22-001149 Rachel Hofer vs. Florida Department Of Corrections Status: Closed Recommended Order on Wednesday, July 20, 2022.

Summary: Petitioner failed to carry her burden that Respondent committed an unlawful employment practice by retaliating against her.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ACHEL H OFER ,

Petitioner ,

vs. Case No. 22 - 1149

F LORIDA D EPARTMENT OF C ORRECTIONS ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted via

Zoom on June 30, 2022, before Administrative Law Judge Garnett W.

Chisenhall of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Rachel Hofer, pro se

2417 Northwest 64 th Terrace

Gainesville, Florida 32606

For Respondent: Maria Shameem Dinkins, Esquire

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

The issue is wh ether the Department of Corrections (Ñthe DepartmentÒ)

committed an unlawful employment practice by retaliating against Rachel

Hofer by directing her former employer to not rehire her.

P RELIMINARY S TATEMENT

Ms. Hofer filed an Employment Complaint of Di scrimination with

the Florida Commission on Human Relations (Ñthe CommissionÒ) on

September 8, 2021 , 1 alleging the Department retaliated against her because

she filed a complaint with the Equal Employment Opportunity Commission

(Ñthe EEOCÒ). After the Com mission determined that there was no

reasonable cause to conclude that an unlawful employment practice had

occurred, Ms. Hofer filed a Petition for Relief on April 4, 2022.

The Commission referred this matter to DOAH on April 14, 2022, and the

undersigned issued a Notice on April 25, 2022, scheduling a final hearing for

May 24, 2022.

On May 16, 2022, the Department filed a ÑMotion to Dismiss for Lack of

JurisdictionÒ (Ñthe Motion to DismissÒ). Via the Motion to Dismiss, the

Department argued that it had n ever employed Ms. Hofer. Instead, Ms. Hofer

had been employed by Centurion, a company that contracts with the

Department. Accordingly, the Department argued that it Ñis not the

appropriate party to be the Respondent in this action and as such, DOAH

does no t have the jurisdiction to make any determinations affecting the

interests of [the Department], as [the Department] is not responsible for any

adverse employment actions taken against Ms. Hofer.Ò

The Motion to Dismiss was addressed during a telephone con ference on

May 17, 2022. The undersigned issued an Order later that day denying the

Motion to Dismiss without prejudice to being renewed at a later date.

1 Ms . Hofer alleged that she was retaliated against based on her religion but did not explain

that allegation or offer any evidence of such during the final hearing. Any other allega tions

made by Ms. Hofer were outside the statutory time frame and thus untimely. See § 760.11(1),

Fla. Stat. (2021)(establishing that any person aggrieved by a violation of Chapter 760 ,

Florida Statutes, has 365 days to file a complaint with the Commission ).

In support thereof, the Order stated that Ñthe undersigned is not yet

persuaded that there are no mate rial facts in dispute.Ò

During the May 17, 2022, phone conference, Ms. Hofer stated that she

needed more time to serve subpoenas on prospective witnesses. Accordingly,

the undersigned issued an Order on May 17, 2022, rescheduling the final

hearing for Ju ne 30, 2022.

On June 21, 2022, the Department filed a second ÑMotion to Dismiss for

Lack of JurisdictionÒ (Ñthe Renewed Motion to DismissÒ) arguing that the

Department should not be a respondent in this matter because it was not

Ms. HoferÔs joint employe r when she was employed by Centurion.

The undersigned denied the Renewed Motion to Dismiss via an Order

issued on June 22, 2022. The Order stated in pertinent part that:

The crux of PetitionerÔs case appears to be that one

of RespondentÔs employees, War den John Palmer,

has mandated, or has the authority to mandate, to

PetitionerÔs former employer that Petitioner not be

rehired. In order for the undersigned to grant the

Motion to Dismiss, Respondent would have to

demonstrate that, even if that allegation was true,

there would be no basis for finding that an

unlawful employment practice has occurred.

Respondent has not met that burden. Moreover,

Respondent attached an affidavit to the Motion to

Dismiss stating that Warden Palmer only made a

ÑrecommendationÒ that Petitioner not be rehired.

Thus, there appears to be a disputed issue of

material fact as to whether Warden Palmer

mandated or recommended that Petitioner not be

rehired. Accordingly, the Motion to Dismiss is

D ENIED without prejudice to being renewed .

