STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHELE EDWARDS, Petitioner, vs. PUBLIX SUPERMARKET, Respondent. / | Case No. 19-2531 |
RECOMMENDED ORDER
The final hearing in this matter was conducted before J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019),1 on August 20 through 21, 2019, in Sarasota, Florida, and October 3, 2019, by video teleconference at sites in Tallahassee and in Sarasota, Florida.
APPEARANCES
For Petitioner: Michele Edwards, pro se
3131 Galiot Road
Venice, Florida 34293
For Respondent: Brett P. Owens, Esquire
Fisher & Phillips, LLP
101 East Kennedy Boulevard, Suite 2350
Tampa, Florida 33602
STATEMENT OF THE ISSUE
Whether Petitioner, Michele Edwards, was subject to an unlawful employment practice by Respondent, Publix Supermarket, based on her race,
1 All statutory references are to Florida Statutes (2019), unless otherwise noted.
color, sex, and national origin, as well as by retaliation, in violation of the Florida Civil Rights Act.
PRELIMINARY STATEMENT
On August 6, 2018, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (the “Commission”) alleging that Respondent, Publix Supermarket (“Publix”), violated the Florida Civil Rights Act (“FCRA”) by discriminating against her based on her race, color, sex, and national origin, as well as in retaliation for her practice of an activity protected by the FCRA.
On April 9, 2019, the Commission notified Petitioner that no reasonable cause existed to believe that Publix had committed an unlawful employment practice.
On May 13, 2019, Petitioner filed a Petition for Relief with the Commission alleging a discriminatory employment practice. The Commission transmitted the Petition to the Division of Administrative Hearings (“DOAH”) to conduct a chapter 120 evidentiary hearing.
The final hearing was held on August 20 through 21, 2019, and October 3, 2019. At the final hearing, Petitioner testified on her own behalf. Petitioner also called Herbert “Wayne” Bargdill, Vickie Va, Phillipe Canlers,
Neil Vafeas, Eileen Williford, Danielle Goldman, Christine Zito,
Lisa Stewart, Brooke Treat, and Desmond James as witnesses. Petitioner’s Exhibits 1 and 3 through 17 were admitted into evidence. Publix called no additional witnesses at the final hearing. Respondent’s Exhibits 1 through 25 were admitted into evidence.
A six-volume Transcript of the final hearing was filed with DOAH on August 30, 2019, and October 17, 2019. At the close of the hearing, the parties were advised of a ten-day timeframe following DOAH’s receipt of the hearing transcript to file post-hearing submittals. At the hearing, Publix,
with Petitioner’s consent, requested an extension of the filing deadline, which was granted.2 Both parties timely filed post-hearing submittals which were duly considered in preparing this Recommended Order.3
FINDINGS OF FACT
Publix is a supermarket chain and food retailer with over 800 locations in the State of Florida.
Publix hired Petitioner on September 23, 2014. Petitioner resigned on January 11, 2019. Petitioner spent all but the last month of her Publix career working at Store No. 1215, located in Venice, Florida.
Petitioner is of East Indian (Asian) descent. She also has a dark complexion.
Publix initially hired Petitioner as a part-time cashier working up to 35 hours a week. As a part-time cashier, Petitioner asserts that she delivered premier customer service. Publix does not dispute that Petitioner consistently provided quality services to its customers.
After serving as a cashier for approximately six months, Petitioner’s responsibilities expanded to include working a few hours a week at the “Apron’s” station. The Apron’s is a small kiosk, with a counter, situated inside the store. There, a Meals Clerk cooks, prepares, and presents dining
2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla.
Admin. Code R. 28-106.216(2).
3 Petitioner also filed a number of post-hearing exhibits, which were not accepted into evidence and were not considered when drafting the Recommended Order. The undersigned’s factual findings are based solely on the evidence and testimony admitted during the final hearing.
and meal samples for Publix customers. The Apron’s for Store No. 1215 is equipped with two refrigerated cases, a microwave, and an oven.
Petitioner started working at the Apron’s by filling in for and supporting the Apron’s full-time Meals Clerk, Eileen Williford. Only one Publix associate worked at the Apron’s at a time. Therefore, Ms. Williford and Petitioner never occupied the Apron’s during the same hours.
Because Apron’s associates never worked at the same time, they communicated with each other through handwritten notes left between shifts. These notes typically concerned the preparation of Apron’s recipes, as well as the Apron’s station’s food supplies, organization, and the condition of the Apron’s appliances and cutlery.
As described by Petitioner, the note taking/leaving system with Ms. Williford did not go well. At the final hearing, Petitioner presented
photocopies of a number of handwritten notes she received during her time in the Apron’s. Petitioner did not care for the context or implications from
several of Ms. Williford’s messages. Between October 2017 and April 2018, Ms. Williford commented on the lack of cleanliness of the microwave and oven due to Petitioner’s alleged inattentiveness, as well as on Petitioner’s inferior cooking and preparation techniques. Ms. Williford also instructed Petitioner how to set up the kiosk. Petitioner found Ms. Williford’s notes condescending and rude. They made her feel “belittled” and “like an idiot.” Petitioner further believed that Ms. Williford falsely accused her of leaving the Apron’s in a messy condition. (Petitioner also left notes for Ms. Williford complaining that she found the Apron’s in an ill-kept condition when she assumed her shift.)
The notes Ms. Williford and Petitioner exchanged did not relate to Petitioner’s race, color, or national origin.
Towards the end of 2017, Petitioner informed Wayne Bargdill, the Store Manager for Publix Store No. 1215, of the communication issues she was experiencing with Ms. Williford. Mr. Bargdill became the Store Manager
of Store No. 1215 around April 2016. He remained the Store Manager until Petitioner departed the store in December 2018.
Petitioner reported to Mr. Bargdill that she did not appreciate
Ms. Williford’s “unwelcomed” comments. Petitioner further expressed that the note-leaving process was very stressful, and she did not wish to continue the practice. Petitioner also placed the blame on Ms. Williford for leaving the Apron’s space in a disorderly condition.
Following Petitioner’s complaints, Mr. Bargdill recognized that Petitioner and Ms. Williford were not getting along. Mr. Bargdill
characterized the dispute as two employees “bickering” about the cleanliness of appliances and dishes. To address the situation, Mr. Bargdill expressly directed Petitioner and Ms. Williford to cease all note passing.
In addition to the note issues, Petitioner alleged that between October 2016 and March 2018, she heard Ms. Williford direct several offensive statements at Publix customers. Petitioner accused Ms. Williford of referring to one Middle Eastern customer as a “Dot-head,” and that another customer “reeked of curry.” Petitioner further testified that she had heard from another person in the store (but did not witness) that Ms. Williford told an Asian customer that the Apron’s “is not a buffet.” At the final hearing,
Petitioner claimed that Ms. Williford made at least five such comments about Publix’s customers.
On April 25, 2018, Petitioner met with Mr. Bargdill to discuss Ms. Williford’s insulting comments about Indian and Asian customers.
Petitioner expressed that she found these remarks offensive because of her own Asian background.
Mr. Bargdill confronted Ms. Williford about Petitioner’s allegations. Ms. Williford denied making any such disparaging statements to or about Publix customers. Nevertheless, Mr. Bargdill took the opportunity to instruct Ms. Williford not to make any comments that could be interpreted as racially derogatory or inflammatory.
Mr. Bargdill also located and spoke to Vickie Va, an alleged target of one of Ms. Williford’s comments. He apologized for any untoward treatment by store employees.
