STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELICIA A. ALEXANDER, )

)

Petitioner, )

)

vs. ) Case No. 00-1217

)

DYNAIR SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on May 23, 2000, in Sanford, Florida.

APPEARANCES

For Petitioner: Felicia A. Alexander, pro se

Post Office 549

Sanford, Florida 32772-0549

For Respondent: Gabriel G. Marrero, Administrator

Dynair Services, Inc.

Two Red Cleveland Boulevard, Suite 205 Sanford, Florida 32773

STATEMENT OF THE ISSUE

In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African

Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.

PROCEDURAL MATTERS

Ms. Alexander's case was initially forwarded to the Division of Administrative Hearings (DOAH) by the Florida Commission on Human Relations (FCHR) on August 23, 1999. The form attached to that file, however, indicated that Ms. Alexander wished to withdraw her charge with FCHR and to proceed in state or federal court. The Administrative Law Judge remanded the file to FCHR on September 8, 1999 (Case No. 99-3579).

On December 10, 1999, Ms. Alexander sent a letter to FCHR asking specifically for an administrative hearing and FCHR again forwarded the request to DOAH where the case was assigned, set, and heard as described above.

At the hearing Ms. Alexander testified and presented the additional testimony of LaDonna Hillsman, Cynthia Rose Maddox, Ruby Beasley, Elimarie Lopez, and Jim Kidd.

Gabriel Marrero testified on behalf of the Respondent and presented the additional testimony of Carmen Alicea.

The Transcript of the hearing was filed on June 26, 2000.

Ms. Alexander filed her written closing argument on May 26, 2000.

Findings of Fact

1. Felicia Alexander is an African-American woman who was employed by Dynair Services, Inc.(Dynair) as an aircraft cleaner from June 5, 1997, until approximately March 5, 1998.

2. Dynair is a corporation with a home office at the Dulles Airport near Washington D.C. It maintains operations in forty- five cities in the United States, as well as in Italy, Russia, and Great Britain. It was recently acquired by another company, Swiss Port, and it has approximately 48,000 employees.

3. Dynair's operation at the Sanford airport involves ground handling (cleaning, loading and unloading, and fueling) of all international charter flights. It employs approximately forty cleaners at the Sanford airport.

4. On or about January 12, 1998, Ms. Alexander completed cleaning an airplane and exited with several black trash bags that were used to store pillows and blankets on the flight. One of the supervisors, Johnnie Fortier, had given Ms. Alexander permission to take the used bags home.

5. After exiting the airplane Ms. Alexander and a co-worker met Ms. Alexander's fiancé at the airport gate, as she was supposed to work late and needed to give him the house keys.

   Ms. Alexander handed over the keys and the garbage bags to her fiancé and returned to the smoking area with her co-worker. When she returned another worker told her that "Carmen" was looking for her to ask about a stolen purse.

6. Ms. Alexander and her coworker then walked toward the blockhouse to find Carmen Alicea, the supervisor of all of Dynair's cleaners. As she approached the blockhouse Ms. Alexander was confronted by Carmen Alicea and Joe Misario whom

   Ms. Alexander described as highly agitated. They ask her about the garbage bags she had taken and asked her about another employee's missing purse. They insisted that Ms. Alexander call her fiancé to tell him to return the bags immediately.

7. A short while later, Ms. Alexander's fiancé returned with the bags. After inspecting the bags, Ms. Alicea and Mr. Misario demanded that Ms. Alexander open her locker. Ms. Alicea dumped the contents of the locker on the floor and when the missing purse was not found she and Mr. Misario called Ms. Alexander into the office. They told Ms. Alexander to submit her badge and key, to collect her belongings, and to leave. Ms. Alicea escorted Ms. Alexander to the gate in front of the other employees who stood watching the events.

8. Ms. Alexander felt humiliated and falsely accused. After a couple of days she called James Kidd, the general manager of Dynair in Sanford. He invited her to come in to meet with him. When she came in, Mr. Kidd asked her to return to work at Dynair.

9. At the hearing Mr. Kidd explained that he had the authority to hire and terminate employees at Dynair and that after investigating the circumstances surrounding the January 12, 1998, incident he determined that Ms. Alexander should not be terminated.

10. Ms. Alexander vehemently denies any wrongdoing and there is no evidence that she committed theft of personal or

    company property. The actions of her supervisor, Ms. Alicea, and of Mr. Misario violated company policy, described by Gabriel Marrero, regarding protecting a person's privacy and dignity during any disciplinary process.

