RESPONSE TO: DFT BEACH HOUSE BEHAAVIORAL HEALTH INC'S MOTION FOR PROTECTIVE ORDER F/B PLT SUSAN V ROY - DFT BEACH HOUSE BEHAAVIORAL HEALTH INC'S MOTION FOR PROTECTIVE ORDER F/B PLT SUSAN V ROY August 07, 2020 (2024)

 
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 Filing # 111488236 E-Filed 08/07/2020 09:01:37 PMIN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUITIN AND FOR PALM BEACH COUNTY, FLORIDACase Number: 502018ca011286XXXXMB(AA)JANE DOE,Plaintiff,vs.GLENN COHEN,DefendantPlaintiff,vs.GLENN COHEN, individually, andBEACH HOUSE BEHAVIORALHEALTH, INC., A DelawarecorporationDefendant.gyPlaintiff's Response to Defendant, Reach House Rehavioral Health,Inc.’s Motion for Protective OrderIntroduction and SummaryPlaintiff, Susan V. Roy, responds to the motion for protective orderfilad March 9 2NIN Tha matinn i affart tan nravant Me Daw framcaTHeG Maron 2, 2u2u. bite moun 1S Git Crore eG Prevent mG. ROY tonobtaining evidence about the truth or falsity of one of the accusations thatboth the corporate and individual defendants have stated in discoveryGaLO The Amlong Firm - 500 Northeast Fourth Street « Fort Lauderdale, FL 33301 ¢ 954.462.1983 CHEN. DAIAARCACUAAIINTY Cl CUADAND ANFY FIED nainziNnen na.n4.27 DAAPILL. PAL DLA VUUINE TT, PL, OHI. DUUN, ULLIAN, Yururizucy ug.u lor iveresponse, e-mails and even a response to the Equal EmploymentOpportunity Commission is amongst the reasons for firing her.The corporate deponent is LegitScript, a non-profit agency, approvalby which is a prerequisite for Google to allow any addiction center to useGanala’e caarch anaina far marchandicina MNafandante hava attamntad taGUE GIS S SCaren Cnigine bUr PHC Cna@naisinig. WOCHGGntS nave GUCipLCU wwblame Ms. Roy for the delay in that approval. In an employmentdiscrimination action, one of the ways in which a plaintiff can provediscriminatory intent is to prove to the finder of fact that a defendant haslied about the reasons for an adverse job action.The law, both procedural and substantive, overlaid on the facts andarguments made by the defendants, compels the denial of the motion.Applicable Legal PrincipiesThe scope of discoveryFlorida Rule of Civil Procedure 1.280(b)(1) provides, in pertinent part,that “[Parties may obtain discovery regarding any matter, not privileged,that is relevant to the subject matter of the pending action, whether itrelates to the claim or defense of the party seeking discovery or the claim”or defense of any other party....Page 2 of 13The definition of relevanceThe Florida Evidence Code provides at § 90.401 defines “relevantevidence” as “evidence tending to prove or disprove a material fact.”Making out a prima facie case of gender discriminationAc tha IInitad Ctatac Citnrama Court nhearniad in Tay Nan’ af CmtyvAS WHS ULC States Supreme Voure GyserveG mi TOA. wep eur UiiyAffairs v. Burdine, 450 U.S. 248 (1981), “[t]he burden of establishing aprima facie case of disparate treatment is not onerous.” Id. at 253.7The complainant in a Title VII trial must carry the initial burdenUider the statute of establishing a pritna Tacié Case OF Facialdiscrimination. This may be done by showing (1) that he belongs to aracial minority; (ii) that he applied and was qualified for a job forwhich the employer was seeking applicants; (iii) that, despite hisqualifications, he was rejected; and (iv) that, after his rejection, theposition remained open and the employer continued to seekapplicants from persons of complainant's qualifications.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).Under the McDonnell Douglas scheme, "[e]stablishment of theprima facie case in effect creates a presumption that the employerunlawfully discriminated against the employee. "Burdine, supra, at254. To establish a "presumption" is to say that a finding of thepredicate fact (here, the prima facie case) produces "a requiredconclusion in the absence of explanation" (here, the finding ofunlawful discrimination). 1 D. Louisell C. Mueller, Federal Evidence §67, p. 536 (1977)....St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-7 (1993)Making a prima facie case of retaliationFederal case law interpreting Title VII is applicable to cases arisingunder the Florida Act." See, e.g., Fla. State Univ. v. Sondel, 685 So. 2d923, 925 n.1 (Fla. lst DCA 1996).Page 3 of 13As succinctly stated in Olmsted v. Taco Bell Corp., 141 F.3d 1457(11th Cir. 1998): “To establish a prima facie case of retaliation under TitleVII, a plaintiff must show that (1) he engaged in statutorily protectedexpression; (2) he suffered an adverse employment action; and (3) there isenma craiical ralatinn hatiwaan tha twin avante Td 141 F 2d at 1440SUIS Causa readin BOUWeC Une UW Cvs. 2 ay 2a OU Ge 4 TOU(citations omitted).“[A] plaintiff can establish a prima facie case of retaliation under theopposition clause of Title VII if he shows that he had a good faith,reasonable belief that the employer was engaged in unlawful employmentpractices.” Little v. United Techs., Carrier Transicold Div., 103 F.3d 956,960 (11th Cir. 1997).The defendant's burden in meeting a prima facie caseAs capsulized in Hicks, 509 U.S. 502 (1993):[T]he McDonnell Douglas presumption places upon thedefendant the burden of producing an explanation to rebut the primafacie case — i.e., the burden of “producing evidence” that the adverseemployment actions were taken “for a legitimate, nondiscriminatoryreason.” Burdine, 450 U.S. at 254. “The defendant must clearly setforth, through the introduction of admissible evidence,” reasons for itsactions which, if believed by the trier of fact, would support a findingthat unlawful discrimination was not the cause of the employmentaction. Id., at 254-255, and n. 8.Id. at 506-507. This “serves simultaneously to meet the plaintiff’s primafacie case by presenting a legitimate reason for the action and to frame thePage 4 of 13factual issue with sufficient clarity so that the plaintiff will have a full andfair opportunity to demonstrate pretext.” Id. at 255-256.Showing that the defendant’s reason is pretextualGenerally, pretext is shown if a claimant can demonstrate “suchwaalnaccac imnlancihilitiac inenancictanciac inenharanriac nrWORE QSOS, HEIPIGUSIWINUICG, HIRUHSIGLCHILICS, HIRUTICECHIRICS, Utcontradictions in the employer's proffered legitimate reasons for its actionthat a reasonable factfinder could find them unworthy of credence.” Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir.1997), quoting Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061,1072 (3d Cir. 1996).A claimant’s denial that the conduct cited by an employer as groundsfor termination ever took piace, even when the testimony of anotherwitness directly contradicts that of plaintiff, creates a question for the trierof fact on pretext and precludes summary judgment. Munoz v. OceansideResorts, Inc., 223 F.3d 1340, 1345 (11th Cir. 2000). This is so even if thedecision maker claims to have subjectively believed that plaintiff engaged inthe behavior, because if the credibility of the contradictory witness isundermined, a jury reasonably could conclude that the reason was bogusintended to cover up a discriminatory desire to discharge an olderemployee. Id. See also, Damon v. Fleming Supermarkets of Fla., Inc., 196F.3d 1354, 1363 (11th Cir. 1999) (“The ‘work rule’ defense is arguablyPage 5 of 13pretextual when a plaintiff submits evidence . . . that she did not violate thecited work rule.”)Thus, while a claimant’s general self-assessment of the quality of herwork is insufficient to overcome the legitimacy of a performance basis fordiemiceal caa an = Gitetavich ww AT & TCammuiniratinne Tne 779 F 2dUris soar, SES, C.G., GUseovicn) We mr Bor VU aes, ane, FF ee845, 848 (7th Cir. 1992)(“An employee's self-serving statements about hisability, however, are insufficient to contradict an employer's negativeassessment of that ability”), denials that she engaged in specific behaviorare different. See, e.g., Munoz (waiter’s denial that he confronted general manager's secretary about a reprimand he had received, in defiance of anorder to discuss it with no one, “creat[ed] a factual conflict properlyresoived by the jury.”Inferring discriminatory intent from defendant’s mendacityAs observed in Hicks:[T]he factfinder's disbelief of the reasons put forward by thedefendant (particularly if disbelief is accompanied by a suspicion ofmendacity) may, together with the elements of the prima facie case,suffice to show intentional discrimination. Thus, rejection of thedefendant's proffered reasons will permit the trier of fact to infer theultimate fact of intentional discrimination.509 U.S. at 511 (footnote omitted).Page 6 of 13Protective ordersProtective orders may only be issued “for good cause shown.” Rule1.280(c). Further, “[t]he provisions of rule 1.380(a)(4) apply to the awardof expenses incurred in relation to the motion.”Dentactivia ardare cnmniataly nraclidina tha talina af a danncitinn araPrULCuuve Urucrs COmipIeecry preuiuunig wie waning Ur a UCpusiuun aresubject to certiorari review because “a complete bar to the taking of certaindepositions might cause harm to the party seeking to use that method ofdiscovery that could not be remedied on appeal ‘because there is nopractical way to determine after judgment how the denial of the right todepose alleged material witnesses would have affected the outcome’ of theproceedings.” Towers v. Longwood, 960 So.2d 845, 848 (Fla 5th DCA2007), quoting Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004).As stated in Sunrise Shopping Ctr. v. Allied Stores, 270 So 2d 32, 34(Fla 4th DCA 1972), a “court may not order [a] subpoena quashed underthis rule unless the subpoena is unreasonable and oppressive. By necessaryimplication, there must be some facts before the court tending to show theunreasonableness and oppressiveness of the subpoena.”Statement of the FactsThis is what Beach House Behavioral Health’s lawyers said in itsOctober 31, 2018 position statement to the Equal Employment OpportunityCommission about Ms. Roy’s interaction with LegitScript, LLC, the non-profitPage 7 of 13entity that certifies addiction centers to merchandise their services throughGoogle, i.e., the company whose corporate designee(s) BHBH wants toprevent Ms. Roy from deposing because “[t]here is no legitimate basis todepose a corporate representative from LegitScript and the deposition is notraacnnahly caleiulatad ta laad tn tha dieravary af admiccihla avidanra ”Peasunaury Careuate WW lau LU Une GISCUv Cry Ur GurssmmIe Cviacnie’,BHBH Motion, at 2, 9 5:Ms. Roy's key focus following her mid-July 2018 discussion withMr. Cohen was to focus on internet marketing, particularly learningGoogle's new advertising rules. Google restricts advertising forFECOVEFY-OFeNLEd AFG aiid alCONG! addiction SEFVICES. AS a FESUIL,addiction services advertisers, like Beach House, must be "certified" inorder to serve ads on Google. In order to be certified, Beach Househad to fill out an online application form. Ms. Roy completed BeachHouse's Google advertising application, but made two serious andextremely costly errors.First, the Googie advertising application required Beach Houseto state whether it has ever been the subject of, or party to, anylitigation relating to the provision of drug or alcohol addictiontreatment services in the last ten years. Ms. Roy incorrectly answeredthis question "Yes", even though the only lawsuit involving BeachHouse during that time frame was trademark infringement suit. Therehad never been any litigation involving Beach House's provision ofservices, and Ms. Roy's incorrect answer painted the Company inanegative light on its certification application.Second, the application asked for a list of Beach House'sprincipals and officers. Ms. Roy incorrectly listed the officers of theCompany, including an employee who was not an officer. This causedGoogle to perform more background searches than were necessary if acorrect officer list had been provided, and significantly delayed theprocess. Ms. Roy's errors on the Google application caused BeachHouse's application as a potential advertiser to be delayed. BecauseGoogle is the most popular search engine in the world, not having theability to advertise decimated Beach House's internet advertisingbusiness for several months, which is a primary way that patientsPage 8 of 13learn about Beach House. Ultimately, it is believed that Ms. Roy'serrors cost Beach House hundreds of thousands of dollars in potentialrevenue until the errors could be corrected.By late July and early August 2018, Ms. Roy's costly errors onthe Google application were further aggravated by complaints fromother executive team members about her continued inability to workas a team and her dishonesty.Position Statement, at 5-6.?Those same allegations are contained in a July 24, 2018 e-mail string,produced during discovery by BHBH, in which Glenn Cohen, the individual fn nant ta we nae n-.. 