Petitioner called Ms. Va to testify at the final hearing. Ms. Va,
however, hastily and repeatedly voiced that she “did not recall” hearing any such statements.
Also during the April 25, 2018, meeting, Mr. Bargdill took the opportunity to speak with Petitioner about her interest in promotion opportunities. At that time, Mr. Bargdill believed that the store’s Deli Department offered Petitioner the best chance to obtain full-time employment. Therefore, Mr. Bargdill suggested that Petitioner consider transferring to a current opening in the Deli.
Mr. Bargdill explained to Petitioner that the transition into a full-time job with Publix would require her to submit a Registration of Interest form (“ROI”). In April 2018, Petitioner was still classified as a part-time cashier. Consequently, Petitioner had to transfer into a full-time position, in order to work a full-time schedule.
At the final hearing, Mr. Bargdill relayed that completing the ROI process takes approximately four weeks. After the associate fills in the ROI, the store manager (Mr. Bargdill) forwards it to the store’s district manager and requests a change in the associate’s job classification. Once the ROI is approved, the associate is authorized to move to a full-time position.
Petitioner, however, was reluctant to accept Mr. Bargdill’s proposal. She was uncertain that she wanted to take on a full-time schedule. Consequently, Petitioner told Mr. Bargdill that she was not interested in pursuing the Deli position at that time. On the other hand, Petitioner expressed that she enjoyed working in Apron’s and would consider becoming a full-time Apron’s Meals Clerk. Mr. Bargdill informed her, however, that Store No. 1215 did not have an opening for another full-time Apron’s employee.
Nevertheless, following her discussion with Mr. Bargdill, Petitioner decided to complete an ROI for a Deli Clerk position. She filled out an ROI during the April 25, 2018, meeting. Mr. Bargdill subsequently forwarded her ROI to the district manager. Petitioner’s ROI became effective on May 26, 2018, at which point Mr. Bargdill was able to formally offer Petitioner a path to full-time employment in the Deli Department.
On April 11, 2018, while Petitioner struggled in working with
Ms. Williford, Petitioner also received her Associate Performance Evaluation for the period of October 2017 through February 2018. (Publix prepares an evaluation for each associate every six months.)
Petitioner’s Performance Evaluation scored her on 13 factors. Her supervisor also commented on each score. In the Publix evaluation rating scheme, Role Model is the top level, followed by Exceeds Expectations, Meets Expectations/Successful, Needs Improvement, and then Unacceptable.
For this evaluation, Petitioner graded out as Exceeds Expectations. Petitioner was disappointed that she did not receive the top rating of Role Model, which she scored in her previous Performance Evaluation.
Petitioner’s supervisor, Desmond James, completed her evaluation. At Petitioner’s request, Mr. Bargdill and Mr. James met with her to review her evaluation. During their meeting, Petitioner expressed that that she disagreed with two comments that Mr. James wrote regarding her performance. Petitioner objected to the sentence in the “Associate Relations” factor that she should “[w]ork on dealing with conflict calmly, directly, and effectively.” Petitioner was also bothered by a line Mr. James included in the “Work Space Organization” factor which stated, “just make sure there is no room for other [sic] to have to pick up left over slack [at the Apron’s counter].” Petitioner believed that these statements made her look like a bad employee and implied that she needed to work on handling confrontation in a more effective manner.
After hearing her objections, Mr. Bargdill agreed to amend Petitioner’s Performance Evaluation by marking through the line “just make sure there is no room for other [sic] to have to pick up left over slack.” Mr. Bargdill wrote
next to it, “This last line should not have been put in the evaluation.”
Petitioner then requested that Mr. Bargdill submit her amended Performance Evaluation to Publix corporate to be included in her official record. Mr. Bargdill responded that, because his strikethrough did not change her overall rating of Exceeds Expectations, he was not inclined to forward the revised evaluation to Publix corporate. Instead, he intended to maintain her Performance Evaluation in her “local” personnel records at Store No. 1215.
Petitioner was not satisfied with Mr. Bargdill’s decision. Despite her reduced rating, however, at the bottom of her evaluation she wrote, “thank you for everything!” Petitioner explained that she wanted Publix to know that she was grateful for her employment opportunity.
Based on her Exceeds Expectations rating, Petitioner received a $.25 increase in her hourly wage to $12.25 an hour. Her raise became effective on March 24, 2018.
Also during that time, on or about April 20, 2018, Petitioner emailed a formal complaint alleging “Racial Harassment and Discrimination” at the hands of Ms. Williford and two other Publix associates, to Neil Vafeas, a Publix Retail Associate Specialist. In his role, Mr. Vafeas serves as a human resources investigator or specialist. He is the human resources contact person for Publix’s territory from Bradenton to North Fort Myers, which includes Store No. 1215. As part of his responsibilities, Mr. Vafeas serves as the contact person for Publix associates should they ever feel mistreated, harassed, discriminated against, or have concerns or questions related to their employment.
Petitioner followed her email with a phone call to Mr. Vafeas on or about April 23, 2018. During her call, Petitioner reported the offensive
statements she heard from Ms. Williford. Petitioner specifically told
Mr. Vafeas that Ms. Williford call a customer a "Dot head" and declared that another customer "reeked of curry." Petitioner also conveyed her displeasure with her 2018 Performance Evaluation.
Mr. Vafeas was very concerned with Petitioner’s complaints. After receiving Petitioner’s phone call, Mr. Vafeas contacted Mr. Bargdill.
Mr. Vafeas instructed Mr. Bargdill to speak with Ms. Williford regarding Petitioner’s complaints, and then set up a separate, in person, meeting between Mr. Bargdill, himself, and Petitioner.
On May 17, 2018, Petitioner met with Mr. Bargdill and Mr. Vafeas. At the final hearing, Mr. Vafeas explained that his primary goal entering the meeting was to discuss: 1) Petitioner’s complaints about her Performance Evaluation from April 2018; 2) Petitioner’s conflict with Ms. Williford, and
3) full-time job opportunities available for Petitioner at Publix. In addition to these issues, Mr. Vafeas recalled that during their meeting, Petitioner raised further concerns, including disparaging comments Petitioner heard
Ms. Williford make about Publix customers, and a comment another Publix employee made about Petitioner’s dog.
Regarding Petitioner’s Performance Evaluation, Mr. Vafeas remembered that Petitioner believed that she was being held accountable for Ms. Williford’s messes at the Apron’s. Mr. Vafeas testified, however, that Petitioner’s evaluation scores were very close to those she received in her prior evaluation in November 2017. (In her November 2017 evaluation, Petitioner earned the top “Role Model” rating by one point.) Mr. Vafeas further reflected that Petitioner’s April 2018 evaluation scores were justified, and no score appeared improper. Mr. Vafeas also explained that Petitioner’s rating of Exceeds Expectations (as opposed to Role Model) did not impact her current or prospective rate of pay.
Regarding the exchanging of notes at the Apron’s, Mr. Vafeas got the impression that Mr. Bargdill’s decision to cease all note passing resolved the
matter. He also understood that Mr. Bargdill had counseled Ms. Williford about her alleged use of offensive language. Mr. Vafeas urged Petitioner to report any further conflicts to Mr. Bargdill.
Finally, Mr. Vafeas recounted that the three discussed, at length, the full-time openings available at Store No. 1215. Petitioner repeated her desire to remain an Apron’s Meals Clerk. However, because the store did not have a full-time opening in that position, Mr. Vafeas and Mr. Bargdill informed Petitioner that they could look at other stores for a position as a full-time Apron’s specialist. If they found an opening, Petitioner could request a transfer.
