BARBARA M. CALLE, )
vs. ) CASE NO. 97-3661
Respondent. )
An administrative hearing was conducted on February 4-5, 1998, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Gary E. Doane, Esquire
For Respondent: Sheila M. Cesarano, Attorney
The issues in this case are whether: Respondent discriminated against Petitioner on the basis of her sex, for the reasons stated in the Charge Of Discrimination and Petition For Relief; Respondent sexually harassed Petitioner; and whether Petitioner's termination from her employment was unlawful because it was an act of retaliation against Petitioner for Petitioner's complaint of sexual harassment.
Petitioner filed a Charge of Discrimination with the Florida Commission On Human Relations (the "Commission") on May 31, 1995. On May 25, 1997, Petitioner withdrew her Charge of Discrimination and filed a Petition for Relief with the Commission. The Commission referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing.
At the hearing, Petitioner testified in her own behalf, presented the testimony of five witnesses, and submitted 11 exhibits for admission in evidence. Petitioner presented the testimony of two of its five witness as deposition testimony filed on March 5, 1998, as late-filed exhibits.
Respondent presented the testimony of five witnesses, and submitted 20 exhibits for admission in evidence. Respondent presented the testimony of one of its five witness as deposition testimony filed on March 11, 1998, as a late-filed exhibit.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript filed on February 25, 1998. Petitioner timely filed her proposed recommended order ("PRO") on March 16, 1998. Respondent timely filed its PRO on March 23, 1998.
Respondent employed Petitioner from March 21, 1991, through December 6, 1994. Respondent employed Petitioner as a food server at the Holiday Inn Maingate Hotel restaurant.
During the period in which Respondent employed Petitioner, Respondent maintained various written policies and procedures that were issued to each food server including Petitioner (the "policy"). In relevant part, the policy required food servers: to write guest food orders on approved guest checks, each of which bore a separate serial number; to give customer discounts only upon request of the customer and approval of management; not to leave cash unattended and displayed at the cash register when the cashier was busy or otherwise not at the cash register; and, at the end of each shift, to account for all cash received and guest checks written during the shift.
Effective on October 13, 1994, Respondent changed the approved guest checks from green to white checks. At the beginning of each shift, Respondent issued numbered guest checks to each server. At the end of each shift, Respondent accounted for each numbered guest check.
In late 1994, Respondent suspected that someone on the night shift at the restaurant was stealing money. Petitioner worked on the night shift and was a suspect.
Respondent asked its director of security to plan and execute a "sting" operation in an attempt to discover the source of the suspected theft. The director hired Mr. Robert Painter to act as a "shopper" as part of the sting operation. The procedure used for the sting operation is a customary investigative procedure within the industry.
On December 2, 1994, the director of security gave Mr. Painter four marked $20 bills. The director instructed Mr. Painter to have dinner at the restaurant and to ask for Petitioner as his server.
On December 2, 1994, Mr. Painter had dinner at the restaurant, accompanied by three other individuals. Petitioner was the server.
The total bill for the dinner exceeded $68. However, Petitioner presented a discounted bill to Mr. Painter in the amount of $59.70.
Neither Mr. Painter nor anyone in his party had requested a discount. The discount was not approved by a manager.
Petitioner presented a green guest check to Mr. Painter. The only thing written on the check was a total of $59.70.
Petitioner did not leave the green guest check on the table for Mr. Painter.
Mr. Painter paid Petitioner with three of the four marked
$20 bills. Petitioner went into the kitchen without going to the cash register first. Petitioner later returned with change for Mr. Painter.
Mr. Painter then reported the events of the night to the director of security. The director prepared a typed statement which Mr. Painter signed.
The director of security then conducted an audit of the cash register. He tracked all of the white guest checks issued to
Petitioner at the beginning of her shift. He counted the money in the register and searched for the marked bills.
The green guest check that Petitioner used for Mr. Painter could not be found. The audit was able to account for all of the white guest checks issued to Petitioner at the beginning of her shift.
An amount of $59.70 had not been entered into the register. The register tape did not include that amount. However, the register did not have more money in it than it should have had if the $59.70 had been placed into the register without ringing up a charge for $59.70.
The director of security interviewed Petitioner in a back room of the restaurant. During the interview, Petitioner claimed to have written the dinner order for the Painter party on a white guest check, which was not found in the audit.
Petitioner also stated that she did not obtain approval by a manager for the discount because a manager was not available.
However, Mr. Jon Joesph, a manager was available when Petitioner gave the discount to Mr. Painter.
The director of security left the interview to return to register and to conduct a further investigation. The director left Petitioner alone with Mr. William Glenn, one of the director's employees.
Mr. Glenn said to Petitioner, "Well, you know, we can solve this problem right now if you just get on your knees under
the table for a few minutes." Mr. Glenn intended the comment to be a joke; a crass and boorish attempt at comic relief.
When the director returned, Petitioner did not mention the comment by Mr. Glenn. The director instructed Petitioner to leave the premises but to return on December 5, 1994, to speak with Glenda Razzano, Director of Human Resources.
