This cause came on for final hearing on June 1, 2009, by video teleconference with sites located in Tallahassee, Florida, and Dayton Beach, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
Cole, Stone, Stoudemire, and Morgan, P.A.
The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
On or about June 23, 2008, Petitioner Kelly Landrum (Petitioner) filed a Charge of Discrimination, with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Italian American Social Club of Palm Coast, Inc. (Respondent), had discriminated against Petitioner based on her sex in violation of Section 760.10(1), Florida Statutes (2008), and by retaliating against her in violation of Section 760.10(7), Florida Statutes (2008).
On or about December 20, 2008, FCHR issued a Determination: No Cause. Petitioner filed a Petition for Relief with FCHR on February 3, 2009. FCHR referred the petition to the Division of Administrative Hearings on February 10, 2009.
On February 18, 2009, the undersigned issued a Notice of Hearing by Video Teleconference. The notice scheduled the hearing for April 3, 2009.
On March 20, 2009, Petitioner filed an unopposed Motion to Continue. On March 24, 2009, the undersigned issued an Order Granting Continuance and Re-scheduling Hearing by Video
Teleconference. The order scheduled the hearing for March 20, 2009.
During the hearing, Petitioner testified on her own behalf and presented the testimony of two additional witnesses.
Respondent presented the testimony of one witness.
The parties offered a joint Exhibit, identified in the record as E3 that was accepted as evidence. Respondent offered
12 Exhibits, identified in the record as E1 through E2 and E4 through E13. Exhibit E1, FCHR's Determination: No Cause and Summary of Investigative Findings is excluded because this is a de novo proceeding. See § 120.57(1)(k), Fla. Stat. (2008). Exhibits E2, E5 and E7 through E8 were accepted as evidence during the hearing. Exhibits E4, E6, E9, and E10 through E13 are hereby accepted as evidence to the extent they do not contain inadmissible hearsay. See § 120.57(1)(c), Fla. Stat. (2008).
There was no court reporter to make a transcript of the proceeding. The parties filed their Recommended Orders on June 11, 2009.
Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws.
Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house.
As a prep worker, Petitioner earned a set hourly wage.
Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor.
As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of
$100 in tips per shift.
Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions.
Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in
March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her
15.4 week term of employment, Petitioner averaged 16.23 hours per week.
Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person.
At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel.
Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty.
On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real.
Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched
her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away.
Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so."
Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct.
Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct.
In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words.
On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef
Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it."
When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone.
Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too."
On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some
comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way.
Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante.
February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen.
On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone.
In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future
infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment.
Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty.
On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders.
When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner.
The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go.
Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home
until everything cooled down. Petitioner agreed and left the premises.
Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone.
Ms. Ferguson was actively looking for a new chef.
After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment.
At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager.
Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off.
Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work.
Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008.
She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2008).
Section 760.10(1)(a), Florida Statutes (2008), states as follows:
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.
Additionally, it is unlawful for an employer to retaliate against any person because that person has opposed any practice which is an unlawful employment practice. § 760.10(7), Fla.
Stat. (2008).
The Florida Civil Rights Act (FCRA), Sections 760.01 through 760.11, Florida Statutes (2008), as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42
U.S.C.S. 2000 et seq. Federal case law interpreting Title VII
is applicable to cases arising under the FCRA. See Green v. Burger King Corp., 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999); Florida State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996).
Petitioner has the burden of proving her allegations of sexual harassment and retaliation by a preponderance of the evidence. See Florida Dep't of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).
Sexual Harassment
Sexual Harassment is a form of sex discrimination prohibited by Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). In Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 751 (1998), the Court identified the following two types of sexual harassment cases: (a) quid pro quo, that are based on threats which are carried out or fulfilled, and (b) hostile environment, which are based on bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The instant case involves an alleged hostile environment.
To prove a case of sexual harassment, Petitioner must establish the following: (a) she belongs to a protected group;
she was subjected to unwelcome harassment; (c) the harassment was based on her gender; (d) the harassment was sufficiently severe or pervasive to alter the terms and
conditions of her employment and create an abusive working environment; and (e) a basis for holding Respondent liable. See Gupta v. Florida Bd. of Regents, 212 F.3d 571. 582-583 (11th Cir. 2000).
Petitioner has not shown that Chef Mongone's conduct, in commenting about her breast and touching her backside on one occasion, noticing how she wiped her hands on her pants on another occasion, and making a statement about the way she sucked a piece of candy one time, was so severe or pervasive as to alter the terms and conditions of Petitioner's employment and to create a hostile or abusive work environment. See Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997).
In determining whether harassment objectively alters an employee's terms or conditions of employment, the following factors must be considered: (a) the frequency of the conduct;
(b) the severity of the conduct; (c) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (d) whether the conduct unreasonably interferes with the employee's job performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Here, the alleged sexual harassment consisted of three or four incidents, occurring from mid-January 2008 through mid- February 2008. The greater weight of the evidence indicates that Petitioner never felt physically threatened or humiliated.
Instead, Petitioner always responded assertively and/or aggressively, admittedly giving as good as she got.
Petitioner informed Ms. Ferguson that she had already taken care of "it" after Chef Mongone touched her backside. Additionally, Petitioner did not appear to take Chef Mongone's inappropriate comments personally. Instead, Petitioner seemed to think that Chef Mongone only acted inappropriately when he had been drinking alcohol.
After mid-February, Petitioner and Chef Mongone continually argued over the way she performed her job. It was the inability to get along with each other and not the alleged prior harassment that eventually affected Petitioner's ability to perform her work. The resentment between Petitioner and Chef Mongone continued to increase until it forced Respondent to choose between its chef and a part-time waitress. When Respondent finally fired Chef Mongone, Respondent was unable to rehire Petitioner due to financial difficulties.
Retaliation
To support a case of retaliation, Petitioner must prove the following elements: (a) she participated in a protected activity; (b) she was subjected to an adverse employment action; and (c) there was a causal connection between the participation in the protected activity and the adverse
employment decision. See Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201, (11th Cir. 2001).
It is undisputed that Petitioner participated in a protected activity and that she was subjected to an adverse employment action. However, there was no causal connection between Petitioner's last gender-related harassment complaint in mid-February 2008 and Respondent's May 6, 2008, decision to let Petitioner go home and not call her back to work after firing Chef Mongone.
There is no persuasive evidence that Respondent made any decision about Petitioner's employment as a pretext for retaliation. Petitioner could not get along with Chef Mongone and was not rehired after he was fired due to Respondent's financial difficulties.
That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice.
DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009.
Cole, Stone, Stoudemire, and Morgan P.A.
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.
