STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 24, 2021, by Zoom conference before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Annette Y. Johnson, pro se

635 Luna Court

Jacksonville, Florida 32205 For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Petitioner demonstrated that she was terminated from employment by Respondent, Trend Offset Printing Company (Respondent or Trend), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to an unlawful employment practice.

PRELIMINARY STATEMENT

On September 14, 2020, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission) in which she alleged that:

I am being discriminated against because of my age (65), gender (female), race (African American) and in retaliation for complaining about improper conduct.

I was employed for over 15 years as a Laborer/General Helper at Trend Offset Printing. On or around September 28, 2019, after I clocked out of work, I took a box out of the trash at work to use to take vegetables to my aunt. I grabbed the box at the end of my shift during a rush. I needed to place vegetables that I had left in my refrigerator in a box because the bags of vegetables had broken open. Unfortunately, I didn't realize that there was a cell phone in the box that I took out of the trash until after I removed my vegetables from the bag at my aunt's house. I had my own personal refrigerator at work and I stored the vegetables in my refrigerator.

Apparently, the cell phone was in the box that was discarded in the trash. Upon my return to work, I immediately turned the phone in and advised the supervisor that day, Doug, of the matter. A few days later the Human Resources Manager accused me of theft and discharged me. I was replaced by someone outside of my protected age and gender category. I later learned that a younger black male, about in his late 20’s, was hired as my replacement. To add, Laura LNU (white female, age - 40), committed a terminable offense by walking off the job. Unlike me, Laura was never disciplined, and she was allowed to return to work. I was not granted the same opportunity. In retrospect, I was falsely accused of an infraction that I did not commit.

I believe my employer discharged me because of my age (65), in violation of the Age Discrimination in Employment Act of 1967, as amended (ADEA), my gender, and in retaliation.

Two employees in the Shipping Department had a sexual affair outside of marriage. Their names were Justin (Black/male) and Ashley (White/female). Ashley became pregnant and Justin gave her money to pay for her abortion. Justin had first asked me if I would have sex with him and I told him "No," that I did not do such things. I complained to Syd Guevarra, Human Resource

Manager about their relationship and Justin's comments to me. I also observed threatening conduct by Antionne Johnson toward Justin. I complained to Frank Newsom, Shipping Department Supervisor about Antionne's conduct. I was terminated in retaliation for complaining about this situation.

I received a letter (attached) that was dated October 2, 2019 informing me that I was terminated.

Petitioner checked the boxes on the complaint form for race, sex, age, and retaliation as the causes of discrimination.

On March 12, 2021, the Commission issued a “Determination: No Reasonable Cause,” by which it determined that no reasonable cause existed to believe that Respondent engaged in an unlawful employment practice involving Petitioner.

Petitioner filed a Petition for Relief, which was referred to DOAH for disposition, and assigned to the undersigned. The final hearing was scheduled for June 24, 2021, by Zoom conference.

On March 21, 2021, Alex Desrosiers, an attorney with the Fisher & Phillips LLP law firm, who had represented Respondent during the Commission investigation, filed a notice of non-representation, indicating that his representation ceased prior to the filing of the Petition for Relief, and that he would not be representing Respondent in this matter. Mr. Desrosiers was allowed to withdraw, and all further pleadings were served on Respondent at its address of record.

At the hearing, Petitioner testified on her own behalf. Petitioner’s Exhibit 1, consisting of her letter of discharge, was received in evidence. Despite the matter being properly noticed, and having had no notices returned, Respondent did not make an appearance.

The hearing was not transcribed. Ms. Johnson submitted post-hearing documents on June 28, 2021.

References to statutes are to Florida Statutes (2019), which were those in effect at the time the alleged acts of discrimination occurred, unless otherwise noted.1

FINDINGS OF FACT

1. Respondent is, purportedly, a printing company located in Jacksonville, Florida. Specific information as to the company is limited, since the company did not appear at the final hearing. Based on Petitioner’s testimony, it is inferred that Respondent meets the definition of an employer in section 760.02(7), Florida Statutes.

2. On Saturday, September 28, 2019, the printing plant was open, though the office was closed for the weekend. Petitioner was at work that day.

3. On September 28, 2019, Petitioner had some vegetables that she had placed in a personal refrigerator that she kept at work. She intended to take the vegetables to her aunt. Several of the bags in which the vegetables had been placed had broken open. Therefore, after she clocked out of work, Respondent took a box from a trash receptacle located on the plant floor in which to place the vegetables.

4. Unbeknownst to Petitioner, there was a cell phone in the discarded box. She loaded the box, and took it to her aunt’s house. Upon arrival, Petitioner unloaded the box and, at that time, discovered the phone at the bottom. The screen of the phone was cracked and broken. There was no evidence as to how or when the phone was damaged, nor was there any evidence that Petitioner was responsible for the phone’s condition.

5. Petitioner’s aunt recommended that Petitioner discard the damaged phone.

   Petitioner, wanting to ensure that the phone was returned to its rightful owner,

   
   

   1 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.

   regardless of its condition, decided to return the phone on Monday, September 30, 2019, when the office would be open.

6. Upon her return to work on Monday, September 30, 2019, Petitioner immediately turned in the phone to her supervisor, and accurately explained the circumstances of how it came into her possession.