Mr. Vafeas and Mr. Bargdill reiterated to Petitioner that the best full- time opportunity at Store No. 1215 was in the Deli Department. Petitioner remained noncommittal. She was concerned about the time commitment required to work a full-time schedule. Therefore, they concluded the meeting by leaving Petitioner to consider her next move. Petitioner remained in her part-time cashier/Apron’s position.
At the same time that Petitioner was pondering her future with Publix, another associate at Store No. 1215, Debbie Bartels, a white female, approached Mr. Bargdill inquiring about full-time positions. Mr. Bargdill offered Ms. Bartels the same guidance and opportunity that he provided to Petitioner, that a full-time job was open in the Deli Department.
Ms. Bartels jumped on the offer and quickly completed an ROI. In June 2018, Ms. Bartels began receiving the required training to transfer to a full-time Deli position. From June through August 2018, Ms. Bartels slowly accrued more training hours in the Deli. In September 2018, she officially became a part-time Deli clerk. Ms. Bartels transitioned to a full-time Deli associate on December 8, 2018.
Also in June 2018, about a week after Ms. Bartels began training as a Deli Clerk, Petitioner informed Mr. Bargdill that she had decided to accept the opportunity to work in the Deli. Because Petitioner’s ROI was approved
on May 26, 2018, Mr. Bargdill promptly arranged for Petitioner to receive the training required to assume a full-time Deli position.
Mr. Bargdill explained that the Deli is the most demanding department in the store because of the large volume of responsibilities that must be managed on a day-to-day basis. Consequently, Publix requires Deli Clerks to undergo extensive training. Once an associate completes the training, if they are productive and handle the Deli environment well, Publix will look to promote them to a full-time Deli Clerk.
Training for the Deli Department required Petitioner (and
Ms. Bartels) to complete a computer-based course to learn Deli procedures. She was also scheduled time to familiarize herself with the different Deli sections and services. This training included slicing cheeses and meats, as well as working in the sub shop, the kitchen, and the back of the Deli.
Over the summer of 2018, Petitioner continued her assignment as a part-time cashier, while also working several hours a week in the Deli Department to gain experience. Finally, on August 11, 2018, Petitioner officially moved into a part-time Deli position. Based on the progress of her training, Petitioner was scheduled to become a full-time Deli Clerk in December 2018 (the same schedule as Ms. Bartels).
In October 2018, Petitioner received another six-month Associate Performance Evaluation covering the period of April 1 through September 30, 2018. Petitioner’s rating category, which included her time as a Deli Clerk in training, dropped from Exceeds Expectations to Meets Expectations/Successful. Petitioner’s inexperience working in the Deli was reflected in the “Tracking & Balancing Inventory” and “Merchandizing” factors, with explanations that Petitioner “[s]hows only a basic or limited understanding of tools and sometimes cannot apply information to work activities. Still in training.” Petitioner was given a 3 out of 9 rating in this factor. For the “Associate Relations” factor, the evaluation recorded that Petitioner was “[f]riendly and considerate of other associates. Gets along with
most associates. Shows willingness to assist others in accomplishing work and serving customers when needed.” Petitioner received a 5 out of 9 rating in this factor.
Even with a Meets Expectations/Successful rating, Petitioner received a pay raise of $.50 an hour up to $12.75. Her raise became effective on October 20, 2018.
In September 2018, Mr. Bargdill became aware of a conflict in the Deli Department between Petitioner and Lisa Stewart, another Deli associate. Ms. Stewart had worked in the Deli for approximately three years prior to Petitioner’s transition. She had been assigned to help train Petitioner on Deli procedures. Petitioner complained to Mr. Bargdill that Ms. Stewart had bullied her and refused to train her.
At the final hearing, Mr. Bargdill confessed that Ms. Stewart can be “difficult” to work with. It became clear to him that Petitioner and
Ms. Stewart had a tense working relationship that had created issues during Petitioner’s training. He counselled both Petitioner and Ms. Stewart about their personality conflict, and he removed Ms. Stewart as Petitioner’s Deli trainer.
On November 20, 2018, however, another conflict erupted between Petitioner and Ms. Stewart. This time, Petitioner alleged that Ms. Stewart pushed her.
Petitioner immediately reported the encounter to Mr. Bargdill. She explained to him that that morning, she had heard Ms. Stewart loudly complain about the smell in the Deli. Petitioner believed that Ms. Stewart’s comment was specifically aimed at her. The two women exchanged words. Shortly thereafter, Petitioner claimed that Ms. Stewart pushed her aside as she walked past.
Mr. Bargdill promptly investigated the incident. He found both women visibly upset, as if they had just endured a heated encounter. He confronted Ms. Stewart and counseled her regarding Petitioner’s accusations. Then, to
defuse the situation, Mr. Bargdill sent both Petitioner and Ms. Stewart home for the rest of the day.
At that point, Mr. Bargdill considered the situation resolved. Petitioner, however, was not ready to let the matter go. She felt that Mr. Bargdill treated her unfairly because Ms. Stewart had started the
dispute. On her way home, Petitioner called the Sarasota County Sheriff’s Office and reported that Ms. Stewart had committed a battery.
The next day when Ms. Stewart returned to work, Mr. Bargdill called her into his office. He informed her that a sheriff’s officer had appeared at the store to investigate the incident. (Ultimately, the sheriff’s officer concluded that, “There is not [sic] probable cause a battery occurred” because Petitioner “did not have any injuries to show a battery occurred.”)
Afterwards, Mr. Bargdill took steps to avoid any future issues between Ms. Stewart and Petitioner. He allowed Petitioner to remain in the Deli Department, but he moved Ms. Stewart and stationed her in the Apron’s.
Ms. Stewart never returned to the Deli while Petitioner remained at the store. Neither did she have any further encounters with Petitioner.
According to Ms. Stewart, who testified at the final hearing, it was Petitioner who initiated the confrontation by approaching her and declaring that Ms. Stewart had insulted her. Ms. Stewart denied making any offensive statements to Petitioner. She also denied making any physical contact with Petitioner.
While Mr. Bargdill may have resolved the issue between Petitioner and Ms. Stewart, the situation appears symptomatic of a larger conflict between Petitioner and the rest of the Deli staff. At the final hearing,
Mr. Bargdill testified that the Deli Department maintained a very collegial working environment prior to Petitioner’s arrival. However, following her transfer, the entire demeanor of the Deli changed.
Mr. Bargdill recounted that morale in the Deli slowly deteriorated in October and November 2018. During this time, he testified that he received a
number of complaints from Deli associates about Petitioner’s conduct.
Mr. Bargdill stated that as many as seven Deli associates approached him bemoaning Petitioner’s behavior. Specifically, Mr. Bargdill described the following:
Tracey Ranallo complained to him that Petitioner was treating associates rudely and brought down the overall morale of the Deli.
Ms. Bartels relayed to him that Petitioner was inquiring about other associates’ personal information and was looking into their backgrounds. Ms. Bartels also declared that Petitioner called her a derogatory name, bullied her, and made her cry.
Anna Forino also informed him that Petitioner was asking for background information on other associates. Ms. Forino further asserted that Petitioner made her fear for her safety. On November 29, 2018, Ms. Forino made a formal discrimination and harassment complaint against Petitioner, which Mr. Bargdill forwarded to Mr. Vafeas.
