vs.
Respondent.
) Case No. 05-1152
A formal hearing was conducted in this case on May 13 and 19, 2005, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Thomas A. David, Esquire
D. Andrew Byrne, Esquire
The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race and gender.
On September 30, 2003, Petitioner Jacqueline Adams (Petitioner) filed an Employment Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Heritage Oaks Retirement (Respondent) discriminated against Petitioner based on her race and gender.
On February 17, 2005, FCHR issued a Determination: No Cause. On March 24, 2005, Petitioner filed a Petition for Relief with FCHR. On March 30, 2005, FCHR referred the petition to the Division of Administrative Hearings.
On April 8, 2005, the undersigned issued a Notice of Hearing. The notice scheduled the hearing for May 13, 2005.
During the hearing on May 13, 2005, Petitioner testified on her own behalf and presented the testimony of seven additional witnesses. Petitioner offered nine exhibits, which were accepted as evidence.
The parties were unable to complete the presentation of evidence on May 13, 2005. Therefore, the undersigned granted a continuance and rescheduled the case for May 19, 2005.
During the hearing on May 19, 2005, Respondent presented the testimony of five witnesses. Respondent offered three exhibits, which were accepted as evidence.
All citations herein shall be to Florida Statutes (2003) unless otherwise specified.
Respondent is an employer as defined under the Florida Civil Rights Act of 1992. See § 760.02(7), Fla. Stat.
Petitioner is a black female. She was hired as a part- time server in Respondent's dining room. She began working in the dining room on December 8, 2001. Her employment was terminated on September 25, 2003.
During the time that Petitioner worked in Respondent's dining room, her initial employer was Emeritus Corporation. Subsequently, Petitioner worked for Love Management Company.
Petitioner had at least six disciplinary "write-ups" in her disciplinary file at the time of her termination. Clara Poole, a black female, was Petitioner's initial supervisor. Subsequently, Randy O'Brien, a white male, became Petitioner's supervisor.
On or about February 2, 2002, Ms. Poole disciplined Petitioner for not completing her daily assignment as the dishwasher. Ms. Poole suspended Petitioner for three days. Petitioner was advised in writing that she had to follow the instructions of her supervisor.
From the time that Mr. O'Brien began supervising Petitioner, it was obvious that he and Petitioner had a personality conflict. Mr. O'Brien's management style was very different from the one practiced by Ms. Poole. Mr. O'Brien was
abrupt, demanding, and intolerant of any staff member's failure to follow his instructions. However, Petitioner, unlike other staff members, took exceptional personal offense to
Mr. O'Brien's negative comments and criticisms.
As time went on, Petitioner's relationship with
Mr. O'Brien deteriorated to the point that Petitioner frequently complained to Respondent's management about Mr. O'Brien's conduct. There is no persuasive evidence that Respondent's management failed to take Petitioner's complaints seriously and make the appropriate inquiries. Respondent's management counseled Petitioner and Mr. O'Brien, encouraging them to work together in a professional manner.
On or about July 24, 2002, Mr. O'Brien disciplined Petitioner for becoming involved in a confrontation with one of Respondent's residents. Petitioner was advised of the need to always be courteous to residents and to call a manager to resolve any conflicts.
On or about September 23, 2002, Petitioner was in an automobile accident. The next day, September 24, 2002, Petitioner's husband provided Respondent with a doctor's excuse for her to miss one day of work. Petitioner's husband told
Mr. O'Brien that Petitioner would not return to work for one week. Mr. O'Brien informed Petitioner's husband that Petitioner
would need another doctor's note to be off from work for more than one day.
There is no credible evidence that Petitioner's doctor extended the time she could miss work after the automobile accident. Because Mr. O'Brien did not receive another doctor's excuse, he scheduled Petitioner for work on September 25, 2002, and September 30, 2002. Petitioner did not call or show up for work on either occasion.
On September 30, 2002, and October 1, 2002,
Mr. O'Brien placed "write-ups" in Petitioner's disciplinary file for violating Respondent "no call, no show" policy. There is no evidence that Respondent took any other disciplinary action against Petitioner for failing to call or show up for work on September 25 and 30, 2002.
