered from diabetes. There is no credible evidence to support

the claim that she notified Aerotek that she suffered from diabetes, either

before or during her employment.

1 2 . Petitioner began her employment on April 26, 2021, working as an

a dministrative assistant for Holiday Builders. On her first day, she notified

Ms. Boyce that she left work early for a doctorÔs appointment and had

another appointment the next day. The appointments were related to an

accident Petitioner experienced in whic h she hurt one of her fingers, and

nothing related to diabetes was mentioned in PetitionerÔs email to Ms. Boyce.

Ms. Boyce advised Petitioner that she needed to notify Ms. Boyce if she is

going to need to take time out of the office.

1 3 . Petitioner worked at Holiday Builders under the auspices of her

employment with Aerotek, Inc. , from April 26, 2021 , through May 3, 2021, a

total of less than six business days. She testified that she was not given any

type of training or orientation materials by Holiday Bu ilders and could not

identify any signs that might have been posted in the workplace about safety

precautions to prevent the spread of disease. She stated at hearing that it

was Ñ not in her job description Ò to read all the signs that might be on the

wall. She also testified that people did not seem to be observing any type of

COVID - 19 restrictions and were not wearing masks or social distancing.

1 4 . Ms. Boyce testified credibly that Aerotek suggested to its new

employees that they bring a mask and hand san itizer to the workplace.

Petitioner admitted that she did not wear a mask to the office, although her

reasons for not doing so varied from not being able to afford masks, to having

them, but not being able to locate them. Instead, she got a mask at the off ice,

where it appears they were readily available for those who needed them.

1 5 . On Monday, May 3, 2021, Petitioner woke up not feeling well , and

described her symptoms as general symptoms of illness, with a cough . She

blamed her symptoms on conditions fr om which she already suffered. She

went to work, despite not feeling well. When asked why she did not call her

supervisor, she stated that she could not remember her supervisorÔs name

and did not have her number. Petitioner also did not call Ms. Boyce and tell

her she was not well.

1 6 . Petitioner did not wear a mask to the office on May 3, 2022 , even

though she did not feel well, but secured one after she got there. Once she

arrived at work, Petitioner went to her supervisor and told her she had a

cough an d felt ill. She testified that her supervisor told her to remain in her

cubicle. Petitioner returned to her cubicle and stayed for approximately an

hour and a half, and then left because she felt worse. 1 After leaving the office,

she got a rapid test for C OVID - 19, which was positive.

1 Despite testifying that she left work during the morning and got a COVID - 19 test,

Petitioner also insisted that she did not take off any time on May 3, so there was no reason to

contact Ms. Boyce.

1 7 . Petitioner reported her positive COVID - 19 test to her supervisor at

Holiday Builders but did not advise anyone at Aerotek.

1 8 . At 11:25 a.m. that day, Lee Palmer, the Vice President of Human

Resources for Holiday Builde rs, emailed Ms. Boyce regarding Petitioner,

stating: ÑLauren sho w ed up at work this morning not feeling well. I have

been told she just tested positive for COVID. While I am sorry she is not well,

I am concerned with her lack of judgment coming into the of fice. We would

like to replace her please. Thank you.Ò

1 9 . Ms. Boyce did not know that Petitioner had tested positive for COVID -

19 until she received Ms. PalmerÔs email . Once she received M s . PalmerÔs

email, Ms. Boyce called Petitioner to advise her that her employment was

terminated. Consistent with the terms specified in the employment

agreement, her employment with Aerotek ended simultaneously with Holiday

BuilderÔs decision to replace her. At that time, Ms. Boyce mentioned that

there might be another o pportunity for her, but nothing was finalized, and

Aerotek had no obligation to find Petitioner other employment , and did not

offer her a position.

20 . Petitioner claimed that her employment continued after May 3, 2021,

because Aerotek called her after th at date regarding her time sheets.

However, she did not work for Aerotek after May 3, 2021, and did not receive

any pay for work after that date.

2 1 . There were multiple telephone calls made to Petitioner from Aerotek

staff during the week following her t ermination. Most calls were unanswered.

Petitioner claimed , and Ms. Boyce acknowledged , that on May 4, 2021, she

asked that all contacts be in writing because her throat remained sore.

