Recommended Order — 26-003415

STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES LAWRENCE,
Petitioner,
vs.
DISCOVERY MARKETING &
DISTRIBUTING, LLC,
Respondent.
/
Case No. 26-3415
RECOMMENDED ORDER
Pursuant to notice, a final hearing in this matter was conducted by Zoom
on September 8, 2026, before Justin M. Keen, a designated Administrative
Law Judge (ALJ) of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: 	James Lawrence, pro se
1695 Sarong Place
Winter Park, Florida 32792
For Respondent: 	Jose Leon, Esquire
100 SE 2nd Street
Miami, Florida 33131
STATEMENT OF THE ISSUES
(1) Whether Discovery Marketing & Distributing, LLC ("Respondent"),
committed an unlawful employment practice against James Lawrence
("Petitioner") on the basis of his race, in violation of the Florida Civil Rights
Act of 1992 (FCRA) (§§ 760.01 – 760.11, Fla. Stat.1), and/or (2) whether
1 All statutory references are to Florida Statutes (2025), unless otherwise noted.

2
Respondent retaliated against Petitioner for exercising his rights protected
by the FCRA, and (3) if so, what is the appropriate relief.
PRELIMINARY STATEMENT
On November 8, 2025, Petitioner filed a complaint with the Florida
Commission on Human Relations ("FCHR") alleging that Respondent, his
former employer, discriminated against him because of his race, and
retaliated against him. FCHR investigated the allegations in Petitioner's
complaint. On May 8, 2026, FCHR notified the parties that it determined no
reasonable cause existed as to Petitioner's complaint. Petitioner timely filed a
Petition for Relief with FCHR on June 12, 2026.2 FCHR referred the matter
to DOAH on July 13, 2026, for assignment of an ALJ to conduct the final
hearing.
On August 18, 2026, the undersigned issued a Notice of Hearing by Zoom
Conference scheduling the final hearing for September 8, 2026. At the
hearing, Petitioner testified on his own behalf and presented the testimony of
one witness: Laura Saer (who is known to him as "Quadri"). Petitioner's
Exhibits 1 through 6 were admitted into evidence.3 Respondent presented the
testimony of two witnesses: Mercedez Zielinski and Stephanie Katz.
Respondent's Exhibits 1 through 9 were admitted into evidence.
2 The Petition for Relief raised discrimination based on race. For reasons discussed below, it
is important to note that the Petition for Relief did not allege that Respondent discriminated
against Petitioner based on Petitioner's membership in any other protected class.
3 During the hearing, Petitioner tendered Petitioner's Exhibit 3 into evidence. Respondent
objected to the admission of Petitioner's Exhibit 3 because it only included three pages of the
complete document. Petitioner conceded it was an incomplete version of the document.
Respondent's objection was, therefore, sustained. The parties stipulated that, after the
hearing, Respondent would file a complete version of Petitioner's Exhibit 3, including all
exhibits thereto. Respondent filed the complete version of Petitioner's Exhibit 3 on
September 8, 2026, and it was admitted into evidence.