3) ThA.for getuny mu ol MIs. Roy.” Ineydefendant, sougnit to begin d pdaper-are also repeated, albeit in a truncated fashion, in Mr. Cohen’s answer toInterrogatory 3(a).*Those allegations also likely form the bases of BHBH’s Second andSixth Affirmative Defenses, even though BHBH pleaded no facts to supportthe allegations. In the Second Affirmative Defense, BHBH alleges that“Plaintiffs Employment ended for legitimate, non-discriminatory reasons,including but not limited to deficiencies in Plaintiff’s work performance.” Inthe Sixth Affirmative Defense, BHBH raises a same-decision defense that2A hinhlinhtad eanu af tha nacitian ctatamant ie annandad acAINQUNGILeU COpy Ul LIS PUSIUUH SLALeMIciit 15 appenucu alAttachment 1.3A copy of the July 24 e-mail string is appended as Attachment 2.4A of Defendant Glenn Cohen’s Response to Plaintiff’s First Set ofInterrogatories is appended as Attachment 3.Page 9 of 13would appear to include the LegitScript allegations: “As an example andwithout limitation, Plaintiff was terminated from her employment for failureto perform her duties and responsibilities.”The allegations made by Mr. Cohen against Ms. Roy, and how muchdamana cha had dana annoar hawavar ta ha contradictad hv an a-mailGarnage sue nau Gune, Gppear, nuwever, WUC COnuaueca wy ai Conranfrom Inder Tallur, a managing director of BelHealth Investment Partners,the venture capital firm that had purchased Beach House Treatment Centerand converted it to Beach House Behavioral Health earlier in 2018. In thate-mail, Mr. Tallur quotes Chris Christie, the former governor of New Jerseyand BHBH’s Executive Chairman, whom Mr. Cohen had recruited during avisit by Gov. Christie to BHBH to intercede with LegitScript to hasten theapprovai of BHBH as a Googie-aliowed treatment center. In that e-maii,’Mr. Tallur wrote to, among others, Ms. Roy and Mr. Cohen:Just spoke w the Gov.Great news- He had a very good call w John Horton- John did not know that the Gov was involved w Beach- JH was out of the office but pulled up the application and saideverything looks fine and said he would speak w his folks atLegitScript.- He promised that it should be done in 3-4 weeks. They are veryearly in the process and have only certified a few providers and a longway to go.- He have the Gov his cell number- Gov asked us to keep really confidential5A copy of the July 26 e-mail string is appended as Attachment 4.Page 10 of 13(Emphasis supplied.)Further, BHBH’s lawyer, who does not want Ms. Roy to questionanyone at LegitScripts concerning BHBH’s application process, questionedMs. Roy about it at Ms. Roy’s deposition. See Deposition of Susan VictoriaRav at 10N+12-108+1Q 991+17-96 and IAE+IN-IDIAH 6féa-47 725ROY, Al LUIS“ LIS LS, ang 265:20-226:5.Applying the Law to the Facts in the Case at BarWhile both BHBH and LegitScript might be sensitive aboutLegitScript’s having used Gov. Christie to leverage approval of BHBH as aGoogle advertiser, that does not change the fact that LegitScript obviouslyhas information about why the approval was delayed — if, indeed, it weredelayed.That information wouid “tend[| to prove or disprove a materiai fact,”i.e., whether Ms. Roy was to blame for the “hundred of thousands of dollarsin potential revenue until the errors could be corrected.” PositionStatement, Attachment 1, at 6, and § 90.401. That makes is admissibleunder § 90.402.And although Mr. Cohen blamed Ms. Roy for the delay in his July 24e-mail, Attachment 2, and his interrogatory answer, Attachment 3, Mr.Tallur’s e-mail of July 26 raises the question of whether there was any°The cover page and relevant testimonial pages of Ms. Roy’sdeposition are appended as Attachment 5.Page 11 of 13reason for the delay other than just the volume of applications: e.g., Mr.Tallur’s quoting Gov. Christie’s reporting that his contact at LegitScript had“pulled up the application and said everything looks fine and said he wouldspeak w his folks at LegitScript.”Nafandante ara tha nartiac that raicad tha | anitGCrrint iccita in thicPEICHGGHS Gre Ge Parues wie Fae wie LEG Ouipe oue mn USlitigation, including apparently basing two affirmative defenses on it andquestioning Ms. Roy about it at her deposition. They cannot now argue thatdiscovery from LegitScript is not reasonably likely to lead to the discoveryof admissible evidence.Because defendant BHBH’s motion is an attempt to prevent plaintifffrom gathering evidence to raise a defense to allegations that BHBH and itschief executive officer injected into this litigation, it cannot argue pursuantto Rule 1.380(a)(5) that “the motion was substantially justified or thatother circ*mstances make an award of expenses unjust.”While in some cases, it might be sufficient to simply strikedefendant’s two defenses and to forbid them in limine to raise the issue ofLegitScript either at the summary-judgment juncture or at trial, that is notthe case in an employment discrimination case. The Supreme Court hasheld that not only is the untruthfulness of an articulated reason sufficientevidence to find that the reason given by the defendant is pretextual, butPage 12 of 13that if the fact finder suspects “mendacity,” it is enough to prove that thereal reason was discriminatory.ConclusionBased on the facts marshaled, the authorities cited and the argumentsnracantad nlaintiff Ciican Virtaria Daw racnactfilhy raniuacte thic Caurt taPICSCneu, pram, Susan witeunia muy, PoSpCcuuny PoyUcsus uns VOure wedeny defendant, Beach House