On December 5, 1994, Petitioner attended a meeting with Ms. Razzano, the director of security, Mr. Glenn, and Mr. Robert Falk, director of food and beverage and the dining room manager.
At the meeting, Petitioner stated that she had given Mr. Painter a discount without a manager's approval, wrote the Painter order on a blank sheet of paper instead of a guest check, and that she left the money unattended at the register.
Petitioner further stated that she did not violate Respondent's policy. Petitioner asserted that the policy had been modified by practice and that all of her actions complied with the modified policy. Petitioner provided the names of other who would attest to the modified policy.
Petitioner then reported the sexual comment made by Mr. Glenn when the two were alone in the interview room the previous night. Ms. Razzano asked Mr. Glenn if the allegation was true, and Mr. Glenn readily admitted making the statement.
Petitioner did not state that Mr. Glenn had harassed her previously or that she had complained to a manager regarding any harassment by Mr. Glenn. Neither Ms. Razzano nor any other
manager had ever received a complaint from Petitioner alleging that Mr. Glenn was harassing Petitioner.
In his position as a security guard, Mr. Glenn had no supervisory authority over Petitioner. Mr. Glenn had no input in hiring and firing decisions and was not involved in the eventual decision to terminate Petitioner's employment.
Immediately after the meeting, Ms. Razzano questioned Mr. Glenn again about the statement. Mr. Glenn again admitted making the statement but explained it as a bad joke that was consistent with a history of bantering between he and Petitioner. Ms. Razzano accepted Mr. Glenn's explanation as truthful but terminated Mr. Glenn's employment the same day.
The next day, Ms. Razzano continued the investigation of Petitioner by interviewing all of the food servers, including those named by Petitioner, concerning the modified policy described by Petitioner. All of the servers stated that they understood the policy and stated that actual practice did not modify but conformed with the written policy.
Ms. Razzano also interviewed the food and beverage manager, the kitchen supervisor, and the assistant general manager.
Each individual confirmed that actual practice conformed with the written policy.
Ms. Razzano presented the results of her investigation to the general manager, the food and beverage director, and the assistant manager. The decision was made to discharge Petitioner.
On December 6, 1994, Ms. Razzano terminated Petitioner's employment.
Neither Respondent nor any of its employees sexually harassed Petitioner. Respondent had a written policy in force during Petitioner's employment which prohibited sexual harassment.
Any employee who felt that she had been sexually harassed was required to report the incident through Respondent's "feed back" procedure, directly to the general manager, or to the headquarters of Holiday Inn through a published 800 number. Respondent's written policy against sexual harassment was distributed to and signed for by all employees.
Petitioner never reported any incident of sexual harassment by Mr. Glenn or any other employee. The records of Petitioner's mental health consultations since 1989 do not reflect any complaints of harassment, or other negative incidents at work.
The records do indicate that Petitioner was abused as a child and is particularly vulnerable to sexual comments.
Mr. Glenn did make inappropriate comments to two other female employees. One female employee did not report the comments to management. The other female reported the comments to management. The director of security instructed Mr. Glenn to stop his behavior, and the comments to that female employee stopped.
Respondent did not know that Mr. Glenn engaged in any sexual harassment or other inappropriate comments or behavior regarding Petitioner. Respondent did not have reason to know, and should not have known, that Mr. Glenn engaged in any sexual
harassment or other inappropriate comments or behavior regarding Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. 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.
Sections 760.10 (1)(a) and (b), in relevant part, make it an unlawful employment practice for an employer to discharge or otherwise discriminate against a person because of the person's sex. Chapter 760, entitled the Florida Human Rights Act (the "Act"), adopts the legal principles and precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., and the Americans with Disabilities Act, 42
U.S.C. §12101 et seq., (hereafter "ADA").
The law affords no protection from discrimination unless the employer engages in an adverse employment action. Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985); Moriskey v. Broward County, 80 F.3d 445 (11th Cir. 1996). Respondent took adverse employment action against Petitioner by terminating Petitioner's employment. The remaining issues are whether the adverse employment action was taken against Petitioner because of her sex or any other prohibited status or if Respondent sexually harassed Petitioner.
The burden of proof is generally on the party asserting the affirmative of the issue. 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). However, where an employee such as Petitioner fails to submit direct evidence that the adverse employment action was the result of an unlawful motive, the burden of proof shifts between the parties. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).
Petitioner has the initial burden of establishing a prima facie case of discrimination. Rosenbaum v. Southern Manatee Fire and Rescue District, 1997 WL 655974 (M.D. Fla. 1997); Andrade v. Morse Operations, Inc., 946 F.Supp 979, 984 (M.D. 1996).
Petitioner must show by a preponderance of evidence that: she is a member of a protected class; she suffered an adverse employment action; she and other similarly situated non-protected individuals received dissimilar treatment; and sufficient evidence of bias to infer a causal connection between her sex and the disparate treatment. Id. Failure to establish the last prong of the
foregoing conjunctive test is fatal to a claim of discrimination. Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996).
