STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TANYA BAXLA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4360

) FLEETWOOD ENTERPRISES, INC., d/b/a ) FLEETWOOD HOMES OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on March 17-18, 1997, in Winter Haven, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tanya Baxla, pro se

2204 Ivey Lane

Lakeland, Florida 33801

For Respondent: Charles A. Powell IV, Esquire

Zinober and McCrea, P.A.

201 East Kennedy Boulevard, Suite 850 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated against Petitioner on the basis of Petitioner's gender and national origin by engaging in the adverse employment actions alleged in the Charge Of Discrimination and Petition For Relief.

PRELIMINARY STATEMENT

On September 23, 1995, Petitioner filed a Charge of Discrimination with the Florida Commission On Human Relations (the "Commission"). The Charge of Discrimination alleged that

Respondent harassed, coerced, and intimidated Petitioner on the basis of her gender and national origin.

The Commission entered a Notice Of Determination on July 31, 1996. The Commission found no cause to support the Charge of Discrimination.

On August 13, 1996, Petitioner filed a Petition For Relief with the Commission (the "Petition"). On September 11, 1996, the Commission referred the Petition and Charge of Discrimination to the Division of Administrative Hearings to conduct an administrative hearing.

Prior to the hearing, the parties entered into a prehearing stipulation. They stipulated to 28 uncontested factual issues that are included in paragraphs 1-11 of this Recommended Order.

Petitioner listed 39 witnesses and 32 exhibits she intended to call and submit at the hearing. In several subpoenas Duces tecum, Petitioner identified additional documents she intended to submit at the hearing, including the personnel files of dozens of Respondent's employees. Respondent listed 15 witnesses and 39 exhibits in the prehearing stipulation.

The prehearing stipulation identified several disputed issues of fact. Other disputed issues of fact were identified in the Charge of Discrimination and in the evidence presented at the hearing. The disputed issues of fact generally involve employment action regarding: Petitioner's failure to meet daily production requirements, or "time-out requirements"; light duties assigned to

Petitioner while she was injured; a camera that Petitioner brought to work without permission; a lost tool used by Petitioner in her job; and multiple accidents on the job.

The factual issues regarding light duties, the camera at work, and multiple accidents are identified in the Charge of Discrimination. The parties stipulated to the factual issues regarding time-out requirements in the prehearing stipulation.

Petitioner raised the lost tool issue at the hearing, over the objection of Respondent.

At the hearing, Petitioner was not represented by counsel.

Judge William Cave, the Administrative Law Judge first assigned to conduct the hearing, had previously entered an order denying Petitioner's request to appoint her husband as her qualified representative. Petitioner's husband assisted Petitioner in prehearing preparation.

At the hearing, Petitioner renewed her request to appoint her husband as her qualified representative. The request was denied because the order of Judge Cave was the law of the case.

After a few attempts by Petitioner to participate in the hearing, it became clear to the undersigned that Petitioner needed an interpreter if the hearing was to be concluded within the two days scheduled to conduct the hearing. The undersigned appointed Petitioner's husband as her interpreter, and Petitioner's husband was sworn in as the interpreter. Petitioner's husband assisted Petitioner during the hearing as her interpreter.

At the hearing, Petitioner presented the testimony of five witnesses. She submitted 10 exhibits for admission in evidence.

After Petitioner presented the testimony of one witness, Petitioner requested a continuance in order to obtain counsel. The request was denied.

Petitioner proceeded to present the testimony of four additional witnesses and repeatedly renewed her request for a continuance to obtain counsel. The renewed requests were denied.

Petitioner had ample time to obtain counsel before the hearing on March 17-18, 1997. The Commission referred the matter to the Division of Administrative Hearings on September 11, 1996. A notice of hearing was issued on November 14, 1996, scheduling the hearing for January 27, 1997. The hearing was continued twice and finally conducted on March 17 and 18, 1997.

A continuance would have caused undue inconvenience to the witnesses. The parties had 54 witnesses ready to testify at the hearing. Most of those witnesses were Respondent's employees. At least one of the witnesses traveled more than 100 miles to attend the hearing. The witnesses arranged their work and leave schedules so that they would be available to testify at the hearing.

A continuance would have caused undue inconvenience and expense to Respondent. Respondent incurred the expense of a conference room at a hotel near its employees so that its employees could testify over two days without a complete shutdown of plant

production during the hearing. Most of the employees scheduled to testify at the hearing were Petitioner's witnesses.

After Petitioner's final request for a continuance was denied, Petitioner stated she would submit no further evidence.

Thereafter, Petitioner cross examined four of Respondent's witnesses and submitted 10 exhibits for admission in evidence.

Respondent presented the testimony of 6 witnesses. Respondent submitted 21 exhibits for admission in evidence.

