vs.
Respondent.
) Case No. 03-1233
A formal hearing was conducted in this case on June 10, 2003, in Pensacola, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Pamela E. Langham, Esquire
The issue is whether Respondent committed an unlawful employment practice contrary to Sections 760.10(1) and 760.10(7), Florida Statutes.
On September 5, 2002, Petitioner Maesha Freeney (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent University of West Florida (Respondent) had discriminated against Petitioner based on her race/color by creating a racially hostile work environment and by retaliating against Petitioner after she complained about the alleged discrimination.
FCHR did not complete its investigation within 180 days as required by Section 760.11(3), Florida Statutes. Consequently, Petitioner filed an Election of Rights Form with FCHR on
March 21, 2003, requesting an administrative hearing. FCHR referred the case to the Division of Administrative Hearings on April 3, 2003.
A Notice of Hearing dated April 18, 2003, scheduled the hearing for June 10, 2003.
During the hearing, Petitioner testified on her own behalf and presented the testimony of four witnesses. Petitioner offered six exhibits, P1-P6, that were accepted into evidence.
Respondent presented the testimony of two witnesses.
Respondent offered two exhibits, R1-R2, that were accepted into evidence. Respondent's Exhibit No. R2 is a composite of 13 documents.
The parties did not file a transcript of the proceeding.
Respondent filed a Proposed Recommended Order on June 19, 2003. Petitioner filed a Proposed Recommended Order on June 23, 2003.
Respondent, an educational institution, is an employer as defined by Section 760.02(7), Florida Statutes.
Respondent has a pamphlet entitled Harassment Prevention, A Guide for Faculty, Staff and Students. The pamphlet, published by Respondent's Equal Opportunity and Diversity Office (EODO), defines racial harassment and retaliation. It also provides detailed instructions for reporting harassment/retaliation and filing a formal and/or informal complaint with Respondent's EODO.
Respondent's policy on harassment and discrimination specifically prohibits racial harassment. It states that racial harassment may subject employees or students to appropriate disciplinary action, up to and including dismissal or expulsion.
Respondent also has written equal opportunity and diversity complaint procedures. Respondent uses these procedures to enforce the following policies: (a) Policy Against Discrimination and Harassment; (b) Americans with Disabilities Policy; and (c) Racial and Ethnic Harassment Policy. The procedures provide for the following: (a) informal processing of complaints by supervisors of disputing parties, in
consultation with Respondent's EODO; (b) informal processing of complaints by Respondent's EODO; and (c) formal processing of complaints by Respondent's EODO.
Petitioner is an adult African-American female. She worked for Respondent from February 1999 until January 2003 as a dispatcher in Respondent's police department.
Until May 2002, Petitioner's supervisor was Dora English, a white female. Ms. English was Respondent's Communication Manager.
Initially, the relationship between Ms. English and Petitioner was friendly. Ms. English visited in Petitioner's home. Ms. English also organized a baby shower for Petitioner. However, in time, the relationship between Ms. English and Petitioner deteriorated.
Ms. English lacked people skills as a supervisor. She insisted that all dispatchers follow the department policies and rules to the letter. She was especially intolerant of the dispatchers being tardy, regardless of their race.
In April 2000, Frank Sarver held the office of Captain in Respondent's police department. Captain Sarver issued a memorandum to all dispatchers. Among other matters, the memorandum discussed tardiness. The memorandum directed the dispatchers to contact Ms. English by telephone if they were going to be late to work. The memorandum advised the
dispatchers to explain why they were late after arriving for work. The memorandum states as follows in pertinent part:
If this seems like it is a hassle, it is suppose [sic] to be recognized as unacceptable to be late on a regular basis. If you are late and cause another person to work overtime [sic] then you should do one of the following:
Pay that person back the time that you used, via their approval [sic]
Fill out a leave request and place the late arrival on your time sheet, claiming annual, compensatory or sick time, subject to the Communications Managers [sic] approval. Or
Work off the amount of time you were late via the Communication Managers [sic] approval.
Respondent has written standards for disciplinary action. Excessive tardiness or unexcused tardiness is an example of the time management/work effort standard.
Respondent defines excessive tardiness as an employee's failure to adhere to established and approved work hours and/or the development of a pattern of lateness that adversely affects an employee's work, or the work of others, or that is inconsistent with the position description, Board of Education rules, or university policies and procedures.