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A transcript of the final hearing was ordered. Both parties timely
submitted Proposed Recommended Orders, which were considered in
preparing this Recommended Order.4
The findings below are based on the sworn testimony and evidence
admitted at the hearing. Hearsay evidence was considered if it supplemented
4 In his Proposed Recommended Order, Petitioner raises—for the first time—disability
discrimination as a basis for his FCRA claims. Administrative proceedings are initiated by
written petition to the agency responsible for rendering final agency action. Fla. Admin. Code
R. 28-106.201(1). For FCRA claims, the responsible agency is FCHR. Among other things,
administrative petitions must contain: (1) "a statement of all disputed issues of material
fact"; (2) "a concise statement of the ultimate facts alleged, including the specific facts the
petitioner contends warrant reversal or modification of the agency's proposed action"; and
(3) "a statement of the specific rules or statutes the petitioner contends require reversal or
modification of the agency's proposed action, including an explanation of how the alleged
facts relate to the specific rules or statutes." Fla. Admin. Code R. 28-106.201(2)(d), (e), and
(f).
To initiate the administrative process for his discrimination claims, Petitioner must have
filed his petition with the FCHR within 365 days of the alleged violation(s). § 760.11(1),
Fla. Stat.; Richardson v. Recreational Vehicle Park Mgmt., LLC, 330 So. 3d 104, 106 (Fla. 1st
DCA 2021) (quoting Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 894
(Fla. 2002) (recognizing the 365-day timeliness requirement)). The violations alleged in this
case occurred on January 20, 2025. Thus, the deadline to file a petition was January 20,
2026. Petitioner's petition was timely filed, but he did not raise disability as a basis for his
FCRA claims, even though rule 28-106.201(2) required him to raise that basis in the petition.
Moreover, the issue was not raised in his complaint filed with and investigated by FCHR.
"[L]itigants at the outset of a suit must be compelled to state their pleadings with
sufficient particularity for a defense to be prepared." Sunbeam Television Corp. v. Mitzel,
83 So. 3d 865, 875 (Fla. 3d DCA 2012) (quoting Arky, Freed, Stearns, Watson, Greer, Weaver
& Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla.1988)). "Thus, when a
plaintiff pleads one claim but tries to prove another, it is error for a trial court to allow the
plaintiffs to argue the unpled issue at trial." Id. (citation omitted); see also Bloom v. Dorta–
Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) (stating that "a defendant cannot be found
liable under a theory that was not specifically pled"); Cioffe v. Morris, 676 F.2d 539, 543 n. 8
(11th Cir.1982) (confirming that unpled issues tried without consent deny due process).
In the present case, Respondent was not on notice that Petitioner was asserting
disability discrimination as a basis for his claims. The fact that testimony was elicited during
the final hearing concerning Petitioner's disability and service animals does not mean that
Petitioner could bypass Respondent's entitlement to notice and due process by raising a new
disability discrimination claim. By asserting this claim for the first time in his Proposed
Recommended Order, after the final hearing, Petitioner effectively sought to amend his
petition to allege a new claim or theory of discrimination. Thus, Petitioner's new disability
claims cannot be considered because they were untimely raised, thereby prejudicing
Respondent. In any event, for the reasons discussed below, Petitioner's race- and disability-
based discrimination and retaliation claims fail.

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or explained other non-hearsay evidence or would be admissible over
objection in civil actions. § 120.57(1)(c), Fla. Stat.
FINDINGS OF FACT
1. Respondent is an Orlando-based business. Its subsidiary, Florida
Energy Water & Air, is a distributor of residential water treatment,
renewable energy products, and HVAC systems. As of 2025, Respondent
serviced 36 counties in Florida with over 200 employees and agents.
2. Petitioner is a man who identifies ethnically and racially as Black,
Asian, Chinese, Filipino, German, Irish, Hispanic, Nigerian, White, and
Spaniard, according to his employment application. Petitioner was employed
by Respondent for approximately one week, from January 13-20, 2025,
inclusive. Petitioner worked for Respondent as an appointment setter and
telemarketer at its Maitland office.
3. All employment with Respondent was "at will" and all new employees,
including Petitioner, were initially employed under a 90-day probationary
period. During these first 90 days, Respondent evaluated new employees'
work performance to determine whether their employment would continue.
4. Respondent's stated employment policies prohibited harassment. The
policies required employees who felt harassed to immediately report it to
Ms. Katz, Respondent's Personnel Director, or to its CEO. Respondent also
offered employees a telephone hotline through which employees could report
harassment claims. The hotline was maintained by a third-party company,
PER, and was available to employees 24 hours a day, seven days a week.
5. Respondent expected its employees to abide by "Standards of Conduct"
that specifically addressed "excessive absenteeism," as follows:
Any newly hired employee that is absent from work,
either excused or unexcused, during their initial 90
days of employment will be subject to termination
for excessive absenteeism.

