She states that other route drivers had their names on food delivery boxes and she did not. She alleges she asked her supervisor, Ms. Brady to place her name on the boxes in the future, but Ms. Brady simply put the route name on the boxes assigned to the Petitioner, instead of her name. She contends that all the other drivers are white; and (2) she contends that one of the white drivers, Margaret, had guests ride along with her on deliveries. When the Petitioner asked Ms. Brody if she could bring guests along on deliveries, Ms. Brody would not allow it.
The cause was referred to DOAH, assigned to the undersigned and noticed for hearing. The cause came on for hearing as noticed on January 13, 2009. The Petitioner adduced her own
testimony and presented no exhibits. The Respondent presented
the testimony of Kay Brady and Larry Moose, and offered eight exhibits, all of which were admitted into evidence.
Upon conclusion of the proceeding, the parties were accorded a time period to submit proposed recommended orders, but did not do so, nor order a transcript. A post-hearing letter, constituting argument, was submitted by the Petitioner. In
consideration of the testimony and evidence admitted, the following facts were found.
The Petitioner Rosa Pearl McDonald is an African- American female. She was employed at times pertinent to this dispute as a driver, delivering meals to elderly clients of the Walton County Council on Aging. The Petitioner is also a Licensed Practical Nurse (LPN).
The Respondent, Walton County Council on Aging is a charitable social services agency, domiciled in Walton County. As pertinent to this case, it delivers and serves meals to elderly clients throughout the county, through the use of hired and volunteer drivers. The Petitioner was a recently-hired driver, of less than 30 days' employment, when the operative facts occurred. The Petitioner was still in probationary employment status.
The Petitioner contends, in effect, that she was subjected to disparate terms and conditions of employment due to her race. She states she was the only black driver and that her supervisor, Kay Brady, is white. The Petitioner noticed after hiring, that the food delivery boxes had the assigned drivers' names on them. The box she was assigned had only the route name. She states she had asked Ms. Brady to place her name on the box, but the route name was placed on the box instead.
The Petitioner acknowledged, upon cross-examination, that she did not know who placed the route label on the food box. She was still a probationary employee at this time. The probationary period was 90 days, and the Petitioner resigned only 30 days or less, after her hiring. Inferentially, it may be that the probationary status was the reason her name was not used, or it may have been an oversight.
There is no evidence other than the Petitioner's stated opinion, that the labeling situation was due to racial animus. In fact, the Petitioner had been hired, and fired, by the Respondent twice in the past, and yet it still re-hired her shortly before the subject situation arose. Moreover, Ms. Brady gave the Petitioner extra hours of work when she requested them. These facts tend to negate the existence of racial bias in the imposition of any term or conditions of the Petitioner's employment.
The Petitioner also contends that she was treated disparately, compared to other drivers. She maintains that a white driver, "Margaret," on occasion had guests ride along with her on her deliveries. The Petitioner states that she asked twice to be allowed to have friends ride with her on deliveries, but Ms. Brady would not allow it.
Ms. Kay Brady was the Petitioner's supervisor. She established with her testimony, that the Respondent has a
regularly-adopted policy of allowing no riders to accompany route drivers, other than trained volunteers or office personnel, who occasionally go along on deliveries to ascertain that client services are being provided appropriately.
Occasionally spouses of regular drivers make deliveries when the driver is ill or must miss work for any reason. The Respondent also uses volunteer drivers, as well. In both situations, however, the spouses or volunteers are given training before being allowed to make deliveries to clients, chiefly because of the privacy requirements of the "Hippa Privacy Law" and the Respondent's client confidentiality policy.
The point is, the Petitioner sought to have friends ride with her on deliveries (for reasons which are unclear) and her friends were not trained and oriented to the Respondent's job requirements. The Respondent had a policy of not allowing friends or family to simply accompany drivers without such training, and for reasons which did not relate to job requirements, except in unusual circumstances.