7. On October 2, 2019, Petitioner was presented with a letter of termination from

   Respondent’s Human Resources Manager, which provided that:

   
   

   After reviewing the pertinent evidence on the evening of Sept 28th, 2019, we have determined to terminate your employment with Trend Offset Printing immediately. Any remaining hours worked and any unused vacation hours will be paid out in full on our next payroll cycle, Oct 11th, 2019. Those worked hours and unused vacation hours will be paid as directed via direct deposit or physical check.

   
   

   I've tried to reach out to you several times but unable to leave a message.[2] Please make arrangements with me to pickup any personal belongings that you may [sic]. If we don't hear from you in a reasonable time your personal belongings will be discarded.

   
   

8. The evidence in this case establishes that Petitioner did nothing to warrant her termination. It is unreasonable to think that Petitioner would steal a phone, and then return it at the earliest opportunity. She had no desire or use for a cell phone. She did not try to use it. She had no idea to whom it belonged. That the phone ended up in her possession was entirely accidental. Though there was no evidence as to how or why the phone ended up in the box in the trash, the condition of the phone suggests that it may have been discarded by its owner. In any event, the evidence was persuasive that Petitioner did not intentionally take the phone.

   
   

   2 The difficulty in reaching Petitioner may have been due to the fact that she did not own a cell phone, did not want a cell phone, and, according to both Petitioner and her sister, did not know how to use a cell phone.

9. The letter of termination was vague, unusually and unnecessarily harsh, and not based on fact. Petitioner testified, for good reason, that “they didn’t treat me fair, at all.” However, Petitioner did not testify or present evidence at the hearing that Respondent’s action was based on discrimination due to race, sex, or age, or was the result of retaliation. As will be discussed herein, the failure to prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the jurisdictional element of an unlawful employment practice complaint.

   CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2021).

11. Section 760.11(1) provides that “[a]ny person aggrieved by a violation of

    ss. 760.01-760.10 may file a complaint with the [C]ommission within 365 days of the

    alleged violation.” Petitioner timely filed her complaint.

12. Section 760.11(7) provides that upon a determination by the Commission that there is no probable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, “[t]he aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause.” Following the

    Commission’s determination of no cause, Petitioner timely filed her Petition for Relief requesting this hearing.

13. Chapter 760, Part I, is patterned after Title VII of the Civil Rights Act of 1964, as amended. When “a Florida statute is modeled after a federal law on the same subject, the Florida statute will take on the same construction as placed on its federal prototype.” Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

14. Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See St. Louis v. Fla. Int’l Univ., 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. Dep’t of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

15. With regard to Petitioner’s claim of discrimination, section 760.10 provides, in pertinent part:

    1. It is an unlawful employment practice for an employer:

       
       

       (a) 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.

       
       

16. With regard to Petitioner’s claim of retaliation, section 760.10(7) provides, in pertinent part:

    (7) It is an unlawful employment practice for an employer

    . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

    Thus, the alleged retaliation must be for a reason that is subject to protection under the Florida Civil Rights Act, i.e., race, color, religion, sex, national origin, age, handicap, or marital status.

17. An action pursuant to the Florida Civil Rights Act may not be predicated on whether an employment decision is fair or reasonable, but only on whether it was motivated by unlawful discriminatory intent. It is well established that “[a]n ‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’” City of Hollywood v. Hogan, 986 So. 2d 634, 645 (Fla. 4th DCA 2008). In a proceeding under the Florida Civil Rights Act, “[w]e are not in the

    business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). Moreover, “[t]he employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.” Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1187 (Fla. 1st DCA 1991).

18. The evidence in this case is clear that Petitioner did not steal the cell phone she was accused of taking. The cracked and broken cell phone in the discarded box was not known to her. As soon as she discovered the cell phone while unpacking her vegetables with her aunt, she decided to return it, and did so at her first opportunity. That Respondent chose to terminate Petitioner based on the unsubstantiated theft was, as set forth in Hogan, “a bad reason, [or] a reason based on erroneous facts.” Nonetheless, the evidence was insufficient to find that the

    reason was discriminatory based on Petitioner’s race, sex, or age.3

19. The evidence was not sufficient to support a conclusion that Petitioner opposed any practice which is defined as an unlawful employment practice under chapter 760, or because she participated in an investigation, proceeding, or hearing under section 760.10. Thus, it is concluded that Petitioner failed to prove that her termination was on the basis of retaliation within the ambit of the Florida Civil Rights Act.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

3 Petitioner requested, as relief, that she be reinstated to her previous job with Respondent, because she loved working with her co-workers, who she described as family; and that her name be cleared of the unwarranted allegation of theft. Due to the outcome of this proceeding, the undersigned is

unable to recommend Petitioner’s reinstatement. However, this Order is intended, and should be treated, as determining that Petitioner engaged in no theft, or any other conduct vis-á-vis the cell phone, that warranted her termination.

RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Annette Johnson’s Petition for Relief, FCHR

No. 202126948.

DONE AND ENTERED this 8th day of July, 2021, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 8th day of July, 2021.

COPIES FURNISHED:

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.

Docket for Case No: 21-001300

Orders for Case No: 21-001300