STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY J. HALL,

Petitioner,

vs.

SUNSHINE CLEANING SYSTEMS, INC.,

Respondent.

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) Case No. 01-3353

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RECOMMENDED ORDER

A formal hearing in the above-styled case was held before Daniel M. Kilbride, Administrative Law Judge, the Division of Administrative Hearings, on October 30, 2001, in Orlando, Florida.

APPEARANCES

For Petitioner: Mary J. Hall, pro se

1821 Ernest Street

Maitland, Florida 32794

For Respondent: Sharon Attas-Kaplan, Esquire

Fisher & Phillips, LLP

450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Petitioner was unlawfully terminated from her position with Respondent because of her race (Caucasian), in violation of the Florida Civil Rights Act of 1992 (hereinafter "FCRA"), Section 760.10(1)(a), Florida Statutes (2001).

PRELIMINARY STATEMENT

On January 25, 1999, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations ("FCHR") alleging that she was discriminated against because of her race, Caucasian. On July 24, 2001, the FCHR issued a Notice of Determination: Cause based on an adverse inference for Respondent's alleged failure to provide requested information.

Petitioner requested an administrative hearing by filing a Petition for Relief on August 16, 2001. This matter was referred to the Division of Administrative Hearings ("DOAH") on August 24, 2001, and discovery followed.

At the hearing on October 30, 2001, Respondent moved that the DOAH find that FCHR's determination was erroneous. The motion was denied. Respondent then proffered testimony in an attempt to demonstrate that the FCHR determination of "Cause" was erroneous. On the issue before this tribunal, Petitioner, Mary Hall, testified in her own behalf and offered the testimony of Cindy Hall. Petitioner also submitted ten exhibits, labeled Petitioner's Exhibits 1 through 10. Petitioner's Exhibits 1, 2,

3, 5, 6, 9, and 10 were admitted into evidence. Exhibit 7 was admitted for the limited purpose of a demonstrative aide.

Respondent presented the testimony of George Stewart, Danna Hewett, and Ronald Jirik. Respondent also submitted eight exhibits, labeled Respondent's Exhibits 1 through 8, which were

admitted into evidence. A Transcript was ordered, but not filed with the DOAH until February 11, 2002. Respondent submitted its Proposed Recommended Order on March 4, 2002. Petitioner has not submitted a proposed order as of the date of this Recommended Order.

FINDINGS OF FACT

Based upon the testimony of the witnesses and documentary evidence received at the hearing, the following relevant facts are determined:

1. Respondent is a corporation, licensed to do business in Florida, that provides cleaning services to business clients; and is an employer, as that term is defined, under the FCRA.

2. Petitioner began her employment with Respondent on January 1, 1997. Petitioner was hired as a restroom cleaner, and remained in that position until her termination from employment with Respondent on August 6, 1998.

3. Throughout her employment with Respondent, Petitioner's supervisors were: Cecilia Haimes ("Haimes"), a Caucasian female; Danna Hewett ("Hewett"), a Caucasian Female; and Carlos Ramirez ("Ramirez"), an Hispanic male. Additionally, throughout her employment with Respondent, Petitioner was assigned to work at the Orange County Convention Center ("OCCC").

4. Hewett began her employment with Respondent as a restroom cleaner. Shortly thereafter, she was promoted by

   Ramirez to the position of lead restroom cleaner. Shortly after that, she was once again promoted by Ramirez, to the position of supervisor. As a supervisor, Hewett supervised Petitioner.

   Hewett became Petitioner's supervisor in or around August 1997.

   
   

5. In her capacity as supervisor, Hewett was informed by other employees at OCCC that Petitioner was spreading rumors and gossiping about alleged affairs between certain employees and/or supervisors.

6. Hewett and Ramirez discussed Petitioner's behavior, and they concluded that such behavior was extremely disruptive to the work environment. Specifically, such behavior by Petitioner affected employee morale and employees' respect for their supervisors. Based on these allegations, Ramirez contacted Ronald Jirik ("Jirik"), the Central Florida Regional Manager, to inform him of Petitioner's behavior. Upon meeting with Hewett and Ramirez, Jirik informed Ramirez to meet with Petitioner to try to get her to stop spreading such rumors.

