22-001393 Caleb Evans vs. Vital Security And Investigations Llc Status: Closed Recommended Order on Wednesday, August 3, 2022.

Summary: Petitioner did not prove he suffered from an adverse action or otherwise subject to unlawful discrimination based on his gender.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C ALEB E VANS ,

Petitioner ,

vs. Case No. 22 - 1393

V ITAL S ECURITY A ND I NVESTIGATIONS

LLC ,

Respondent .

/

R ECOMMENDED O RD ER

O n July 8 , 2022 , Administrative Law Judge Hetal Desai of the Division of

Administrative Hearings (DOAH) conducted the final hearing in this matter

via Zoom .

A PPEARANCES

For Petitioner: Caleb Evans , pro se

5300 Balboa Drive

Orlando, Florida 32808

For Respondent: Mark L. Van Valkenburgh, Esquire

Garganese, Weiss, D Ô Agresta , & Salzman, PA

111 North Orange Avenue , Suite 2000

Orlando, Florida 32801

S TATEMENT OF T HE I SSUE

Whether Vital Security and Investigations, LLC ( VSI ) , discriminated

against Caleb Evans (Mr. Evans or Petitioner) on the basis of his gender in

violation of the Florida Civil Rights Act (FCRA).

P RELIMINARY S TATEMENT

On November 1, 2021, Petitioner filed a n Employment Complaint of

Discrimination (Complaint ) with the Florida Commission o n Human

Relations (FCHR) . In the Complaint, Petitioner alleged his supervisor

harassed him and other male employees because she disliked men. He also

alleged VSI terminated him in August 2021.

On April 8, 2022 , FCHR issued a Ñ Notice of Determination: No Reasonable

Cause . Ò O n May 10, 2022, Petitioner filed a Petition for Relief (Petition) to

contest FCHR Ô s determination. FCHR transferred the Petition to DOAH,

where it was assigned to the undersigned and noticed for a final hea ring.

A P re - H earing C onference was held on July 8, 2022, but Petitioner did not

attend.

At the final hearing, Petitioner offered h is own testimony . After the

hearing, Petitioner Ô s Exhibit P2 was admitted into evidence. 1 VSI offered the

testimony of Kri stin Kurtz, the Director of Finance and Human Resources for

VSI; and Leslie Scott, Petitioner Ô s former supervisor. Respondent Ô s Exhibits

R 5, R6, and R8 were admitted into evidence.

Although a court reporter was present at the hearing, the parties did not

order a copy of the transcript. The parties were to file proposed recommended

orders on or before August 19, 2022. VSI timely filed its Proposed

1 During the hearing, Petitioner attempted to show screenshots of text messages and offered

them as exhibits. Petitioner was prohibited from introducing any exhibits because he had

failed to provide them to the undersigned and did not disclose them to VSI prior to the

hearing as required by the Order of Pre - h earing Instructions , issued on June 9, 2022. The

undersigned reserved ruling on two of the text messages that Petitioner offer ed as rebuttal

exhibits , which were allowed to be filed with DO AH after the hearing. After review, t he

undersigned f inds Petitioner Ô s Exhibit P1 is inadmissible and deem s Exhibit P2 as admitted.

Recommended Order, which has been considered in the preparation of this

Recommended Order . Petitioner failed t o file a proposed recommended order.

All references to the Florida Statutes and Florida Administrative Code are

to the 2021 versions.

F INDINGS OF F ACT

1 . Petitioner, male, worked for VSI as a security officer for five years until

August 25, 2021.

2. VSI is a company that provides security and investigative services to its

clients, including homeowner sÔ associations and residential buildings. VSI

employs approximately 150 site supervisors and security officers ( 90 who are

male ; 60 who are female ).

3. Dwayn e Williams, male, is an owner of VSI and is involved in hiring,

firing, and other major decisions regarding employees.

4 . Leslie Scott, female, was a security site supervisor at VSI during the

times relevant to these proceedings. Ms. Scott supervised an al l - male security

team, including Petitioner, at a specific homeowners Ô association (HOA).

Ms. Scott had authority to schedule her subordinates but did not have the

authority to hire, fire, or make decisions regarding long - term leave or

permanent assignments .

5 . When Ms. Scott became Petitioner Ô s supervisor at the HOA site , she

replaced Captain Rose, a male supervisor who had a military background and

was well regarded by his subordinates. Ms. Scott and Mr. Evans had a

conversation about Ms. Scott replacing C aptain Rose and gaining the respect

of the all - male security team under her supervision. Mr. Evans claims

Ms. Scott said Ñ some men may have issues taking directions from a woman. Ò

Although it is unclear when this happened and there is a dispute about who

s tarted the conversation, Ms. Scott admitted at the hearing that she once told

Petitioner that Ñ as a woman Ò she would have to do more to prove herself.