Behavioral Health’s motion, and to awardplaintiff her attorney's fees for having to oppose it.Certificate of ServiceI HEREBY CERTIFY that a true and correct copy of the foregoing hasbeen furnished by Electronic Delivery on this 7th day of August, 2020, toHolly L. Griffin, Esq., Gunster, Yoakley & Stewart, P.A., Attorneys for BeachHouse Behavioral Health, Inc., 777 South Flagler Drive, Suite 500 East,West Palm Beach, Florida 33401 (hgriffin@qunster.com;eservice@gunster.com; cstegeorge@gunster.com); and Robyn S. Hankins,Esq., Robyn S. Hankins, P.L., Attorneys for Gienn Cohen, 4600 Military Trail,Suite 217, Jupiter, Florida 33458 (robyn@hankins-law.com;molly@hankins-law.com).AMLONG & AMLONG, P.A.Attorneys for Plaintiff500 Northeast Fourth StreetFort Lauderdale, Florida 33301-1154(954) 462-1983-S- William R. AmlongWILLIAM R. AMLONGFlorida Bar Number: 470228WRAmlong@TheAmlonaFirm.comKAREN COOLMAN AMLONGKAmlong@TheAmlongFirm.comFlorida Bar Number: 275565PATRICIA L. WILLISFlorida Bar Number: 294410Pwillis@TheAmlongFirm.comPage 13 of 13ATTACHMENT IGUNSTERFLORIDA'S LAW FIRM FOR BUSINESS Writer’s Direct Dial Number: (407) 406-5246Writer’s E-Mail Address: spotter@gunster,comOctober 31, 2018Katherine GonzalezInvestigatorU.S. Equal Employment Opportunity Commission100 S.E. 2nd Street, Suite 1500Miami, FL 33131Re: — Susan V. Roy v. Beach House Behavioral Health, Inc., EEOC Charge No. 510-2018-06284Dear Ms. Gonzalez:We represent Beach House Behavioral Health, Inc. d/b/a Beach House Center forRecovery (“Beach House” or the “Company”) with regards to the Charge of Discrimination (the“Charge”) filed by its former employee, Susan V. Roy (“Ms. Roy”). Ms. Roy was not subjectedto harassment, discrimination, or retaliation during her employment or in connection with hertermination. To the contrary, ‘Ms._Roy’s_employment_was_terminated_due_to_her_poor){performance.) She was habitually absent from work, she failed to work as a team with hercoworkers, her behavior prompted complaints from other key members of the executive team,and ‘she made us_errors her_work_costing_Beach_House_significant_lost business)Opportunities) mong other things, after being counseled about her poor performance as ChiefMarketing Officer, Ms. Roy’s performance further deteriorated, leading Beach House’s ViceFresident of Technology and Chie Clinical Ofiicer io lodge complainis and refuse io work withher. (These complaints were compounded by critical errors Ms. Roy made in preparing the)‘Company’s advertising application with Google, _which_cost_the_Company_thousands_in_lost)revenue until the errors could be corrected.) She was terminated for these reasons and was not thevictim of discrimination. Beach House denies all of Ms. Roy’s allegations and provides thisPosition Statement in response to the Charge.! ' The information and supporting documentation submitted herewith, and that which may be submitted hereafter, arestrictly confidential. Such information and documentation shall not be used for any purpose other than theresolution of the current Charge and shall not be disseminated to any person without Beach House’s prior writtenapproval. See 42 U.S.C. §§ 2000e-5(b), 2000e-8(e); 29 C.F.R. §§ 1601.22, 1601.26. In addition, this response isbased upon our understanding of the facts and the information reviewed thus far. Although there has not been anopportunity for formal discovery or a complete formal investigation, this response is submitted for the purpose ofaiding the Commission in its investigation and facilitating the resolution of this matter. This response, whileSunTrust Center 200 South Orange Avenue, Suite 1400 Orlando, FL 32801 p 407-648-5077 f 407-849-1233 GUNSTERCOMFort Lauderdale | Jacksonville | Miami | Orlando | Paim Beach | Stuart | Tallahassee | Tampa | The Florida Keys | Vero Beach | West Palm Beach,October 31, 2018Page 2SummaryContrary to the allegations in her Charge, Ms. Roy was not subjected to harassmentduring her employment and was not terminated for rejecting alleged unwanted sexual advancesfrom her supervisor. Rather, as set forth in more detail below, Ms. Roy’s employment was i55ue5 aia poor periornthe Beach House executive team, Ms. Roy was counseled and given a second chance to improve.Despite her pledge to improve her attendance and performance, Ms. Roy’s problems persistedculminating in two Beach House executive team members complaining about her divisivenessand dishonesty to the extent they refused to work with her. These serious problems were furtheraggravated by Ms. Roy making extremely costly errors in her marketing duties, which causedBeach House hundreds of thousands of dollars in lost business opportunities.Ms. Roy was not discriminated against, harassed, or retaliated against, but rather she wasgiven every opportunity to succeed in her career at Beach House. Instead, she failed to improveupon her poor attendance and lack of teamwork, to the point that Beach House executiveemployees were refusing to work with her, and also committed massive errors on a crucialinternet advertising initiative, leading to her ultimate termination. For these and the followingthree reasons, Ms. Roy cannot allege — and has not alleged — sufficient facts supporting herclaims,First, Ms. Roy fails to allege sufficient facts to support a claim for harassment based onsex.” Ms. Roy’s allegations of harassment are either completely fabricated or taken out ofcontext. Even if her allegations were taken as true (which they are not) a few stray commentsover a three-year period are not sufficiently severe or pervasive to objectively alter the conditionsof Ms. Roy’s employment, and her harassment claims must fail.Second, Ms. Roy fails to establish the elements of disparate treatment discrimination, Shedoes not allege in her Charge that she was replaced by someone outside of her protected class, orthat someone outside of her protected class was treated more favorably. Neither of these thingsoccurred. Ms. Roy’s termination from employment was made for legitimate business reasons. believed to be accurate, does not constitute an affidavit or a binding statement of Beach House’s legal