Pursuant to written notice, the above matter was heard before the Division of Administrative Hearings by Administrative Law Judge, Diane Cleavinger, on June 25, 2009, in Tallahassee,
Florida.
Rent A Center, Inc. 5501 Headquarters Drive
The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
On November 18, 2008, Massa Dionna Hill (Petitioner), filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent, Rent A Center (Respondent or RAC), discriminated against her on the basis of race and sex. Specifically, Petitioner alleged she was discriminated against by being subjected to a hostile working environment in retaliation for complaining about an alleged sexual harassment incident and when she was later terminated from employment with RAC. The Complaint alleged only that discrimination occurred when she was sexually harassed by the Crawfordville store’s manager, when she was required to lift 150-lb. sofas, when she was not allowed to collect money from customers because she was sent on deliveries and when she was written up for being late.
The allegations of discrimination were investigated by FCHR. On April 2, 2009, FCHR issued its Determination, finding “No Cause.” On May 7, 2009, Petitioner filed a Petition for Relief. The Petition was forwarded to the Division of Administrative Hearings. However, the Petition did not state sufficient facts to comply with due-process requirements.
Therefore, an Order to Show Cause was entered on June 2, 2009. Petitioner responded to the Order to Show Cause and alleged significantly more acts of discrimination than contained in her
initial complaint. These newly alleged acts were not part of the original Complaint of Discrimination. Therefore, the Division of Administrative Hearings does not have jurisdiction to hear these additional allegations and Petitioner’s case is limited to those acts described in her original Complaint of Discrimination.
At the hearing and contrary to clearly established law, FCHR did not make arrangements to preserve the testimony at the final hearing, either by sending a court reporter or a recording device with someone to operate it. See § 120.57(1)(g), Fla.
Stat.; Fla. Admin. Code R. 28-106.214; North Dade Security Ltd. Corp. v. Dept. of State, 530 So. 2d 1040 (Fla. 1st DCA 1988) and Poirer v. Dept. of Health & Rehab. Servs., 351 So. 2d 50 (Fla.
1st DCA 1977). The parties were informed of the agency’s policy to not provide an official means of preserving the testimony at the final hearing. Neither party hired a court reporter to preserve the hearing. All parties elected to proceed with the hearing without preservation of the record. Therefore, there is no record of the final hearing, except for exhibits, if any, received into evidence and this Recommended Order.
During the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. Additionally, Petitioner offered two exhibits into evidence. Respondent
presented the testimony of three witnesses and offered ten exhibits into evidence.
After the hearing, neither party filed a Proposed Recommended Order.
Petitioner is a Black female. As such, she is a member of a protected class.
Respondent is a rental and sales company. It rents and sells household furnishings and appliances to consumers.
Around the end of June 2008, Petitioner was hired by Respondent as an account manager at its Crawfordville store. Petitioner’s scheduled start time was 7:30 a.m.
Petitioner’s account manager duties included delivery of household furniture and appliances to customers, loading and unloading her truck, and collection of money (also known as collecting credits) from customers. Petitioner’s primary delivery route was the south side of Tallahassee, Florida.
Her direct supervisor at the Crawfordville store was James Shaw. Mr. Shaw is a Black male.
Petitioner alleged that in July 2008, James Shaw began to sexually harass Petitioner, inviting her to a hotel and on one occasion, locking her in the store, pushing her against some furniture, and groping her.
Shortly after allegedly being groped, Petitioner reported the incident to Craig Carricino, Store Manager at RAC’s Tallahassee store, and Kevin Besette, the then District Manager. She also called RAC’s complaint hotline. Petitioner reported the incident to Mr. Carricino because she knew him from past dealings with him at the Tallahassee store and felt more comfortable reporting the incident to him. Petitioner made it clear that she did not want to return to the Crawfordville store and desired to be transferred to another location.
On the day of Petitioner’s complaint, Brad Donovan, Coworker Relations Manager, initiated an investigation into Petitioner’s claim. Additionally, Mr. Donovan was aware of Petitioner’s desire to transfer to another store and immediately offered Petitioner the opportunity to transfer to RAC’s Tallahassee location. Petitioner readily accepted the offer and was transferred to the Tallahassee store where Mr. Carricino was the manager.