Tony Howard submitted a written complaint describing the overall dynamic of the Deli Department. Mr. Howard felt that Petitioner was rude to fellow associates. He also alleged that Petitioner called an associate
(Ms. Bartels) a derogatory name. Mr. Howard further chronicled another incident from November 2018, when Petitioner overheard two Deli Clerks discussing a movie that depicted the violent death of a woman. Petitioner apparently envisioned herself as the subject of the discussion, and then complained to Publix management that she feared for her personal safety. Mr. Howard also contacted Mr. Vafeas around November 29, 2018, about Petitioner’s behavior. Mr. Howard represented that he was complaining on behalf of the entire Deli Department.
Mr. Bargdill investigated each complaint. Mr. Bargdill ultimately determined that the morale in the Deli had fallen “unbelievably” off track, and the Deli associates were no longer working as a harmonious team. When
Petitioner was scheduled, the other Deli associates felt like they were “walking on pins and needles,” and they did not trust her.
Based on his investigation, Mr. Bargdill believed that he had verified that Petitioner was asking other Deli associates for their personal information, which made them feel tense and uncomfortable. In addition, he found that several employees (Ms. Stewart and Ms. Bartels) credibly stated that Petitioner had made offensive comments while working in the Deli. Mr. Bargdill concluded that Petitioner was the source of the conflict in the Deli Department. At the final hearing, he testified that he never received these types of complaints in the Deli prior to Petitioner’s time there.
Mr. Vafeas testified that he also received complaints about Petitioner’s behavior in November 2018. Although not produced at the final hearing,
Mr. Vafeas credibly attested that he received written statements from two of Petitioner’s co-workers. Mr. Vafeas confirmed that Mr. Howard contacted him about Petitioner. After reading Mr. Howard’s complaint, Mr. Vafeas was concerned that Petitioner was making the Deli environment confrontational and a hostile place to work.
Mr. Vafeas further relayed that Ms. Forino reported to him that Petitioner felt that people of different sizes and colors were repulsive. In addition, she repeated what she told Mr. Bargdill, that Petitioner was gathering information to conduct background checks on Deli associates.
Mr. Vafeas concluded that Store No. 1215 Deli associates felt that Petitioner was mean to them, and that some were afraid for their safety.
Mr. Vafeas spoke to Mr. Bargdill about the complaints. Thereafter, in early December 2018, Mr. Vafeas, Mr. Bargdill, and the Deli Manager, Bruce Fowler, prepared a Counseling Statement for Petitioner summarizing the complaints from Petitioner’s co-workers. The Counseling Statement recorded that “multiple [Deli] associates have lodged complaints with management and HR regarding [Petitioner].” The Counseling Statement further reported that Publix management had received information that
Petitioner “called an associate a bitch,” “twists the truth in order to get
associates in trouble,” and made derisive comments about “people of different sizes and color.” In addition, the Counseling Statement stated that Petitioner was “rude,” “cause[d] unnecessary conflict,” and that her “daily interaction with her coworkers has caused them to feel uncomfortable and has disrupted the harmony and positive work environment which the Deli enjoyed prior to her arrival.”
The Counseling Statement included an “Improvement Required”
section which stated that Petitioner “must treat all of her coworkers with dignity and respect and avoid creating unnecessary or destructive conflict.” The document also warned Petitioner in the “Failure to Improve” section that if she “continues to create unnecessary or destructive conflict and treat coworkers improperly it will result in disciplinary action up to an including
suspension or discharge.”
On December 13, 2018, Mr. Bargdill met with Petitioner and read to her the allegations contained in the Counseling Statement. Mr. Bargdill hoped that the counseling session would help Petitioner build and maintain positive working relationships with her Publix co-workers going forward.
At the final hearing, Petitioner vehemently denied any of the wrongful conduct alleged in the Counseling Statement. Petitioner also strongly objected to, and disavowed, the implication that she was a racist. Petitioner further declared that the Counseling Statement was based on unverified statements, and the complaints from other Deli associates were “fabricated
nonsense.”
Petitioner also expressed that she was devastated when she received the Counseling Statement. She declared that the statement caused her “emotional damage” and “ruined her life.” Petitioner believed that the Counseling Statement would create a black mark on her record that would have a disastrous impact on all her future employment opportunities.
Prior to serving Petitioner with the Counseling Statement, Mr. Vafeas and Mr. Bargdill discussed the best way to handle the numerous complaints from the other Publix associates. Mr. Vafeas was concerned that the conflict could not be remedied if Petitioner remained at Store No. 1215. Therefore, he determined that the most appropriate response to relieve the tension in the Deli Department was to transfer Petitioner to another Publix store.
Mr. Bargdill agreed. Neither Mr. Vafeas nor Mr. Bargdill believed that Petitioner would change her behavior, and they felt that the situation had escalated beyond the point where the conflict could be eliminated. They also thought that a move would provide Petitioner the opportunity for a fresh, hopefully successful, start, and allow her to form positive relationships with new co-workers.
On December 13, 2018, Publix transferred Petitioner from Store No. 1215 to Store No. 384. Store No. 384 is located three to four miles from Store No. 1215. Petitioner was given the same position (part-time Deli
associate) with no loss of work hours (34 to 35 hours a week), pay ($12.75 an hour), benefits, promotion opportunities, or status.
Petitioner firmly objected to the transfer. She did not want to leave Store No. 1215. Petitioner claimed that she had to drive farther to work. At the final hearing, however, Petitioner relayed that her home is actually closer to Store No. 384.
Petitioner worked approximately 35 hours (a part-time schedule) during her first week at Store No. 384. Mr. Bargdill did not have any
involvement with Petitioner’s career after she was transferred out of Store No. 1215.
On January 11, 2019, Petitioner resigned from Publix to take another job. Petitioner explained that in November 2018, she applied for a job with another local business. Petitioner testified that part of her motivation to seek new employment was that she believed her days at Publix were numbered following her November 2018 confrontation with Ms. Stewart.
Petitioner interviewed for her new job on December 6, 2018. She received a job offer on January 10, 2019, and resigned from Publix the next day. Petitioner expressed that she makes more money in her new place of employment.
Based on her testimony at the final hearing, Petitioner raises several causes of action in her discrimination complaint. First, Petitioner contends that Publix, through Mr. Bargdill, discriminated against her, based on her protected class, when she expressed an interest in working full-time. The testimony establishes that Mr. Bargdill offered Petitioner a full-time position in the Deli Department during their meeting on April 25, 2018. Petitioner alleges that Mr. Bargdill rescinded this offer in May or June 2018, and instead filled the position with a white employee (Ms. Bartels). Petitioner further complains that Mr. Bargdill “looked the other way” when
Ms. Williford, Ms. Stewart, and other co-workers abused and harassed her. (Ms. Williford and Ms. Stewart are also white.)
Petitioner also asserts that Mr. Bargdill retaliated against her based on her pursuit of a charge of discrimination with the Commission. On August 6, 2018, in light of Mr. Bargdill’s invitation to Ms. Bartels to transfer to the Deli the previous June, Petitioner filed a formal Employment Complaint of Discrimination with the Commission. In her complaint, Petitioner charged that she was “a dark skinned, East Indian, and Asian, female” who had been “discriminated against based on race, color, national origin, sex, and retaliation.”
Petitioner claims that, following her Complaint of Discrimination, Publix took several adverse employment actions against her. These actions included, 1) her Performance Evaluation issued on October 11, 2018, in which she was rated as Meets Expectations/Successful, instead of Role Model or Exceeds Expectations, 2) the Counseling Statement in December 2018, and
3) the decision to transfer her to another Publix store.