position, noris it intended to be used as evidence of any kind in any administrative or court proceeding in connection with Ms.Roy’s allegations. Since additional facts likely will be uncovered through discovery or following a fullinvestigation, Beach House in no way waives its right to present new or additional information at a later date, forsubstance or clarification. Moreover, by responding to this Charge of Discrimination, Beach House does not waive,and hereby preserves, any and all substantive and procedural defenses that may exist to the Charge and to Ms. Roy’sallegations. Beach House requests that any efforts to contact its current managers be directed through counsel.2 while Ms. Roy’s Charge alleges that she was subject to both “discrimination” and “harassment” the particulars ofher Charge suggest she intends to make an allegation of hostile work environment discrimination/harassment ratherthan disparate treatment discrimination. In an abundance of caution, however, both legal theories are addressed inthis position statement.aadAleOctober 31, 2018Page 3Third, Ms. Roy fails to establish retaliation. She does not allege that she followed BeachHouse’s procedures by reporting a complaint of harassment to a designated representative.Where Ms. Roy did not engage in a protected activity, there was nothing for Beach House toallegedly retaliate against. Moreover, the Company had legitimate, non-discriminatory reasonsfor her termination.DoWDEeACH MOUSE Background and information: Beach House is a state-of-the-art drug and alcohol addiction treatment facility located inJuno Beach, Florida. Beach House offers a full continuum of substance abuse care, includingboth residential inpatient rehab and outpatient services.Beach House provides equal employment opportunities to all individuals and prohibitsunlawful discrimination of any kind in the workplace. Beach House maintains and strictlyenforces policies prohibiting discrimination or harassment against employees on the basis ofmembership in any protected class. A copy of Beach House’s relevant policies are attached as acomposite Exhibit “A.”As indicated in the Equal Opportunity in Employment Policy, Beach House believes“that as a principle of sound business management and our basic mission, employment andadvancement opportunities should be offered to qualified individuals. Our company is committedto equal employment opportunity.” This Policy provides a process for any employee withquestions or concerns about equal employment opportunities to bring these issues to the attentionof their immediate supervisor or Beach House’s Human Resources Department.Beach House also maintains a strict No Harassment Policy. This Policy affirms thatsexual harassment has no place in the workplace and will not be tolerated. All employees,including members of management, are covered by the policy. Any employee who believes theFolicy was violated is directed to immediaiely report ihe matier io either the Human ResourcesDirector, the Vice President of Administration, or the CEO. Beach House will then investigatethe report and take prompt, appropriate remedial action.In addition to the above policies, Beach House also strictly prohibits retaliation againstany employee making a complaint of discrimination or harassment. Pursuant to its anti-retaliation policy, “Beach House will not tolerate any form of retaliation against individuals whoin onndin goodAny individuals engaging in retaliatory behavior are subject to discipline, up to and includingtermination of employment. nec of eanal emnlovment onnortunity diseriian and/or haraccment | aques Cinpacyiiese Cpporruisey, Gaseran On These policies existed and were enforced throughout Ms. Roy’s employment with BeachHouse. Ms. Roy was made aware of these policies and received Beach House’s EmployeeHandbook on August 15, 2015. A copy of the handbook acknowledgements signed by Ms. RoyOctober 31, 2018Page 4is attached as Exhibit “B.” Because it did not happen, Ms. Roy never filed a complaint allegingthat she had been subject to discrimination or harassment during her employment.III. Ms. Roy’s Performance Problems —>—__Ms. Roya worked. as.the-Chief. Marketing. Officer.for. Beach. House?! beginning. on. August){5,201 2015.71 unis role, MS. hoy Was priinar ily responsioie Tor marKeung Beach HGUSE 15prospective patients through supervising business development_and_overseeing the alumni patient,program, She was initially hired because of her claimed skill in using online.marketing strategies.such_as_pay-per=click_(“PPC”).and_search_engine-optimization.(‘SEO”).JAs Chief MarketingOfficer, Ms, Roy was part of the Beach House executive team lead by CEO, Glenn Cohen. During her employment with Beach House, Ms. Roy was often absent from work duringwarbling hanes Decnite haing amnlaved ana fulltime hacia Me Daw avesanad anly a four hanreWOIKIUg FOULS. eSpie UCIg CiupiOyeu Oli @ 1UUAUIe dois, ivis. NOY averageu Oly a rev ours,a day in the office for a total of 15-20 hours per week. Ms. Roy’s absence meant that she was notavailable to field questions from her marketing team members, who looked elsewhere forguidance and placed added stress on other supervisors’ departments. It also meant that one ofMs. Roy’s assigned focus areas — business development — underperformed and was not heldaccountable, Additionally, many marketing staff members began following Ms. Roy’s exampleby cutting hours, which negatively affected the productivity of the entire department.For example, Beach House had to terminate one of Ms. Roy’s direct reports, RyanLaGrange, because Ms. Roy was not properly supervising him and the Company discovered hewas not fulfilling his duties. Despite his position of Marketing Director, Mr. LaGrange wasdiscovered to be working for other treatment centers, failing to complete any of his job duties,and rarely coming to the office. When he did come to the office, he brought his dog with him inviolation of Company policy. If Ms. Roy was present in her role as Chief Marketing Officer, andas Mr. LaGrange’s supervisor, she would have noticed the dereliction of his job duties andpossibly corrected course. Instead, Ms. Roy was so often absent herself that her staff’s behaviorwent largely unchecked.Further, Ms. Roy consistently resisted working as a team with other employees, whichlead to conflict and poor morale. Ms. Roy frequently failed to cooperate with other members ofthe executive team, resulting in complaints from multiple coworkers about her work ethic,demeanor, and trustworthiness.