However, this request cannot constitute an accommodation of a disabilit y in

order to perform her job, as claimed by Petitioner, because at the time of the

request, Petitioner was no longer employed. The last telephone call, on

May 10, 2021, resulted in Petitioner han g ing up on Ms. Boyce after

screaming at her and accusing her of Ñruining her life.Ò

2 2 . Petitioner acknowledged that she did not ask for an accommodation

related to COVID - 19 or her diabetes prior to her termination on May 3, 2021.

In fact, she first advised Aerotek that she had diabetes and was going to the

hospit al with breathing issues at approximately 6:15 p.m. on May 3, 2021,

several hours after her termination.

2 3 . Petitioner acknowledged that Aerotek did not discriminate against her

because of her diabetes or COVID - 19 diagnosis before May 3, 2021.

2 4 . Petit ioner acknowledged that she did not complain to Aerotek

regarding any type of discrimination before her termination on May 3, 2021.

2 5 . Petitioner did not apply for any open positions at Aerotek after May 3,

2021 , and stated at hearing that she did not wa nt to work with the company.

She did, in a telephone conversation with Ms. Boyce, mention the possibility

of litigation related to her termination. However, the contents of that

conversation are not clear. Conversely, Ms. Boyce testified that if Petitioner

applied for a new position with Aerotek and met the qualifications, she would

be considered for the position.

C ONCLUSIONS OF L AW

2 6 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.5 7(1).

2 7 . The Florida Civil Rights Act of 1992 (the Act), codified in chapter 760,

prohibits discrimination in the workplace and is modeled after Title VII of

the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000 et seq. Federal case

law regarding Title VII is applicable to construe the Act. Castleberry v.

Edward M. Chabourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1 st DCA 2002) ; DepÔt

of Cmty. Aff. v. Bryant , 586 So. 1205 (Fla. 1 st DCA 1991).

2 8 . Section 760.10 provides in pertinent part:

(1) It is an unlaw ful employment practice for an

employer:

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

individual, or to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individualÔs race , color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

* * *

(7) It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organization to

discriminate again st 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.

2 9 . Neither party has disputed that Aerotek is an ÑemployerÒ as that term

is defined in section 760.02(7).

30 . Under the shifting burden analysis articulated in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973) , for employment discrimination claims,

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

a prima facie case of unlawful discrimination. If Petitioner establishes a

prima facie case, then the burden shifts to the employer to produce evidence

th at the adverse action was taken for some legitimate, non - discriminatory

reason. If the employer produces such evidence, the burden shifts back to the

Petitioner to prove that the employerÔs reasons were pretextual, and that the

real reason is based on disc rimination. Texas DepÔt of Cmty. Aff. v. Burdine ,

450 U.S. 248 (1981).

3 1 . Petitioner claims that she was discriminated against because of her

disability, and that Aerotek retaliated against her. In order to establish a

claim based upon disability, Petiti oner must show that 1) she is disabled;

2) she is qualified to perform her job; and 3) she was discriminated against

based on her disability. Moreira v. Am . Airlines, Inc. , 157 F.Supp. 3d 1208 ,

1214 (S.D. Fla. 2016) ( quoting Goldsmith v. Jackson MemÔl Hosp . Pub. Health

Trust, 33 F.Supp. 2d 1336 (S.D. Fla. 1989), aff Ô d , 198 F.3d 263 (11 th Cir.

1999) ) ; McKenzie v. EAP Mgmt. Corp. , 40 F.Supp. 2d 1369, 1375 (S.D. Fla.

1999); Desai v. Tire Kingdom, Inc. , 944 F.Supp. 876, 879 (S.D. Fla. 1996).

3 2 . Disability is defined in section 760.22(a) as Ña person [who] has a

physical or mental impairment, which substantially limits one or more major

life activities, or [who] has a record of having, or is regarded as having, such

physical or mental impairment.Ò While this d efinition expressly applies to

cases involving housing discrimination, cases discussing employment

discrimination have used it as a guideline for defining a handicap under

section 760.10. See, e.g., Desai v. Tire Kingdom , 944 F.Supp. at 879. ÑMajor

life ac tivitiesÒ include caring for oneself, performing manual tasks, wa l king,

seeing, hearing, speaking, breathing, learning, and working. 29 C.F. R.

§ 1630.2(i).

3 3 . A qualified individual is one who, with or without reasonable

accommodation, can perform the e ssential functions of the employment

position held or desired, and to discriminate in this context is the failure to

make reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual unless the employer can

dem onstrate that to do so would create an undue hardship on the employer.