6 . Regardless, a t the time, Mr. Evans never reported to anyone at VSI

that this conversation was offensiv e to him or that he believed Ms. Scott did

not like male employees.

7 . Kristin Kurtz, female, oversees the h uman r esources department for

VSI. She testified that VSI distributed an employee handbook to its

employees which contain ed numerous policies and pr ocedures, including

those addressing workplace harassment and paid bereavement leave. 2

8 . VSI Ô s bereavement leave policy (the policy) found in the employee

handbook states:

BEREAVEMENT LEAVE

All regular full - time employees are eligible for up to

three (3 ) paid days off if a death in the employee Ô s

immediate family occurs to attend the funeral.

Commissioned employees will be paid their base

pay only for this paid bereavement leave.

An employee Ô s immediate family consists of his/her

spouse, parents, steppa rents; grandparents,

children, stepchildren, siblings, spouse Ô s children,

spouse Ô s parents, and spouse Ô s grandparents. An

eligible employee may, with his or her Manager Ô s

approval, take unused vacation time to attend the

funeral of other relatives or frien ds.

The policy is silent as to whether documentation was necessary to take

advantage of the bereavement leave pay or what documents were

necessary to obtain such paid leave.

9 . At approximately 3:27 a.m. , on Saturday, August 14, 2021, Ms. Scott

texted Pet itioner regarding the schedule for the upcoming week. In response,

Petitioner indicated that his father had just passed away and he would need

to take a month off work. In that same text thread , Ms. Scott indicated that

although she was sympathetic , a mont h was a long time. She advised

2 The VSI anti - harassment policy and reporting procedures were not admitted into evidence,

nor was there testimony as to wh at VSI prohibited.

Petitioner to contact Mr. Williams directly regard ing the request for extended

leave. Mr. Evans agreed to do so.

10 . The next day, Mr. Evans asked Ms. Scott whether she would approve a

request for a week of leave. Ms. Scott i ndicated that pursuant to the

bereavement policy , VSI would give him three paid days off (Monday through

Wednesday) and he might be able to use vacation time after the bereavement

leave ended. If he did not make a vacation leave request , he would need to

r eturn on Friday . Ms. Scott also referred him to the employee handbook.

11 . In this same text conversation, Ms. Scott also indicated Petitioner

would need to submit proof of his father Ô s death. It is clear that this is what

irritated Mr. Evans the most at the hearing.

1 2 . Mr. Evans did not make a leave request for the Friday shift and never

submitted any documents relating to his father Ô s death .

1 3 . M s. Scott did not schedule M r. Evans to work his normal shifts the

following Monday through Wednesday, Augus t 16 through 18, 2021 . VSI

provided Petitioner bereavement leave pay for th ese th ree days pursuant to

the policy.

1 4 . Ms. Scott did not schedule Petitioner to work on Thursday, August 19,

2021. VSI paid him for the Thursday shift using his vacation leave.

1 5 . Because M s . Scott had not submitted a request to use his vacation

leave, Ms. Scott scheduled Petitioner to work on Friday, August 20, 2021.

Petitioner did not call to let Ms. Scott know he could not work that day, nor

did he show up.

1 6 . Ms. Scott rep orted Petitioner as a Ñ no call, no show Ò to VSI .

1 7 . VSI never disciplined Petitioner for fail ing to show up for the Friday

shift . VSI paid Petitioner for this shift using his vacation leave.

1 8 . On August 25, 2021, Mr. Williams contacted Mr. Evans and ask ed him

when he would return to work. Mr. Williams indicated that although

Petitioner could utilize his remaining vacation leave, he would need to

submit any leave requests through the proper channels.

1 9 . Mr. Evans did not provide Mr. Williams a return da te, but rather

complained about Ms. Scott Ô s unprofessionalism and alleged she did not like

male employees.

20 . Mr. Williams agreed to address Mr. Evans Ô complaints about Ms. Scott

with her at a later time, but pressed him regarding a return date. Eventual ly

he responded to Petitioner with the following :

So are you resigning? Well we value you regardless

of your perspective. We will hold your position and

when you are ready to return just let me know.

Additionally, I will need to know how you would

like you r vacation handled.

21 . Mr. Evans responded that he was not comfortable coming back to work

under Ms. Scott Ô s supervision because of the way she handled his request for

bereavement leave and that she was unprofessional.