* Ms. Roy was hired as Chief Marketing Officer by Beach House Center for Recovery LLC (“BHCR”) in August2015. When BHCR was acquired by another company, Ms. Roy signed an Employment Agreement with BeachHouse Behavioral Health, Inc. (“Beach House”) on June 27, 2018. While Beach House is responding to all of theallegations made in Ms. Roy’s Charge, it does not concede that the Company is liable for any alleged acts that mayhave occurred prior to June 27, 2018 when Ms. Roy was employed by BHCR.October 31, 2018Page 5After observing Ms. Roy’s absenteeism and lack of team work for several months, inMay 2018, Mr. Cohen sat down with Ms. Roy to speak with her about her performance. At thetime, BCHR was being considered for acquisition, and its executive team — including Ms. Roy —were in the process of negotiating new executive employment agreements. Ms. Roy told Mr.Cohen that she wanted to join the new company after the acquisition.Mr, Cohen was siraighitorward with Ms. Roy about what he observed was lacking interms of her work ethic, how she delegated too much, and how she was uninvolved in herdepartment and with her staff. Ms. Roy admitted her deficiencies but promised to turn over anew leaf by letting go Mr. LaGrange and taking on his workload for herself. Mr. Cohen informedMs. Roy that if she was willing to roll up her sleeves and work hard at her job, that he wouldgive her another chance by allowing her to stay on after the acquisition. Mr. Cohen wanted togive Ms. Roy a fresh start a the new ‘Company, | as long as she was willing to be the involved,4D.present maiketing EXECULIVE Mat Dean MOUSE esaea.Unfortunately, Ms. Roy’s willingness to improve her job performance appears to havebeen aimed only at obtaining a new employment agreement with Beach House, and was not asincere desire to address any of her professional shortcomings. Within two weeks of signing anew Employment Agreement, Ms. Roy’s absenteeism resumed, her work was not beingcompleted, and her behavior prompted complaints from two members of the executive team who.oad to continue to work with her Thace camnlainte comnounded with Me Rew S serionsSVG_WC_COMUTUS, Mx Witn nei. aieoe CGhupsauie, COlupounuaea Wit tas. aM CUS: 's.on.the. Google. advertising application, .discussed.below, lead.to.her_ultimate.termination. )In mid-July 2018, Mr. Cohen discussed Beach House’s growth plans with Ms. Roy andhow she could best focus her attention. Mr. Cohen communicated that he wanted Ms. Roy tofocus on internet marketing — including SEO‘ and PPC? business — and other_marketing leadgeneration_opportunities_to_increase_monthly_admissions_for_Beach_House._This effort requiredMs. Roy to engage in more teamwork with other.Beach House denartments and _vendors..as_wellJas. learn: Google? s.new.rules.for.PPC.marketing. (Ms. Roy’s key focus following her mid-July 2018 discussion with Mr. Cohen was to)focus _on_internet_marketing, _particularly_learning Google’s_new, advertising rules, Google)(restricts advertising for recovery-oriented drug and alcohol addiction services. As a result,)(addiction services advertisers, like Beach House, must_be “certified” in order to serve ads on) “Search engine optimization (“SEO”) is a marketing discipline focused on growing visibility in non-paid searchengine results. The process involves tailoring a website to the algorithms that search engines use to rank websites, sothat a company’s website appears higher in the list of a given search engine’s results.* pay-per-click (“PPC”) is a marketing strategy involving paying for traffic using a search engine’s advertisingprogram, where the company displays advertisem*nts in the sponsored results section of a search engine’s webpage,and the company pays a fee whenever a viewer clicks through from the advertisem*nt to the company’s website.October 31, 2018Page 6 Google. In order to be certified, Beach House had to fill out an online application form. Ms. Roy)(completed Beach House’s Google advertising application, but made two serious and extremely)costly errors!(First, the Google advertising application required Beach House to state whether it has)ever been the subject of, or party to, any litigation relating to the provision of drug or alcohol)addiction ireaimeni services in ihe jast ten years. Ms. Roy incorrecily answered this question)“Yes”, even though the only lawsuit involving Beach House during that time frame was)(trademark infringement suit, There had never been any litigation involving Beach House’s)(provision of services, and Ms. Roy’s incorrect answer painted the Company in a negative light)(on its certification application.)(Second, the application asked for a list of Beach House’s Principals and officers. Ms. Roy)listed tie Gfiers OF tie Co :ns caused Google to perform more background searches than were necessary if a correct(officer list had been provided, and significantly delayed the process.) (Ms. Roy’s errors on the Google application caused Beach House’s application as a)potential advertiser to be delayed. Because Google is the most popular search engine in the)(world, not having the ability to advertise decimated Beach House’s internet advertising business)(for several months which is a nrimary wav that natients learn ahont Reach Hanse, LItimately imonins, WinGa iS @ primary way that patients .carn eaten 120) vatiaresys Ly(is believed that Ms. Roy’s errors cost Beach House hundreds of thousands of dollars i in potential)(revenue until the errors could be corrected.)By late July and early August 2018, Ms. Roy’s costly errors on the Google applicationwere further aggravated by complaints from other executive team members about her continuedinability to work as a team and her dishonesty.For