On or about October 31, 2002, Petitioner complained to Respondent's office manager that her time card was not correct. When Mr. O'Brien questioned Petitioner about her concern, she exhibited a poor attitude. Mr. O'Brien placed a written report in Petitioner's disciplinary file and warned her that she would be terminated unless she changed her attitude.
On or about June 13, 2003, Respondent's management counseled with Petitioner and Mr. O'Brien. During the counseling session, Mr. O'Brien apologized for not turning in Petitioner's vacation time. Mr. O'Brien also explained the
duties of the night shift and the difficulty he had in scheduling work for the dining room. At the conclusion of the meeting, Petitioner and Mr. O'Brien agreed to try to show more respect for each other. Mr. O'Brien agreed that he would try to give Petitioner at least one weekend off each month.
On or about July 2, 2003, Respondent's management counseled with Petitioner because she had not responded in a professional manner when the cook, Ron Heffer, questioned whether Petitioner had taken food home after her evening shift. After this meeting, Respondent established a policy that kitchen staff could eat a meal at the facility but not take any food home.
On July 4, 2003, Mr. O'Brien advised Respondent's management that he would inspect bags or items being carried home by kitchen or dining room staff when the bags or items did not reveal the contents. There is no credible evidence that Mr. O'Brien singled Petitioner out in making these inspections.
On or about July 7, 2003, Mr. O'Brien placed a "write- up" in Petitioner's disciplinary file. According to the document, Petitioner's team leader complained that Petitioner was not completing her work.
On or about July 7, 2003, Mr. O'Brien approached all members of the food-service staff to check the contents in to-go boxes and other bags. Petitioner became upset when Mr. O'Brien
attempted to check Petitioner's bag. Petitioner eventually complied with Mr. O'Brien's request, revealing some food, which she disposed of, and other items that did not come from Respondent's kitchen.
On several occasions from July 11, 2003, through July 17, 2003, Respondent's manager received complaints from Mr. O'Brien and Petitioner's co-workers about Petitioner's attitude and her failure to perform daily tasks. The manager counseled with Petitioner who took the position that everyone else was lying and that she had done nothing wrong.
On or about July 18, 2003, Respondent gave Petitioner a written warning that she would be suspended or terminated if her attitude and performance did not improve. Specifically, Petitioner was advised that she had to clean after serving dinner and refrain from complaining when she was instructed to perform a task.
On or about August 2, 2003, Mr. O'Brien noticed that Petitioner was not wearing an apron. He requested another staff member to find out why Petitioner was not in proper attire. Petitioner informed the co-worker that her apron was in the laundry. Subsequently, Petitioner was rude to Mr. O'Brien when he stated, "We are not responsible for washing employees' laundry."
On or about September 8, 2003, Petitioner and
Mr. O'Brien engaged in a heated conversation about her duties. The argument was initiated by Petitioner and involved her objection to being told that she had to vacuum. Petitioner spoke to Mr. O'Brien in a loud, aggressive tone in front of a resident, potential customers, and other employees.
On or about September 14, 2003, Ron Heffer, the cook, was acting in a supervisory capacity. He filed a written report alleging that Petitioner had disappeared for 45 minutes while on the clock and that she had not followed her team leader's cleaning instructions.
On or about September 15, 2003, Respondent's manager counseled with Petitioner regarding her failure to improve her performance. Petitioner once again became overly defensive.
On September 25, 2003, Petitioner was preparing garnish for lunch. Mr. O'Brien told Petitioner to put on gloves. Petitioner was terminated for not following instructions and continuing to work without putting on gloves, for being insubordinate, for not improving in job performance or attitude.
At the same time, Alex Barth, a white male, was also reprimanded for not wearing gloves while handling food. Respondent did not fire Mr. Barth because he had only been on the job for about two weeks. Petitioner had worked at the
facility for almost two years. One cannot say that Petitioner and Mr. Barth were similarly situated based on the difference in training and work experience and the difference in the number of prior disciplinary actions.
During the hearing, Petitioner testified at length about Mr. O'Brien's unfair treatment. The record indicates that Mr. O'Brien was a bully at times. Many employees found it difficult to work for him. However, there is no persuasive evidence that Mr. O'Brien singled Petitioner out or treated her differently from the way he treated other similarly situated employees.