2 2 . After the conversation with Pe titioner, Mr. Williams told Mr. Evans

that he considered his response to be a resignation.

2 3 . Mr. Williams told Ms. Kurtz about Mr. Evans Ô allegations that

Ms. Scott was sexist and unprofessional. As a result, Ms. Kurtz investigated

Petitioner Ô s claims an d found them baseless.

2 4 . Based on the competent evidence at the hearing, the undersigned finds

VSI did not terminate Mr. Evans. Rather, VSI considered Petitioner Ô s refusal

to work with Ms. Scott as a resignation, and accepted it.

C ONCLUSIONS OF L AW

25 . 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.

26 . Pursuant to section 760.10(1)(a), it is an unlawful employmen t

practice for an employer to Ñ discharge È or otherwise to discriminate against

any individual with respect to compensation, terms, conditions, or privileges

of employment, because of such individual Ô s race, color, religion, sex,

pregnancy, national orig in, age, handicap, or marital status. Ò 3

27 . VSI is an Ñ employer Ò as defined by the FCRA. § 760.02(7), Fla. Stat.

28. Petitioner must establish a prima facie case by a preponderance of the

evidence. Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997); s ee also

§ 120.57(1)(j), Fla. Stat. ( Ñ Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure proceedings or

except as otherwise provided by statute and shall be based exclusively on the

evidence of record and on m at ters officially recognized. Ò ). This simply

requires evidence that more likely than not tends to prove a certain

proposition.

29 . Petitioner can carry this burden by: (1) producing direct evidence of

discrimination; or (2) by producing circumstantial evid ence sufficient to allow

a fact finder to infer discrimination. Schoenfeld v. Babbitt , 168 F.3d 1257,

1266 (11th Cir. 1999) (citation omitted). Whether evidence is characterized as

Ñ direct Ò or Ñ circumstantial Ò substantially affects the allocation of the

ev identiary burdens of proof. Saweress v. Ivey , 354 F. S upp. 3d 1288, 1301

(M.D. Fla. 2019).

30 . Direct evidence is Ñ evidence from which a trier of fact could conclude,

based on a preponderance of the evidence, that an adverse employment

action was taken Ò on the basis of a petitioner Ô s protected personal

characteristic. Wright v. Southland Corp ., 187 F.3d 1287, 1303 - 04 (11th Cir.

1999) (finding direct evidence of age discrimination where two people

involved in the decision to terminate plaintiff made discrimi natory comments

less than three months prior to plaintiff Ô s termination); see also Jefferson v.

Sewon Am., Inc ., 891 F.3d 911 (11th Cir. 2018) (testimony that manager said

3 Florida courts have held that because the FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended (Title VII) , federal case law dealing with Title VII is

applicable. See, e.g., Valenzuela v. GlobeGround N. Am. , LL C, 18 So. 3d 17, 21 - 22 (Fla. 3d

DCA 2009) (gender); Thompson v. Baptist Hosp. of Miami, Inc ., 279 F.App Ô x 884, 888 n.5

(11th Cir. 2008) ( race).

he could not offer plaintiff position because a higher - ranked manager said

that he w anted a Korean in that position was direct evidence of

discrimination based on race).

31 . Ms. Scott Ô s statement regarding men not respecting her or that she

would have to prove herself Ñ as a woman Ò is not evidence which leads the

undersigned to conclude th at Petitioner was treated differently because of his

gender. These statements simply do not rise to the level of Ñ direct evidence Ò of

discrimination.

32 . Therefore , Mr. Evans must rely on circumstantial evidence of

discriminatory intent to prove his discr imination claim s using the shifting

burden of proof pattern established in McDonnell Douglas Corp oration v.

Green , 411 U.S. 792 (1973) :

(1) First, Petitioner has the burden of proving a

prima facie case of discrimination.

(2) If Petitioner sufficiently e stablishes a prima

facie case, the burden shifts to Respondent to

Ñ articulate some legitimate, nondiscriminatory

reason Ò for its action.

(3) If Respondent satisfies this burden, Petitioner

has the opportunity to prove that the legitimate

reasons asserted by Respondent are really a

pretext. See Valenzuela , 18 So. 3d at 22.

33 . Petitioner claims VSI favored women. To establish a prima facie case

of disparate treatment, Mr. Evans must demonstrate he: (1) belongs to a

protected class; (2) suffered an advers e employment action; (3) was qualified

to do h is job; and (4) was treated less favorably than similarly situated

employees outside of the protected class. Alvarez v. Lakeland Area Mass

Transit Dist., 2020 WL 3473286, at *10 (M.D. Fla. June 25, 2020) ; Schul tz v.