The Department filed a third ÑMotion to Dismiss for Lack of JurisdictionÒ

(Ñthe Third MotionÒ) on June 27, 2022. On June 28, 2022, the undersigned

issued an Order denying th e Third Motion and several others that had been

filed by Ms. Hofer since J une 23, 2022. With regard to the Third Motion, the

undersigned ruled that Ñ[t]he information currently available . . . indicates

there could be a disputed issue of material fact as to how much control

Respondent has over CenturionÔs hiring decisions.Ò

Th e final hearing was convened on June 30, 2022. In addition to her own

testimony, Ms. Hofer presented testimony from Stephanie Alvarez.

PetitionerÔs Exhibits 6 through 8, 11 through 16, 18, 20 through 23, 25 , 26,

28, 32, and 33 were accepted into evidence. 2 The Department presented

testimony from Ms. Alvarez, John Palmer, Marcha Beane, J ocelyn Damelio ,

and Patricia Linn , RespondentÔs Exhibits 1 through 11 were accepted into

evidence.

Neither party ordered a transcript. Both parties filed timely proposed

recommended orders that were considered in the preparation of this

Recommended Order.

Unless stated otherwise, all statutory references shall be to the 2021

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

3d 441 (Fla. 5th DCA 2013)(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).

2 The undersigned noted that PetitionerÔs Exhibits 6, 12, 18, 22, 23, 25, and 26 contained

hearsay. The undersigned also noted the DepartmentÔs relevancy objection to PetitionerÔs

Exhibit 28.

F INDINGS OF F ACT

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

the enti re record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. Ms. H ofer earned a bachelorÔs degree in Classical Studies from the

University of Florida in 2006 and a m aster Ô s degree in Counseling fro m Palm

Beach Atlantic Un i versity in 2011.

2. Since completing her education, Ms. Hofer has been working in the

fields of mental health counseling, exercise therapy, and personal training.

She is licensed by the Florida Department of Health as a m ental h ealth

c ounselor.

3. The Department contracts with Centuri o n for the provision of medical

services to inmates .

4. Ms. Hofer began working for Centuri o n on September 12, 2016 , in the

position of m ental h ealth p rofessional provid ing counseling services to

i nmates in Florida State Prison in Ra iford , Florida.

5. Ms. Hofer sent an e - mail to Stephanie Alvarez on October 13, 2016 ,

complaining about an incident or incidents that had recently occurred at

Florida State Prison . Ms. Alvarez is a health services admini strator for

Centuri o n and manages Centurion Ôs staff there . Because some of Ms. HoferÔs

allegations pertained to corrections officers, Ms. Alvarez forwarded that e -

mail to John Palmer , who was the warden at Florida State Prison at that

time. 3

6. Ms. Hofe rÔs refusal to write a formal incident report came to the

attention of Warden Palmer. Ms. Hofer met with Warden Palmer and

Ms . Alvarez in Warden PalmerÔs office on October 21, 2016. During the

meeting, Warden Palmer explained to Ms. Hofer that an investiga tion of her

3 Mr. Palmer is currently the Director of Institut ions over 16 prisons in the DepartmentÔs

Region 2.

complaints could not begin until she wrote an incident report. Ms. Hofer

continued to refuse and resigned from Centurion during the meeting.

7. Due to Ms. HoferÔs refusal to write an incident report and her failure to

give any notice prior to r esigning, Centurion Ôs management decided that

Centurion would never rehire Ms. Hofer.

8. Warden Palmer recommended against Ms. Hofer being rehired because

he considered her conduct during their meeting to be disrespectful and

hostile. In addition, h e was concerned about her inability or refusal to follow

a simple request. Given that Florida State Prison is a maximum security

prison housing death row inmates and inmates deemed to be Ñ incorrigible, Ò

he considers it essential that people working in such an en vironment follow

simple instructions from their superiors .

9. Ms. Hofer filed a complaint against Centurion with the EEOC in

January of 2017. On September 21, 2018 , the EEOC issued a letter to

Ms. Hofer stating it had investigated the matter and was unable to conclude

that any violations had occurred.

10. Since her resignation, Ms . Hofer has received many communications

from Centurion via e - mail, social media, and U.S. Mail about working for the

company. 4

11. In June of 2021 , Ms . Hofer elected to pursue employment with

Centurion but learned from a recruiter in July of 2021 that she had been put

on a Ñdo not hireÒ list by Ce n turion.