Respondent's Standards for Disciplinary Action set forth a range of disciplinary actions for violations of work standards. The recommended disciplinary action for excessive tardiness or unexcused tardiness ranges from an oral reprimand
to written reprimand for a first offense, from a written reprimand to suspension without pay for a second offense, from suspension without pay to dismissal for a third offense, and dismissal for a fourth offense.
Petitioner was chronically late to work. She was tardy on a regular basis, two to three times a week. On several occasions, Ms. English verbally counseled Petitioner about her tardiness. These counseling sessions were not successful.
On September 22, 2000, Petitioner was nine minutes late for an evening shift. She had not been able to let
Ms. English know that she was going to be late because she was tied up in traffic due to a hurricane.
Ms. English prepared documentation of a oral reprimand for excessive tardiness. Ms. English gave the document dated September 22, 2000, to Petitioner. However, neither Ms. English nor Petitioner signed the document. The record is not clear whether the documentation of the oral reprimand was officially placed in Petitioner's personnel file, and if so, whether Petitioner exercised her option to have it removed and placed in a sealed envelope after 12 months.
On at least one other occasion, Ms. English attempted to give Petitioner an oral reprimand for being tardy. That occasion involved Petitioner's being several minutes late to work because her child was ill. However, Lieutenant Rex Bryant
intervened and refused to allow Ms. English to prepare the documentation for an oral reprimand under those circumstances.
The record does not contain a copy of Petitioner's performance appraisal for the period November 1, 1999, to October 31, 2000. However, persuasive evidence indicates that the appraisal did not reference Petitioner's excessive tardiness.
On October 8, 2000, Deryl T. Rowe, a white male dispatcher, was eight minutes late for a midnight shift due to illness at home. Ms. English prepared documentation of an oral reprimand for excessive tardiness. Mr. Rowe and Ms. English signed the documentation of the oral reprimand before it was placed in Mr. Rowe's personnel file.
On November 30, 2000, Ms. English completed Mr. Rowe's performance appraisal for the period November 1, 1999, to October 31, 2000. The performance appraisal indicates that
Mr. Rowe's performance was satisfactory. The appraisal specifically states that Mr. Rowe could improve by arriving at work on time. According to the appraisal, Mr. Rowe's tardiness delays other dispatchers from leaving their shifts at designated times, creating overtime/special compensation time situations.
On November 30, 2001, Ms. English completed Petitioner's annual performance appraisal for the period November 1, 2000, to October 31, 2001. The performance
appraisal indicates that Petitioner's performance was satisfactory. As to areas in which Petitioner could make improvement, the performance appraisal states that Petitioner could read magazines and books about the communications industry and her particular field of work. The performance appraisal does not reference Petitioner's excessive tardiness.
Chief Ronald Seacrist became Respondent's Chief of Police in February 2002. The relevant chain of command included the following in descending order: Captain John Warren, Lieutenant Rex Bryant, and Ms. English as Communications Officer.
In a memorandum dated March 20, 2002, Ms. English recognized Petitioner's correct response to a fire alarm. The memorandum also commended Petitioner for knowing to place the responding officers on standby after learning that the fire alarm was a test.
On or about March 24, 2002, Ms. English nominated Petitioner for Respondent's A+ award. Respondent gives this award to employees who demonstrate professional excellence, leadership in improving customer service and enhancing the university's image, and university service. Petitioner was one of ten employees in the administrative affairs category who received the award.
In March 2002, Ms. English made an informal complaint to Respondent's EODO staff. The complaint involved
Ms. English's suspicions that an inappropriate sexual relationship existed between Petitioner and Captain Warren.
Ms. English, as Petitioner's supervisor, believed that she had a duty to report that the alleged relationship between Petitioner and Captain Warren, might involve sexual harassment.
Ms. English based her suspicions on observed physical contact and comments exchanged between Petitioner and Captain Warren.
Respondent's EODO staff referred Ms. English's informal complaint to Chief Seacrist, who performed an internal investigation. Chief Seacrist's investigation found no merit to Ms. English's suspicions/allegations.
Chief Seacrist became aware that there were problems between all of the dispatchers and Ms. English. Chief Seacrist and Lieutenant Bryant met with the dispatchers and a staff member from Respondent's EODO office to see if the problems could be resolved. During the meeting, Chief Seacrist encouraged the dispatchers to provide him with written complaints so that he could perform a proper investigation.