Petitioner made a prima facie showing that she is a member of a protected class and that she suffered an adverse employment action. However, Petitioner failed to make a prima facie showing that she received dissimilar treatment from individuals in a non-protected class, that there was any bias against Petitioner, or that the evidence of bias, if any, was sufficient to infer a causal connection between Petitioner's sex and the alleged disparate treatment.
Petitioner failed to show any dissimilar treatment between herself and individuals in a non-protected class. Petitioner cited three instances in which male employees who violated Respondent's policy were not discharged. However, those employees were not similarly situated in all relevant respects. Holifield v. Reno, 115 F.3d 1555, 1562-1563 (11th Cir. 1997); Floyd Robertson v. Home Depot (U.S.A.), Inc., 1997 WL 53591, 6-7 (S.D. Fla. 1997). All three male employees used green guest checks only a few weeks after Respondent converted to white guest checks and white guest checks were in short supply. Petitioner used a green guest check approximately three months after the conversion when white checks were plentiful. In addition, none of the men used guest checks in instances in which money was missing from the register.
Petitioner failed to make a prima facie case that any manager had a bias against Petitioner. In fact, Petitioner described Ms. Razzano to be fair and friendly. In addition, Petitioner submitted no evidence that Mr. Painter was biased against her. To prove sex discrimination, Petitioner must show that the person taking the adverse employment action had a bias against her. Holifield, 115 F.3d at 1564; Mayfield, 101 F.3d at 1375.
Assuming arguendo that Petitioner had made a prima facie showing of discrimination, Respondent would have to articulate some legitimate, nondiscriminatory reason that it took the adverse employment action against Petitioner. Respondent must show that it took the adverse employment action for legitimate, nondiscriminatory reasons. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094-1095 (1981).
Respondent articulated a legitimate, nondiscriminatory reason for discharging Petitioner. Respondent showed by a preponderance of the evidence that Respondent discharged Petitioner for violating Respondent's policy. A violation of one or more work rules is a legitimate, nondiscriminatory reason for discharging an employee. Holifield, 115 F.3d at 1566.
The burden then shifts back to Petitioner. Petitioner must show by a preponderance of the evidence that the legitimate reasons offered by Respondent are a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Petitioner did not
show by a preponderance of the evidence that the reason articulated by Respondent was a pretext for discrimination.
As previously stated, the alleged dissimilar treatment of three male employees is inapposite to the facts in Petitioner's case. In addition, Petitioner failed to show that Respondent's policy had been modified in practice. Moreover, the preponderance of evidence showed that the policies had not been modified.
Petitioner only once complained of sexual harassment in a manner that complied with Respondent's policy prohibiting sexual harassment. Petitioner did so when she complained to Ms. Razzano at the meeting conducted on December 5, 1994, about the statement made by Mr. Glenn during the investigation the night before.
As a threshold matter, the statement by Mr. Glenn does not constitute "quid pro quo" harassment. Harassment described as "quid pro quo" occurs when a supervisor alters an employee's job conditions as a result of the employee's refusal to submit to sexual demands. Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1315 (11th Cir. 1989). Mr. Glenn was not Petitioner's supervisor. He had no supervisory authority over, could not make decisions affecting her employment, and had no authority to affect the investigation of Petitioner.
Petitioner also failed to show by a preponderance of the evidence that harassment occurred in the form of a hostile environment. Petitioner alleged that previous statements by Mr. Glenn had already created a hostile work environment for Petitioner. Before December 5, 1994, however, Petitioner did not
report the alleged previous harassment to upper management as required by Respondent's sexual harassment policy.
Petitioner failed to show that Respondent knew, or should have known, of the alleged hostile environment. Notice to someone not in higher management cannot constitute direct notice to the employer. Reynolds v. CSX Tansport, Inc., 115 F.3d 860, 866 (11th Cir. 1997); Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996).
Petitioner did not comply with Respondent's sexual harassment policy by reporting the alleged hostile environment to management. Knowledge of sexual harassment will not be imputed to the employer where it has an established policy distributed to all employees and Petitioner did not follow the established policy. Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1553-1554 (11th Cir. 1997). When Petitioner did complain to upper management about the hostile environment created by Mr. Glenn, Respondent took prompt and appropriate remedial action by discharging Mr. Glenn.
Petitioner failed to show that she was discharged in retaliation for her complaint of sexual harassment by Mr. Glenn. To establish a prima facie case of retaliation, Petitioner must show that there is a causal connection between the protected activity and the adverse employment action. Reynolds, 115 F.3d at 868. The evidence does not establish the required nexus.
Respondent had concluded its sting operation before Petitioner complained of Mr. Glenn's comment. After the complaint from Petitioner, Respondent discharged Mr. Glenn and conducted a
further investigation of the defenses and explanations offered by Petitioner at the meeting on December 5, 1994.
RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner.
RECOMMENDED this 6th day of May, 1998, in Tallahassee, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 6th day of May 1998
Gary E. Doane, Esquire Hightower and Doane
Sheila M. Cesarano, Attorney Shuts and Bowen, LLP
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.