After Petitioner’s transfer, Mr. Donovan proceeded with his investigation into her allegations of harassment. He interviewed Mr. Shaw, who denied Petitioner’s allegations. He interviewed Petitioner, who provided him with the name of a witness to Mr. Shaw’s sexual advances. Mr. Donovan interviewed this other witness. The witness reported that he had not seen any inappropriate conduct on the part of Mr. Shaw towards
Petitioner. Petitioner never advised Mr. Donovan or any other person at RAC of any other witnesses to the alleged sexual misconduct of Mr. Shaw. In essence, Petitioner’s allegations could not be established because no independent evidence existed to support her allegations of sexual harassment.
However, Respondent promptly addressed Petitioner’s allegations of sexual harassment. It investigated her claims and immediately transferred her to another store. Respondent also counseled Mr. Shaw about sexual harassment, but took no further action against him because of the absence of any independent evidence to support Petitioner’s allegations. Clearly, Respondent exercised reasonable care to prevent and promptly address Petitioner’s allegations of sexual harassment. Irrespective of whether Petitioner’s allegations against
Mr. Shaw are true or believed, RAC did not engage in an unlawful employment action against Petitioner because it acted appropriately in addressing Petitioner’s allegations based on the investigation and conclusions it had reached about Petitioner’s allegations. RAC was not obligated to do more even if Petitioner disagreed with the company’s decision not to discipline Mr. Shaw.
After her transfer, Petitioner felt she was harassed/retaliated against by Mr. Carricino when she was “written up” for being late to work. Petitioner identified
Scott Taff, who is White, as the only non-minority employee who had allegedly been treated differently than her. She based her assertion on the fact that Scott Taff was not fired when he was late after being ‘written up’ for tardiness. Without going into the mostly hearsay evidence presented at hearing, Petitioner’s own testimony revealed that she was not fired for being late several more times after being ‘written up’ and warned for such tardiness. Additionally, there was no evidence presented regarding Mr. Taff’s disciplinary history or that he had a chronic tardiness problem. Given these facts, the evidence did not demonstrate that non-minority or male employees were treated differently than Petitioner. The evidence, also, did not demonstrate that Petitioner was subjected to any retaliation for her earlier sexual harassment complaint. The evidence did show that her employer wanted her to be at work on time and endeavored to stress its desire to her. Such action does not constitute an unlawful employment practice, especially when the employee has a tardiness problem.
Petitioner also alleged she was harassed/retaliated against when she was told that she would have to lift 150-lb. sofas, and, if she complained about the duty, she would be fired. Petitioner did not testify about any specifics regarding this allegation. However, Petitioner’s job required that she be able to deliver a variety of products made available by
Respondent, including sofas. Moving furniture, loading and unloading her truck, and picking up and delivering furniture was not specifically required of Petitioner, but was required of all similarly-situated account managers.
By her own testimony, Petitioner described times when she had help in moving furniture and times when she did not have help in moving furniture. The store’s manager testified that Petitioner, like other employees, received help moving furniture when other employees including himself, were available to help and not performing their own similar job duties. There was no credible evidence that Petitioner was denied help moving furniture based on her race, sex or in retaliation for her earlier allegations of sexual harassment.
Finally, Petitioner alleged that she was harassed/retaliated against when she was not allowed to “collect credits” from customers because she was sent on deliveries and later disciplined for not “running these credits.” However, all account managers were required to collect money from customers and make deliveries. Petitioner was not singled out in being required to collect money from customers and make deliveries. All account managers had to figure out how to perform both functions. Petitioner’s testimony regarding being prohibited from collecting money on Saturday was not established by the evidence. The evidence showed that, for a short time, account
managers were instructed not to use the computer system on Saturday mornings to help them in collecting money from customers because of some issue related to the computer system. However, the policy later changed to allow account managers to use the computer system on Saturday mornings. Moreover, there was no evidence that Petitioner could not otherwise collect money from customers without the aid of Respondent’s computer system. The computer may have made the collection process easier because customer contact information was stored in the computer system; however, the lack of use of that system on Saturday mornings did not prevent Petitioner from collecting money from customers. Customer information was available to Petitioner during the rest of Respondent’s time at work.
Petitioner, again without any necessary specifics, claims that Mr. Taff was allowed to collect money on Saturdays. No computer records were introduced into evidence and no evidence of the time period when Mr. Taff allegedly collected money on Saturdays was adduced at hearing. Respondent denied that Mr. Taff collected money when he was not supposed to. The evidence did not demonstrate that Mr. Taff or any other similarly-situated employee was treated differently than Petitioner.