example, on July 31, 2018, Robert Montanez, the Company’s Vice President ofTechnology wrote to Mr. Cohen saying he believed that Ms. Roy’s intentional lack of cohesiveleadership was causing discourse between himself and other departments. See Mr. Montanez’sJuly 31, 2018 email attached as Exhibit “C.” Mr. Montanez stated that he was so frustrated bySusan’s behavior and lack of respect that he contemplated leaving his job in early 2018. See id.Id. After speaking with the Company’s Vice President of Finance and with Mr. Cohen, Mr.Montanez decided to stay with the Company, only to see Ms. Roy’s performance continue todecline.On August 2, 2018, Mr. Montanez wrote a second email to Mr. Cohen about Ms. Roy,this time stating that Ms. Roy had intentionally mislead him for personal gain. See Mr.Montanez’s August 2, 2018 email attached as Exhibit “D.” Mr. Montanez stated that Ms. Roycalled him into her office and said a “group of people” wanted to know if Ms. Roy’s CompanyOctober 31, 2018Page 7email was being monitored, and to keep the inquiry confidential. Ms. Roy lead Mr. Montanez tobelieve that the new owners of Beach House were the referenced “group of people” and that hisjob was at risk if he did not comply with her request. Mr. Montanez was puzzled by the inquiry,and responded that her email was not being monitored and he was the only person withcredentials to perform such monitoring. After the meeting with Ms. Roy, Mr. Montanez told Mr.Cohen about Ms. Roy’s request and learned for the first time that Ms. Roy lied about the “groupof peopte™ requesting information in an aitempt to manipulate him:I clearly know now that Susan was completely dishonest, lied to me, and fooledme into believing her mistruth about several things...Now being fully informed,I’m infuriated that I was played as a fool, in what I can only assume was Susanbeing dishonest in an attempt to manipulate me. Susan’s actions placed me in aposition to feel as though my job was at risk if I did not comply with her request.Id. As a result, Mr. Montanez requested that he no longer report to Ms. Roy as his supervisor,due to her continued lack of respect and her “latest display of dishonesty for personal gains.” Jd.The same day, August 2, 2018, the Company’s Chief Clinical Officer Anna Ciulla wroteto Mr. Cohen complaining about Ms. Roy. See Ms. Ciulla’s email attached as Exhibit “E.”Similar to Mr. Montanez, Ms. Ciulla reported that Ms. Roy was creating divisions betweenReach Hance denartmante Aneardina ta Mc Cinlla Me Raw avercaur the admWGC akOuse Gepuruneiite, ACCU WO mo, Uiuud, was. GkOy OVeloan ee dooission of highacuity psychiatric patients, which are not appropriate for Beach House, without consulting theclinical staff. This lead to the clinical staff having to transfer the patients to another facilitycreating distrust between patients’ families and the Company, as well as between the clinicalstaff and Ms. Roy. Ms. Ciulla further stated:It has been [my] observation that Susan upholds a philosophy of calculatingdishonesty which puts a quiet toxicity into interdenartmental interactions, whichultimately, affects the client. On the rare occasion that I am consulted with aquestionable admit, I am never given the full picture. When I begin to probe andask questions, I get back-peddling, half-truths or lies about the client that arequickly exposed once the client arrives to treatment.Id. Ms. Ciulla reported that she had met with Ms. Roy several times in an attempt to build afoundation of trust or honesty, “but there appears to be a constitutional incapability for Susan[Roy] to be honest and transparent.” Id.At this point, the Company realized that Ms. Roy had no intention of improving herperformance as she had promised to do in May. In fact, her performance had deteriorated furtherto the point that two key Beach House executives were unwilling to work with Ms. Roy goingOctober 31, 2018Page 8forward. Ms. Roy was also committing costly errors in her work. For these reasons, Ms. Roy’semployment was terminated.IV. Legal AnalysisMs. Roy’s Charge attempts to claim that she was discriminated against, harassed, andfetaliaied against due to her rejecting Mr. Cohen's alieged sexual advances. However, the Chargedoes not meet the legal requirements to state a cause of action for harassment or retaliation, andthe Commission should issue a finding that Ms. Roy’s claims have no basis in fact or law. Asdetailed below, Ms. Roy failed to include any facts that support her alleged claim ofdiscrimination, harassment, or retaliation. She failed to include facts because no discrimination,harassment, or retaliation ever occurred. Therefore, the Charge must be dismissed as a matter oflaw.A, Ms. Roy Fails to Allege Sufficient Facts to Support a Claim of Harassment.First, nothing in the Charge supports a claim for harassment based on sex. While TitleVII does not specifically mention harassment, it protects employees from being required to workin a “hostile work environment.” Cargo v. Alabama, Bd. of Pardons & Parole Div., 391 F.App’x 753, 754 (11th Cir. 2010). “A hostile work environment claim under Title VII isestablished upon proof that ‘the workplace is permeated with discriminatory intimidation,ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’semployment and create an abusive working environment.’ This court has repeatedly instructedthat a plaintiff wishing to establish a hostile work environment claim show:(1) that [s}he belongs to a protected group;(2) that [s]he has been subjected to unwelcome harassment;(3) that the harassment must have been based on a protected characteristic of theemployee;(4) that the harassment was sufficiently severe or pervasive to alter the terms andconditions of employment and create a discriminatorily abusive working environment;and(5) that the employer is responsible for such environment under either a theory ofvicarious or of direct liability.”