The identity of the parties' witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on April 7, 1997. Pursuant to Respondent's motion, the time for filing proposed recommended orders ("PROs") was extended to May 2, 1997.

Respondent timely filed its PRO on May 1, 1997. Petitioner retained counsel to write and submit Petitioner's "first" PRO. Petitioner's counsel filed the first PRO on May 2, 1997.

On May 9, 1997, Petitioner filed Petitioner's Request For Transcript Correction ("Request For Correction") and another PRO (the "second" PRO). In the Request For Correction, Petitioner states that she discharged her attorney because counsel did not effectuate the transcript correction sought by Petitioner.

On May 14, 1997, Petitioner's counsel filed a Motion To Withdraw As Counsel For Defendant (the "Motion To Withdraw"). The Motion To Withdraw represents that Petitioner has no objection to the withdrawal. The Motion To Withdraw is granted.

On May 19, 1997, Ms. Cindy Lucia, Vice President of Associated Court Reporters of Palm Beach County, Inc., filed a letter dated May 14, 1997. The letter addresses some of the issues raised by Petitioner in the Request For Correction.

On May 20, 1997, Respondent timely filed Respondent's Opposition To Petitioner's Request For Transcript Correction ("Respondent's Opposition"). Florida Administrative Code Rule 60Q-

1. (unless otherwise stated, all references to rules are to final rules promulgated in the Florida Administrative Code as of the date of this Recommended Order). The Request For Correction is denied for the reasons stated in Respondent's Opposition.

   Respondent's Opposition requests the undersigned to reject the second PRO as untimely and to dismiss Petitioner's claim.

   Respondent's requests are denied.

   In the second PRO, Petitioner requests compensatory damages of

   $1,000,000 and compensatory damages for her husband for ". . . pain, suffering, mental anguish, character assassination and loss of spouse's duties. . . ." The second PRO also requests $50,000 in fees for Petitioner's husband. Petitioner's requests for compensatory damages for herself and her husband and for fees for her husband are denied for lack of jurisdiction and for other reasons stated in Respondent's Opposition.

   FINDINGS OF FACT

   1. Respondent is engaged in the business of manufacturing and selling mobile homes. Respondent operates in several locations in the state with a substantial number of employees.

   2. Respondent maintains a progressive discipline policy. The policy progresses from counseling or verbal reprimand, to written reprimand, to suspension, and then to termination.

   3. Respondent prohibits discrimination, including that based on national origin and gender. The prohibition against discrimination and the progressive discipline policy, are published in an employee handbook and posted by the time clock at each plant.

   4. Petitioner is female and Vietnamese. Respondent first employed Petitioner in 1982. Since then, Petitioner has worked in the Molding Department doing trim work (a "molder").

   5. Petitioner has not applied for any promotions with Respondent. Petitioner has not lost any pay as a result of the alleged discriminatory conduct by Respondent. Petitioner is paid comparably with other employees in her department.

   6. Mr. Matt Minter, Respondent's Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Minter has never taken any employment action against Petitioner on the basis of Petitioner's gender or national origin.

   7. Mr. Larry Godair, Respondent's Assistant Production Manager, has never made any reference to Petitioner's gender or

      national origin. Mr. Godair has never taken any employment action against Petitioner because of her gender or national origin.

   8. None of Respondent's other employees have ever made a specific reference to Petitioner's national origin. None of those employees have taken any employment action against Petitioner because of her gender or national origin.

   9. Petitioner fell at work and bruised her knee on November 16, 1996. Respondent completed an accident report for the injury.

   10. Due to various injuries, Respondent assigned Petitioner to light duty at different times during her employment. The light duties included filing, painting, and cleaning up the parking lot. Respondent assigns the same light duty work to both male and female employees.

   11. Mr. Lydon Allred, Respondent's Utility Supervisor, gave Petitioner a written reprimand for bringing a camera to work. The reprimand was not issued because of Petitioner's gender or national origin.

1. Time-out Requirements

   1. Respondent prescribes the time in which each day's quota of finished goods should be out the factory door and ready for market ("time-out requirements"). Personnel who fail to meet time- out requirements without good cause are subject to discipline.

   2. Mr. Allred issued two separate written reprimands to Petitioner because she failed to meet her time-out requirements

      without good cause. Mr. Allred did not issue either reprimand because of Petitioner's gender or national origin.

   3. Mr. Allred issued written reprimands to other members of the molding department. At the time, all other members of the molding department were female and U.S. citizens. Prior to the written reprimands, Mr. Allred issued verbal warnings to Petitioner and the other members of her department for failure to meet time- out requirements without good cause.

   4. Ms. Patricia Pipkin is the Assistant Supervisor for Respondent's molding department. She has been Petitioner's direct supervisor for several years.

   5. Ms. Pipkin issued two written warnings to Petitioner for failure to meet her time-out requirements without good cause. On both occasions, Ms. Pipkin issued written warnings to other employees in the molding department.

