vs.
Respondent.
Case No. 20-4826
The final hearing in this matter was conducted before Administrative Law Judge Jodi-Ann V. Livingstone of the Division of Administrative Hearings (DOAH), on February 5, 2021, by Zoom Conference.
For Petitioner: Zandro E. Palma, Esquire
Zandro E. Palma, P.A.
For Respondent: Suzanne M. Boy, Esquire
Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408
The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
On or about April 13, 2020, the Florida Commission on Human Relations (FCHR) received a Technical Assistance Questionnaire for Employment Complaints from Petitioner in which she alleged the following:
I was the housekeeper for this broadcasting company where my job functions where to clean throughout the build. My daily routine consisted of mopping, sweaping, vacumming, restocking essentails, taking out trash, & maintaining the bathrooms/break area. Monday through Friday. I performed these functions between 9am to 6pm. One day while taking out the trash I stained my lower back and the trash was the last thing I would take out after collecting it thoughout the building. With in that week I went to the doctors because the pain was intense and I couldnt manage to carry the weight of 6-10 bags trash. My doctor issues me some pain meds and gave me a work accommodation letter. When I returned to work the following day I gave the letter to HR & also to Mike Mayne who was my dept supervisor at the time. Within a week and a half later Mike Mayne began to pressure me about the trash being taken out & was asking for an undated letter from my primary doctor. For that time being he got 3-4 men to take out the trash while I was unable too. I told him I would get one soon which I did dated 4/18/2019 and shortly after I was terminated 4/23/2019 because I supposedly couldnt perform the job duties and the main reason was because I couldnt take out the trash. Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me. (errors in original).
On September 29, 2020, FCHR notified Ms. Rivera that no reasonable cause existed to believe that FMBC committed an unlawful employment practice.
On October 29, 2020, Ms. Rivera filed a Petition for Relief with FCHR in which she alleged the following:
Petitioner believes that her Charge of Discrimination was not prepared correctly. When Petitioner initiated her claims with FCHR, she was complaining about sexual harassment and a work related injury. However it appears that the original charge focused on the disability discrimination rather than on sexual harassment. The fact is that Respondent’s employee Mr. Mayne, was sexually harassing the Petitioner as admitted in Respondent’s Position Statement. It is clear that Mr. Mayne created a hostile working environment for the Petitioner and retaliated against her for not welcoming his sexual advances. Also, Mr. Mayner [sic] continued to sexually pursue the Petitioner, that he continued sexually harassing the Petitioner even after the harasser Mr. Mayne had fired the Petitioner. Mr. Mayne continue to pursue a sexual relationship with Petitioner and went as far as sending pornographic photos of himself to the Petitioner.
The Petition for Relief alleged Ms. Rivera was the victim of sexual harassment by Respondent’s employee, Michael Mayne (Mr. Mayne), and that Mr. Mayne retaliated against her for not welcoming his sexual advances. FCHR transmitted the Petition for Relief to DOAH to conduct an evidentiary hearing.
On January 29, 2021, the parties filed a Joint Pre-Hearing Stipulation (Stipulation) that contained a statement of admitted and stipulated facts and conclusions of law, for which no further proof or argument would be necessary. Those stipulations have been incorporated into the Findings of Fact and Conclusions of Law below, to the extent necessary. In the Stipulation, and later at the final hearing, Petitioner confirmed that
Ms. Rivera’s claims are based solely on allegations of sexual harassment and retaliation, not disability discrimination.
At the final hearing, Ms. Rivera testified on her own behalf and called Imari Porter as her sole witness. Petitioner’s Exhibit A was admitted into evidence. Respondent called Joseph Schwartzel, Mr. Mayne, and Karen Seiferth as witnesses. Respondent’s Exhibits R1 and R5 were admitted into evidence.
At the close of the hearing, the parties requested a 20-day timeframe following DOAH’s receipt of the hearing transcript to file post-hearing submittals. On March 15, 2021, the court reporter filed a one-volume Transcript of the final hearing with DOAH. On March 29, 2021, the parties filed a Joint Motion for Extension of Time to File Proposed Order. The undersigned granted the joint motion, extending the time to submit proposed recommended orders to April 19, 2021. FMBC timely submitted Respondent’s Proposed Recommended Order. Petitioner’s Proposed Recommended Order was untimely filed on April 20, 2021. Both Orders were duly considered in preparing this Recommended Order.
FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida.
For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs.
In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel.
After the discussion, the management team decided to terminate
FMBC’s contract for outside custodial services and hire an in-house
custodian. General Manager Joseph Schwartzel was the final decision maker on this matter.
In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming.
Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer.
During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct
supervisor.
Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time.
FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion.
Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance.
In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable.
In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds.
FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the
dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash.
In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is
Ms. Rivera’s sister.
In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker.
Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows:
Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it.
On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her.
The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera.
FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations
Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC.
Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.”
Ms. Rivera also testified that Mr. Mayne frequently asked her “to go
out for drinks” and that she perceived those invitations as sexual advances.
Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC.
Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne.
Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC.
Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her
complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory.
The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original).
Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC.
Ultimate Findings of Fact
Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible.
Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment.
Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC 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.