Petitioner subsequently filed a written complaint with Chief Seacrist. The complaint was divided into four parts:
(a) Petitioner objected to Ms. English's schedule changes and reprimands for tardiness, which occurred in September 2000
and/or prior to May 2002; (b) Petitioner accused Ms. English of falsifying her own timesheet during the Fall of 2000;
(c) Petitioner objected to Ms. English's failure to follow the chain of command prior to February 2002 while Captain Sarver was acting as interim Chief of Police; and (d) Petitioner objected to inappropriate and invasive comments made by Ms. English, all of which occurred in 2000.
On or about May 28, 2002, Chief Seacrist gave Petitioner's written complaint to Captain Warren. Chief Seacrist directed Captain Warren to perform an internal investigation.
On May 30, 2002, Captain Warren temporarily reassigned Ms. English to complete special projects. Ms. English was no longer responsible for supervising the dispatchers. Instead, Lieutenant Bryant became directly responsible for supervising the dispatchers.
On May 31, 2002, Ms. English gave Captain Warren a written response to the allegations contained in Petitioner's complaint.
On or about June 3, 2002, Captain Warren gave
Chief Seacrist a written report of the internal investigation. As to Petitioner's complaint, Captain Warren found that
Ms. English was guilty of four violations of a work standard,
i.e. threatening or abusive language. Specifically, Captain
Warren found that Ms. English was guilty of the following:
(a) making inappropriate comments and inquiries about other dispatchers; (b) telling Petitioner a story of the origin of "soul food," which Petitioner found offensive; (c) telling Petitioner that Ms. English's daughter does not like "black dolls"; and (d) telling Petitioner that she, Ms. English, would gain weight too if she ate a diet of "collard greens, corn bread, and fried chicken."
Threatening or abusive language is an example of an offense of Respondent's work standard related to personal rights. Respondent defines threatening or abusive language as defamation of character or remarks, offensive language, slander, insults, or threats toward others.
Respondent's Standards for Disciplinary Action set forth the following ranges for disciplinary action involving threatening or abusive language: (a) from a written reprimand to suspension without pay for a first offense; (b) from suspension without pay to dismissal for a second offense; and
dismissal for a third offense.
On June 10, 2002, Chief Seacrist gave Ms. English a written reprimand for using threatening or abusive language as follows: (a) telling an African-American employee (Petitioner) about the origin of the term "soul food" in a manner in which the employee found offensive; (b) telling an African-American
employee (Petitioner) that Ms. English's daughter did not like "black dolls," which the employee found offensive; (c) referring to, "collard greens, corn bread, and fried chicken" in a manner that an African-American employee (Petitioner) found offensive;
making inappropriate comments to employees (including Petitioner) about the personal social life of another employee (Laura Bryant); and (e) telling another employee (Laura Bryant) that an investigation was being conducted and causing the employee to believe the employee's job was in jeopardy.
In the written reprimand, Chief Seacrist admonished Ms. English for her insensitivity to employees under her supervision. He also criticized Ms. English's inability to interact with other ethnic groups.
The June 10, 2002, written reprimand required Ms. English to participate in additional training for interacting with culturally diverse employees. Ms. English
complied with this directive but has never been returned to a supervisory position. The corrective action was appropriate under the circumstances.
At some point in time after Captain Warren issued his June 3, 2002, investigative report, Ms. English complained to Respondent's EODO staff that Captain Warren's report was biased. Ms. English believed the report was biased against her due to an
inappropriate sexual relationship between Petitioner and Captain Warren.
Petitioner filed her Charge of Discrimination on September 5, 2002. The charge states, in part, that Ms. English retaliated against Petitioner by reporting the alleged inappropriate sexual relationship.
In January 2003, Petitioner decided to enhance her career opportunities by taking a job with the Department of Transportation. She voluntarily terminated her employment as a dispatcher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
Petitioner has the burden of proving by the preponderance of the evidence that Respondent committed an unlawful employment practice. Florida Department of
Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges
of employment, because of such individual's race. Section 760.10(1)(a), Florida Statutes.
It also is an unlawful employment practice to discriminate against any person because the person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.
The provisions of Chapter 760, Florida Statutes, are analogous to those of Title VII of the Civil Rights Act of 1964,
42 U.S.C. Sections 2000e, et seq. Cases interpreting Title VII are, therefore, applicable to Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
Section 760.11(1), Florida Statutes, provides as follows, in pertinent part:
(1) Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation . . . .
Petitioner filed her Charge of Discrimination with FCHR on September 5, 2002. Therefore, any alleged discriminatory act that occurred on or before September 5, 2001, is barred.
Petitioner admitted during the hearing that Ms. English made all of her offensive and inappropriate
statements in 2000. Accordingly, all of Petitioner allegations regarding these statements are barred as untimely.
Hostile Work Environment
To the extent that Petitioner's claim about
Ms. English is not time barred, Petitioner failed to present a prima facie case of racial discrimination due to a hostile work environment. A prima facie case of hostile work environment requires evidence that (a) the claimant belongs to a protected group; (b) the claimant has been subject to unwelcome harassment; (c) the harassment was based on a protected characteristic; (d) the workplace is permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the terms or conditions of employment and to create an abusive working environment; and
the employer is responsible for such environment under either a theory of vicarious or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Lawrence v. Wal-Mart Stores, Inc., 236 F.Supp. 2d 1314 (M.D. Fla. 2002).
Here, Petitioner as an African-American is a member of a protected group. Further, she has presented sufficient evidence to show she was subjected to unwelcome, race-related harassment. The viability of Petitioner's claim, therefore,
turns on the fourth element--whether the discrimination was severe or pervasive.
To satisfy the fourth element, Petitioner must prove that: (a) she subjectively perceived the conduct to be abusive, and (b) a reasonable person objectively would find the conduct at issue hostile or abusive. Lawrence v. Wal-Mart Stores, Inc.,
236 F.Supp. at 1323.
In this case, Petitioner presented sufficient evidence that she subjectively perceived Ms. English's conduct to be abusive. On at least two occasions, Petitioner voiced her objections directly to Ms. English. Additionally, she eventually, though belatedly, reported the inappropriate conduct to Chief Seacrist.
The question remains whether Petitioner has satisfied the objective inquiry. A court should determine whether conduct is objectively hostile or abusive by looking at the totality of the circumstances, using several factors including: (a) the frequency of the conduct; (b) its severity; (c) whether it was physically threatening or humiliating or whether it was merely offensive; and (d) whether it unreasonably interfered with the employee's job performance. Id. at 1324. The conduct at issue must be so extreme as to "amount to a change in terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
In the instant case, Ms. English's comments, while certainly insensitive, were not so severe as to be physically intimidating or humiliating. Ms. English made the comments regarding her daughter's dislike of "black dolls," the probability of gaining weight from eating fried chicken, and the definition of "soul food" gleaned from a television documentary, in what she considered to be normal conversations with Petitioner and other dispatchers. Ms. English's inappropriate inquiries about Ms. Bryant's social life also were made without malice. Ms. English's comments to Ms. Bryant, making her feel as though she were under investigation, were not intended to have any impact on Petitioner. In fact, Petitioner's complaint to Chief Seacrist did not refer to Ms. English's comments about the alleged investigation of Ms. Bryant.
Additionally, Petitioner has not shown that
Ms. English made offensive comments with sufficient frequency to constitute racial harassment. The comments that were made sporadically during 2000, then ceased. There is no persuasive evidence that Ms. English's inappropriate comments permeated the workplace.
Finally, Petitioner has not shown that Ms. English's inappropriate comments altered Petitioner's working conditions. There were no tangible effects, such as economic harm. There was no material alteration of Petitioner's job performance.
"Mere utterance of a racial epithet that engenders offensive feelings in an employee but does not alter the conditions of employment, does not present an actionable situation." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).
Assuming arguendo that the evidence supports Petitioner's allegations relative to a hostile work environment, Respondent has satisfied the Faragher-Ellerth affirmative defense.
According to the Supreme Court, if a plaintiff shows that the supervisor effected a tangible employment action against plaintiff, then the corporate defendant is liable for the harassment. Faragher, 524
U.S. at 807-08, 118 S. Ct. 2275; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998); Miller, 277 F.3d at 1278. Where, however, the plaintiff does not show that the supervisor took a tangible employment action, the employer may raise an affirmative defense that it: 1) exercised reasonable care to prevent and promptly correct the harassing behavior, and 2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities the employer provided or to avoid harm otherwise. Miller v. Kenworth of Dothan, Inc., 277 F.3d at 1278 (citing Faragher, 524 U.S. at 807, 118 S. Ct. 2275; Ellerth, 524 U.S. at 765, 118 S. Ct. 2257.
