22-000436 Chatorya Whitehurst vs. Micah's Place Status: Closed Recommended Order on Wednesday, July 6, 2022.

Summary: Petitioner failed to carry her burden of proving that Respondent subjected her to disparate treatment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C HATORYA W HITEHURST ,

Petitioner ,

vs. Case No. 22 - 0436

M ICAH ' S P LACE ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to n otice, a final hearing was conducted on April 8, 2022, via

Zoom, before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Chatorya Chavon Whitehurst, pro se

96534 Starfish Drive

Fernandina, Florida 32034

For Respondent: Leonard T. Hackett, Esquire

Vernis & Bowling, P.A.

4309 Salisbury Road

Jacksonville, Florida 32216

S TATEMENT OF T HE I SSUE

The issue is whether MicahÔs P lace committed an unlawful employment

practice by discriminating against Chatorya Whitehurst based on her race.

P RELIMINARY S TATEMENT

Ms. Whitehurst filed an Employment Complaint of Discrimination with

the Florida Commission on Human Relations (Ñthe Comm issionÒ) on July 29,

2021, alleging the following:

I am an African American. I was discriminated

against because of my race. I began my

employment with [MicahÔs Place] on July 25, 2017.

My most recent position title was Shelter Advocate.

Throughout my time there I was written up for the

smallest things. I was never given a chance to

explain my side of the story; it was automatically

assumed that I was guilty. During a training

session with a coworker and [upon] our return to

the office, my coworker was ques tioned about me

and my boyfriend. One question she was asked was

did I or my boyfriend see the credit card? My

coworker did not tell me about the incident until

she was leaving the agency for fear that I would

have said something, and she did not want to g et

involved. I was called a Ñn[È]Ò by participants who

have stayed in the shelter. The only response I

received from the Executive Director was that she

had been called worse. There was never any

compassion for anything dealing with race. For four

years I was made to work every weekend while I

saw my white co - workers quit, comeback and still

get better schedules. On April 15, 2021, I was

terminated from employment. However, I was

waiting on exemption papers, and I was not

supposed to be at work after April 7, 2021. I was

disqualified from work after a background check,

and I had to complete the exemption process.

Taylor Riffey and Heather Jones told me I could

still come to work; I just couldnÔt be by myself.

Three days later, I was fired.

The Commiss ion issued a Notice on January 25, 2022, concluding there

was no reasonable cause to conclude that an unlawful employment practice

had occurred. Ms. Whitehurst responded by filing a Petition for Relief, and

the Commission referred this matter to DOAH on Fe bruary 10, 2022, for a

formal administrative hearing.

The final hearing was convened on April 8, 2022. In addition to her own

testimony, Ms. Whitehurst presented testimony from Amanda De La Cruz

and Leslie Dinkins. PetitionerÔs Exhibits B, C, D, G , and H were received into

evidence. MicahÔs Place presented testimony from Taylor Riffey, and

RespondentÔs Exhibits A and B were accepted into evidence.

The one - volume final hearing Transcript was filed on June 9, 2022.

Both parties filed timely proposed recomm ended orders that were considered

in the preparation of this Recommended Order.

Unless stated otherwise, all statutory references shall be to the 2018

version of the Florida Statutes. See McClosky v. DepÔt of Fin. Serv s . , 115 So.

3d 441 (Fla. 5th DCA 20 13)(stating that a proceeding is governed by the law

in effect at the time of the commission of the acts alleged to constitute a

violation of law).

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. MicahÔs Place is certified by the Florida Department of Children and

Families (Ñthe DepartmentÒ) as a provider of services to survivors of domest ic

violence (ÑsurvivorsÒ or ÑparticipantsÒ) 1 in Nassau County, Florida.

Taylor Riffey, the director of domestic violence services at MicahÔs Place at all

times relevant to the instant case, describes its work as follows:

We provide safe haven through our e mergency

shelters to survivors of domestic violence and their

children, as well as outreach services to those who

maybe donÔt need shelter, but do still need our

services. We operate a 24 - hour hotline, and we

provide preventative services as well in school s.

MicahÔs Place operates 24 hours a day , 365 days a year.