5
6. Ms. Katz testified that the purpose of the excessive absenteeism policy
was to ensure that new employees received their training. She explained that
new employees, including Petitioner, were often hired in large groups or
"classes." Ms. Katz further explained that classes of new employees were on a
specific training schedule and learned something new each day of their
probationary period. Thus, by missing one day of training, new employees
would fall behind their expected training benchmarks.
7. On January 13, 2025, Petitioner received a copy of Respondent's
employment policies, including the provisions addressing workplace
harassment and excessive absenteeism.
8. Petitioner's instant claims stem from two incidents involving his former
co-worker, Cheyenne Kent,5 that occurred on January 20, 2025, which was
Martin Luther King, Jr. (MLK) Day. For simplicity, these two incidents will
be referred to as "the cupcake comment" and the "door incident."
9. As to the cupcake comment, Petitioner testified that, at approximately
5:00 p.m., Ms. Kent passed out cupcakes to employees to celebrate an
employee's birthday. He testified that, while Ms. Kent did so, she stated
aloud that cupcakes would be given to Black people first because it was MLK
Day. Ms. Kent's comment was not directed at Petitioner.
10. Petitioner did not report the cupcake incident to Ms. Zielinski, his
supervisor, or to anyone else on January 20, 2025.
11. As to the door incident, Petitioner testified that sometime around
8:00 p.m., Ms. Kent placed her foot in front of the exit door as he tried to
leave the office.6 Petitioner claimed that by doing so, Ms. Kent briefly
5 Ms. Kent was not a supervisor; rather, she held the same position as Petitioner. And
according to her onboarding documentation, Ms. Kent self-identified as Black.
6 Petitioner notably did not see who was blocking the door. Rather, he testified that he
assumed it was Ms. Kent based on his belief that she had exited the room before he did.

6
prevented him from leaving work.7 Petitioner asserts that this conduct
constituted harassment that violated Respondent's employment policies.
12. Petitioner reported the door incident to the PER hotline the next day,
January 21, 2025. Petitioner did not report the cupcake comment during his
call to the hotline, nor claim that race was a factor in the door incident.
13. After he left the office on January 20, 2025, Petitioner did not return
to work. The next day, January 21, 2025, Petitioner's supervisor,
Ms. Zielinski, called him at approximately 3:45 p.m. because he was absent.
During that telephone call, Petitioner did not report the cupcake comment or
the door incident to Ms. Zielinski.8 Rather, Petitioner told her that he had
found employment elsewhere and was not returning to work. Ms. Zielinski
testified that Petitioner did not tell her where he had found another job nor
did she ask. She also said that she never told Petitioner that his employment
with Respondent was terminated or that he should not return to work.
14. During the hearing, Petitioner disputed Ms. Zielinski's testimony
about their telephone conversation. He claimed that he contacted
Ms. Zielinski on January 21, 2025, and told her that he did not feel
comfortable returning to work because it was a hostile work environment.9
He claimed that he never told Ms. Zielinski or anyone working for
Respondent that he resigned because he found another job. During the
hearing, Ms. Zielinski specifically refuted Petitioner's claims.
7 Importantly, Petitioner did not show that the door incident was directed at him. Rather, he
testified that Ms. Kent placed her foot "in front of the door, acting as a doorstop to prevent
people from getting out," and that he happened to be the first person at the door.
8 Ms. Zielinski testified that she first learned about the door incident a day or two after
Martin Luther King, Jr. Day, when another employee told her that Petitioner was frustrated
about someone blocking the door.
9 Petitioner claims that he first spoke with Ms. Zielinski on January 21, 2025, at
approximately 10:23 a.m., just after he called the PER hotline. But Ms. Zielinski testified
that she did not arrive at work on January 21, 2025, until noon—after the time that
Petitioner said that he spoke with her. This is just one example of many showing why
Petitioner's case falls flat.

