vs.
Case No. 18-4737
Respondent.
Administrative Law Judge Suzanne Van Wyk of the Division of Administrative Hearings conducted a final hearing in this case on November 14, 2018, by video teleconference with sites in Pensacola and Tallahassee, Florida.
Whether Respondent, Glenn Dorsey, Inc., d/b/a My Home Spot, is liable to Petitioner, Tamela Alisha Landrum, for employment discrimination in violation of the Florida Civil Rights Act of 1992 (“the Act”).
On October 3, 2017, Petitioner filed a Discrimination Complaint (“Complaint”) with the Florida Commission on Human Relations (“Commission”) alleging that Respondent had discriminated against Petitioner in employment based on her race and sex, and in retaliation for engaging in protected conduct.
On August 7, 2018, following investigation of Petitioner's Complaint, the Commission issued a Determination of No Cause (“Determination”) and Notice of Determination: No Reasonable Cause (“Notice”), finding that no reasonable cause exists to believe that an unlawful employment discrimination practice occurred. The Notice informed Petitioner of her right to file a Petition for Relief for a formal administrative proceeding within 35 days of the Notice.
On September 10, 2018, Petitioner timely filed a Petition for Relief with the Commission, which was forwarded to the Division of Administrative Hearings (“the Division”) for assignment of an Administrative Law Judge to conduct an administrative hearing.
This matter was scheduled for video hearing on November 7, 2018, but did not commence as scheduled. Due to a miscommunication between the Commission and the court reporting service, no court reporter was available for the hearing, and Respondent refused to proceed without a court reporter as
noticed. The hearing was rescheduled to November 14, 2018, and commenced as rescheduled.
At the final hearing, Petitioner testified on her own behalf and offered Petitioner’s Exhibits P1 through P4; P5a. and b.; P6a., b., and c.; P7; P8a., b., and c; and P9a., which were admitted in evidence. At the close of the hearing, the undersigned held the record open for seven business days for Petitioner to submit the Commission’s file on her October 3, 2017 Complaint (“Commission file”).
Respondent’s owner, Glenn Dorsey, testified on its behalf and introduced Respondent’s Exhibits R1 through R5, which were admitted in evidence. At the conclusion of the hearing, Respondent confirmed his intent to order a transcript of the proceedings, and the undersigned instructed the parties to file post-hearing submittals no later than 10 days after the hearing transcript was filed.
Petitioner filed a Proposed Recommended Order on November 26, 2018, despite the absence of a transcript or any filing from Respondent regarding his intent to order the transcript. On that same date, Petitioner also filed a notice regarding her attempts to obtain the Commission file.
On December 21, 2018, the undersigned entered an Order on Late-Filed Exhibits requesting Petitioner to advise on the status of obtaining the Commission file by January 3, 2019.
Petitioner timely filed a response, attaching electronic mail documenting the Commission’s receipt and processing of Petitioner’s request. Petitioner filed the Commission file on January 7, 2019.
The undersigned entered an Order Closing Record (“Order”) on January 10, 2019, admitting the Commission file as Petitioner’s Composite Exhibit P10. Noting that the transcript of the proceedings remained outstanding, the undersigned directed Respondent to notify the Division within five working days if he intended to file a transcript of the proceedings.
Further, the Order provided a deadline for filing proposed recommended orders within 10 days of the date the transcript was filed, or by January 24, 2019.1/
Respondent did not file a transcript of the proceedings, a proposed recommended order, or otherwise respond to the Order. Petitioner’s November 26, 2018 Proposed Recommended Order has been considered by the undersigned in preparing this Recommended
Order.
Respondent is a Florida corporation engaged in real estate property management which provides management services to homeowners’ associations (“HOA”), including managing the sale, lease, and maintenance of association property; organizing and staffing association board meetings; and enforcing association
covenants and restrictions. Mr. Glenn Dorsey is Respondent’s owner.