1 Employees of MicahÔs Place often refer to domestic violence survivors as Ñparticipants.Ò

2. Ms. Whitehurst is an African American female who began working at

MicahÔs Place in July of 2017 as a shelter advocate. 2 Shelter advocates act as

a support system for participants and answer cal ls to Micah Ôs PlaceÔs 24 - hour

hotline.

3. In order to ensure the safety of the staff and participants, the

DepartmentÔs contract with MicahÔs Place mandates that two shelter

advocates be on site daily between the hours of 8:00 a.m. and 11:00 p.m.

Also, Mi cahÔs Place requires that every full - time employee work a Saturday

or a Sunday each week.

4. When Ms. Whitehurst began her employment at MicahÔs Place, she was

aware of the staffing requirements and that it was not a typical Ñ9 to 5Ò job.

5. In October of 2017, a participant who had been working with

Ms. Whitehurst filed a complaint with MicahÔs Place alleging that

Ms. Whitehurst had been rude to her. Ms. Whitehurst had been counseling

this participant about pursuing a GED and allegedly used the word Ñda mnÒ

during the course of the conversation.

6. As a result, Ms. Whitehurst received a ÑCorrective ActionÒ form on

October 26, 2017. While she did not receive any discipline, Mr. WhitehurstÔs

initial 90 - day probationary period as an employee of MicahÔs Plac e was

extended by an additional 90 days.

7. Ms. Whitehurst received a second ÑCorrective ActionÒ form on

September 20, 2018. One of Ms. WhitehurstÔs co - workers told Ms. Riffey that

Ms. Whitehurst was leaving work early. Ms. Riffey viewed video footage an d

discovered that Ms. Whitehurst had arrived late or left early on August 30 th

and 31 st , and September 1st, 7 th , 8 th , 13 th , 14 th , 15 th , and 16 th . Ms. Riffey

determined that Ms. Whitehurst had 11 hours of unauthorized absences on

the aforementioned days.

8 . As for discipline, the Ñ Corrective Action Ò form notes Ms. Whitehurst

was required to review Micah Ôs PlaceÔs policies on excessive tardiness and

2 Ms. Whitehurst worked as a shelter advocate at MicahÔs Place for nearly four years.

working hours. Ms. Whitehurst was also required to surrender 11 hours of

her paid time off. The Ñ Corrective Ac tion Ò form notes Ms. Whitehurst would

be subject to termination if this conduct continued.

9. Ms. Whitehurst felt that her coworkers who were not African American

received preferential treatment:

Q: And with regard to this incident, why do you feel

like th is amounts to discrimination?

A: Up until Ï from 2017, from that first write - up,

up until that write - up, Your Honor, I was basically

just witnessing, during that time, my co - workers

who were not of color, just basically do -- come --

come late, leave earl y, basically break

confidentiality, do all kinds of sorts of things, not

getting written up for. And during this time I was

simply trying to spend time with my son on the

weekends for football. And I had expressed this to

Taylor and Heather [Jones] 3 so man y times, to have

a weekend off with my son, to go to a football game,

to support my son, before he went to college. HeÔs in

high school and he played football. We had this

conversation several times. And prior to then, no

one was helping me, but I see all my other co -

workers not of color getting help, getting assistance

from Taylor. But with me, it was Ï that was never

done for me, so, I did take it upon myself to leave

early those days to go to my sonÔs practices at

football. And, also, when I did go Ï whe n I did go to

my sonÔs activities, I had to use my [paid time off].

And when my grandfather passed away, I didnÔt

have any [paid time off] to go to his funeral,

because IÔm from Virginia, so all my [paid time off]

was going towards just supporting my son. I tried

to express this to Taylor and Ï

* * *

Q: And why was all that paid time off exhausted?

3 Ms. Jones was the Executive Director of MicahÔs Place at a ll times relevant to the instant

case.

A: Due to me just having to leave work to go to my

sonÔs football games, practices, or just simply

wanting to spend time with my son. While all my

other co - w orkers were able to spend time with their

children, families, attend football games,

cheerleader practices.