11. There is also a company policy prohibiting the removal of items from the aircraft and Ms. Alexander's immediate supervisor should not have given her permission to take the garbage bags. The credible evidence from Ms. Alexander and other co-workers established, however, that she did have permission and when directed, she returned the garbage bags.

12. There is another company policy which prohibits employees from wearing large earrings. Ms. Alexander recalls an occasion when an Hispanic employee was complimented on her large earrings but she, Ms. Alexander, was chastised for similar jewelry.

13. The final incident, recounted by Ms. Alexander and corroborated by co-workers, occurred at a company Christmas party in 1997. Carmen Alicea made a comment that she did not want any African-Americans serving the food. This statement offended Ms. Alexander and other African-American workers. There is no evidence that the statement was brought to the attention of Mr. Kidd or Gabriel Marrero, the human resources administrator, until Ms. Alexander brought her complaint to the Florida Commission on Human Relations.

14. Ms. Alexander returned to work January 19, 1998, but resigned in March 1998. She enjoyed the work, and most of the people she characterized as like a big family, but she felt that Carmen Alicea would continue picking on her.

    Conclusions of Law

    
    

15. The DOAH has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. Florida Law prohibits employers from discriminating against employees on the basis of race. See Section 760.10, Florida Civil Rights Act. Because the Florida Civil Rights Act is modeled after Title VII of the Federal Civil Rights Act of 1964, case law interpreting the federal law is relevant to Florida Civil Rights Act cases. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

17. A Petitioner or Plaintiff in a race discrimination case has the ultimate burden of proving the discrimination charges she has alleged. See Texas Department of Community Affairs v. Burdine, 450 US 248, 101 S. Ct. 1089, 67 L.Ed 2nd 207 (1981).

18. In a case involving an alleged hostile work environment or harassment, such as this, the Petitioner must prove:

    1. She belongs to a protected class.

       
       

    2. She was subjected to harassment.

       
       

    3. The harassment was based on her race; and

    4. The harassment was sufficiently severe or pervasive to alter a term of her employment and create an abusive work environment.

       
       

       Mortenson v. City of Oldsmar, 54 F.Supp. 2d 1118 (U.S. Dist. Ct.

       
       

       M.D. Fla. 1999). The Petitioner must also prove that the harassment was imputable to the employer. Mortenson, supra, at 1122, citing Diqiz v. Southern Management Servs., Inc., 996 F. Supp. 1451 (M.D. Fla. 1998); Sparks v. Pilot Freight Carners, Inc. , 830 F.2nd 1554, 1557 (11th Cir. 1987).

19. It is uncontested that Ms. Alexander is a member of a protected class. She was subjected to some harassment and was plainly humiliated by Carmen Alicea. Ms. Alexander did not prove, however, that the harassment, other than the offensive comment at the Christmas party, was directed at Ms. Alexander based on her race.

20. In determining whether a work environment is sufficently hostile or abusive to violate an employee's civil rights the circumstances must be fully examined, including the frequency of the conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it interfers with an employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed 2nd 662 (1998); and Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370-71, 126 L.Ed. 2nd 295 (1993).

21. The treatment of Ms. Alexander as a suspect of theft in front of her co-workers and the comment at the Christmas party

    were more than "merely offensive"; the incidents were humiliating to her personally and the comment was humiliating to other African-American workers.

22. Assuming that these incidents, as well as the "earring" incident constitute a discriminating hostile environment, they still are not imputable to Dynair, the employer. The U.S. Supreme Court in Faragher, supra, expicitly described the standards for holding employers liable for abusive or hostile conduct or statements in the workplace. An employer may avoid liability by proving that it has taken reasonable care to prevent and correct harassing behavior and by proving that the injured employee failed to take advantage of preventive or corrective opportunities or otherwise avoid harm. Faragher, at 2279.

23. The action taken by Carmen Alicea and Joe Misario violated Dynair's policy. When Ms. Alexander informed the company's general manager, Mr. Kidd, he promptly corrected the action. There is no evidence that Ms. Alexander or anyone else informed Mr. Kidd or Mr. Marrero of the earring incident or the comment at the Christmas party. The incidents were not proven to be so frequent or pervasive that knowledge of their occurrences must be imputed to the company itself.

24. There was no evidence at hearing of any denied opportunity to work overtime and it is unnecessary to address this charge.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair.

DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Felicia A. Alexander Post Office Box 549

Sanford, Florida 32772-0549

Gabriel G. Marrero, Administrator Dynair Services, Inc.

Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773

Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-001217

Orders for Case No: 00-001217