This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on July 31, 2008, in Daytona Beach,
Florida.
The issue is whether Respondent engaged in an unlawful employment practice.
Petitioner Daniel P. Hurley (Mr. Hurley) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission) on June 11, 2007. The Complaint stated that Respondent Advance Auto Parts (Advance) discriminated against him based on age and retaliated against him for complaining. The Commission, following an investigation into the matter, issued its Determination: No Cause on February 20, 2008.
On March 24, 2008, Mr. Hurley filed a Petition for Relief with the Commission. The Petition itself does not allege any violation of Chapter 760, Florida Statutes. The attachments to the Petition can be read to mean that Mr. Hurley believes he was subjected to discrimination based on age, that he was subjected to a hostile work environment based on age, and that when he reported this, he believes Advance required him to maintain delivery logs and changed his working hours. It was upon these barebones allegations that the hearing proceeded.
At the hearing, Mr. Hurley called five witnesses and had three exhibits accepted into evidence. Advance called one witness and had six exhibits accepted into evidence.
A Transcript was filed on August 19, 2008. After the hearing, on August 26, 2008, Advance submitted a "Recommended Final Order Dismissing Petition for Relief from an Unlawful
Employment Practice." This submittal will be deemed to be a proposed recommended order. On August 29, 2008, Mr. Hurley filed his "Exceptions to Recommended Final Order Dismissing Petition for Relief from an Unlawful Employment Practice." This submittal likewise will be deemed to be a proposed recommended order.
References to statutes are to Florida Statutes (2006) unless otherwise noted.
Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m.
Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent.
William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose
Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley.
On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store.
Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home.
During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face.
Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence.
Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The
employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination."
Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument.
Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report.
Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of
Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working.
Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed
guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter.
Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that
Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store.
On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy.
From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from
7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon.
A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store.
When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds.
On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory.
The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.11(7) Fla. Stat. (2007).
Subsection 760.02(1), Florida Statutes, states that the "Florida Civil Rights Act of 1992" (the Act) comprises Sections 760.01 through 760.11, and 509.092, Florida Statutes.
Mr. Hurley is an "aggrieved person," and Advance is an "employer" as defined by Section 760.02, Florida Statutes.
Pursuant to Subsection 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer to change the conditions, or privileges of employment or otherwise discriminate against an individual on the basis of age.
Pursuant to Subsection 760.10(7), Florida Statutes, it is an unlawful employment practice for an employer to discriminate against a person because that person has "opposed any practice which is an unlawful employment practice" or
because that person "has made a charge . . . under this section."
The Act is patterned after Title VII of the Federal Civil Rights Act, 42 U.S.C. Section 2000E et seq. Federal case law interpreting Title VII is applicable to cases arising under the Act. See Florida Department of Community Affairs v. Bryant,
586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
There was no direct evidence of age discrimination adduced at the hearing, so Mr. Hurley must prove disparate treatment, if he can, through the burden-shifting mechanism outlined by the U. S. Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
To establish a claim of disparate treatment under the McDonnell Douglas framework, Mr. Hurley must establish a prima facie case of race discrimination. If he does so, Advance may offer a legitimate, nondiscriminatory reason for its actions. If it does so, Mr. Hurly must prove that the reason provided by Advance is a pretext for race discrimination, if he is to prevail.
In order to prove a prima facie case, Mr. Hurley must show that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) he was treated
differently than similarly-situated employees of a different age; and (4) that he was qualified for the job or job benefit at issue. See Gillis v. Ga. Dep't of Corr., 400 F.3d 883, 887 (11th Cir. 2005).
Mr. Hurley is a member of a protected class because during times pertinent he was 62 years of age. He was qualified to be a driver for an auto parts company. He was subject to an adverse employment action because his working hours were changed, and he was required to maintain delivery logs.
However, there is no evidence that he was treated differently than similarly-situated employees of different ages. Therefore, Mr. Hurley has failed to prove a prima facie case.
If one assumes arguendo that a prima facie case was established, Advance demonstrated that its decision with regard to Mr. Hurley's hours and the requirement to maintain delivery logs was based on business reasons having nothing to do with discrimination.
In order to prove a hostile working environment Mr. Hurley must demonstrate: (1) that he belonged to a protected class; (2) that he was subjected to unwelcome harassment; (3) that the harassment was based on his age;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of his employment and create a discriminatorily abusive work environment; and (5) some basis
for holding the employer liable. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
Mr. Hurley is in a protected class, as noted. He was not, however, subject to unwelcome harassment. A single, short- term dispute between two employees does not amount to harassment regardless of the extent of inappropriate comments one of the parties might have uttered. To the extent this was harassment at all, it was not sufficiently severe or pervasive enough to alter the terms and conditions of his employment. To be sure, a single act by a fellow employee, Mr. Rivera in this case, does not provide any basis for holding Advance liable for anything that happened to Mr. Hurley.
In order to establish a prima facie case of retaliation under the Act, Mr. Hurley must demonstrate:
(1) that he engaged in statutorily protected activity; (2) that he suffered an adverse employment action; and (3) that there is a causal relation between the two events. See Donovan v. Broward County Bd. of Comm'rs, 974 So. 2d 458, 460 (Fla. 4th DCA 2008), citing Harper v. Blockbuster Entn't Corp., 139 F.3d 1385, 1388 (11th Cir. 1998).
In Burlington Northern & Santa Fe Railway v. White,
548 U.S. 53 (2006), the U. S. Supreme Court noted that the scope of the retaliation provision is broader than that of Title VII's substantive discrimination provisions. As the Court noted, the
anti-retaliation provision seeks to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. In the Burlington Northern case, unlike the case at bar, there was no doubt that Ms. White had been discriminated against and that she filed a complaint. There was no question she filed a complaint. And there was sufficient evidence available to persuade a jury that her employer changed her job status as a result of her complaint.
In this case, the facts do not support a claim that Mr. Hurley complained about age discrimination to Advance. The nearest thing to a complaint was the written statement provided to Mr. Potter that outlined a single dispute he had with an assistant manager. This statement was given to Mr. Potter because Mr. Potter demanded it. The purpose of the Act with regard to retaliation is not furthered when the statement made by the employee is not voluntary.
Mr. Hurley noted in passing that the assistant manager made inappropriate comments about his age, but that was not the focus of the statement. Mr. Hurley was quick to complain during his tenure at Advance about many facets of his employment, but with the exception of the statement to Mr. Potter, which never made any claim of age discrimination, he never once complained of discrimination as is allowed by the Employee Handbook.
If one assumes that Mr. Hurley complained of discrimination, and the facts do not at all support such an assumption, there was no causal connection between the complaint and the changes in his hours or the requirement for maintenance of the delivery logs. The person solely responsible for making the changes, Mr. Estes, was unaware of Mr. Hurley's statement to Mr. Potter.
dismiss Mr. Hurley's Petition for Relief
DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008.
Larry Kranert, 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.