Finally, Petitioner alleges that Publix created a hostile work environment. Petitioner charges that Publix management did not sufficiently address or prevent the disparaging comments and harassment aimed at her by other associates. Petitioner also complains that the Store No. 1215 management allowed her Publix co-workers to learn about her personal affairs without her consent. Petitioner is particularly upset that Publix personnel may have heard about her discrimination complaint to the human resources department, as well as her complaint about being pushed to the
Sarasota County Sheriff’s Office.
In response to Petitioner’s claims of discrimination, Mr. Bargdill persuasively testified that he never rescinded his offer for Petitioner to transfer to a full-time Deli position. On the contrary, Mr. Bargdill convincingly attested that the Deli position remained open until Petitioner requested the job in June 2018. Mr. Bargdill further credibly refuted Petitioner’s accusation that he selected Ms. Bartels for the Deli instead of Petitioner, or that Ms. Bartels filled the only Deli opening. Mr. Bargdill cogently explained that Ms. Bartels applied for the Deli position at the same time as Petitioner, and both women were equally allowed to transfer into the Deli Department at the time each accepted the offer.
Further, Mr. Bargdill credibly voiced that after Petitioner left his
store’s Deli Department, the working environment changed for the better. As he described it, he observed the Deli associates laughing and helping each other, and the camaraderie noticeably improved.
Eileen Williford testified at the final hearing and described her time working at the Apron’s with Petitioner. Ms. Williford readily acknowledged that she did not care for Petitioner. She stated that their conflict centered on the Apron’s cleanliness. Ms. Williford asserted that daily she would receive “petty” notes from Petitioner regarding the condition of the Apron’s station, its appliances, and supplies.
Ms. Williford was also aware that Petitioner reported her to
Mr. Bargdill. She recounted that she refused to speak with Mr. Bargdill about Petitioner’s complaints because she found the situation too stressful. Ms. Williford agreed that all note passing ceased between her and Petitioner after Mr. Bargdill intervened. She denied that Publix (Mr. Bargdill) ever formally disciplined her regarding the incident.
Regarding Petitioner’s other complaints, Ms. Williford denied telling a Publix customer that the Apron’s “is not a buffet.” She further disputed that she voiced that a customer “reeked of curry.” Finally, Ms. Williford denied that she ever made any statement to Petitioner regarding her race, national origin, gender, or the color of her skin.
To support her case, Petitioner called several witnesses. Her first witness, Philippe Canlers, testified that during his time with Publix, he also had a personality conflict with Ms. Williford. Mr. Canlers described
Ms. Williford as a “bully” who intimidated her co-workers. He relayed that Ms. Williford visited him occasionally while he worked at the Apron’s or in the meat department, and she would give him a “rough time.” He was also familiar with her habit of leaving “nasty” notes.
Mr. Canlers stated that he talked to the store managers about
Ms. Williford’s offensive conduct. But, he never saw Publix address any of his complaints. He felt that management was just willing to accept her behavior.
Mr. Canlers also described an incident in May 2018 when a store manager announced that a Publix Regional Director was coming to
investigate Petitioner’s complaint about Ms. Williford. Mr. Canlers declared that this manager publicly discussed the existence of this investigation in the presence of Publix employees and customers. Mr. Canlers expressed that he believed that Petitioner’s complaint was her “personal affair” and should not have been disclosed to people who did not need to know.
Danielle Goldman worked with Petitioner at Publix. They became friends. Ms. Goldman heard Christina Zito, a Store No. 1215 customer service
manager, imply that Petitioner had a drinking problem. Ms. Goldman was also aware that Petitioner had an issue with Ms. Stewart when she worked in the Deli Department.
Petitioner called Ms. Zito to the final hearing to address her role in Petitioner’s ill-treatment. Ms. Zito transferred to Store No. 1215 in May 2018. She supervised Petitioner when Petitioner worked as a part-time cashier.
Ms. Zito testified that she initially found Petitioner very talkative and “bubbly.” However, she soon noticed a change in her attitude. Petitioner gradually became less approachable.
Ms. Zito learned of the incident between Petitioner and Ms. Stewart in November 2018 when she participated in the follow-up meetings between Mr. Bargdill and both Petitioner and Ms. Stewart. Ms. Zito explained that Mr. Bargdill met first with Ms. Stewart, during which he informed her of Petitioner’s assault accusation. Upon hearing the allegation, Ms. Zito recounted that Ms. Stewart became visibly upset. Ms. Stewart adamantly denied that she pushed Petitioner.
Ms. Zito also provided a statement to the sheriff who investigated Petitioner’s complaint. The sheriff recorded in the Incident Report that
Ms. Zito advised that Petitioner “has a history of falsely accusing co-workers of things that did not happen, and does not get along with most other employees.” Ms. Zito explained that she made the statement because she was aware of Petitioner’s past dispute with an Apron’s employee, as well as her ongoing issues with Deli associates and cashiers.
Finally, Ms. Zito discussed the conversation with Ms. Goldman during which she mentioned Petitioner’s possible issue with drinking. Ms. Zito admitted that she commented on Petitioner’s use of alcohol. However,
Ms. Zito expressed that she simply wanted to make sure Petitioner was doing alright. (At the final hearing, Petitioner steadfastly declared that she does not drink.)
Desmond James served as Petitioner’s team leader and department manager in the Customer Service Department in the spring of 2018. He also supervised the Apron’s team. In addition, Mr. James authored Petitioner’s April 2018 Associate Performance Evaluation.
At the final hearing, Mr. James did not recall meeting with Petitioner and Mr. Bargdill to review the evaluation. Neither did he remember ever discussing in front of a Publix customer Petitioner’s personal information or discussing the fact that Petitioner had submitted a complaint to the Publix human resources department. On the other hand, Mr. James confirmed that Ms. Williford did leave the Apron’s counter and sink in a messy condition.
Finally, Petitioner called Brooke Treat with whom she had a good working relationship at Publix. Ms. Treat testified about a time when she overheard Ms. Williford announce that Petitioner did not clean the dishes at the Apron’s. Ms. Treat recounted that Petitioner calmly handled the situation.
Ms. Treat was also aware of the incident that occurred on
November 20, 2018, between Petitioner and Ms. Stewart. Ms. Treat was not in the store at the time. However, she communicated (texted) with Petitioner just after Petitioner was sent home. Ms. Treat recalled that Petitioner was shaken up by the episode.
Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Publix discriminated against Petitioner based on her race, age, national origin, or sex, or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Publix committed an unlawful employment action against her in violation of the FCRA.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y-4.016.
Petitioner brings this matter alleging that Publix: 1) discriminated against her based on her race, color, national origin, and sex in violation of the FCRA; 2) created a hostile work environment; and 3) retaliated against her based on her participation in an activity protected by the FCRA.
The FCRA protects individuals from discrimination in the workplace.
See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in pertinent part:
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, pregnancy, national origin, age, handicap, or marital status.
The FCRA also protects employees from certain retaliatory acts. The FCRA’s anti-retaliation provision is found in section 760.10(7) and states, in pertinent part:
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.
Section 760.11(7) permits a party for whom the Commission determines that there is not reasonable cause to believe that a violation of the FCRA has occurred to request an administrative hearing before DOAH.
Following an administrative hearing, if the Administrative Law Judge (“ALJ”) finds that a discriminatory act has occurred, the ALJ “shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice,
including back pay.” § 760.11(7), Fla. Stat.
The burden of proof in an administrative proceeding, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); see also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”). The preponderance of the evidence standard is applicable to this matter. See § 120.57(1)(j), Fla. Stat.
The FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended. Accordingly, Florida courts hold that federal decisions construing Title VII are applicable when considering claims under the FCRA. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and Fla. State Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996).
Discrimination may be proven by direct, statistical, or circumstantial evidence. Valenzuela, 18 So. 3d at 22. Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent behind the employment decision without any inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that “‘only the most blatant remarks, whose intent could be nothing other than to discriminate …’ will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted).
The record in this matter does not contain direct evidence of race, color, national origin, or sex discrimination on the part of Publix. Similarly, the record in this proceeding contains no statistical evidence of discrimination by Publix.
In the absence of direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial evidence to prove a claim of discrimination. For discrimination causes of action involving circumstantial evidence, Florida courts follow the three-part, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Valenzuela, 18 So. 3d at 21-22; see also St. Louis v. Fla. Int’l Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011).
For the first part of an action alleging race, color, national origin, or sex discrimination, Petitioner bears the burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. To establish a prima facie case, Petitioner must show that: (1) she belongs to a protected class (race color, national origin, or sex); (2) she was qualified for her position (Deli Clerk); (3) she was subjected to an adverse employment action; and (4) her employer treated similarly-situated employees outside of her protected class more favorably than she was treated. See McDonnell Douglas, 411 U.S. at 802-04; Burke-Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).
Demonstrating a prima facie case is not difficult, but rather only requires a petitioner “to establish facts adequate to permit an inference of discrimination.” Holifield, 115 F.3d at 1562.
If Petitioner establishes a prima facie case, she creates a presumption of discrimination. At that point, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking the adverse action. Valenzuela, 18 So. 3d at 22. The reason for the employer’s decision should be clear, reasonably specific, and worthy of credence. Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer
has the burden of production, not the burden of persuasion, to demonstrate to the finder of fact that the decision was non-discriminatory. Flowers v. Troup Cty., 803 F.3d 1327, 1336 (11th Cir. 2015). This burden of production is “exceedingly light.” Holifield, 115 F.3d at 1564. The employer only needs to produce evidence of a reason for its decision. It is not required to persuade the trier of fact that its decision was actually motivated by the reason given. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993).
If the employer meets its burden, the presumption of discrimination disappears. The burden then shifts back to Petitioner to prove that the employer’s proffered reason was not the true reason but merely a “pretext” for discrimination. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Valenzuela, 18 So. 3d at 25.
In order to satisfy this final step of the process, a petitioner must
show “directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the … decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Tex.
Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 252-56 (1981)). The proffered explanation is unworthy of belief if a petitioner demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1313 (11th Cir. 2016); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). A petitioner must prove that the reasons articulated were false and that the discrimination was the real reason for the action. City of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary’s Honor Ctr., 509 U.S. at 515)(“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.”).
Despite the shifting burdens of proof “the ultimate burden of persuading the trier of fact that the respondent intentionally discriminated
against the petitioner remains at all times with the [petitioner].” Burdine, 450 U.S. at 253; Valenzuela, 18 So. 3d at 22.
Applying the burden-shifting analysis to the facts found in this matter, Petitioner established a prima facie case that Publix discriminated against her based on her race, color, or national origin.4 Petitioner belongs to a protected class (East Indian and Asian descent), and she sufficiently demonstrated that she was qualified to perform the duties of a Deli Clerk.
Regarding the third element, the evidence shows that Petitioner was subject to adverse employment actions in the form of: 1) the October 2018 Performance Evaluation in which Petitioner’s rating dropped from Exceeds Expectations to Meets Expectations/Successful based in part on the (allegedly undeserved) assertion that Petitioner did not get along with some of her associates, and 2) the December 2018 Counseling Statement which
specifically noted that a lack of improvement by Petitioner “will result in disciplinary action up to and including suspension or discharge.”5 The
4 No evidence in the record supports a claim that Publix made any employment decisions (adverse or otherwise) based on Petitioner’s sex.
5 The undersigned finds that Petitioner’s transfer from Store No. 1215 to Store No. 384 was not an “adverse employment action” which would support her discrimination claim. “Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’” Koren v. Sch. Bd., 97 So. 3d 215, 219 (Fla. 2012)(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71, 126 S. Ct.
2405, 165 L. Ed. 2d 345 (2006)). The facts in the record show that at her new store, Petitioner was given the same position (part-time Deli associate), working the same part-time schedule (34 to 35 hours a week), with no loss of pay ($12.75 an hour), benefits, or promotion opportunities. (No evidence was presented whether Store No. 384 would have promoted Petitioner to full-time status in the same time frame as Store No. 1215.) Further, Store
No. 384 was located in sufficiently close proximity to Store No. 1215 so that a reasonable person would not have found the daily commute overly taxing. See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)(“[T]he asserted impact cannot be speculative and must at least have a tangible adverse effect on the plaintiff’s employment.”) and Grant v.
Miami-Dade Cty., 2014 U.S. Dist. LEXIS 182583, at *17 (S.D. Fla. Dec. 11, 2014) (“’[c]hanges in duties or working conditions that cause no materially significant disadvantage are not actionable.”)(quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.
1994)(The employee’s reassignment was insufficient to establish the adverse conduct required to make a prima facie case.) (In fact, Petitioner admitted at the hearing that Store No. 384 was actually closer to her home.)
preponderance of the evidence indicates that the negative comments on her Performance Evaluation, as well as the Counseling Statement, could have detrimentally affected her future employment with Publix.
Finally, Petitioner established that Publix treated similarly situated white employees (Eileen Williford and Lisa Stewart) differently.6 The evidence shows that, at the very least, Ms. Williford and Ms. Stewart engaged in the same undesirable behavior of which Petitioner was accused (passing counterproductive notes and having disruptive personality conflicts).7 Yet, no evidence shows that Publix chastised either Ms. Williford or Ms. Stewart through comments in their performance evaluations or by issuing them Counseling Statements. Neither was transferred to another store.8
However, despite the fact that Petitioner established a prima facie case of discrimination, Publix articulated a legitimate, non-discriminatory reason for the adverse employment actions about which Petitioner complains. As discussed above, Publix’s burden to refute Petitioner’s prima facie case is
6 The undersigned finds that the facts do not support a claim of discrimination based on
Mr. Bargdill’s offer of full-time employment to Debbie Bartels. The evidence does not support Petitioner’s allegation that Mr. Bargdill rescinded his offer from April 25, 2018, to transfer her into a full-time position in the Deli Department. Nor did Petitioner prove that
Mr. Bargdill selected Ms. Bartels for an opening in the Deli instead of herself. On the contrary, the record demonstrates that Mr. Bargdill arranged for Petitioner’s transfer to the Deli as soon as she confirmed her desire for a full-time position in June 2018. The evidence further establishes that Mr. Bargdill required Ms. Bartels to follow the same procedures for full-time employment that he imposed upon Petitioner (completion of a Registration of Interest form), and that he required Ms. Bartels to complete the same training regimen and schedule prior to becoming a full-time Deli Clerk. Both Petitioner and Ms. Bartels were projected to assume full-time Deli responsibilities in December 2018.
7 In determining whether employees are similarly situated for purposes of establishing a prima facie case, “[w]hen comparing similarly situated individuals to raise an inference of discriminatory motivation, these individuals must be similarly situated in all relevant
respects.” Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1273 (l1th Cir. 2004). Based on the evidence in the record, Ms. Williford and Ms. Stewart meet this requirement.