Royal Caribbean Cruises, Ltd. , 465 F.Supp. 3d 1232, 1268 (S.D. Fla. 2020)

( describing disparate treatment as when an Ñ employer simply treats some

people less favorably than others because of their race, color, religion, sex, or

national origin. Unlik e a disparate impact claim, proof of discriminatory

motive is critical . Ò ) (Internal citations and quotations o mitted).

34 . Mr. Evans meets the first requirement regarding sex or gender. He,

however, failed to prove the remaining elements.

35 . Regarding th e second element, Mr. Evans did not establish he suffered

any adverse action. He was given paid bereavement leave, never disciplined,

and told he could return to work when he was ready. The overwhelming

credible evidence indicated that VSI wanted Petitione r to return to work and

it would have continued to employ him had he not refused to work with

Ms. Scott. As such, he cannot establish the second element of the prima facie

case.

36 . Next, VSI does not dispute that Mr. Evans was qualified. By all

accounts, he was good at his job and VSI wanted him to continue at the

jobsite where he was assigned. However, an employee must be willing to

work to be qualified. Petitioner Ô s refusal to work with Ms. Scott made him

unavailable for work. As such, he has failed to carry his burden regarding

this element.

37 . To meet the fourth element, Mr. Evans must show VSI treated female

employees more favorably than it treated him. See Woods v. Cent. Fellowship

Christian Acad. , 545 F.App Ô x 939, 945 (11th Cir. 2013) (employee cla iming

discrimination must show he is similarly situated in all relevant respects to

the comparators given preferential treatment ) . Mr. Evans had no female

coworkers and did not give any examples of preferential treatment by anyone

at VSI toward female empl oyees.

38 . Although not specifically argued at the hearing, Mr. Evans also

claimed in his Complaint and Petition that Ms. Scott Ñ harassed Ò him. To

prove a harassment or Ñ hostile work environment Ò case under the FCRA,

Mr. Evans must show that the matters ab out which h e complains were

gender - focused, based, or motivated and that they were severe or pervasive.

See Jones v. UPS Ground Freight , 683 F.3d 1283, 1297 Ï 99 (11th Cir. 2012) .

39 . Ms. Scott Ô s isolated comments ( that men may not like tak ing

supervision fr om a woman or that she would have to prove herself Ñ as a

woman Ò ) are not reasonably offensive, severe, or pervasive. Moreover,

Ms. Scott Ô s scheduling Petitioner for the Friday shift, request ing

documentation regarding his father Ô s death, and reporting him as a Ñ no call,

no show Ò may have been less than sympathetic, but was not motivated by

Petitioner Ô s gender. See generally Ortiz v. Waste Mgmt., Inc. of Fla. , 808

F. App Ô x 1010, 1013 (11th Cir. 2020) (noting not every Ñ unreasonable, uncivil,

or mean - spirited act Ò is an Ñ adverse action Ò covered by the FCRA). Mr. Evans

failed to establish that VSI was Ñ permeated with discriminatory intimidation,

ridicule, and insult, that [was] sufficiently severe or pervasive to alter the

conditions of his employment . Ò Thomas v. Esterle , No. 21 - 10638, 2022 WL

2441562, at *4 (11th Cir. July 5, 2022) .

40 . Because Petitioner has not established a prima facie case of either

disparate treatment or harassment, his gender discrimination claim fails. As

such, it is unnecessary to addre ss Petitioner Ô s claim for damages .

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 order dismissing Caleb Evans Ô Petition for Relief.

D ONE A ND E NTERED this 2nd day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

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 Administ rative Hearings

this 2nd day of August , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Kristin Kurtz

Florida Commission on Human Relations Vital Security and Investigations, LLC

4075 Esplanade Way , Room 110 735 Primera Boulevard , Suite 150

Tallahassee, Florida 32399 - 7020 Lake Mary, Florida 32746

Mark L. Van Valkenburgh, Esquire Caleb Evans

Garganese, Weiss, D Ô Agrest a 5300 Balboa Drive

& Salzman, PA Orlando, Florida 32808

111 North Orange Avenue , Suite 2000

Orlando, Florida 32801 Mary Ellen Clark, Chief Legal Counsel

Florida Commission on Human Relations

Henry Graham, Attorney Supervisor 4075 Esplanade Way, Room 110

Florida Commission on Human Relations Tallahassee, Florida 32399

4075 Esplanade Way, Room 110

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 i n this

case.