   6. The other employees were female and U.S. citizens. Ms. Pipkin did not discipline Petitioner because of her gender or national origin.

   7. Ms. Pipkin has never heard Mr. Minter threaten to terminate Petitioner or to make an example of her. Mr. Minter has never engaged in either act.

2. Light Duty Assignments

   1. Petitioner had multiple accidents on the job that required her to perform light duties consistent with the restrictions prescribed by her health care provider. Respondent

      gave Petitioner light duties including office work and clean up such as picking up trash, nuts, and bolts in the parking lot.

   2. Mr. Godair assigned light duties to employees from April, 1994, through July, 1995. Light duties routinely included office work and clean up in and around the plant. Clean up included picking up nuts and bolts in the parking lot and painting.

   3. Mr. Godair did not consider the national origin or gender of employees when assigning light duties. The only criteria Mr. Godair considered were the restrictions placed on each employee by his or her health care provider.

   4. Mr. Godair sometimes contacted the treating physician for clarification and further direction before assigning light duty tasks. On one occasion, Mr. Godair clarified Petitioner's light duty restrictions with her treating physician.

   5. Mr. Godair's clarification of light duty restrictions for Petitioner was not motivated by Petitioner's national origin or gender. Petitioner never complained to Mr. Godair that she was being treated differently from other employees in connection with her light duty assignments.

   6. Respondent did not consider Petitioner's national origin or gender in assigning light duties to Petitioner. Respondent did not treat Petitioner differently from other employees with similar medical restrictions.

   7. Mr. Glen Combs is male, a U.S. citizen, and supervises

      the carpet department. He was restricted to light duty on at least one occasion.

   8. Respondent required Mr. Combs to pick up trash in the parking lot including screws, nuts and bolts, and paper. Respondent also required Mr. Combs to paint indoor and outdoor areas of the Auburndale plant.

   9. Mr. Steven Wade is male, a U.S. citizen, and a cab setter for Respondent. He was restricted to light duty on two occasions.

   10. Mr. Wade's light duty assignments included picking-up screws and painting lines in the parking lot. Mr. Wade also painted a number of other areas in the Auburndale plant including interior walls, racks, and the floor. Mr. Wade's light duty assignments sometimes required him to use a latter.

   11. Mr. Robert Peterson is male and a U.S. citizen. He is a former employee of Respondent and was restricted to light duty on one occasion during his employment.

   12. Mr. Peterson's light duty assignments included front office tasks and yard duties. Yard duties included picking up debris and metal objects in the parking lot.

3. Cameras At Work

   1. Respondent's policies and procedures prohibit cameras at work without the permission of management. Appendix D of the employee handbook in Plant Work Rule No. 17 prohibits, ". . . cameras on the premises without authorization from management."

   2. The purpose of the prohibition against cameras is to

      protect production processes that Respondent believes provide a competitive advantage. All employees, including Petitioner, receive a copy of the employee handbook, including Appendix D.

   3. Respondent maintains a model home center in Plant City, Florida. On one occasion, Respondent instructed Petitioner and Ms. Evelyn Scott to set up a model home at the Plant City facility.

   4. Ms. Scott is a molder who works with Petitioner. She is female and a U.S. citizen.

   5. Petitioner took a camera to the Plant City facility and took pictures without the permission of management. The action violated Respondent's policy and procedures.

   6. Mr. Allred gave Petitioner a written warning for bringing the camera to work. Mr. Allred gave Ms. Scott a verbal warning and counseled her because she did not actually bring the camera to work. Neither Petitioner nor Ms. Scott photographed any production process that gives Respondent a competitive advantage.

   7. Mr. Allred has worked for Respondent for approximately 16 years. During that time, Mr. Allred has been Petitioner's immediate supervisor as the Assistant Supervisor and Supervisor of the Molding Department. Mr. Allred never took any employment action against Petitioner because of her gender or national origin.

4. Lost Tools

   1. Respondent owns the tools that employees use in the performance of their duties. Respondent requires employees who lose tools to pay for the tools.

   2. Petitioner lost a tool on the job, and Respondent required her to pay for it. Respondent did not require Petitioner to pay for the tool because of her gender or national origin.

   3. Other employees required to pay for lost tools include Eric Mitchell, Chris Spring, Mike Church, Pat Gay, David Scott, Bob Barker, Rosa Linda, Keith Johnson, Scott Pollard, Randall Huggins, Robert Allen, and Eugene West. Those individuals are male and U.S. citizens except for Ms. Linda who is female Hispanic.

5. Multiple Accidents

1. Respondent applies its progressive discipline policy to employees involved in multiple accidents. A safety committee composed of employees from each area of a plant investigates each accident. The committee prepares an accident investigation report and recommends appropriate disciplinary action, if any.