Ms. Rivera alleges that Respondent’s employee, Mr. Mayne, sexually harassed her and retaliated against her for not welcoming his sexual
advances and refusing to engage in sexual relations with him, in violation of the FCRA.
Section 760.11(7) permits a party for whom FCHR determines that there is no 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).
Respondent is an “employer” within the meaning of the FCRA.
§ 760.02(7), 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).
The FCRA prohibits discrimination in the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section 760.10(1)(a) states that 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 does not mention sexual harassment. Nevertheless, courts have recognized that the phrase “terms, conditions, or privileges of employment” evinces an intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
There are two types of sexual harassment cases: (1) quid pro quo
cases, which are “based on threats which are carried out” or fulfilled; and
(2) hostile environment cases, which are based on “bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998). In the instant case, Ms. Rivera alleges she was subjected to both hostile work environment and quid pro quo sexual harassment.
Hostile Work Environment
In order to establish a case of hostile work environment sexual harassment by her supervisor, Ms. Rivera must show that: (1) she is a member of protected group; (2) she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on her sex; (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) that FMBC knew or should have known about the harassment and took insufficient remedial action, and as such, should be held liable. Maldonado v. Publix Supermarkets, 939 So. 2d 290, 293-94 (Fla. 4th DCA 2006).
Ms. Rivera was a member of a protected class. However, Petitioner failed to produce any persuasive evidence to support a prima facie case that
she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, or other conduct of a sexual nature by Mr. Mayne, while employed by Respondent. Petitioner’s testimony on this matter was found to be not credible. Petitioner never mentioned or complained to management about any sexual misconduct by Mr. Mayne until the filing of the Petition for Relief, over a year after she was terminated. The allegations of sexual harassment in the work place were not mentioned in the TAQ.
Ms. Rivera did not establish her hostile work environment claim. Quid Pro Quo Sexual Harassment
In Ellerth, the Court held that the terms “quid pro quo” and “hostile environment” are of “limited utility.” These labels are helpful when determining the threshold question of whether a plaintiff can prove discrimination “to the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general[.]” Ellerth, 524
U.S. at 743.
In quid pro quo sexual harassment cases, the harassment culminates in a “tangible employment action,” such as discharge, demotion, or undesirable reassignment. Ellerth, 524 U.S. at 761-63. If the employee suffered an adverse and tangible employment action as a result of the supervisor’s harassment, then the employer is automatically held vicariously liable. Faragher v. City of Boca Raton, 524 U.S. 775, 790, 807 (1998).
Although Ms. Rivera was ultimately terminated by FMBC, her claim that she was sexually harassed while working for FMBC is not supported by credible evidence. As such, any claim of quid pro quo sexual harassment must also fail.
Retaliation
Ms. Rivera also failed to prove the claim of retaliation. Section 760.10(7) provides, in relevant part:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-
management committee, or a labor organization 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.
Under the McDonnell Douglas analysis, Ms. Rivera has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of unlawful retaliation. See Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53 (2006).
In order to prove a prima facie case of unlawful employment retaliation, Ms. Rivera must establish that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal relationship between the two events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). To establish this causal relationship, Ms. Rivera must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Failure to establish a prima facie case of retaliation ends the analysis. If Ms. Rivera establishes a prima facie case, she would create a presumption of retaliation. At that point, the burden would shift to the employer to articulate a legitimate, non-discriminatory reason for taking the adverse action. Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009). 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 persuasion, to demonstrate to the trier of fact that the decision was non- discriminatory. Id. This burden of production is “exceedingly light.” Holifield
v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997). 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 retaliation disappears. The burden would then shift back to Ms. Rivera to prove that the employer’s proffered reason was not the true reason but merely a “pretext” for retaliation. 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, Ms. Rivera would have to 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 would be unworthy of belief if Ms. Rivera demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Ms. Rivera would have to prove that the reasons articulated were false and that 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.”).
Ms. Rivera has not established a prima facie case of retaliation.
Ms. Rivera claims that she engaged in a protected activity when she objected to and rejected Mr. Mayne’s sexual advances. This argument is rejected because, as set forth above, the undersigned finds that: (1) no sexual harassment occurred while Ms. Rivera was employed by FMBC, and
(2) Ms. Rivera did not complain to anyone at FMBC about any alleged sexual harassment.
Since Petitioner failed to establish a prima facie case of retaliation, Respondent need not make any further arguments. However, even if
Ms. Rivera did establish a prima facie case, FMBC articulated a legitimate, non-discriminatory reason for terminating Ms. Rivera. FMBC wanted to switch back to its long-held system of outsourcing its custodial services.
Ms. Rivera failed to show that FMBC’s reason was pretext for discrimination.
FMBC provided a convincing, legitimate, nondiscriminatory, and non- retaliatory reason for firing Petitioner and Petitioner did not show the reason provided was not worthy of belief.
Conclusion
Ms. Rivera failed to establish that she was subjected to a hostile work environment or quid pro quo sexual harassment, or that she was retaliated against for engaging in a protected activity. Accordingly, Ms. Rivera’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 dismissing Ms. Rivera’s Petition for Relief.
DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida.
JODI-ANN V. LIVINGSTONE
Division of Administrative Hearings this 10th day of May, 2021.
Tammy S. Barton, Agency Clerk
Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500
Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
