Buade v. Terra Group , 259 So. 3d 219 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed November 7, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2131
Lower Tribunal No. 12-15914
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Beatriz Buade,
Appellant,
vs.
Terra Group, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Sharp Law Firm, P.A., and Christopher C. Sharp (Fort Lauderdale), for
appellant.
Greenberg Traurig, P.A., and Ronald M. Rosengarten, for appellee.
Before SUAREZ, FERNANDEZ and SCALES, JJ.
FERNANDEZ, J.
Appellant Beatriz Buade appeals the trial court’s final order granting
appellee Terra Group, LLC’s (Terra) motion for judgment on the pleadings or in
the alternative for directed verdict. Upon review of the record, we affirm.
BACKGROUND
From October 2004 to the date of her termination on December 10, 2010,
Buade was employed by Terra as a contract administrator and was promoted to
customer service supervisor. In her supervisory role, Buade alleges that, beginning
on or about August 1, 2005, Terra employee, Carlos Hollender, began refusing to
comply with Buade’s instructions related to his employment, and she later claimed
that Hollender was sexually harassing her. In 2010, Buade was terminated by
Terra; she alleges that her termination was a result of her complaints regarding her
perceived discrimination. The following timeline of events begins with Buade’s
initial report of insubordination and concludes with her termination:
 At some point between 2005 and 2006, Buade began to report Hollender’s
noncompliance to her supervisor, Michael Piazza. Piazza reassigned
Hollender for a period of two and a half months, after which time Hollender
returned to Buade’s department and remained insubordinate.
 For the first time, in early 2007, Buade informed Piazza that Hollender was
sexually harassing her in the workplace and continued to report the alleged
sexist treatment to Piazza over the next 3 years.
 On June 4, 2010, Buade sent an email to Piazza and copied Yelana
Fernandez, Terra’s head of human resources, stating that she believed that
Hollender had a personal issue with women being in authoritative positions.
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 On June 7, 2010, Piazza and another of Buade’s supervisors determined that
Hollender would work on his own from then on. Nevertheless, by September
2010, Hollender returned to working under Buade’s supervision. Buade
alleges that Hollender continued to harass her during that time. Buade
claims that she continued to make Piazza aware of these incidents, but
nothing further was done to deter or discipline Hollender for his actions.
 On December 10, 2010, Buade was terminated. Buade alleges that there
were no legitimate non-discriminatory or non-retaliatory reasons for her
termination and that she was ultimately terminated based on her sex.
On or about April 12, 2011, Buade filed an official Charge of Discrimination
against Terra with the Florida Commission on Human Relations (FCHR) and with
the Equal Employment Opportunity Commission (EEOC). The charge was limited
to Hollender’s alleged harassment, insubordination, and intimidation, and in the
section of the charging document titled “Discrimination Based On,” Buade
checked only the box labeled “Sex,”1 leaving the “Retaliation” box unchecked. On
April 23, 2012, Buade filed a two-count complaint alleging a violation of section
760.10, Florida Statutes (2017), for sex discrimination (Count I) and retaliation
1 In the section requesting the latest act of discrimination, Buade provided the date
“December 8, 2010,” without explanation or context. Below and on appeal, Buade
incorrectly asserts that this was the date of her termination, as support for her
argument that she exhausted her administrative remedies as to the retaliation claim.
Buade’s actual date of termination was December 10, 2010. Within the document,
there is no reference to her termination that occurred the year before.
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(Count II). As to the retaliation count, Buade asserts that her complaints regarding
Hollender’s treatment towards her in the workplace constitute protected activity
under the Florida Civil Rights Act of 1992 and Title VII of the Civil Rights Act of
1964, as amended. On September 11, 2013, Buade dismissed her sex
discrimination claim, leaving only her retaliation claim.
On May 13, 2014, during trial, Terra filed a motion for judgment on the
pleadings or in the alternative for directed verdict arguing that Buade failed to
exhaust her administrative remedies as to the retaliation claim. On August 12,
2015, after a hearing on the motion, the trial court granted Terra’s motion and
dismissed Buade’s complaint with prejudice due to Buade’s failure to exhaust her
administrative remedies before filing suit. This appeal followed.