Petitioner is an African-American female and is a licensed Community Association Manager (“CAM”). Petitioner became employed by Respondent on May 23, 2016, as an Assistant HOA Manager.2/
Mr. Dorsey described Petitioner’s position as “the person responsible for how our communities appear.” She was handling contracted services such as pool maintenance, gate access, and landscaping “from writing the RFP, soliciting bids, comparing quotes to managing the vendor performance.” As her employer described, “A major portion of her job is managing the CCR [community covenants and restrictions] inspection schedule, performing the inspections and maintaining our database for CCR enforcement.” The description concludes that “Alisha is a licensed CAM and will soon be managing her own community
association portfolio as the HOA Assistant Managers and
Accounting Department are returned to full strength.” (emphasis added).
According to Petitioner, she did not want to handle HOA board meetings, which occur in the evening and require the employee to stay for the duration of the meeting, which can be lengthy.
In early September 2016, Petitioner was asked to cover an evening HOA meeting because Mr. Dorsey was double-booked for two different association meetings that evening. Petitioner was subsequently asked to cover additional evening HOA meetings.
Between September 7, 2016, and August 22, 2017, Petitioner handled no less than 64 HOA regular and annual meetings for several different HOAs.
On or about January 18, 2017, Mr. Dorsey transferred the responsibility for CCR inspections and enforcement to another employee.
Petitioner complained that she was not compensated for working overtime to handle the HOA meetings. Petitioner repeatedly testified the company had no protocol for overtime.
After-hour meetings created a personal hardship for Petitioner because they required her to incur additional childcare expenses. Apparently, a member of Petitioner’s family was initially providing childcare, but the arrangement broke down due to the inability to predict the length of HOA board and annual meetings.
Petitioner testified that she verbally complained to both her direct supervisor and Mr. Dorsey about the hardship of after-hour duties and requested to be compensated with a salary increase and other benefits. Petitioner complained that her
role and hours were changed significantly without any change in compensation.
Mr. Dorsey scheduled a mandatory staff meeting for July 6, 2017, and included an agenda in the calendar invitation to staff. One of the agenda items is “meeting makeup time (next am come in late).”
On August 16, 2017, Petitioner met with Mr. Dorsey and his assistant, Rachel Ward. At that meeting, they discussed renewal of her employment contract, and she addressed her concerns regarding her hours and compensation. Petitioner complained to Mr. Dorsey that she was not afforded a phone stipend, which was afforded to white managers, to compensate her for use of her personal cell phone for after-hour business.
On August 18, 2017, Mr. Dorsey sent a letter to Petitioner “confirming” the August 16 meeting. In the letter, Mr. Dorsey acknowledged that Petitioner’s employment duties were “significantly different” than the duties she was hired for in May 2016. However, in the letter Mr. Dorsey justified the change in duties because of Petitioner’s poor performance of the original assigned duties, including estoppels, maintenance, and other administrative tasks, which he characterized “quickly became disorganized, delinquent, or incomplete.” Mr. Dorsey explained the change in duties as an attempt to “modify your role as to find a position in which you could succeed.” The
letter concluded that Mr. Dorsey declined to change Petitioner’s compensation and benefits, or even enter into a new employment contract. Instead, Mr. Dorsey informed Petitioner that her employment would continue on a month-to-month basis, and that either party could terminate the agreement with 30 days’ notice.
On August 21, 2017, Mr. Dorsey sent Petitioner the following electronic mail message:
Alisha,
Per your advisement today regarding your inability or decision not to attend HOA after-hour meetings, myHomeSpot.com will begin to cover those shifts without your participation effective immediately.
Every other assistant is attending their portfolio meetings as this is a requirement of the position. We do not have a position at your rate of pay to provide you any extended exception.
This is our advanced notice to you to terminate our employment arrangement on Oct. 14, 2017 as you are unable to meet the requirements of the current position. I provide you this date at the current pay rate to allow a smooth transition with someone who can perform the required duties, but, we can end with a 30-day notice to accommodate any changes if you notify us of this within 14 days from 8/22/17.
On August 22, 2017, Petitioner sent Mr. Dorsey a letter which notified him she would no longer be available to work “beyond the published business hours” and requested she be
returned to an 8:00 a.m. to 6:00 p.m. work schedule. However, the letter ended with notice of her immediate resignation.
Petitioner’s Allegations
In her Petition, Petitioner alleges that her change in job duties and hours, without appropriate compensation, was based upon her sex and race. She complains that she was not given a phone stipend afforded to white managers for use of their personal cell phones after business hours, and was forced to work after hours without overtime pay based on her race.