One such circumstance involved a driver who needed to be allowed to take her grandchildren with her on a delivery or deliveries, when she was unable to engage a baby sitter. This was an isolated and unusual occurrence, during a time when the children were out of school for Christmas break. On such rare occasions, the Respondent has allowed children to accompany
drivers on short trips, on routes near their homes and where children can safely remain in vehicles during deliveries. The above circumstance was probably the one involving driver "Margaret" which the Petitioner described in her testimony.
In any event, however, the Respondent had a regular written policy regarding requirements and qualification for persons making deliveries to clients and it followed it, with the above rare exceptions. The employee handbook, Council on Aging Handbook and the Employee Handbook receipt, in evidence as Respondent's Exhibits 5, 6, and 4, respectively, show this policy and the fact that the Petitioner was informed of it.
The Petitioner's friends, whom she sought to have accompany her, were not shown to be qualified under the Respondent's requirements. Because the reasons for requesting the accompaniment of proposed "riders" were different for employees other than the Petitioner, referenced in the above examples of policy exceptions, these other drivers were not shown to be similarly-situated exemplar employees, who received more favorable treatment.
In fact, the Petitioner was favored in a different way. The Respondent was able to give the Petitioner extra hours of work "sitting" with elderly clients when their caregivers were absent. The Respondent and Ms. Brady would learn about such needs through its normal service contacts with clients and
their families. Because the Petitioner is an LPN, the Respondent would refer her for extra work, to her benefit.
In summary, the preponderant evidence and above facts show that no adverse employment action occurred. There were no verbal or other acts or adverse employment directives toward the Petitioner at all, much less any that evidence racial animus, by supervisors or employees. Therefore, there was no racially hostile environment, so there could not be one in which her terms and conditions of employment were altered.
Moreover, since there were no disciplinary actions toward the Petitioner, nor adverse employment directives or conditions (in fact she was favored with extra hours), there could be no constructive termination. There certainly was no actual termination. The Petitioner, in fact, resigned her position, telling both Ms. Brady and Mr. Moore that it was for health reasons. She admitted as much in her testimony.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
The Petitioner has the burden of proof and the ultimate burden of persuasion in this proceeding. The Petitioner must show by a preponderance of evidence that she was
the victim of an adverse employment decision or action, based upon her race. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Respondent has been shown to be an employer within the meaning of Chapter 760, Florida Statutes. It is an unlawful employment practice under Section 760.10, Florida Statutes, for an employer to discharge, fail or refuse to hire, or otherwise discriminate against an individual with respect to that individual's race. § 760.10(1)(a), Fla. Stat. (2008).
Since Chapter 760, Florida Statutes, was patterned after Title VII of the Civil Rights Act of 1964, as amended, federal cases are appropriate in analyzing claims under Chapter 760, Florida Statutes. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); and Castleberry v. Chadbourne, Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002).
In order for a Petitioner to prove an intentional discrimination through circumstantial evidence, as is the case in the instant situation, the burden-shifting analysis employed by the court in McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802-805 (1973) is appropriately employed. A prima facie case of discrimination through circumstantial evidence is made if the Petitioner shows that she is a member of a protected
class or category; that an adverse employment action occurred; that she was either replaced by a person outside her protected class or similarly-situated employees outside her protected class were treated more favorably than she; and that she was qualified to perform her job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Joseph v. Publix Supermarkets,
Inc., 983 F. Supp. 1431, 1444 (S.D. Fla. 1997).
If the Petitioner establishes a prima facie case of discrimination based upon race, the burden shifts to the Respondent employer to show that the employment decision rather was motivated by a legitimate, non-discriminatory reason. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). If a legitimate, non-discriminatory reason for the employment action taken is articulated by the employer, then the Petitioner must demonstrate that reason is, in fact, pretextual and not the true reason for the employment decision made. If a prima facie case of discrimination is established by the Petitioner and the Respondent employer's articulated reason is not deemed credible, then circumstantial evidence is sufficient to define that reason as pretextual. See Farley v. Nationwide Mutual Insurance, 197 F.3d 1322, 1337 (11th Cir. 1999).
