# Third District Court of Appeal

State of Florida

Opinion filed November 7, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15-2131

Lower Tribunal No. 12-15914

________________



### 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.2 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.3

 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.4

(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 to5

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 have6

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 an7

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.