10. Ms. WhitehurstÔs issues with Micah Ôs PlaceÔs scheduling continued

past her second ÑC orrective A ction Ò plan, and she continued to leave early

w ithout permission:

A: And in 20 Ï in 2020 of September, I was there

for three years and still not able to attend my sonÔs

football practices or games without using PTO.

Three years later, IÔm still having the same issues

as IÔm having in 2017, even explain ing to Taylor

and Heather how much my Ï supporting my son

means to me because we are from Virginia and not

from Florida, and so itÔs just me and I donÔt have

any family.

So, as you can see, from those conversations from

2017, from 2020, nothing never chan ged. I still had

the same schedule. I was still having to leave work,

sneaking out the back door to go support my son

because they never worked with me. They never

ever considered my child. They considered Amber

DickersonÔs child. They considered Robyn Lew isÔs

child. They considered Tonya VandaveerÔs

grandkids. Because she Ï they were all off every

Saturday to go to cheerleading, band practices, and

I still had to work and not go to none of my sonÔs

football games unless I PTOÔd.

Q: And I appreciate that, Ms. Whitehurst. Let me

just ask you, I believe you mentioned that your

schedule stayed the same throughout your

employment with MicahÔs Place; did I hear that

correctly?

A: Oh, well, IÔll rephrase. When I first got there, I

was Thursday, Friday, Saturda y and Sunday, 12:00

to 10:00. And then, you know, of me saying, hey, I

really want to support my son, IÔm getting off late, I

donÔt have no time to spend with him, heÔs going to

college soon, yeah, then they say, hey, well, we can

work with you, and then t hey gave me a Ï what

was my schedule? Well, basically, I was off by 5:30.

Still working on Saturdays, but they did give me

Sunday off, but still they did not help me because

the football games are Friday, and IÔm still trying

to express to them that I Ï th at the schedule still

didnÔt Ï I appreciated having a weekend day off

finally, but it still wasnÔt helpful, like I see them

help other -- my other co - workers.

11. Ms. Whitehurst received a third Ñ Corrective Action Ò form on

December 14, 2018, due to an in teraction with a participant while Ms.

Whitehurst was fielding calls to MicahÔs PlaceÔs hotline. A participant had

reported to two other shelter advocates that Ms. Whitehurst had been rude to

her during a call made to the hotline on December 12, 2018.

12. Ms. Whitehurst denied being rude to that participant, but MicahÔs

Place required her to complete additional training pertaining to the hotline

and ethical communications. Ms. Whitehurst was warned that continued

behavior of that nature could lead to termi nation.

13. Two subsequent incidents led to MicahÔs Place issuing a last chance

agreement to Ms. Whitehurst on November 19, 2020. MicahÔs Place sets its

holiday schedule in October every year so that its employees can request time

off and manage their pai d time off as necessary. Ms. WhitehurstÔs request for

leave on Christmas Eve and Christmas was granted. However,

Ms. Whitehurst later asked to have leave on New YearÔs Eve and New YearÔs

Day as well. After that request for additional leave was denied,

Ms. Whitehurst sent an e - mail to Ms. Riffey unilaterally declaring that she

would be working over Christmas , but not New YearÔs. After being told that

was not an option, Ms. Whitehurst continued asking for leave for New YearÔs

and complained about her schedule . MicahÔs Place considered

Ms. WhitehurstÔs conduct to be insubordinate.

14. The second incident leading to the Last Chance Agreement involved

an e - mail Ms. Whitehurst sent on November 5, 2020, stating that she could

not come to work because her sonÔs high school football team had been

quarantined due to COVID, and anyone who had come into contact with team

members had been asked to quarantine. Ms. Riffey learned later that day

that the football team had not been quarantined and deducted the time

Ms. Whiteh urst did not work on November 5, 2020, from her paid time off

balance.

