STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORI WILSON,

Petitioner,

vs.

MEX OF SANTA ROSA, INC.,

Respondent.

)

)

)

)

) Case No. 01-3751

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 27, 2001, in Milton, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Bruce Committee, Esquire

17 South Palafox Place, Suite 306 Pensacola, Florida 32501

For Respondent: Jennifer Byrom, Esquire

Byron and Hilliard Post Office Box 685 Milton, Florida 32572

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.

PRELIMINARY STATEMENT

On December 9, 1998, Petitioner Lori Wilson (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). Petitioner alleged that Respondent Mex of Santa Rosa, Inc. (Respondent), created a racially hostile work environment due to Petitioner's interracial personal relationships and Petitioner's interracial child, causing Petitioner's constructive discharge.

On June 15, 2001, Petitioner filed a letter with FCHR. Said letter advised FCHR that Petitioner desired to have her case transferred to the Division of Administrative Hearings.

Petitioner filed a Petition for Relief with FCHR on September 17, 2001. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on September 21, 2001.

The Division of Administrative Hearings issued an Initial Order on September 24, 2001. The parties did not file a response.

On September 27, 2001, Respondent filed its Answer in this case. Respondent denied that it had committed an unlawful employment action.

On October 11, 2001, the undersigned issued a Notice of Hearing scheduling this matter for hearing on November 27, 2001. That same day, the undersigned also issued an Order of

Pre-hearing Instructions.

On October 17, 2001, the undersigned issued an Amended Notice of Hearing. This notice identified the correct time zone for the previously scheduled hearing.

On November 16, 2001, the parties filed a Pre-Hearing Stipulation.

During the hearing, Petitioner testified on her own behalf and presented the testimony of two additional witnesses.

Petitioner offered one exhibit which was accepted into evidence.

Respondent presented the testimony of five witnesses.

Respondent offered two exhibits which were accepted into evidence.

Neither party ordered a copy of the transcript. Therefore, the transcript was not filed with the Division of Administrative Hearings.

Respondent filed its Proposed Recommended Order on December 6, 2001. Petitioner filed its Proposed Recommended Order and a brief on hearsay on December 7, 2001.

FINDINGS OF FACT

1. Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child.

2. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in

   and around Santa Rosa County, Florida. Respondent employed approximately 190 people.

3. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms.

4. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew.

5. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working

   conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints.

6. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully.

7. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination.

8. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet.

9. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was

   involved in an interracial personal relationship with a white man.

10. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her.

11. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work.

12. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest.

13. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive.

14. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day.

15. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number.

16. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again.

17. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this

    matter. Sections 120.569, 120.57(1), and 760.11(4), Florida Statutes.

19. Section 760.10(1), Florida Statutes, makes it unlawful for an employer to discriminate against an employee because of the employee's race, color, religion, sex, national origin, age, handicap, or marital status.

20. In this case, the greater weight of the evidence indicates that Ms. McCray never made derogatory about Petitioner's interracial child or interracial personal relationship. The evidence clearly shows that Petitioner quit her job because she did not want to clean the restroom. There is no persuasive evidence that Petitioner was working in a hostile work environment.

21. Petitioner was not constructively discharged. She voluntarily quit and left the premises without telling anyone that she was leaving.

22. Petitioner's job required her to clean the restrooms every day. Requiring Petitioner to clean the restroom when it was especially filthy was not a deliberate act by Ms. McCray to create an intolerable working condition.

23. Petitioner never complained to her general manager, Ms. Young, the district manager, or the operating officer/owner about the alleged derogatory comments by Ms. McCray. She made no effort to call the local or national telephone numbers that

    were available for employees to call concerning work-related complaints. It is inconceivable that Petitioner worked in the small restaurant for approximately six months without seeing the telephone numbers and without knowing that Ms. Young's father was the owner/operating officer.

24. To the extent that Petitioner proved a prima facie

case of constructive discharge and hostile work environment due to discrimination based on her interracial personal relationship, Respondent has provided a legitimate reason to explain Petitioner's voluntary termination: She did not want to clean the restroom. More importantly, Petitioner presented no evidence to show that this reason was pretextural.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That the Florida Commission on Human Relations deny the Petition for Relief.

DONE AND ENTERED this 18th day of December, 2001, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2001.

COPIES FURNISHED:

Jennifer Byrom, Esquire Byrom, Miller & Coleman Post Office Box 685 Milton, Florida 32572

Bruce Committe, Esquire

17 South Palafox Place, Suite 306 Pensacola, Florida 32501

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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.

Docket for Case No: 01-003751

Orders for Case No: 01-003751