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15. The undersigned finds Ms. Zielinski's testimony to be the more
credible version of what was said—and what was not said—during her
telephone call with Petitioner on January 21, 2025.
16. Petitioner also testified that he was unemployed and homeless from
the time he stopped working for Respondent until he was hired by his current
employer on June 5, 2026. To support that claim, he introduced affidavits
(Petitioner's Exhibits 1 and 2) and elicited testimony from Ms. Saer, a friend
of his. Such evidence and testimony were apparently intended to rebut
Ms. Zielinski's testimony that Petitioner told her that he found another job.10
However, Ms. Saer and others did not start providing Petitioner with
financial assistance until long after he stopped working for Respondent. For
example, according to Petitioner's Exhibit 1, payments to Petitioner began in
November 2025—ten months after he resigned from his employment with
Respondent. Notably, Ms. Saer did not even meet Petitioner until May or
June 2026—more than a year after Petitioner resigned from his position with
Respondent. The undersigned, therefore, finds that Ms. Saer's testimony, and
Petitioner's Exhibits 1 and 2, have negligible evidentiary value. Even if
Petitioner was homeless and insolvent in late-2025 and mid-2026, that does
not prove that he did not find another job in January 2025, as he told
Ms. Zielinski during their telephone call.
17. After her telephone call with Petitioner on January 21, 2025,
Ms. Zielinski reported her conversation to her director and completed
paperwork regarding Petitioner's resignation, titled, "Termination Report."11
10 If this testimony and evidence was intended to prove Petitioner's damages, then it is
irrelevant because the undersigned finds that Respondent did not discriminate or retaliate
against Petitioner.
11 Ms. Zielinski admittedly erred in her first version of her Termination Report (Respondent's
Exhibit 8). Her explanation for the error given during her testimony and in her affidavit
(admitted as Respondent's Exhibit 9) was credible. A corrected version of the Termination
Report was prepared by Ms. Zielinski and admitted into evidence as part of Respondent's
Exhibit 9.

8
The Termination Report indicated that Petitioner resigned, and that the last
day he worked was January 20, 2025.12
CONCLUSIONS OF LAW
18. DOAH has jurisdiction over the parties and subject matter of this
proceeding. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat., and Fla. Admin.
Code R. 60Y-4.016(1).
19. In filing this action, Petitioner alleges that Respondent violated the
FCRA in two ways: (1) by discriminating against him based on his race, and
(2) by retaliating against him.
20. The FCRA prohibits discrimination and retaliation in the workplace.
§§ 760.10(1) and (7), Fla. Stat. Those provisions provide, in relevant part:
(1) It is an unlawful employment practice for an
employer: (a) To discharge … any individual, or
otherwise to discriminate against any individual
with respect to compensation, terms, conditions, or
privileges 	of 	employment, 	because 	of 	such
individual's race [or] color.
* 	* 	*
(7) It is an unlawful employment practice for an
employer … 	to 	discriminate against any 	person
because that person has opposed any practice which
is 	an 	unlawful 	employment 	practice 	under
[the FCRA], or because that person has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under [the FCRA].
21. The FCRA applies to Respondent because it is an "employer,"
meaning it "employ[ed] 15 or more employees for each working day in each of
12 Notably, both versions of the Termination Report reflect that Petitioner resigned.
Ms. Zielinski testified that it was not an unusual occurrence for new employees of
Respondent to resign within a week or so of beginning their training.

9
20 or more calendar weeks in the current or preceding calendar year."
§ 760.02(7), Fla. Stat.
22. The FCRA was, in part, patterned after its federal counterpart—Title
VII of the Civil Rights Act of 1964, as amended in 1991 (42 U.S.C. § 2000e,
et seq.) ("Title VII"). Brown Distrib. Co. of W. Palm Beach v. Marcell, 890
So. 2d 1227, 1230 n. 1 (Fla. 4th DCA 2005) (quoting Fla. State Univ. v.
Sondel, 685 So. 2d 923, 925 n. 1 (Fla. 1st DCA 1996)). Accordingly, federal
cases interpreting Title VII apply to claims made under the FCRA. Id.; City
of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008); Paraohao v.
Bankers Club, Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002).
I. Petitioner's Race Discrimination Claim Fails
23. Petitioner has the burden of proving by a preponderance of the
evidence13 that Respondent committed an unlawful employment practice.
See St. Louis v. Fla. Int'l Univ., 60 So. 3d 455 (Fla. 3d DCA 2011). He may do
so by either direct evidence or circumstantial evidence. See Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009).
24. Direct evidence is evidence that, if believed, would prove the existence
of discriminatory intent behind the employment decision without the need for
inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182
(11th Cir. 2001) (citation omitted). "Only the most blatant remarks, whose
intent could mean nothing other than to discriminate on the basis of some
impermissible factor, constitute direct evidence of discrimination." Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Rojas v.
Fla., 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002)) (citation modified). Petitioner
presented no direct evidence of race discrimination.
13 A "preponderance of the evidence" means the "greater weight" of the evidence, or evidence
that "more likely than not" tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276,
280 n.1 (Fla. 2000).