12. Centurion makes its own personnel decisions, including those

pertaining to hiring and firing. Centurion is under no for mal obligation to

follow the DepartmentÔs wishes when it comes to CenturionÔs personne l

decisions. While the Department can make recommendations, there is no

persuasive evidence that the Department has any control over Centurion Ôs

personnel decisions.

4 Ms. Hofer did not specify during her testimony if those communications were directed

specifically to her or if she was one of many rec i pients.

13, Even if Ms. Hofer had carried her burden of establishing the elements

of a prima facie retaliation case and that the Department controlled

Centurion Ôs personnel decisions, the greater weight of the evidence

demonstrates that Centurion had a valid, non - pret extual reason for not

rehiring Ms. Hofer. That reason was Ms. HoferÔs refusal to write an incident

report and her failure to give any notice prior to resigning . Ms. Ho fer has not

presented any evidence demonstrating that Centurion Ôs justification for not

r ehiring her was a pretext for discrimination or retaliation .

C ONCLUSIONS OF L AW

14 . DOAH has jurisdiction over the parties 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).

15. The legislative scheme contained in sections 760.01 through 760.11,

Florida Statutes, is known as the Florida Civil Rights Act of 1992 (Ñthe

FCRAÒ).

16. The FCRA incorporates and adopts the legal principles and precedents

es tablished in the federal anti - discrimination laws specifically set forth under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et.

seq.

17. Florida courts have determined that federal discrimination law should

be used as guidance when construing the FCRA. See Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v.

Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

18. In the instant case, Ms. Hofer has the burden of proving by a

preponderanc e of the evidence that the Department committed an unlawful

employment practice. See EEOC v. JoeÔs Stone Crabs, Inc. , 296 F.3d 1265,

1273 (11th Cir. 2002)(noting that a claimant bears the ultimate burden of

persuading the trier of fact that the employer in tentionally discriminated

against the employee); § 120.57(1)(j), Fla. Stat.

19. As for Ms. Ho fer Ôs claim that her failure to be rehired by Centurion

was unlawful retaliation by the Department , the burden of proof in Title VII

retaliation cases is governed by the framework established in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

A plaintiff establishes a prima facie case by demonstrating the following:

(a) that she engaged in a statutorily protected activity; (b) she experienced an

adverse employment action; and (c) a causal link between the protected

expression and the adverse action. 5 Coles v. Post Master Gen . U.S. Postal

Serv . , 711 Fed. Appx. 890, 896 (11 th Cir . 2017) . The burden then shifts to the

defendan t to negate the inference of retaliation by presenting legitimate

reasons for the adverse employment action. If the defendant is successful,

then the plaintiff bears the burden of proving that the reasons offered by the

defendant are pretextual. Id.

20 . With regard to the causal link element, the Eleventh Circuit construes

Ñthe causal link element broadly so that a plaintiff merely has to prove that

the protected activity and the adverse action are not completely unrelated.Ò

Williams v. Ala. DepÔt of I ndus. Rels. , 684 Fed. Appx. 888, 894 (11th Cir.

2017). ÑA plaintiff satisfies this element (for the purpose of making a prima

facie case) if he provides evidence that (1) the defendant was aware of his

protected expression or activity; and (2) there was a close temporal proximity

between this awareness and the adverse action.Ò Id. at 894. ÑA close temporal

proximity between the protected expression and an adverse action is

sufficient circumstantial evidence of a causal connection for purposes of a

prima fac ie case.Ò Higdon v. Jackson , 393 F.3d 1211, 1220 (11th Cir. 2004).

See Donnellon v. Fruehaud Corp. , 794 F.2d 598, 601 (11th Cir. 1986)(stating

that Ñ[t]he short period of time [one month] between the filing of the

discrimination complaint and the plaintif fÔs discharge belies any assertion by

5 In the instant case, the first and second factors of a pri ma facie case do not appear to be in

dispute. Ms. Hofer engaged in a protected activity by filing an EEOC complaint, and she

suffered an adverse employment action when Centurion declined to rehire her.