15. A t some point in 2020, the Department took over operation of Micah Ôs

Place . Ms. Whitehurst had to undergo a background check, and the

Department discovered that she had a disqua lifying offense. 4 As a result, she

had to apply for and receive an exemption from disqualification from the

Department so that she could continue to work with MicahÔs Place Ôs

participants . See § 435.07, Fla. Stat. On April 15, 2021, Ms. Whitehurst e -

mailed Ms. Riffey at 10:55 a.m. asking if she could leave work at 2:00 p.m.

that day in order to mail the application paperwork to the Department. 5

Ms. Riffey was attending a training session off - site and responded with an e -

mail at 12:20 p.m. asking if Ms. Whit ehurst planned on returning to work

after she mailed the documents. Ms. Whitehurst did not respond. At 2:00

p.m. that day, Ms. Riffey read an e - mail that Ms. Whitehurst sent at 1:20

p.m. asking for leave from 2 p.m. to 7 p.m. that day. After Ms. Riffey ret urned

to MicahÔs Place around 2:10 p.m. that day, she learned that Ms. Whitehurst

4 Section 110.1127(3)(a), Florida Statutes, provides that Ñ[a]ll positions in programs

providing care to children, the developmentally disabled, or vulnerable adults for 15 hours or

more per week ... are deemed to be persons and positions of special trust or responsibility,

and require employment screening pursuant to chapter 435, using the level 2 standards set

forth in that chapter.Ò

5 Ms. Riffey testified that it was her understanding that Ms. Whitehurst could co ntinue to

work at MicahÔs Place during the exemption process so long as she did not have direct

contact with participants.

had left the facility without approval. 6 That led to MicahÔs Place firing Ms.

Whitehurst on April 15, 2021.

16. With regard to whether MicahÔs Place treated similarly - situ ated

employees outside Ms. WhitehurstÔs protected class more favorably ,

Ms. WhitehurstÔs evidence of disparate treatment was limited to assertions

that particular people she identified were treated differently, especially with

regard to scheduling. However , Ms. WhitehurstÔs assertions were lacking in

detail , were not substantiated by any evidence of record, and were not

corroborated by testimony from other witnesses. 7

17. Upon considering the evidence and testimony presented by both

parties, the undersigned finds that Ms. Whitehurst failed to prove by a

preponderance of the evidence that MicahÔs Place treated similarly - situated

employees outside Ms. WhitehurstÔs protected class more favorably .

C ONCLUSIONS OF L AW

18. D O AH has jurisdiction over the part ies and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida Statutes, and

Florida Administrative Code Rule 60Y - 4.016(1).

19. The State of Florida, under the legislative scheme contained in

sections 760.01 through 760.11 a nd 509.092, Florida Statutes, known as the

Florida Civil Rights Act of 1992, incorporates and adopts the legal principles

and precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act of 1 964, as

amended. 42 U.S.C. § 2000e, et seq .

6 MicahÔs Place has a handbook policy prohibiting employees from leaving work early without

permission.

7 Ms. Whitehurst questio ned Ms. Riffey about an incident in which MicahÔs Place did not

discontinue services to a survivor who called Ms. Whitehurst the n - word and acted in a

threatening way toward her. However, Ms. Riffey had no recollection of that incident. Also,

Ms. Whitehurs t did not offer any testimony or evidence of situations in which similar conduct

by participants toward other employees outside her protected class resulted in a different

response from MicahÔs Place.

20. Section 760.10 prohibits discrimination Ñagainst any individual with

respect to compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, national origin, age,

handicap, or marital status.Ò £ 760.10(1)(a), Fla. Stat.

21. Ms. Whitehurst alleges that she was the victim of disparate treatment.

See Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 808 n.2 (11th Cir.

2010)(en banc)(ÑWe reiterate that disparate treatment under 42 U.S.C.

§ 2000e - 2(a)(1) is the proper framework under which to evaluate hostile work

environment claims.Ò). The United States Supreme Court has noted that

Ñ[d]isparate treatment . . . is the most easily understood type of

discrimination. The employer simply treats some people less favorably than

others because of their race, color, religion, sex, or [other protected

characteristic].Ò Teamsters v. U.S. , 431 U.S. 324, 335 n.15 (1977). Liability in

a disparate treatment case Ñdepends on whether the protected trait . . .

actually motivated the employer's decision.Ò Hazen Paper Co. v. Biggins , 507

U.S. 604, 610 (1993). ÑThe ultimate question in every employment

discrimination case involving a claim of disparate treatment is whet her the

plaintiff was the victim of intentional discrimination.Ò Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 153 (2000).