(11th Cir, 2002) and Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993)).Ms. Roy’s allegations fail to demonstrate a hostile work environment namely because shecannot establish that she was subjected to unwelcome harassment, or that any harassment wassufficiently severe or pervasive to alter the terms and conditions of her employment. In anattempt to support her claim, Ms. Roy alleged the following:October 31, 2018Page 9e Since early 2015, Ms. Roy claims to have rejected the unwelcome sexual advances ofMr. Cohen;¢ When Mr. Cohen first met Ms. Roy to recruit her to work at Beach House RecoveryCenter, LLC, he allegedly told her he wanted to marry her and “build a family”;¢ In early 2016, Mr. Cohen allegedly repeated his plans to marry Ms. Roy when theywere speaking with the CEO of another addictions program at a conference;¢ Mr. Cohen allegedly told Ms. Roy that she should not buy a house because theremight soon be a chance for her to live somewhere else;e Mr. Cohen allegedly told Ms. Roy that because she was 49 years old, if she did notfind a “new man” soon her options would start becoming limited;e Mr. Cohen allegedly asked Ms. Roy whether she was still living with her ex-boyfriend after their break-up, and discussed how awkward that must be, theimportance of choosing the right person to spend one’s life with, and that Ms. Roy’sex-boyfriend would not shed any of the characteristics prompting her to move out;« Mr. Cohen allegedly told Ms. Roy that casual Fridays “suited [her]” because he couldsee her figure when she wore jeans;« Mr. Cohen allegedly told Ms. Roy that no one he had wanted to date had ever turnedhim down and that his workaholic persona was over since his $5 million share of thepurchase price of Beach House had given him “f*ck-you money”;« Mr. Cohen allegedly asked Ms. Roy in July 2018 whether she was moving out orstaying with her boyfriend.Ms. Roy has not identified a single witness to these alleged comments, and Beach Housedenies all of the above alleged facts, as either complete fiction or as Ms. Roy taking innocentworkplace conversations (e.g., about the proper time to purchase a home) out of context. As aninitial matter, Ms. Roy did not begin working for Beach House until June 27, 2018, so BeachHouse cannot be liable for any alleged harassment which occurred “since early 2015” before heremployment began.° As to Ms. Roy’s allegations occurring after her employment began, BeachHouse flatly denies that Mr. Cohen discussed wanting to marry Ms. Roy, commented on herfigure while wearing jeans, or made any other alleged romantic overtures towards her. BeachHouse admits that Ms. Roy often discussed her personal life with Mr. Cohen and other membersof the executive team, but denies the implication that the discussions were aimed at Mr. Cohen° Additionally, Ms. Roy has released any claims she may have had against the Company as of June 27, 2018. Ms.Roy was a shareholder of BHCR. In connection with the sale of her interest in BHCR, Ms. Roy and all of the othersellers executed a release of any and all claims, known or unknown, against the Company as of the date of theclosing. Therefore, the Company cannot be liable for any claims Ms. Roy had, or could have had, as of June 27,2018. The release agreement is confidential, and therefore not attached as an exhibit, but excerpts of the agreementcan be provided upon request from the EEOC investigator. Moreover, Beach House does not waive or concede thatas an owner, Ms. Roy was an “employee” or BHCR and/or Beach House under Title VII and reserves all argumentsin this regard.October 31, 2018Page 10seeking a romantic relationship with Ms. Roy. For example, Ms. Roy told Mr. Cohen about theend of her relationship and that she would soon be moving, and she asked his advice on whethershe should buy a house. Mr. Cohen recommended that Ms. Roy rent a home for the summerwhile rents were low so she could get an idea of which area of town she would like. BeachHouse completely rejects the implication that Mr. Cohen was offering Ms. Roy to move in withhim. This is Just one of many instances in which Ms. Roy has twisted an innocent office COMVETSAUGA If ai atienpt to auege na Ti,However, even taking Ms. Roy’s allegations as true (which they are not), they do notestablish a hostile work environment. Her allegations fail to demonstrate that “the workplace ispermeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe orpervasive to alter the conditions of the victim’s employment and create an abusive workingenvironment.” Cargo, 391 F. App’x at 754-55. As the Eleventh Circuit has repeatedly held,mara “Fflaacina offhand aammante and jonlated innidante that are nat avtreamaly carinne aril natMere [tyvasing, Camanu COnluiede, GG isO1awG MICaCie LUG are GOL CAU CRAY SULLUUS Wil GOLamount to discriminatory changes in the terms and conditions of employment.” Alexander, 352F, App’x at 392 (11th Cir. 2009) (citing Mendoza y. Borden, Inc., 195 F.3d 1238, 1245 (11thCir.1999) (en banc)). The following factors are considered in determining whether harassmentobjectively altered an employee’s serious terms or conditions of employment: (1) the frequencyof the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threateningor humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfereswith the emplovee’s igh performance, Ms, Rov’s allegations are that Mr, Cohen made six to seven comments over a period of three years that she interpreted as romantic overtures, She doesnot allege any physical or threatening conduct, anything overtly sexual in nature, or anything thatcould or did interfere with her job performance. None of the alleged incidents, even if true, weresevere enough to constitute a hostile work environment during the six weeks she worked forBeach House.B. Ms. Roy Fails to Establish Disparate Treatment Discrimination.Ms. Roy fails to demonstrate that she was discriminated against based her sex becauseshe cannot meet the elements necessary to establish discrimination.To establish a prima facie case of employment discrimination under the Title VII, Ms.Roy must establish that: (1) she belongs to a protected group; (2) she was qualified for theposition held; (3) she suffered an adverse employment action; and (4) either she was replaced bysomeone outsid 

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