STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA LISSIMORE SIMMONS,

Petitioner,

vs.

HAMILTON PRODUCTS, INC.,

Respondent.

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) Case No. 06-3719

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 7, 2006, in Ocala, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Brenda Lissimore Simmons, pro se

1818 Northwest Martin Luther King Avenue

Ocala, Florida 34475

For Respondent: Gary D. Adel, Esquire

Blanchard, Merriam, Adel & Kirkland, P.A.

Post Office Box 1869 Ocala, Florida 34478

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.

PRELIMINARY STATEMENT

On December 27, 2005, Petitioner, Brenda Lissimore Simmons, filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Hamilton Products, Inc., violated Section 760.10, Florida Statutes, by discriminating against her on the basis of race and retaliation.

The allegations were investigated and on September 1, 2006, FCHR issued its determination of "no cause" and Notice of Determination: No Cause. A Petition for Relief was filed by Petitioner on September 27, 2006.

FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about October 2, 2006. A Notice of Hearing was issued on October 12, 2006, setting the case for formal hearing on December 7, 2006. The hearing proceeded as scheduled.

At hearing, Petitioner testified on her own behalf.

Petitioner offered into evidence Exhibits numbered One through Three. Exhibits One and Two were admitted into evidence.

Exhibit Three was not admitted. Respondent presented the testimony of JoAnn Lake, Martha Robinson, and Karen Benfield. Respondent offered Exhibits Numbered One and Two which were admitted into evidence.

The hearing was not transcribed. Petitioner timely filed a post-hearing submission and Respondent timely filed a Proposed

Recommended Order which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker.

2. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act.

   Allegations of Race Discrimination

   
   

3. Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part:

   I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she

   complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees.

   
   

4. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female.

5. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office.

6. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to

   Ms. Benfield did not include any allegation of racial discrimination about her or anyone else.

7. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself.

8. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield.

9. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as

   follows:

   
   

   The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees.

   
   

   Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of

   command to a higher supervisor, as this disrupts the operations of Hamilton Products.

   
   

   In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge.

   
   

10. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident.

11. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not.

12. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

14. Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race.

    Race Discrimination

    
    

15. In discrimination cases alleging disparate treatment, the Petitioner generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).2/ Under this well established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. When the charging party, i.e., Petitioner, is able to make out a prima facie case, 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) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the

    decision was non-discriminatory. Id. Alexander v. Fulton County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra. Petitioner has not met this burden.

16. Petitioner claims she received "discipline, unfair terms and conditions, and denial of promotion" because of race discrimination. To establish a prima facie case of race discrimination, she must prove that (1) she is a member of a protected class (e.g., African-American); (2) she was subject to an adverse employment action; (3) her employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) she was qualified for the job or benefit at issue. See McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

17. Petitioner established the first element in that she is African-American. However, she did not establish that she was subject to adverse employment discrimination.

18. The actions complained of by Petitioner simply do not rise to the level of adverse employment action. The Employment Complaint of Discrimination alleged that a coworker harassed her and that nothing was done about it. The fact that a coworker, of the same race, tapped her foot in an annoying way and was asked to stop after several employees complained does not constitute harassment or an adverse employment action. To be actionable, the employment action must be materially adverse as viewed by a reasonable person in the circumstances, not by the employee's subjective view. Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). "Tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id.

19. Further, Petitioner has not satisfied the third element of a prima facie case in that she has not provided sufficient evidence that the non-minority employees with whom she compares her treatment were similarly situated yet treated more favorably. See Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997).

20. Moreover, Petitioner did not present competent evidence to prove the fourth component of establishing a prima

    facie case regarding her being qualified for the job, although that does not appear to be in dispute.

21. Applying the McDonnell analysis, Petitioner did not meet her burden of establishing a prima facie case of discriminatory treatment. Even assuming that Petitioner had demonstrated a prima facie case of discriminatory conduct, Respondent demonstrated a legitimate, non-discriminatory reason for the written reprimand. That is, she was reprimanded for violating the chain of command.

22. Even if it were necessary to go to the next level of the McDonnell analysis, Petitioner did not produce any evidence that Respondent's legitimate reasons were pretext for discrimination. Therefore, Petitioner has not met her burden of showing that a discriminatory reason more likely than not motivated the decision to reprimand Petitioner or by showing that the proffered reason for the employment decision is not worthy of belief. Consequently, Petitioner has not met her burden of showing pretext.

23. Petitioner alleged that Respondent failed to promote her or other Black employees. In order to establish a prima facie case in a failure to promote claim, Petitioner must establish that: (a) she was a member of a protected class; (b) she was qualified and applied for the promotion; (c) she was rejected despite her qualifications; and (d) equally or less

    qualified employees who are not members of the protected minority were promoted. See Alexander v. Fulton County, 207 F.3d 1303 at 1339 (11th Cir. 2000); citing Taylor v. Runyon, 175

    F.3d 861, 866 (11th Cir. 1999); and Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988). There is no evidence that she applied for and was denied a promotion, was rejected, or that equally or less qualified employees not of a protected class were promoted. The evidence established that no one from the production department was promoted while Petitioner was employed by Respondent.

24. Petitioner found the treatment she received at her workplace to be unpleasant and that she was treated unfairly and discourteously. Although not specified as such, this could be interpreted as a hostile work environment claim. However, Petitioner's subjective belief that conduct she considered rude was motivated by unlawful discriminatory intent is generally insufficient to establish a violation of Title VII, regardless of the hostility of the conduct. See Triplett v. Electronic

    Data Systems, 710 F. Supp. 667 (W.D. Mich 1988) (Plaintiff may rightly complain that she was treated discourteously, but statutes prohibiting race discrimination do not provide a shield against all harsh treatment in the workplace.) and McCollum v.

    Bolger, 794 F.2d 602, 610 (11th Cir. 1986) (personal animosity

    is not the equivalent of unlawful harassment and is not proscribed by Title VII.)

25. In summary, Petitioner has failed to carry her burden of proof that Respondent engaged in racial discrimination toward Petitioner when it wrote the letter of reprimand, moved her, or in how it dealt with her coworker's annoying habit.

    Retaliation

    
    

26. Petitioner's charge of retaliation is presumably based upon her gathering complaints from coworkers and delivering them to Ms. Benfield. That is, Petitioner claims that after she took that action, that she was retaliated against.

27. To make a prima facie case of retaliation, Petitioner must show that she engaged in protected activity, that she suffered adverse employment action, and that there is some causal relation between the protected activity and the adverse employment action. Casiano v. Gonzales, 2006 U.S. Dist. Lexis 3593 (N.D. Fla. 2006); Jeronimus v. Polk County Opportunity Council, Inc., 2005 U.S. App. Lexis 17016 (11th Cir. 2005). There is no evidence that she engaged in protected activity (i.e., complained about unlawful discriminatory treatment) when she approached Ms. Benfield with general complaints, to support a charge of retaliation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief.

DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 9th day of February, 2007.

ENDNOTES

1/ The Employment Complaint of Discrimination states that this coworker was Black and named "Deloise." All references to the name of this coworker at hearing was "Delores".

2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Brenda Lissimore Simmons

1818 Northwest Martin Luther King Avenue Ocala, Florida 34475

Gary D. Adel, Esquire Blanchard, Merriam,

Adel & Kirkland Post Office Box 1869 Ocala, Florida 34478

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

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk 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 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: 06-003719

Orders for Case No: 06-003719