Further, Petitioner alleges that Respondent unlawfully retaliated against her by responding to her complaints “with a write-up and termination notice.”
Disparate Treatment
Petitioner testified generally that she was paid less than, or denied benefits afforded to, white managers. Petitioner introduced no evidence on which to base a finding of the race of any employee, other than herself, in order to compare salary and benefit information.
The record contains no documentation of which employees, if any, received a phone stipend. Absent this information, the undersigned cannot make a factual determination that Petitioner was denied the stipend which was afforded to male employees.
Between the dates of May 23, 2016, and June 30, 2017 (slightly less than one month before her termination), Petitioner received the second highest amount of total wages of all Respondent’s employees during that timeframe. Petitioner received a total of $37,377.55 based on 2,051.25 total hours worked and 84.61 “absence hours.” An employee identified as AJ Ward was the only employee with higher total wages
at $49,032.66. During that period, Petitioner worked fewer hours than employee Ward and incurred more “absence pay” than employee Ward.
Petitioner further alleged that Mr. Dorsey manipulated her time entries in the company time management system, thereby artificially reducing her hours worked. The screenshots of time entries introduced by Petitioner are not sufficient evidence to support that allegation.
Retaliation
Only two days elapsed between Petitioner’s meeting with Mr. Dorsey, at which she voiced her concerns about uncompensated overtime and use of her personal cell phone after hours, and Mr. Dorsey’s letter giving Petitioner “advance notice” of her termination.
Number of Employees
The number of Respondent’s employees is a material issue in dispute.
Respondent introduced its Department of Revenue Employer Quarterly Report (Form RT-6) for three separate quarters. For the quarter ending June 30, 2016, Respondent reported 15 employees in April and May 2016, and 14 employees in June 2016. For the quarter ending December 31, 2016, Respondent reported 13 employees in October, November, and December 2016. For the quarter ending March 31, 2017, the report identifies
15 employees in January, 14 in February, and 13 in March 2017.
Respondent introduced a payroll details report for the pay periods between January 1 and August 31, 2017. The details report identifies only five employees.
Petitioner did not challenge the reliability of the documents. Instead Petitioner argued that Respondent employed more than 15 employees when it was fully staffed.
The evidence does not support a finding that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks during either 2016 or 2017.
CONCLUSIONS OF LAW
Jurisdiction
The State of Florida, under the Act, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended.
42 U.S.C. § 2000e, et seq.
Pursuant to section 760.10(1), Florida Statutes (2018), 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.
The Act defines “employer” as “any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.” § 760.02(7), Fla. Stat.
Based on the foregoing Findings of Fact, Respondent is not an “employer” subject to the Act.
The question of whether a respondent meets the statutory definition of an “employer” is a threshold jurisdictional matter under the Act. See Lombardi v. Lady of
Am. Franchise Corp., 2002 U.S. Dist. LEXIS 5267 (D. Fla.,
Mar. 4, 2002). As such, the Division has no jurisdiction over the subject matter of this proceeding and the parties thereto.
Despite this conclusion, and in an abundance of caution, Petitioner’s claims of employment discrimination are analyzed as follows.
Standard of Proof
Florida courts have held that because the Act is patterned after Title VII of the Civil Rights Act of 1964, as amended, federal case law dealing with Title VII is applicable. See, e.g., Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205,
1209 (Fla. 1st DCA 1991).
Usually, direct evidence of discrimination is lacking, and one seeking to prove discrimination must rely on circumstantial evidence of discriminatory intent, using the shifting burden of proof pattern established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Under the shifting burden pattern developed in McDonnell Douglas:
First, [Petitioner] has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if [Petitioner] sufficiently establishes a prima facie case, the burden shifts to [Respondent] to “articulate some legitimate, nondiscriminatory reason” for its action.
Third, if [Respondent] satisfies this burden, [Petitioner] has the opportunity to prove by a preponderance that the legitimate reasons asserted by [Respondent] are in fact mere pretext.
U.S. Dep’t of Hous. & Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)(housing discrimination claim); accord
Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d
DCA 2009)(gender discrimination claim)(“Under the McDonnell
Douglas framework, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination.”).
