STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN HADLEY,

Petitioner,

vs.

MCDONALD'S CORPORATION,

Respondent.

)

)

)

)

) Case No. 04-1601

)

) *AMENDED AS TO

) PRELIMINARY STATEMENT

) AND FINDING OF FACT 16

) ONLY

*AMENDED RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on June 23, 2004, in Orlando, Florida.

APPEARANCES

For Petitioner: Carolyn Hadley, pro se

135 Minna Lane

Merritt Island, Florida 32953

For Respondent: Cynthia Brennan Ryan, Esquire

Holland & Knight, LLP Post Office Box 1526

Orlando, Florida 32802-1526 STATEMENT OF THE ISSUE

Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).

PRELIMINARY STATEMENT

On April 26, 2004, the Florida Commission on Human Relations received a Petition for Relief from Petitioner claiming that Respondent was guilty of discriminating against her. On April 27, 2004, the petition was forwarded to the Division of Administrative Hearings by the Florida Commission on Human Relations. On April 30, 2004, an Initial Order was forwarded to both parties.

On May 14, 2004, the case was scheduled for final hearing in Orlando, Florida, on June 7, 2004. On May 18, 2004, the parties jointly requested a continuance. The case was rescheduled for June 23, 2004.

The case was presented as rescheduled on June 23, 2004. Petitioner presented two witnesses: herself and Patrick A. Bishop. Respondent presented three witnesses. Carolyn Byers and Dexter Lewis testified at the final hearing. The deposition of Anita Miller taken on June 14, 2004, was accepted as her testimony. Respondent offered two exhibits which were received into evidence as Respondent's Exhibits 1 and 2.

The hearing Transcript was filed with the Division of Administrative Hearings on August 12, 2004. On September 1, 2004, Respondent requested that the time for filing proposed recommended orders be extended. The new date for filing proposed recommended orders was established as September 10,

2004. Each party filed a Proposed Recommended Order on September 10, 2004.

On December 9, 2004, the Florida Commission on Human Relations remanded the Recommended Order with directions for "further proceedings consistent with this Order" (Order Remanding Petition for Relief From an Unlawful Employment Practice). In essence, the Remand Order suggested that error was committed in the "statement of the appropriate test for establishing a prima facie case" of employment discrimination as it relates to Petitioner's allegation that, based on her race, she was required to wear a sticker on her forehead and had ice cream smeared on her face by a supervisor.

FINDINGS OF FACT

1. Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment.

2. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000).

3. Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which

   can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy.

4. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face.

5. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes.

6. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment.

7. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful

   workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated.

8. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2003).

10. Subsection 760.10(1)(a), Florida Statutes (2000), provides that it is an unlawful employment practice for an employer:

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

11. Florida courts have determined that federal discrimination law should be used as a guidance when construing provisions of Section 760.10, Florida Statutes. Harper v.

    Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

12. The United States Supreme Court established, in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII, which is persuasive in the instant case, as reiterated and refined in the case of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

13. This analysis illustrates that a petitioner has the burden of establishing, by a preponderance of evidence, a prima facie case of discrimination. If that prima facie case is established, the respondent must articulate a legitimate, non- discriminatory reason for the action taken. The burden then shifts back to the petitioner to go forward with evidence to demonstrate that the offered reason is merely a pretext for unlawful discrimination. The Supreme Court stated in Hicks, before finding discrimination in that case, that:

    [T]he factfinder must believe the plaintiff's explanation of intentional discrimination.

    
    

    509 U.S. at 519.

    
    

14. In the Hicks case, the Court stressed that even if the factfinder does not believe the proffered reason given by the

    employer, the burden still remains with the petitioner to demonstrate a discriminatory motive for the adverse employment action taken.

15. In order to establish a prima facie case, Petitioner must establish that she is a member of a protected class or group; that she is qualified for her position; that she was subjected to an adverse employment action; that she was treated less favorably or differently than similarly situated persons outside her protected class; and that there is some causal connection between her membership in the protected class and the adverse employment action. McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973); Canino v. U.S. E.E.O.C., 707 F.2d 468, (11th Cir. 1983).

16. There is no dispute in this case that Petitioner is a member of a protected class or that she was qualified for her job; however, she has failed to demonstrate that she suffered an adverse employment action or that she was treated dissimilarly than persons outside her protected class. Nor is there any factual basis for concluding that there was race-based hostility in the work environment. The general "horse-play" that was present in the workplace was neither race nor sex-based, but involved all employees. The fact that Petitioner continued her employment for six months without complaining of the reported incidents and that, at the time of her complaints, she did not

    indicate that the offending conduct was racially motivated strongly mitigate against the suggestion of a hostile work environment.

17. Petitioner has failed to advance a prima facie case.

RECOMMENDATION

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

RECOMMENDED that Petitioner's Petition for Relief be dismissed.

DONE AND ENTERED this 14th day of April, 2005, nunc pro

tunc September 22, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 14th day of April, 2005.

COPIES FURNISHED:

Carolyn Hadley

135 Minna Lane

Merritt Island, Florida 32953

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cynthia Brennan Ryan, Esquire Holland & Knight, LLP

Post Office Box 1526 Orlando, Florida 32802-1526

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Amended Recommended Order. Any exceptions to this Amended Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-001601

Orders for Case No: 04-001601