The evidence did demonstrate that Petitioner had the lowest collection rate at the Tallahassee store and was
consistently below that store’s standard for the collection of money. The District manager, Carney Anderson, who is Black, testified that he had no trouble meeting company expectations for collecting money from customers when he was an account manager in a similar, but larger, area and saw no reason why Petitioner could not meet the expectations of the company in the area she was assigned in Tallahassee. Petitioner did not perform up to the Respondent’s standards for the collection of money from customers. Importantly, a former male employee who failed to adequately collect money from customers was similarly disciplined for failing to perform this important job duty.
Because Petitioner failed to meet the standards of the Respondent for the collection of money from customers,
Mr. Carricino informed Petitioner that she would be terminated for her inability to meet those standards. Mr. Carricino offered Petitioner the option of resigning and assured her that he would provide a favorable recommendation to her, if she did.
Petitioner elected to resign and wrote a letter of resignation. The letter did not mention discriminatory or retaliatory treatment and read as follows:
“Thank you for everything. I am grateful for the opportunity that you gave me to work at Rent-a-Center, but at this time, I am unable to perform my duties as a mother to my kids due to the overwhelming hours. I am giving my two weeks notice today 11/10/08 in
hopes of returning one day in good standing.”
Mr. Anderson, who worked at the Tallahassee store every Monday, spoke with Petitioner about the basis of her resignation. She did not mention any belief she had that she had been retaliated or discriminated against.
During Petitioner’s final two weeks, Mr. Anderson noticed a serious decline in Petitioner’s attitude and a decline in her work performance. He was not surprised because he had seen other short-term employees have a similar decline. Therefore, on November 15, 2008, Mr. Anderson instructed
Mr. Carricino to terminate Petitioner’s employment immediately and Petitioner was terminated that day. There was no evidence that Respondent’s reason for terminating Petitioner was false or a pretext to hide discriminatory or retaliatory behavior.
Moreover, given the short time that Petitioner had remaining at RAC and the fact of her resignation; the evidence did not demonstrate that Petitioner suffered an adverse employment action when she was terminated early during her final two weeks with RAC. Given these facts and the lack of evidence to support Petitioners allegations, the Petition for Relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 760.11(6), 120.569, and 120.57, Fla. Stat. (2008).
Section 760.10, Florida Statutes (2008), provides that it is an unlawful employment practice for an employer
(a) . . . [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensations, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes (2008). See Brand vs. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs vs.
Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla. Dept. of Children & Family Services, 19 Fla. L. Weekly Fed D.268, 2005 U.S. Dist. LEXIS 19261 (N.D. Fla. 2005).
The Supreme Court of the United States established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under
Title VII. This analysis was reiterated and refined in
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). See also Zappa v. Wal-Mart Stores, Inc., 1 F. Supp. 2d 1354, 1356 (M.D. Fla. 1998); Standard v. A.B.E.L. Svcs., Inc., 161 F.2d 1318 (11th Cir. 1998); and Walker v. Prudential Property & Casualty Insurance, Co., 286 F.3d 1270 (11th Cir 2002).
Under McDonnell Douglas, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate, non- discriminatory reason for the action taken against Petitioner. Once this non-discriminatory reason is offered by Respondent, the burden of production then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, “[t]he fact finder must believe the plaintiff’s explanation of intentional discrimination.” Hicks,
509 U.S. at 519. Additionally, “Defendants burden is exceedingly light” and is merely one of production, not proof.” Perryman v. Johnson Products, Co., 698 F.2d 1138 (11th Cir. 1983).
In Hicks, the Court stressed that even if the fact- finder does not believe the proffered reason given by the employer, the burden remains with Petitioner to demonstrate a
discriminatory motive for the adverse employment action. Id. See also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 (Fla. DOAH 2003)(Recommended Order).
However, "[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997). Importantly, proof that, in essence, amounts to no more than mere speculation and self-serving belief on the part of the complainant concerning the motives of the Respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. Of course, direct evidence of discrimination is not necessary. . . . However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to
conclude that it must have been related to their race. This is not sufficient.")(citations omitted.); Reyes v. Pacific Bell, 21 F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The
only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient to establish a prima facie case."); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Jackson v. Waguespack, No. 1-2972, 2002 U.S. Dist.