10
25. So, for FCRA claims based solely on circumstantial evidence, the
three-part burden-shifting analysis articulated by the United States Supreme
Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
applies. See Byrd v. BT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007);
see also Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1387 (11th Cir.
1998).
26. Under the McDonnell Douglas analysis, Petitioner must first prove, by
a preponderance of the evidence, a prima facie case of discrimination. See
Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Doing so
creates a presumption that Respondent discriminated against Petitioner. See
Curtis v. Broward Cnty., 292 F. App'x 882, 883 (11th Cir. 2008). To prove a
prima facie case, Petitioner must establish that: (1) he is a member of a
protected class; (2) he was qualified for the position; (3) he suffered an
adverse employment action by Respondent; and (4) he was replaced by a
person outside his protected class or was treated less favorably than a
similarly situated individual outside his protected class. Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411
U.S. at 802).
27. If Petitioner makes a prima facie case, then the burden shifts to
Respondent to rebut Petitioner's preliminary showing by articulating that the
adverse action was taken for some legitimate, non-discriminatory reason.
See Burdine, 450 U.S. at 253. If Respondent does so, then the burden shifts
back to Petitioner to prove by a preponderance of the evidence that
Respondent's offered reasons for its adverse employment decision were not its
true reasons, but were a pretext for discrimination. See id.

11
a. 	Petitioner Failed to Establish a Prima Facie Case of Race Discrimination
Because He Did Not Prove That He Suffered an Adverse Employment by
Respondent
28. Adverse employment action is a "materially adverse change in the
terms and conditions of employment." Joseph v. Leavitt, 465 F.3d 87, 90
(2d Cir. 2006) (internal quotation omitted). Adverse employment action
requires "a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits." Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 761 (1998); see also Hart v. U.S. Atty. Gen., 433
F. App'x 779, 781 (11th Cir. 2011). An adverse employment action can also
occur when an employee is given a less distinguished title or has significantly
diminished material responsibilities. Kocsis v. Multi-Care Mgmt., Inc.,
97 F.3d 876, 886 (6th Cir. 1996) (citing Crady v. Liberty Nat'l Bank and Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993)). But a "bruised ego is not enough to
constitute an adverse employment action." White v. Burlington N. & Santa Fe
Ry. Co., 364 F.3d 789, 797 (6th Cir. 2004) (quoting Kocsis, 97 F.3d at 886).
29. The credible evidence introduced at the hearing demonstrates, as
found above, that Petitioner voluntarily abandoned his job. "Abandoning
one's job is the equivalent of resigning from a job; it is not an action taken by
the employer, but one taken by the employee." Adams v. Verizon N.Y., Inc.,
2008 WL 2047815, at *4 (S.D.N.Y. May 13, 2008); see also Evans v. Davie
Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir. 1985) (affirming the trial court's
finding that an employee failed to prove an adverse employment action by his
employer where the employee voluntarily resigned from his position with the
employer). Petitioner's decision to resign, therefore, is not "adverse action" for
purposes of his race discrimination claim.
30. To be sure, in some cases, resignation can constitute adverse
employment action. Such a situation arises only where an employee can
prove he was "constructively discharged." See Fla. Dep't of Child. & Fams. v.

12
Askew, 365 So. 3d 1211, 1216–17 (Fla. 1st DCA 2023) (citing Davis v. Legal
Servs. Ala., Inc., 19 F.4th 1261, 1267–68 (11th Cir. 2021)). But voluntary
resignation does not amount to constructive discharge. Martin v. Fla. Dep't of
Agric. & Consumer Servs., 828 F. Supp. 3d 1345, 1350 (N.D. Fla. 2026)
(citation omitted).
31. "[R]esignations are presumed to be voluntary unless the employee
presents sufficient evidence showing his resignation was involuntary." Askew,
365 So. 3d at 1216 (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568
(11th Cir. 1995)). "An employee can show that his resignation was
involuntary in two situations: '(1) where the employer forces the resignation
by coercion or duress, or (2) where the employer obtains the resignation by
deceiving or misrepresenting a material fact to the employee.'" Id. at 1217
(quoting Hargray, 57 F.3d at 1568). Here, Petitioner presented no evidence
that Respondent forced him to resign by coercion or duress, or that
Respondent had obtained his resignation by deception or misrepresentation.
32. At the final hearing, Petitioner nonetheless implied that his
resignation was involuntary. He specifically claimed that his failure to report
to work on or after January 21, 2025, was due to the "hostile work
environment" at Respondent's Maitland office location.
33. Hostile work environment claims arise "in cases where harassment
occurred, but no tangible adverse employment action was taken." Reine v.
Honeywell Intern. Inc., 362 F. App'x 395, 397 (5th Cir. 2010) (citing
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54 (1998)). To prove that
a hostile work environment constituted "adverse employment action,"
Petitioner must show that the harassment he complains of was "so severe or
pervasive that it alter[ed] the conditions of [his] employment." Feliciano-Hill
v. Principi, 439 F.3d 18, 26–27 (1st Cir. 2006) (quoting Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 26 (1st Cir. 2002)). "Isolated or sporadic incidents of
harassment do not satisfy the "severe or pervasive" standard of a hostile
work environment claim." Mosley v. MeriStar Mgmt. Co., LLC, 137 F. App'x.