8 As stated above, the fact that Publix transferred Petitioner to Store No. 384 does not
constitute an “adverse employment action” to support Petitioner’s claim of discrimination. This fact is referenced in the fourth element of Petitioner’s prima facie case to highlight that she was treated less favorably from other similarly situated Publix associates.
light. Publix met this burden by providing credible testimony that the statements to which Petitioner objected in her October 2018 Performance Evaluation and the Counseling Statement were based on verified complaints from Petitioner’s co-workers. The undersigned finds that both Mr. Bargdill and Mr. Vafeas credibly described the number and substance of the reports they received in the fall of 2018 from Petitioner’s supervisors, as well as Publix associates who worked with her in the Deli Department. Mr. Bargdill and Mr. Vafeas also clearly explained why they felt the need to specifically address these complaints in Petitioner’s Performance Evaluation, and in a separate Counseling Statement.9
Completing the McDonnell Douglas burden-shifting analysis, Petitioner did not prove that Publix’s stated reasons for the comments in her Performance Evaluation and for issuing the Counseling Statement were not its true reasons, but were merely a “pretext” for discrimination based on her race, color, or national origin. The evidentiary record does not support a finding or conclusion that Publix’s explanations are false, implausible, inconsistent, or not worthy of credence. As persuasively attested to by
Mr. Bargdill and Mr. Vafeas, Publix management felt compelled to confront Petitioner about her co-workers’ complaints that she was “rude,” “cause[d] unnecessary conflict,” and made them “feel uncomfortable.” They also felt the urgent need to address the troubled work environment in the Store No. 1215
9 The out-of-court statements Mr. Bargdill and Mr. Vafeas reference to support the
Performance Evaluation and Counseling Statement (other than Ms. Stewart’s testimony) are clearly hearsay. See § 90.801(1)(c), Fla. Stat. However, under the Administrative Procedure Act, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” § 120.57(1)(c), Fla. Stat. (Publix did not present an exception to the hearsay rule which would allow their admissibility.) Accordingly, the undersigned makes no findings of fact regarding the basis of, motivation for, or veracity of the complaints against Petitioner from her co-workers in October and November 2018.
However, the credible testimony from Mr. Bargdill and Mr. Vafeas does support a finding that they did, in fact, receive such complaints prior to generating Petitioner’s Performance Evaluation and Counseling Statement. Therefore, the undersigned accepts these statements as evidence supplementing the witnesses’ testimony regarding the legitimate, non-
discriminatory reason for Publix’s adverse employment action against Petitioner.
Deli Department. Mr. Bargdill credibly testified that he could not allow the disruption in the Deli to continue. He also cogently explained why Petitioner’s conduct and disposition (not her race, color, or national origin) caused Publix to take certain actions, including Petitioner’s counseling and transfer to another store, to alleviate the unacceptable situation.
Conversely, while Petitioner repeatedly asserted that Publix unfairly blamed her for the conflict, the evidence in the record does not establish that the actions about which she complains were in any way based on, or influenced by, her race, color, or national origin. See Furcron, 843 F.3d at 1313-14(To show pretext, a petitioner “must meet each proffered reason ‘head on and rebut it, and [she] cannot succeed by simply quarreling with the
wisdom of that reason.’”)
Therefore, even though Petitioner presented enough evidence to establish a prima facie case of discrimination, she did not produce sufficient facts or testimony to prove that Publix treated her differently because of her protected class. Consequently, Petitioner did not meet her ultimate burden of proving, by a preponderance of the evidence, that Publix’s decisions affecting her employment were based on discrimination.
Turning to Petitioner’s complaint that Publix created a hostile work environment, to establish a prima facie case of a hostile work environment under the FCRA, Petitioner must show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on the protected characteristic (her race, color, or national origin);
(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment; and (5) her employer is responsible for such environment under a theory of either vicarious or direct liability. Trask v. Sec’y, Dep’t of Veterans Affs., 822 F.3d 1179, 1195 (11th Cir. 2016); Miller v. Kenworth of Dothan Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
Petitioner’s hostile work environment claim fails for the same reason as described above. In analyzing the third element of the prima facie case, Petitioner did not produce sufficient evidence to establish that the alleged harassment she experienced was based on her protected characteristic (race, color, or national origin). The root of Petitioner’s complaint rests on the ill- treatment she received from her co-workers, Ms. Williford and Ms. Stewart, in particular. In pursuing her FCRA claim, Petitioner redirects the blame for her workplace travails onto Mr. Bargdill, whom she alleges, 1) did not appropriately address the objectionable actions of Ms. Williford and
Ms. Stewart, 2) ignored or did not prevent further conflicts between Petitioner and her Publix co-workers, and 3) unjustifiably identified Petitioner as the source of the personality conflicts as evidenced by comments in her October 2018 Performance Evaluation and the Counseling Statement. These allegations, however, even if true (and they were not proven to be true), would be insufficient to establish a hostile work environment claim as a matter of law.
Based on the record in this matter, Petitioner fails to transmute the friction she experienced in the Apron’s and the Deli Department into a violation of the FCRA. Petitioner was undoubtedly distressed by the perceived bullying, insults, and slights from her co-workers. But, no evidence in the record establishes that any action by Publix management was based on Petitioner’s race, religion, or national origin. Neither do the facts support a finding that the comments from Petitioner’s co-workers were an attack on her protected class. The handwritten notes Ms. Williford and Petitioner exchanged were wholly unrelated to Petitioner’s race and national origin. Further, the alleged racially charged expressions regarding “Dot heads” and curry, while certainly inappropriate, were isolated utterances not aimed at
Petitioner.10 These facts alone are not sufficient to sustain a hostile work environment claim.
At most, the conflicts within the Store No. 1215 Apron’s and Deli Department, amounted to personality clashes between Petitioner and her co- workers. Such interoffice strife is not sufficient to establish a hostile work environment claim under the FCRA or Title VII. See, e.g., McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986)(“Title VII prohibits discrimination; it is not a shield against harsh treatment at the work place. Personal animosity is not the equivalent of sex discrimination … . The plaintiff cannot turn a personal feud into a sex discrimination case … .”). It is well-
established that Title VII “does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category … .” Reeves v.
C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010); Baldwin
v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301–2 (11th Cir. 2007). Title VII is not a “general civility code.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000). Harassment constitutes employment
discrimination only if the “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (emphasis added); see also Gray v. City of Jacksonville, 492 F. App’x 1, 10-11 (11th Cir. 2012)(“In the contemporary American workplace, some measure of conflict between employers and employees—wrought by the personal and professional stressors that naturally occasion a group of individuals working together in close quarters—is inevitable.”).
The undersigned further notes that the evidence fails to establish that Publix is accountable for Petitioner’s allegedly hostile work environment
10 See Butler v. Ala. DOT, 536 F.3d 1209, 1213 (11th Cir. 2008)(“not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice.”).
under a theory of either vicarious or direct liability (element five of the prima facie case). Petitioner failed to show how Publix was responsible for
Ms. Williford’s handwritten notes, Ms. Stewart’s push, or Petitioner’s co-
workers’ random comments. See Wilcox v. Corr. Corp. of Am., 892 F.3d 1283, 1288 (11th Cir. 2018)(“[w]hen, as here, the perpetrator of the harassment is not the plaintiff’s supervisor, the employer will be held directly liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.”). On the contrary, the facts and testimony show that, after receiving Petitioner’s recurrent complaints about her co-workers, Mr. Bargdill took very active and sincere steps to try and alleviate the discord amongst the Store No. 1215 associates.
Finally, Petitioner did not meet her burden of proving that Publix retaliated against her based on her participation in an activity protected by the FCRA.