Lexis 20864, 2002 WL 31427316 (E.D. La. 2002)("[T]he Plaintiff
has no evidence to show Waguespack was motivated by racial animus. Speculation and belief are insufficient to create a fact issue as to pretext nor can pretext be established by mere conclusory statements of a Plaintiff that feels she has been discriminated against. The Plaintiff's evidence on this issue is entirely conclusory, she was the only black person seated there. The Plaintiff did not witness Defendant Waguespack make any racial remarks or racial epithets."); Coleman v. Exxon
Chemical Corp., 162 F. Supp. 2d 593, 622 (S.D. Tex. 2001)("Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland-Goins v. City of New York, No. 99- Civ.1109, 1999 U.S. Dist. LEXIS 13255, 1999 WL 673343 (S.D. N.Y.
1999)("Plaintiff has failed to proffer any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African-American man [sic] to hold the position of administrative assistant/secretary at Manhattan Construction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus, is entirely insufficient to make out a prima facie case or to state a claim under Title VII."); Umansky v. Masterpiece International Ltd., No. 96–Civ.
2367, 1998 U.S. Dist. LEXIS 11775, 1998 WL 433779 (S.D. N.Y.
1998)("Plaintiff proffers no support for her allegations of race and gender discrimination other than her own speculations and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race or gender discrimination."); and Lo v. F.D.I.C., 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's
subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII.").
In order to establish a prima facie case of discrimination, Petitioner must demonstrate that:
Petitioner is a member of a protected class;
Petitioner is qualified for the position;
Petitioner was subject to an adverse employment decision; and,
Petitioner was treated less favorably than similarly situated persons outside the protected class.
Canino v. EEOC, 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982); Lee v. Russell County School Board, 684 F.2d 769 (11th Cir. 1984); and Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir 1997).
In this case, Petitioner has alleged that Respondent unlawfully discriminated against her on the basis of her race, sex and in retaliation for her earlier complaint of sexual harassment.
As a Black female, Petitioner is a member of a protected class. Additionally, Petitioner was qualified for the position to which Respondent assigned her. However, the evidence did not demonstrate that she suffered an adverse employment action when she was terminated early from her
position by Respondent or that her resignation constituted a constructive discharge of Petitioner.
Additionally, Petitioner did not establish that there were any individuals outside of her protected class who engaged in similar misconduct and who were not terminated by Respondent.
The burden of proof is on Petitioner to identify a similarly situated employee who was treated more favorably despite having engaged in similar misconduct and who is outside of Petitioner’s protected class. Davis v. City of Panama City, Fla., 510 F. Supp. 2d 671, 686 (N.D. Fla. 2007). In making the comparison, the quality of the misconduct must rise to the level of being nearly identical. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) and Mayberry v. Vought Aircraft Co.,
55 F.3d 1086 (5th Cir. 1995). Since Petitioner did not meet this burden, the Petition for Relief should be dismissed.
Finally, the evidence did not demonstrate that Petitioner was retaliated against after complaining of sexual harassment by Mr. Shaw. Respondent acted immediately on Petitioner’s complaint and transferred her to another store as she desired. Respondent also investigated her charges and found no evidence to support her allegations; but counseled Mr. Shaw about his alleged conduct. Respondent was not legally required to do more based on the lack of evidence to support Petitioner’s allegations.
Additionally, there was no evidence to demonstrate that the acts Petitioner alleged constituted harassment were intended to be either discriminatory or retaliatory. Moving furniture was required of all account managers. By her own testimony, Petitioner, like all employees, sometimes had help in moving such furniture. Petitioner, also, had a tardiness problem and did not meet Respondent’s standard for collections. There was no competent evidence to support Petitioner’s allegations that other non-minority, male employees were treated differently than Petitioner. Likewise, there was no competent evidence that Petitioner’s early termination was based on an unlawful employment practice against Petitioner or was a pretext to hide an unlawful employment practice. Petitioner’s case was based on her speculation or belief that she was discriminated or retaliated against. Such belief is insufficient to establish discrimination. Based on this lack of evidence, Petitioner has not established a prima facie case of discrimination and the Petition for Relief should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice.
DONE AND ENTERED this 30th day of September, 2009, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2009.
Andrew Trusevich, Esquire Rent A Center, Inc.
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.