13
248, 252 (11th Cir. 2005) (citing Faragher v. City of Boca Raton, 524 U.S. 775,
787–88 (1998)).
34. In other words, to prove that he was constructively discharged by a
hostile work environment, Petitioner must show "that [his] working
conditions were so difficult or unpleasant that a reasonable person in [his]
shoes would have felt compelled to resign." Feliciano-Hill, 439 F.3d at 26–27.
This is an objective standard that "cannot be triggered solely by the
employee's subjective beliefs, no matter how sincerely held." Id. Stated
differently, Petitioner must "establish not only that [he] subjectively
perceived the environment as hostile and abusive, but also that a reasonable
person would perceive the environment to be hostile and abusive." Gupta v.
Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000) (citations omitted).
35. Behavior that is merely unfair or rude, but not tied to a protected
characteristic, does not support a hostile work environment claim. See Nolan
v. St. Johns Cnty. Sch. Bd., 759 F. Supp. 3d 1215, 1228 (M.D. Fla. 2024)
(citation omitted); see also Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, 47
F.3d 1068, 1074 (11th Cir. 1995). Arguably, Ms. Kent's cupcake comment and
the door incident were rude. But anti-discrimination laws are not intended to
be a "civility code." Harris v. Pub. Health Tr. of Miami-Dade Cnty., 82 F.4th
1296, 1302 (11th Cir. 2023) (citing Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d 798, 809 (11th Cir. 2010) (en banc)). That is because Title VII was
not intended to address "the ordinary tribulations of the workplace, such as
the sporadic use of abusive language, gender-related jokes, and occasional
teasing." Faragher, 524 U.S. at 788 (citation modified). Stated bluntly, "the
protections of Title VII simply do not extend to "everything that makes an
employee unhappy." MacLean v. City of St. Petersburg, 194 F. Supp. 2d 1290,
1298 (M.D. Fla. 2002) (quoting Davis v. Town of Lake Park, Fla., 245 F.3d
1232, 1242 (11th Cir. 2001)).
36. "To determine whether a hostile work environment exists, courts
should consider the totality of the circumstances, including the frequency of

14
the discriminatory conduct, its severity, its offensiveness, and whether it
interferes with an employee's work performance." Williams v. Spencer, 883 F.
Supp. 2d 165, 180 (D.D.C. 2012) (citations omitted). But "[n]ot all
objectionable conduct or language amounts to discrimination under
Title VII." Williams v. Sch. Bd. of Palm Beach Cnty., 386 So. 3d 565, 566
(Fla. 4th DCA 2024) (quoting Jones v. UPS Ground Freight, 683 F.3d 1283,
1297 (11th Cir. 2012)); see also Reeves, 594 F.3d at 809. "[O]ne instance of a
racist comment does not itself render a workplace hostile unless the comment
is sufficiently severe to make up for the absence of pervasiveness." Melton v.
I-10 Truck Ctr. Inc., 166 F.4th 905, 918 (11th Cir. 2026). And comments made
by a co-worker which were "discriminatory and offensive" to a petitioner do
not "establish that the workplace was permeated with discriminatory
intimidation, ridicule, and insult." See Fla. Dep't of Child. & Fams. v.
Shapiro, 68 So. 3d 298, 304 (Fla. 4th DCA 2011) (citation modified) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
37. Petitioner failed to show that the claimed harassment—the cupcake
comment and the door incident—rose to the level of being a "hostile work
environment." Accordingly, there is no evidence of constructive discharge.
Petitioner has, therefore, failed to prove that he suffered any adverse
employment action by Respondent.
b. 	Petitioner Failed to Establish a Prima Facie Case of Race Discrimination
Because He Did Not Prove That He Was Treated Less Favorably
38. Petitioner also fails the fourth factor of the McDonnell Douglas
analysis—that he was treated less favorably than a similarly-situated
individual outside his protected class. Although the cupcake comment was
related to Petitioner's race, it does not show that he was treated poorly.
Rather, the comment suggests that Petitioner was treated more favorably
than his co-workers because he was a Black man and it was MLK Day.
* 	* 	*