22. Discriminatory intent can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 12 57, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. Bd. of Regents , 342

F.3d 1281, 1289 (1 1th Cir. 2003).

23. Ñ [ D ] irect evidence is composed of only the most blatant remarks,

whose intent could be nothing other than to discriminate on the basis of some

impermissible factor.Ò Schoenfeld , 168 F.3d at 1266 .

24. Ñ[D]irect evidence of intent is ofte n unavailable.Ò Shealy v. City of

Albany , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to

be victims of intentional discrimination Ñare permitted to establish their

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

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

25. Those seeking to prove discriminatory intent via circumstantial

evidence use the shifting burden of proof pattern established in McDonnell

Douglas Corp oration v. Green , 411 U.S. 792 (1973).

26. Under th e shifting burden pattern developed in McDonnell Douglas :

First, [Petitioner] has the burden of proving a

prima facie case of discrimination by a

preponderance of the evidence. S econd, if

[Petitioner] sufficiently establishes a prima facie

case, the burd en shifts to [Respondent] to

Ñarticulate some legitimate, nondiscriminatory

reasonÒ for its action. Third, if [Respondent]

satisfies this burden, [Petitioner] has the

opportunity to prove by a preponderance that the

legitimate reasons asserted by [Responde nt] are in

fact mere pretext.

U.S. Dep't of Hous. and Urban Dev. v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)(housing discrimination claim); accord , Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009)(gender discrimination

clai m)("Under the McDonnell Douglas framework, a plaintiff must first

establish, by a preponderance of the evidence, a prima facie case of

discrimination.").

27. Ms. Whitehurst did not present statistical or direct evidence of

discrimination. Therefore, in ord er to prevail in her claim against MicahÔs

Place , Ms. Whitehurst must first establish a prima facie case by a

preponderance of the evidence. Id. ; § 120.57(1)(j), Fla. Stat. ("Findings of fact

shall be based upon a preponderance of the evidence, except in p enal or

licensure proceedings or except as otherwise provided by statute and shall be

based exclusively on the evidence of record and on matters officially

recognized.").

28. Demonstrating a prima facie case is not onerous; it requires only that

the plaint iff establish facts adequate to permit an inference of discrimination.

See Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)( describing a

preponderance of the evidence a s the greater weight of the evidence or

evidence that more likely than not tends to p rove a certain proposition).

29. Ms. WhitehurstÔs discrimination claims are based on alleged , disparate

treatment. In order to establish a prima facie case for discrimination based

on disparate treatment, Ms. Whitehurst must show that : (a) she belongs to a

protected class; (b) she was subject to an adverse employment action; (c) her

employer treated similarly situated employees outside that protected class

more favorably ; and (d) she was qualified to do the job. Lewis v. City of

Georgia , 918 F.3d 1213, 1221 - 22 (11 th Cir. 2019).

30. The first, second, and fourth elements of a prima facie case are not at

issue in the instant case. As for the third element, Ms. WhitehurstÔs evidence

was limited to assertions that particular employees were treated more

favorabl y. However, her testimony was not corroborated by any persuasive

evidence or by any persuasive testimony from other witnesses. As a result,

Ms. Whitehurst failed to carry her burden of proof.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing Ms. WhitehurstÔs Petition for Relief.

D ONE A ND E NTERED this 6 th day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

G. W. C HIS ENHALL

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 6 th day of July , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Ag ency Clerk Leonard T. Hackett, Esquire

Florida Commission on Human Relations Vernis & Bowling , P.A.

4075 Esplanade Way , Room 110 4309 Salisbury Road

Tallahassee, Florida 32399 - 7020 Jacksonville, Florida 32216

Chatorya Chavon Whitehurst Michael Price, Esquire

96534 Starfish Drive Vernis & Bowling , P.A.

Fernandina, Florida 32034 4309 Salisbury Road

Jacksonville, Florida 3 2216

Stanley Gorsica, General Counsel

Florida Commission on Human Relatio ns

4075 Esplanade Way , Room 110

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 exceptions to this Recommended

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

case.