At various times, Mr. O'Brien coarsely reprimanded and/or "wrote-up" other employees. These employees included at least one white female and two white males.
On the other hand, Mr. O'Brien had a respectful working relationship with at least two black females. Mr. O'Brien promoted one of them to be a team leader, a supervisory position.
There is evidence that Petitioner was overly sensitive to Mr. O'Brien's abrupt management style. Other employees either did as they were told without complaint or stood up to him, resolving daily problems yet maintaining a professional relationship.
Petitioner was moody and difficult to train in the standard procedures for all dining room servers. She did not like anyone telling her what to do. As a result of Petitioner's attitude, she had difficulty getting along with most of her peers and supervisors. It was Petitioner's disciplinary history, and not Respondent's discriminatory animus, that resulted in her termination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2004).
Section 760.10, Florida Statutes, prohibits discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race or gender. See § 760.10(1), Fla. Stat. Florida courts interpret Chapter 760, Florida Statutes, in accordance with the federal case law that construes the federal anti-discrimination laws as codified under Title VII of the Civil Rights Act of 1964, as amended in 42 U.S.C. Section 2000e. et seq.
Petitioner has the ultimate burden to prove discrimination by direct or indirect evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Direct evidence is admissible evidence, which if believed, would prove the existence of discrimination without any need for inference or presumption. Id. The only possible evidence of direct discrimination here is Petitioner's hearsay testimony that Mr. O'Brien admitted he had to write up a white person because he had written up a black person. Petitioner's hearsay testimony was not corroborated by competent evidence.
To prove discrimination by indirect or circumstantial evidence, Petitioner must first establish a prima facie case of the following elements: (a) she is a member of a protected group; (b) she is qualified to do her job; (c) she was subjected to an adverse employment action; and (d) similarly situated employees, who are not members of a protected group, were treated more favorably than Petitioner. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
If Petitioner proves her prima facie case, the employer then must articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Burdine, 450
U.S. at 254. The employer is required only to "produce admissible evidence, which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257.
If the employer produces evidence of a non- discriminatory reason for the adverse action, the burden shifts
back to Petitioner to prove that the employer's reason was a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 503 (1993).
In this case, Petitioner established a prima facie case in all respects save one. She did not show that Respondent or its agent, Mr. O'Brien, treated similarly situated employees, who were not members of the protected class, more favorably at any time during her employment or by firing her.
Mr. Barth was a new employee, who did not have a history of disciplinary problems like Petitioners. Under the circumstances of this case, Respondent did not treat Mr. Barth more favorably than Petitioner by reprimanding him instead of terminating him for not wearing gloves during food preparation.
Additionally, Petitioner did not show that any other employee was treated more favorably than she was. Mr. O'Brien was rude and aggressive in his management style. Some employees were able to get along with Mr. O'Brien better than others. Petitioner's problem was that she did not like Mr. O'Brien or anyone else telling her what to do.
Petitioner had ample opportunity to change her attitude and adhere to the facility's performance standards. Instead, she continued to complain about her work schedule and daily assignments, which she often failed to complete in a timely manner. There is no credible evidence that Mr. O'Brien
tolerated a pattern of misconduct like Petitioner's from any other dining room server, regardless of the employee's race or gender.
To the extent that Petitioner met her prima facie burden, Respondent presented persuasive evidence that Petitioner received multiple "write-ups" and was eventually terminated due to her insubordination, her failure to change her attitude, and her failure to improve her job performance after appropriate counseling. Thus, Respondent met its burden of showing a legitimate, non-discriminatory reason for disciplining and terminating Petitioner.
Petitioner did not present any credible evidence that Respondent's reasons for any of the multiple adverse employment actions were a pretext for discrimination. There may have been an on-going personality conflict between Petitioner and
Mr. O'Brien, who treated most employees unfairly at one time or another, but there was no crusade, based on Petitioner's race or gender, to discriminate against her or to terminate her employment. See St. Mary's Honor Center, 509 U.S. at 508.
That FCHR dismiss the Petition for Relief.
DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2005.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Thomas A. David, Esquire
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.