15
39. Because Petitioner did not establish a prima facie case of race
discrimination, further McDonnell Douglas analysis is unnecessary.
Petitioner failed to prove that he was discriminated against based on his
race, so the petition as to that claim should be dismissed.
II. Petitioner's Retaliation Claim Fails
40. Petitioner also claims that Respondent retaliated against him because
he reported harassment to the PER hotline on January 21, 2025.
41. To establish a prima facie case of retaliation under section 760.10(7),
Petitioner must demonstrate that: (1) he engaged in statutorily protected
activity; (2) he suffered an adverse employment action; and (3) the adverse
employment action was causally related to the protected activity. Blizzard v.
Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009) (citing Harper,
139 F.3d at 1388). Petitioner has the burden of proving so by a preponderance
of the evidence. See St. Louis, 60 So. 3d at 460.
42. The McDonnell Douglas burden-shifting analysis applies to retaliation
claims. Johnson v. Booker T. Wash. Broad. Serv. Inc., 234 F.3d 501, 511 n. 10
(11th Cir. 2000). Accordingly, once Petitioner makes a prima facie showing,
the burden shifts to Respondent, who must articulate a legitimate reason for
its adverse employment action. Blizzard, 16 So. 3d at 926 (citation omitted);
see also St. Louis, 60 So. 3d at 460. Petitioner must then respond by
demonstrating that Respondent's asserted reasons for the adverse action
were pretextual. Id.
a. 	Petitioner Failed to Establish a Prima Facie Case of Retaliation Because
He Did Not Prove That He Engaged in Protected Activity
43. "Protected activity" refers only to opposition to discrimination on the
bases enumerated in section 760.10, or participation in an investigation of
discrimination on those bases. It does not include concerns that have no

16
connection to an unlawful employment practice. See Duncan v. Madison
Cnty., 272 F. App'x 859 (11th Cir. 2008).
44. Here, Petitioner claims that his report to the PER hotline concerning
the door incident constituted protected activity. But in that report, Petitioner
only referred to "harassment" in a general sense. He did not claim—nor even
suggest—that race was a factor. Because race had nothing to do with what
Petitioner reported, his call to the hotline fell "outside the purview of Title
VII and [was] not [a] statutorily protected expression[ ]." See Johnson v. Dep't
of Juv. Just., 2026 WL 472321, at *10 (M.D. Fla. Feb. 19, 2026); see also
Jeronimus v. Polk Cnty. Opportunity Council, Inc., 145 F. App'x 319, 326
(11th Cir. 2005) (plaintiff's complaint of being "singled out," being subjected
to "a campaign of harassment," and working in a "hostile environment," was
held not to be "protected activity" because the plaintiff never suggested that
this treatment was in any way related to his race). Petitioner, therefore,
failed to prove the first prong of his FCRA retaliation claim—that he engaged
in statutorily protected activity.
b. 	Petitioner Failed to Establish a Prima Facie Case of Retaliation Because
He Did Not Prove That He Suffered an Adverse Employment by
Respondent
45. Even if Petitioner's call to the PER hotline qualified as protected
activity, he failed to establish a prima facie case of retaliation. That is
because Petitioner did not prove that he suffered an adverse employment
action—the second prong of an FCRA retaliation claim.
46. In deciding Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53 (2006), the United States Supreme Court expanded the definition of
"adverse employment action" for purposes of Title VII retaliation claims.
Donovan v. Broward Cnty. Bd. of Comm'rs, 974 So. 2d 458, 460 (Fla. 4th DCA
2008). After Burlington, an employee raising a retaliation claim need only
show that "a reasonable employee would have found the challenged action