2. Petitioner has had multiple accidents on the job. When Respondent began applying its progressive discipline policy to employees with multiple accidents, Mr. Minter met with Petitioner because he was concerned about Petitioner's accident history and wanted to make sure she understood the new policy as well as existing safety policies, procedures, and rules.

3. Mr. Minter did not give Petitioner a verbal warning concerning her accident history. He did not threaten Petitioner's job if she had one more accident or threaten to make an example of Petitioner. Mr. Minter did not take any employment action against Petitioner because of her gender or national origin.

   CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated). The parties were duly noticed for the administrative hearing.

5. The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that she was discriminated against because of her gender or national origin through the adverse employment actions alleged in the Charge of Discrimination, the Petition, and in the parties' prehearing stipulation. St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993); Brand v. Florida Power Corp., 633 So.2d 504, 507 (Fla. 1st DCA 1994); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

6. State and federal statutes control the resolution of employment discrimination cases. State statutes are promulgated in Chapter 760. Federal statutes are in Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq ("Title VII").

7. Chapter 760 and the federal statutes are similar. This case is properly resolved under applicable Title VII standards. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991); Fredette v. BVP Management Associates,

   905 F. Supp. 1034, 1037 (M.D. Fla. 1995); Greenfield v. City of

   Miami Beach, Fla., 844 F.Supp. 1519, 1524 n.1 (S.D. Fla. 1992).

8. Petitioner must make a prima facie showing of discrimination. Texas Dept. of Community Affairs v. Burdine, 450

   U.S. 248, 101 S.Ct. 1089 (1981); McDonnell Douglas Corp. v. Green,

   411 U.S. 792, 93 S.Ct. 1817 (1973). If Respondent articulates a non-discriminatory reason for its employment action, Petitioner has the burden of proving that the reason articulated by Respondent is pretextual. Burdine, 450 U.S. at 245-255, 101 S.Ct. at 1094-1095; McDonnell, 411 U.S. at 804-805, 93 S.Ct. at 1825-1826.

9. A prima facie case of discrimination requires Petitioner to prove that: she is a member of a protected group; an adverse employment action took place; Petitioner and a similarly situated non-protected person received dissimilar treatment; and sufficient evidence exists to infer a causal connection between Petitioner's protected status and the disparate treatment. McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824; Clemons v. Hardee County School Board, 848 F.Supp. 1535, 1538 (M.D. Fla. 1994).

10. Petitioner must present a prima facie case for each element of her case. Rollins v. Tech South, Inc., 833 F.2d 1525, 1528 (11th Cir. 1988). Petitioner must make a prima facie case of discrimination on the basis of her gender and her national origin. Samuelson v. Durkee/French Airwick, 760 F.Supp. 729, 735 (N.D. Ind. 1991), aff'd, 976 F.2d 1111 (7th Cir. 1992).

11. It is undisputed that Petitioner is a member of a

    protected class. She is female and Vietnamese.

12. The evidence does not show that Respondent harassed, coerced, or intimidated Petitioner in any way including the employment actions regarding time-out requirements, the camera incident, the lost tool, light duties, and multiple accidents. The evidence does not show that Respondent undertook any employment action because of Petitioner's gender or national origin.

13. The evidence shows no adverse employment action against Petitioner other than Respondent's discipline of Petitioner for failure to meet time-out requirements, bringing a camera to work, and arguably requiring Petitioner to pay for a lost tool. The light duty assignments and counseling for multiple accidents did not constitute discipline.

14. Petitioner failed to present any evidence that she and a similarly situated non-protected employee received dissimilar treatment. Other employees, including non-protected employees, were routinely disciplined for failure to meet time-out requirements and were required to pay for lost tools. The type of discipline given to those employees was consistent.

15. Respondent required other employees and Petitioner to perform similar light duties. Other employees picked up bolts in the parking lot, painted, and filed in the office.

16. Even if Petitioner had shown disparate treatment, Petitioner failed to show a causal connection between the disparate treatment and her protected status. Petitioner presented no

    evidence that the actions complained of were in any way connected to her gender or national origin.

17. The evidence shows that Respondent disciplined Petitioner for legitimate, non-discriminatory reasons in accordance with its progressive discipline policy. Petitioner failed to show that the reasons given by Respondent were pretextual.

18. Respondent may take employment action against Petitioner for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all as long as such employment actions are not undertaken for a discriminatory reason. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). Petitioner failed to show that Respondent undertook any employment action against Petitioner for a discriminatory reason.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of her gender or national origin.

RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997

COPIES FURNISHED:

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-0700

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-0700

Tanya Baxla, pro se 2204 Ivey Lane

Lakeland, Florida 33801

Charles A. Powell IV, Esquire Zinober and McCrea, P.A.

201 East Kennedy Boulevard, Suite 850 Tampa, Florida 33602

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: 96-004360

Orders for Case No: 96-004360