The FCRA provides that no person shall discriminate against any individual because such individual has opposed an unlawful employment act or practice. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997); see also 42 U.S.C. § 12203(a) and § 760.10(7), Fla. Stat.
When a petitioner produces only circumstantial evidence of retaliation (as in this matter), Florida courts use the burden shifting framework set forth in McDonnell Douglas. Furcron, 843 F.3d at 1310. To establish a prima facie case of retaliation, Petitioner must demonstrate that:
(1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Furcron, 843 F.3d at 1310; Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013). The failure to satisfy any of these elements is fatal to a complaint of retaliation. Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004).
For an action to be “adverse” in the context of retaliation, it “must be harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Wolf v. MWH Constructors, Inc., 34 F. Supp. 3d 1213, 1227 (M.D. Fla. 2014); Burlington, 548 U.S. at 68, 126 S. Ct. at 2415 (2006); see, e.g., Trask, 822 F.3d at 1194 (“A work reassignment may constitute an adverse employment action when the change is “so substantial and material that it … alter[s] the terms, conditions, and privileges of employment;” and Lucas v. W. W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001)(negative performance evaluations that did not result in any effect on the employee’s employment did not constitute “adverse employment action.”).
Based on the evidence in the record, Petitioner did not establish a prima facie case of retaliation. Petitioner met the first elements in that she participated in a protected activity when she filed an Employment Complaint of Discrimination with the Commission on August 6, 2018. Petitioner also
satisfied the “adverse employment action” prong of her claim upon showing that Publix subsequently included negative comments in her October 2018 Performance Evaluation, as well as issued the Counseling Statement.
However, Petitioner failed to demonstrate the requisite “causal connection” between her protected activity and the adverse action.
In order to establish a “causal connection,” title VII (and FCRA) retaliation claims require the petitioner to prove that the protected activity was the “but-for” cause of the adverse employment action. Ceus v. City of Tampa, No. 18-10484, 2020 U.S. App. LEXIS 3202, at *28-29 (11th Cir. Feb. 3, 2020) (citing Univ. of Tx. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)). This standard demands “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Nassar, 133 S. Ct. at 2533. In other words, Petitioner must demonstrate that the complained-of employment decisions would not have occurred “but-for” Publix’s actual intent to retaliate against her because she
filed a complaint of discrimination with the Commission. See Trask, 822 F.3d at 1179.
Based on facts and testimony adduced at the final hearing, a “causal connection” does not exist between Petitioner’s complaint to the Commission in August 2018 and the remarks Publix made on Petitioner’s Performance Evaluation in October 2018, or Publix’s decision to issue the Counseling Statement in December 2018. As discussed above, the undisputed evidence
shows that several months after Petitioner’s discrimination complaint, a number of Store No. 1215 associates approached Publix management complaining about Petitioner’s behavior. These complaints firmly support the comment in Petitioner’s October 2018 Performance Evaluation that she got “along with most [but not all] associates,” which warranted a score of 5 out of 9 on her Associate Relations performance factor. Mr. Bargdill and Mr. Vafeas also presented ample evidence to support the asseverations in Petitioner’s Counseling Statement that “multiple associates have lodged complaints with management and HR regarding [Petitioner],” and that Petitioner’s “daily interaction with her coworkers has caused them to feel uncomfortable and has disrupted the harmony and positive work environment which the Deli enjoyed prior to her arrival.” They credibly testified how they investigated and confirmed the complaints they received before they wrote the Counseling Statement. They also persuasively attested that these complaints formed the basis of the Counseling Statement, not Petitioner’s August 2018 discrimination complaint.
Petitioner staunchly protests Mr. Bargdill and Mr. Vafeas’s conclusion that she was the source of the conflict in the Deli. However, she cannot circumvent the undisputed fact that, in between the date she submitted her discrimination complaint and the moment she received her Counseling Statement, Store No. 1215 management was confronted with deteriorating morale within the Deli Department. Neither can Petitioner avoid the fact that her co-workers pointedly named her as the source of the
conflict. This situation created an “intervening act” which severed the “causal connection” between her August 2018 Complaint of Discrimination and
Publix’s “adverse employment actions.” See, e.g., Henderson v. FedEx Express, 442 F. App’x 502, 506 (11th Cir. 2011) (“Intervening acts of misconduct can break any causal link between the protected conduct and the adverse employment action.”); Diaz v. Florida, 219 F. Supp. 3d 1207, 1221 (S.D. Fla.
2016)(where the court found that “between the time of the alleged protected activity and the time of the termination, ‘[the plaintiff] was suspected of attempted theft of state property, which was an intervening act of
misconduct’”); and Fernandez v. Winn-Dixie Stores, Inc., No. 17-cv-60322, 2018 U.S. Dist. LEXIS 11015, at *19 (S.D. Fla. Jan. 24, 2018)(“suspected theft of store property constitutes an intervening act that breaks the causal chain.”). Consequently, based on the facts in this matter, Petitioner fails to show the requisite “but-for” causation necessary to establish retaliatory intent on the part of Publix.
Finally, even assuming that Petitioner established her prima facie case, she has not shown that Publix’s explanations for its actions are merely “pretext,” and that its true motivation for counseling her was retaliation based on her Complaint of Discrimination with the Commission. As detailed above, Publix persuasively explained that its “adverse employment actions” in the fall of 2018 were based on legitimate, non-retaliatory reasons. Both Mr. Bargdill and Mr. Vafeas credibly testified that the Store No. 1215 Deli Department was experiencing serious personnel conflicts, and the evidence indicated to them that Petitioner was at the heart of the discord. Based on these established facts, Petitioner did not prove “pretext.”
In sum, to establish discrimination, Petitioner attempts to broadly connect Publix’s “adverse actions” to the fact that she is of East Indian and Asian origin. However, the evidence and testimony in the record does not, either directly or circumstantially, link the frustrations Petitioner experienced in her workplace with actual discriminatory animus or
retaliation. On the contrary, Publix credibly and persuasively explained that its employment decisions were solely based on the personality conflicts between Petitioner and other Publix employees. The undersigned’s function is not to “second-guess the wisdom of an employer’s decisions.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Instead, the undersigned is charged to determine the employer’s motivation. In this matter, the preponderance of the evidence in the record does not tie the manner in which Publix handled Petitioner’s conflicts with her co-workers to a discriminatory or retaliatory animus. Consequently, Petitioner failed to meet her ultimate burden of proving that Publix discriminated against her based on her race, color, or national origin or in retaliation for her complaint filed with the Commission. Accordingly, Petitioner’s Petition for Relief must be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Michele J. Edwards, did not prove that Respondent, Publix, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice.
DONE AND ENTERED this 24th day of March, 2020, in Tallahassee, Leon County, Florida.
S
J. BRUCE CULPEPPER Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings this 24th day of March, 2020.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020 (eServed)
John Bateman, Esquire Publix Supermarket, Inc. Post Office Box 407 Lakeland, Florida 33802
Michele Judith Edwards 3131 Galiot Road
Venice, Florida 34293 (eServed)
Christine E. Howard, Esquire Fisher & Phillips LLP
Suite 2350
101 East Kennedy Boulevard Tampa, Florida 33602 (eServed)
Brett Purcell Owens, Esquire Fisher & Phillips, LLP
Suite 2350
101 East Kennedy Boulevard Tampa, Florida 33602 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 24, 2020 | Recommended Order | Pet. failed to prove that Resp. discriminated against her based on her race, color, or national origin, or in retaliation for her protected activity. Further, Resp. presented a legitimate, non-discriminatory reason for its employment actions. |