ANALYSIS
The standard of review for an order granting a motion for judgment on the
pleadings is de novo. Walker v. Figarola, 59 So. 3d 188, 190 (Fla. 3d DCA 2011).
This is the same legal test that governs a motion to dismiss for failure to state a
cause of action. Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723, 725 (Fla. 5th
DCA 2006).
Before a plaintiff files a Title VII action, he or she must exhaust all
administrative remedies by filing a charge of discrimination with the EEOC. See
Sanchez v. Standard Brands, Inc., 431 F. 2d 455, 460 (5th Cir. 1970). In order to
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exhaust his or her administrative remedies, a plaintiff must include the factual
bases for all of his or her Title VII claims in the charge. See Houston v. Army
Fleet Servs., L.L.C., 509 F. Supp. 2d 1033, 1043 (M.D. Ala. 2007). The Florida
Civil Rights Act (FCRA) contains this same exhaustion requirement regarding
retaliation claims. See § 760.11, Fla. Stat. (2011); Sheridan v. State, Dep’t of
Health, 182 So. 3d 787, 789 (Fla. 1st DCA 2016); Carter v. Health Mgmt. Assocs.,
989 So. 2d 1258, 1262 (Fla. 2nd DCA 2008). To state a cause of action for
retaliation under the FCRA, an employee must prove a prima facie case by
showing: “(1) he engaged in a statutorily protected expression; (2) there was an
adverse employment action; and (3) there was a causal connection between the
participation in the protected expression and the adverse action.” St. Louis v. Fla.
Int’l Univ., 60 So. 3d 455, 460 (Fla. 3d DCA 2011).
First, Buade contends that it was not necessary for her to check off the box
for “Retaliation” on her EEOC charge because the alleged retaliation would have
reasonably been expected to have been discovered during an investigation of the
sexual discrimination charge. However, retaliation is an entirely separate cause of
action from a discrimination claim. See Wallin v. Minn. Dep’t of Corrs., 153 F. 3d
681, 688 (8th Cir. 1998) (“[I]t is well established that retaliation claims are not
reasonably related to underlying discrimination claims.”). Retaliation is not “an
integral part of an underlying discrimination claim, and, therefore, would not have
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been encompassed in a reasonable investigation of plaintiff’s charge of disability
harassment.” Williamson v. Int’l Paper Co., 85 F. Supp. 2d 1184, 1197 (S.D. Ala.
2000). And, if the alleged retaliation occurs before the EEOC charge is filed, the
plaintiff is required to include factual information in the charge that indicates the
basis of his or her retaliation claim. Houston, 509 F. Supp. 2d at 1042.
Here, Terra’s alleged retaliation occurred before Buade filed her EEOC
charge, so Buade was required to specifically include a factual narrative supporting
her retaliation charge, which she did not do. Buade not only failed to indicate in
the charge that she was terminated the year before, but also, that any adverse action
was taken against her by her employer or that she was retaliated against in any
way. The charge fails to make any connection between Buade’s email complaint
to Piazza on June 4, 2010 regarding Hollender’s behavior and her termination more
than six months later on December 10, 2010. All the charge claims is that Buade
was subjected to sex discrimination but includes nothing about any retaliation, only
denoting a date for Terra’s last act of discrimination. Also, despite having
adequate time and opportunity, Buade never amended the charge to include a claim
for retaliation.
Additionally, no temporal proximity exists between when Buade complained
via email to Piazza and when Buade was laid off. “The cases that accept mere
temporal proximity between an employer's knowledge of protected activity and an
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adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be ‘very close.’” Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). In Pierce v. Target Stores,
Inc., 206 Fed. Appx. 865, 866 (11th Cir. 2006), the court held that a six-month gap
in between plaintiff’s complaint to corporate headquarters and his termination was
by itself insufficient to establish causality, and the courts in Richmond v. ONEOK,
Inc., 120 F. 3d 205, 209 (10th Cir. 1997), and Hughes v. Derwinski, 967 F. 2d
1168, 1175-75 (7th Cir. 1992), also found a three and four-month gap, standing
alone, to be insufficient. Here, Buade was terminated more than six months after
emailing her last recorded complaint to Piazza.
Accordingly, we affirm the trial court’s decision to grant Terra’s motion for
judgment on the pleadings or in the alternative for directed verdict.
Affirmed.
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