Lawrence v. Wal-Mart Stores, Inc., 236 F.Supp. at 1327.
Here, Respondent exercised reasonable care to prevent harassment by having in place a policy to prevent it.
Petitioner used this policy and the procedures implementing it when she made her complaint to Chief Seacrist.
Respondent acted promptly to correct Ms. English's offensive behavior by relieving her of her supervisory responsibilities and giving her a written reprimand. Although Ms. English's offensive comments took place in 2000, Respondent issued the reprimand as soon as it became aware of her behavior. Thereafter, Ms. English ceased making race-related or otherwise inappropriate comments.
On the other hand, Petitioner did not act promptly in reporting the offensive comments. Instead, she waited to complain about Ms. English's offensive comments until she learned in the Spring of 2002 that Ms. English had accused her of having an inappropriate sexual relationship with Captain Warren. That initial accusation, though proved to be false, was justified based on Ms. English's observations of what she considered to be Petitioner's unprofessional relationship with Captain Warren. There is no persuasive evidence that
Ms. English's initial accusation was anything but an attempt to fulfill her duty to report a situation involving possible sexual harassment.
Respondent was not required to immediately inform Petitioner of the action it had taken to discipline Ms. English in order to assert its affirmative defense. Lawrence v.
Wal-Mart Stores, Inc., 236 F.Supp. at 1329. Moreover,
Ms. English's right to confidentiality give Respondent a legitimate business reason not to fully inform Petitioner about the results of the investigation. Id.
Disparate Treatment
In cases alleging racial discrimination based on disparate treatment, the Petitioner bears the burden of proof established in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981). Under this model of proof, the complainant bears the initial burden of establishing a prima facie of discrimination. If the complainant meets his or her initial burden, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler,
582 So. 2d 1183 (Fla. 1st DCA 1991). If the employer meets its burden of production, the complainant must then persuade the court that the employer's proffered reason is a pretext for intentional discrimination.
To establish a prima facie case of racial discrimination based on disparate treatment, Petitioner must show the following: (a) she belongs to a racial minority;
(b) she was subjected to an adverse employment action; (c) she was qualified for her position; and (d) Respondent treated
similarly situated employees outside the protected class more favorably. See Holifield v. Reno 115 F.3d 1555, 1562 (11th Cir. 1997).
Here, Petitioner has proved that she suffered an adverse employment action because of her chronic tardiness. Ms. English counseled Petitioner and gave her several verbal warnings about being late for work. However, the evidence is not so clear that Ms. English ever gave Petitioner an official
"oral reprimand" that was placed in Petitioner's personnel file.
In the event that the "oral reprimand" for excessive tardiness was properly documented, Petitioner has not proved that dispatchers who were not African-American were treated more favorably by being allowed to routinely arrive at work late. To the contrary, Ms. English did not allow any dispatchers to be late, even for a few minutes, regardless of their excuse or their race. She was overbearing in expecting all dispatchers to arrive at work on time.
Petitioner does not deny that she was late to work due to traffic congestion in September 2000. She was late to work on numerous other occasions. The fact that she had reasons for her tardiness on each occasion would not have deprived Respondent of a legitimate non-discriminatory reason for taking disciplinary action for excessive tardiness. Petitioner has not
shown that Ms. English's strict enforcement of Respondent's policies was a pretext for racial discrimination.
Retaliation
To prove a prima facie case of retaliation, Petitioner must show the following: (a) she engaged in statutorily protected expression; (b) she suffered an adverse employment action such as demotion and/or assignment to a position with less responsibility; and (c) the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998).
In this case, Petitioner has failed to show that she suffered an adverse employment action for making a complaint against Ms. English. After Captain Warren issued his investigation report, Ms. English complained to Respondent's EODO that the report was biased due to the alleged inappropriate sexual relationship between Petitioner and Captain Warren.
There is some evidence that Respondent's EODO staff then conducted another investigation into Ms. English's allegations. However, there is no evidence that Petitioner suffered any harm as a result of that investigation. Petitioner was not disciplined in any way. The greater weight of the evidence indicates that the result of the second investigation was the
same as the first, i.e., that there was no merit to Ms. English's allegations.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 10th day of July, 2003, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2003.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Pamela E. Langham, Esquire University of West Florida 11000 University Parkway
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