To the extent that the Petitioner might be attempting to establish a racially hostile work environment as underpinning her claim, the Petitioner must establish that she belongs to a
protected group, was subjected to unwelcome harassment, that the harassment was based upon her race, that it was so severe and pervasive as to alter the terms and conditions of her employment and created a discriminatorily abusive working environment.
Further, she must establish that there is a basis for holding the employer liable for that harassment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
In order to establish that harassment or discriminatory conduct affected a condition of employment the Petitioner must show that the harassment was so severe or pervasive that it altered the interpersonal climate of the workplace, creating an objectively abusive and hostile atmosphere. Gupta v. Florida Board of Regents, 212 F.3d 571, 582-83 (11th Cir. 2000). See also EEOC v. Beverage Canners, Inc., 897 F.2d 1057, 1068 (11th Cir. 1990).
In deciding whether a hostile environment was created, courts must look at the frequency of the discriminatory conduct, the severity of the conduct and whether the discriminatory conduct threatens or humiliates and whether it unreasonably interferes with the Petitioner's performance of her work. Gupta, supra. "Simple teasing, off-hand comments, and isolated incidents, (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment in the above-referenced context." Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998). The protections of Title VII "do not extend to everything that makes an employee unhappy." Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th Cir.
2001). Title VII is not designed to make federal courts "sit as a super-personnel department that re-examines an entity's business decisions." Elrod v. Sears Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
In terms of establishing a prima facie case of discrimination by circumstantial evidence the Petitioner has established that she is a member of a protected class (African- American). She is inferred to have been qualified for her job position (or at least that quality is not in dispute). She has not, however, proven that any discriminatory act by her employer, supervisor or co-workers occurred, based upon race (or any other reason). She has not presented any persuasive evidence of a hostile, harassing work environment, much less one which adversely altered the terms and conditions of employment in the manner envisioned in the above-referenced decisional authority.
She has presented no evidence which pervasively establishes that any employment action occurred at all; certainly not any discipline, formal or informal, for racial or other reasons. There was no issue about any promotion. There was no termination and, because no discipline or adverse action
was perpetrated by her employer, there was no constructive termination. The Petitioner voluntarily resigned from her position, apparently for health reasons.
Another element of a prima facie case involves the need to show that other similarly-situated employees, outside the protected class, were treated more favorably than the Petitioner. This was not accomplished. The preponderant, persuasive evidence shows that the Respondent had a regularly adopted and practiced policy of only allowing drivers to be accompanied or temporarily replaced by people how had received training in the operations and privacy/confidentiality requirements. Only on one or more rare, isolated instances was this requirement varied, and that was when one driver needed to take her grandchildren with her during a school break when no babysitter was available. On rare occasions children could accompany a parent or grandparent on short trips when they could remain safely in the vehicle. This isolated sort of accommodation by the Respondent is different and would be a more rare occurrence than the Petitioner's more expansive request to simply be allowed to have friends accompany her on deliveries. Thus, in this respect, the Petitioner and the employee (or employees) who needed accommodation rarely, because of child- care responsibilities, are not really similarly situated.
Therefore, the Petitioner has not established that similarly-situated employees outside her protected class were treated more favorably. In fact, she was treated more favorably than they, in terms of having the benefit of extra work hours arranged by her employer, as described in the above Findings of Fact. Thus, this element of a prima facie case has not been established either.
Because the Petitioner did not establish a prima facie case that a discriminatory employment action occurred, the second element of the McDonnell-Douglas burden-shifting analysis need not be addressed. That is, because no employment action, discriminatory or otherwise, occurred, there is no legitimate, non-discriminatory business reason for the Respondent to advance. Presenting such a legitimate reason for what did not occur is a logical impossibility. Therefore, the analysis of the proof regarding the claim must end with the failure of the prima facie case.
The preponderant, persuasive evidence shows there is no basis for concluding that any discriminatory act or situation occurred. Therefore, the Petitioner's claim must fail.