Therefore, in order to prevail in her claim against Respondent, Petitioner must first establish a prima facie case by a preponderance of the evidence. Id.; § 120.57(1)(j), Fla.
Stat. (“Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure proceedings or except as otherwise provided by statute and shall be based exclusively on the evidence of record and on matters officially recognized.”).
“Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d at 1562; cf. Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla.
2000)(“A preponderance of the evidence is ‘the greater weight of the evidence,’ [citation omitted] or evidence that ‘more likely than not’ tends to prove a certain proposition.”).
Unlawful Termination
To establish a prima facie case of discrimination based on Petitioner’s race or sex, she must prove that: (1) she belongs to a protected class; (2) she was subjected to an adverse employment action; (3) other similarly situated
employees outside her protected classification were treated more favorably (or that she was replaced by an employee outside of her protected classification); and (4) she was qualified to perform her job. See Holifield v. Reno, 115 F.3d at 1562.
The first element of a prima facie case has been met by Petitioner because she is an African-American female.
Petitioner proved the second element--she was subject to an adverse employment action--because she received notice of termination on August 21, 2017.
Petitioner did not prove the third element, that other similarly situated non-classified employees were treated more favorably or that she was replaced by someone outside of her protected classification. Petitioner introduced no evidence to substantiate her claims that white male managers were compensated at a higher rate or received benefits (e.g., phone stipend) she was denied. Further, Petitioner introduced no evidence regarding who, if anyone, replaced her at MyHomeSpot.com after termination.
Petitioner failed to prove a prima facie case of unlawful discharge.
Even if Petitioner had proven a prima facie case, Respondent demonstrated that Petitioner was terminated for a non-discriminatory reason. The evidence demonstrated that staffing evening meetings was a requirement for an Assistant HOA
Manager, and Petitioner refused to continue staffing those meetings after having performed that duty for several months.
Petitioner introduced no evidence to show that Respondent’s non-discriminatory reasons for termination were mere pretext.
Retaliation
Section 760.10(7) prohibits retaliation in employment as follows:
(7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. (emphasis added).
The burden of proving retaliation follows the general rules enunciated for proving discrimination. Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
There is no direct evidence Respondent terminated Petitioner in retaliation against Petitioner for complaining that white male managers received a phone stipend, which she was denied.
To establish a prima facie case of discrimination in retaliation by indirect evidence, Petitioner must show:
(1) that she was engaged in statutorily protected expression or
conduct; (2) that she suffered an adverse employment action; and
(3) that there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d at 1566.
Petitioner met the first element because she engaged in a statutorily-protected activity when she complained to Mr. Dorsey that she was not given a telephone stipend that was afforded to white male managers.
Likewise, Petitioner met the second element because her employment was terminated.
Finally, Petitioner met the third element--a causal relationship between her protected activity and her notice of termination--which occurred only two days apart. See Thomas v.
Cooper Lighting, Inc., 506 F.3d. 1361, 1364 (11th Cir. 2007) (“The burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse employment action,” citing Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 798-99 (11th Cir. 2000)).
Petitioner established a prima facie case of unlawful retaliation.
However, Respondent met the shifting burden by establishing a legitimate non-discriminatory reason for her termination. The evidence demonstrated that staffing evening meetings was a requirement for an Assistant HOA Manager, and Petitioner refused to continue staffing those meetings after
having performed that duty for several months. Although Petitioner may not have wanted to perform that task, it was clear from the outset of her employment that Respondent expected Petitioner to “soon be managing her own community portfolio,” which includes staffing HOA Board meetings.
Petitioner did not introduce evidence to support a finding that Respondent’s non-discriminatory reason for termination was mere pretext for a discriminatory termination. Petitioner introduced evidence that clients were happy with her work, which did not establish pretext. Petitioner was not dismissed for poor job performance, but for refusing to perform a task essential to the job.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order.
DONE AND ENTERED this 14th day of February, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2019.
1/ Thus allowing Petitioner an opportunity to file an amended proposed recommended order to include references to the Commission file, which was obtained after she filed her Proposed Recommended Order.
2/ Petitioner was previously employed by Respondent between 2009 and 2013, but this case relates solely to Petitioner’s employment beginning May 2016.
Tammy S. Barton, Agency Clerk
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