McKenzie , 40 F.Supp. 2d at 1376. Petitioner must show that the person

making the adverse employment decision was aware of the disability.

Cordoba v. Dillards, Inc. , 419 F.3d 1169 , 1175 (11 th Cir. 2005); Moreira ,

157 F.Supp. 3d at 1215.

3 4 . Petitioner has failed to demonstrate a prima facie case of

discrimination. First, she has not established that she suffers from a

disability that affects one or more life functions. While she testifie d that she

suffers from diabetes, and that she had complications from diabetes related

to her COVID - 19 diagnosis, she di d not explain how either condition affected

her ability to perform life functions.

3 5 . For the sake of discussion, it is assumed that Petitioner is qualified for

the position that she held. She testified that she was performing well, and no

one disputed this statement. However, the evidence presented at hearing

reflects that, even assuming that diabetes is a disability affecting one or m ore

of her life activities, she did not advise Aerotek of her diabetes or ask for any

accommodation related to her diabetes , until after she was terminated.

3 6 . Petitioner asserted in her Proposed Recommended Order that when

Aerotek informed her of her te rmination by Holiday Builders, they

immediately offered her a new job, and then withdrew the offer when she told

them about her diabetes complications and hospital visit .

3 7 . First, these assertions are not consistent with PetitionerÔs Petition for

Relief and Petitioner did not assert this theory at hearing. Ms. Boyce testified

that she mentioned the possibility of a new opportunity for Petitioner, but

Petitioner did not apply for that position, and it was not offered to her.

Ms. Boyce attempted contact wi th Petitioner multiple times, and Petitioner

did not return the majority of her calls. Second, the evidence shows that

Ms. Boyce stopped communicating with Petitioner after she screamed at

Ms. Boyce , accused her of ruining her life , and hung up on her .

3 8 . Petitioner also asserts that Aerotek retaliated against her because of

her disability. In her Proposed Recommended Order, she claims that Aerotek

retaliated against her because she threatened to file suit against them.

3 9 . In order to demonstrate reta liation, Petitioner must show that 1) she

engaged in an activity protected under Title VII; 2) that she suffered an

adverse employment action; and 3) there was a causal connection between

the protected activity and the adverse employment action. Crawford v .

Carroll , 529 F.3d 961, 970 (11 th Cir. 2008); Jolibois v. Fla. IntÔl Univ. Bd. of

Trs . , 92 F.Supp. 3d 1239, 1247 (S.D. Fla. 2015).

40 . Here, Petitioner did not testify that she notified Aerotek that she

intended to file a complaint regarding what she per ceived to be

discriminatory behavior. The only real evidence related to this issue was from

Ms. Boyce, who stated that in one of her conversations with Petitioner, there

was some mention of litigation, and for that reason, issues related to

PetitionerÔs em ployment were forwarded to Employee Relations , so that they

could address her concerns. Neither the nature of her concerns nor any

resolution that may have taken place were identified at hearing.

4 1 . Assuming for the sake of discussion that Petitioner wa s engaging in a

protected activity when she apparently threatened litigation, that activity

occurred after her termination. By definition, retaliation cannot occur

retroactively. Petitioner did not demonstrate a prima facie case for

retaliation.

R ECOMMEND ATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing PetitionerÔs Petition for Relief.

D ONE A ND E NTERED this 5 th day of April , 2022 , in Tallah assee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

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 5 th day of April , 2022 .

C OPIES F URNISHED :

Lauren Alexis Mitchell J ennifer Nelson

Apartment 205 Aerotek, Inc.

495 Mercury Avenue Southeast Suite 210

Palm Bay, Florida 32909 1325 Morris Drive

Wayne, Pennsylvania 19087

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Lee Dilly Wedekind, III, Esquire

Room 110 Nelson Mullins Riley & Scarborough LLP

4075 Esplanade Way 50 North Laura Street, Suite 2850

Tallahassee, Florida 32399 - 7020 Jacksonville, Florida 32202

K raig Long, Esquire Mary C. Biscoe - Hall, Esquire

Nelson Mullins Riley & Scarborough, LLP Nelson Mullins Riley & Scarborough, LLP

Suite 1600 Suite 1600

100 South Charles Street 100 South Charles Street

Baltimore, Maryland 21201 Baltimore, Maryland 21201

Stanley Gorsica, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

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 ex ceptions to this Recommended

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

case.