the defendant that the plaintiff failed to prove causation.Ò). However, Ñ[i]f

there is a substantial delay between the protected expression and the adverse

action in the absence of other evidence tending to show causat ion, the

complaint of retaliation fails as a matter of law.Ò Dexter v. Amedisys, Home

Health of Ala. , 965 F. Supp. 2d , 1280, 1295 (N.D. Ala . 2013). 6

21. If an employer articulates a legitimate, non - discriminatory and non -

retaliatory reason for the advers e action, as Centurion has done here, then a

petitioner must establish that the non - retaliatory reason was merely a

pretext by demonstrating that the stated reason was not the true reason for

the employment decision. Jackson v. State of Ala. State Tenure CommÔn , 405

F. 3d 1276, 1289 (11th Cir. 2005). ÑA reason is not pretext for discrimination

unless it is shown both that the reason was false, and that discrimination

was the real reason.Ò Brooks v. Cnty. CommÔn of Jefferson Cnty., Ala. , 446

F.3d 1160, 1163 (11th Cir. 2006). A plaintiff Ñcan meet her burden either

directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employerÔs

proffered explanation is unworthy of credence.Ò Dexter , 965 F. Supp. 2d at

1296. See Jones v. Gerwens , 874 F.2d 1534, 1541 (11th Cir. 1989)(noting that

when assessing whether an employerÔs proffered reason was pretextual, it is

the decision - makerÔs motive that is at issue); Watkins v. Sverdrup Tech., Inc. ,

15 3 F.3d 1308, 1314 (11th Cir. 1998)(stating that in order to discredit an

employerÔs explanation, a plaintiff Ñmust demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employerÔs proffered legitimate reaso ns for its action that a reasonable

factfinder could find all of those reasons unworthy of credence.Ò); Murphree v.

CommÔr , 644 Fed. Appx. 962, 968 (11th Cir. 2016)(noting that Ñ[i]n evaluating

pretext, we ask whether the plaintiff has cast sufficient doub t on the

defendantÔs proffered nondiscriminatory reasons to permit a reasonable

6 In the instant case, a period of more than 4 years transpired between Ms. HoferÔs

unsubstantiated EEOC complaint and CenturionÔs decision to not rehire her.

factfinder to conclude that the employeeÔs proffered legitimate reasons were

not what actually motivated its conduct.Ò).

22. If the stated, non - retaliatory reason is one that might motivate a

reasonable employer, Ñan employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with the wisdom of

that reason.Ò Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir.

2000)(en banc). Pret ext must be established with Ñconcrete evidence in the

form of specific factsÒ showing that the proffered reason was pretext; Ñmere

conclusory allegations and assertionsÒ are insufficient. Bryant v. Jones , 575

F.3d 1281, 1308 (11th Cir. 2009). A reason can not be pretext for

discrimination Ñunless it is shown both that the reason was false, and that

discrimination was the real reason.Ò Fla. Stat. Univ. v. Sondel , 685 So. 2d

923, 927 (Fla. 1st DCA 1996).

23. With regard to the instant case, Ms. Hofer has na med the

Department, rather than Centurion , as a respondent. Therefore, in order to

maintain a case of retaliation against the Department, Ms. Hofer must first

establish that the Department and Centurion were her joint employers when

she worked at Florida S tate Prison. See, e.g., Butler v. Drive Auto Indus. o f

Am., Inc. , 793 F.3d 404, 408 (4 th Cir 2015)(explaining that Ñtwo parties can

be considered joint employers and therefore both be liable under Title VII if

they share or co - determine those matters gover ning the essential terms and

conditions of employment.Ò).

24. Even if the undersigned were to find that the Department had

sufficient control over the terms and conditions of Centurion employees to be

considered a joint employer with Centurion , and that Ms. Hofer could satisfy

the elements of a prima facie retaliation case , Centurion had a good faith

non - pretextual reason for not rehiring Ms. Hofer. That reason wa s

Ms. HoferÔs refusal to write an incident report and her failure to give any

notice prior to resigning .

25. Ms. Ho fer has not presented any evidence demonstrating that

Centurion Ôs justification for not rehiring her was a pretext for discrimination.

See Denney v. City of Albany , 247 F.3d 1172, 1188 (11th Cir. 2001)(noting

that a courtÔs role is not to act as a Ñsuper - personnel departmentÒ and second -

guess a companyÔs business decisions).

R ECOMMENDATION

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 or der dismissing Ms. HoferÔs Petition for Relief.

D ONE A ND E NTERED this 20th day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Stanley Gorsica, General Counsel

Florida Commission on Human Relations Florida Commission on Human Relations

4075 Esplanade Way , Room 110 4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 70 20 Tallahassee, Florida 32399 - 7020

Rachel Hofer Maria Shameem Dinkins, Esquire

2417 Northwest 64th Terrace Department of Corr ections

Gainesville, Florida 32606 501 South Calhoun Street

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

case.