17
materially adverse." Id. (quoting Burlington, 548 U.S. at 68). Stated
differently, "any action, whether or not directly related to work, can form the
basis of a retaliation claim, so long as a "reasonable employee" would consider
the action to be "materially adverse." Id.
47. Even if Petitioner's call to the PER hotline could be considered
"protected activity" under the FCRA, the credible evidence introduced at the
final hearing established, as found above, that Petitioner voluntarily resigned
from his employment with Respondent the day before he called the
harassment hotline. Thus, even under the expanded definition of "adverse
employment action" for retaliation claims, Petitioner failed to establish that
Respondent took an adverse employment action against him.
c. 	Petitioner Failed to Establish a Prima Facie Case of Retaliation Because
He Did Not Prove Causation
48. Because Petitioner failed to prove the first two prongs of a prima facie
case of retaliation, no further analysis is necessary. But even if Respondent's
designation of Petitioner's employment status as "resigned" can be considered
an adverse employment action, Petitioner failed to establish a prima facie
case of retaliation. That is because he failed to show that Respondent's
designation was causally related to any statutorily protected activity he
engaged in while he was Respondent's employee.
49. To show causation, Petitioner's complaint (i.e., protected activity) must
be the but-for cause of the adverse employment action taken against him. See
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); see also Diaz
v. Florida, 219 F. Supp. 3d 1207, 1220 (S.D. Fla. 2016); Mealing v. Ga. Dep't
of Juv. Just., 564 F. App'x 421, 426–27 (11th Cir. 2014) (acknowledging that
a plaintiff claiming retaliation must show but-for causation).
50. Here, Petitioner failed to show up to work on or after January 21,
2025. And he told Ms. Zielinski that day that he had found employment
somewhere else. That is why she processed the Termination Report

18
designating Petitioner as having voluntarily resigned. Petitioner, therefore,
failed to show that his hotline complaint—assuming that it constituted
protected activity—was the but-for cause of Respondent's designation of
Petitioner as having voluntarily resigned—assuming that designation
constituted an adverse action.
* 	* 	*
51. Petitioner's failure to make a prima facie case of either discrimination
or retaliation means the burden does not shift to Respondent to come forward
with a non-discriminatory or non-retaliatory reason for its alleged
termination of Petitioner.14 Simply put, there was no termination or any
other adverse employment action for Respondent to rebut. Rather, Petitioner
failed to meet his burden of proof as to either claim. His petition must,
therefore, be dismissed.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that FCHR issue a final order dismissing Petitioner's
complaint against Respondent alleging discrimination and retaliation.
14 Even if Petitioner established a prima facie case of retaliation—which would shift the
burden to Respondent—his claim still fails. Respondent's policy regarding excessive
absenteeism specifically provided that any absences during the probationary period would
subject new employees to termination. Petitioner was absent on January 21, 2025. This
occurred during his initial probationary period. Thus, Respondent could have properly
terminated Petitioner's employment at that time due to his apparent violation of the
excessive absenteeism policy. But Respondent did not do so. Instead, Respondent noted
Petitioner as having voluntarily resigned from his position after he was absent on
January 21, 2025, and told his supervisor that he had found another job. Respondent,
therefore, had a legitimate, non-retaliatory reason for designating Petitioner the way it did—
assuming that the designation is even an adverse employment action.

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Case No. 26-3415
DONE AND ENTERED this 13th day of October 2026, in Tallahassee,
Leon County, Florida.
S
JUSTIN M. KEEN
Administrative Law Judge
DOAH Tallahassee Office
Division of Administrative Hearings
2001 Drayton Drive
Tallahassee, Florida 32311
(850) 488-9675
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 13th day of October 2026.
COPIES FURNISHED:
Elizabeth A. Miller, Chief Legal Counsel
(eServed)
Casey C. Snipes, Agency Clerk
(eServed)
Melissa Francis, Attorney
(eServed)
Jose I. Leon, Esquire
(eServed)
Cindy T. Harper, Attorney Supervisor
(eServed)
James Andrew Lawrence, Jr., Esquire
(eServed)
Shea Corey Kleinman, Associate
(eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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 in this
case.