7. Ramirez met with Petitioner shortly thereafter. He attempted to resolve the problem and instructed her not to gossip or spread rumors.

8. However, the problem persisted. Jirik contacted Ramirez to follow up on whether or not Ramirez was able to resolve the problem. Ramirez informed Jirik that he was unable to stop the rumors, and that he believed that Petitioner was

   continuing this improper behavior. Jirik then informed Ramirez that it would probably be best if Petitioner was transferred from the OCCC, and be given the option to transfer to another facility that was of equal distance from her home. Jirik is Caucasian.

9. Jirik suggested that Petitioner be transferred to the Orlando Sentinel building due to the fact that, based on the information in Petitioner's personnel file, this location would have been of equal distance from her home. Additionally, such a transfer would not have changed any of the terms and conditions of Petitioner's employment, including but not limited to, pay, benefits, responsibilities, or shifts.

10. Based on the foregoing, Ramirez met with Petitioner and she was offered a transfer to the Orlando Sentinel building location. However, Petitioner refused to accept the transfer. Thereafter, Petitioner's employment with Respondent was terminated on August 6, 1998.

11. The evidence proved that Ramirez reprimanded Spanish- speaking and Caucasian employees in the same manner. Additionally, there was no credible evidence to show that Ramirez gave any form of favoritism to Spanish-speaking employees.

12. Respondent's reason for terminating Petitioner was based on Respondent's perception that her conduct was disruptive

    to the work force. The allegation that Petitioner was terminated based on a discriminatory animus is unsubstantiated by the testimony and other evidence. There is no evidence that Respondent terminated Petitioner based on her race (Caucasian).

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

14. In the State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, the FCRA incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. The FCHR and the Florida courts interpreting the provisions of the FCRA have determined that federal discrimination law should be used as guidance when construing provisions of the Act. Cf. Brand v. Florida Power Corp. 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

15. The United States Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and again in the case of St. Mary's Honor Center v. Hicks, 509

    U.S. 502, 113 S. Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon Petitioner the initial burden of proving a prima facie case of racial discrimination. See also Laroche v. Department of Labor

    and Employment Security, 13 FALR 4121 (FCHR 1991); Davis v. Humana of Florida, Inc., 15 FALR 231 (FCHR 1992).

16. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment as follows.

    Petitioner must show that:

    
    

    1. The Petitioner is a member of a protected group;

    2. The employee is qualified for the position;

    3. The employee was subject to an adverse employment decision (Petitioner was terminated);

    4. The position was filled by a person of another race or that she was treated less favorably than similarly-situated persons outside the protected class;

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v.

       Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th

       Cir. 1984).

       
       

17. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

18. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department

    of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v.

    Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

19. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than Petitioner. Texas

    Department of Community Affairs v. Burdine, at 257-8.

    
    

20. In Burdine, the United States Supreme Court emphasized that the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, 509 U.S 502, 113 S. Ct. 2742 (1993).

21. In the case sub judice, Petitioner has failed to establish that she is a member of a protected class. However, she has established that she was qualified for the position, at the time she was hired. Petitioner has also established that she was subjected to an adverse employment decision when she was terminated. However, Petitioner has failed to come forward with credible evidence that there is a causal connection between her race and her termination. She has not produced any evidence that she was replaced by an employee of a different race. In addition, Petitioner has failed to show that similarly-situated non-whites received more favorable treatment under similar circumstances. Therefore, there can be no inference of discrimination. Pound v. Stone, 945 F.2d 796 (4th Cir.1991). "Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Hazen Paper Co. v. Biggins, 505 U.S. 604, 113 S. Ct. 1701, 1706 (1993). This standard requires Petitioner to establish that "but for" her protected class and the employer's intent to discriminate she would not have been terminated. Therefore, Petitioner has failed to came forward with sufficient evidence to meet her initial burden of proof on the issue of inverse racial discrimination.

22. Assuming arguendo that Petitioner has met her initial burden, the sequence of presentation of evidence then required Respondent to come forward and articulate valid, nondiscriminatory reasons for the resulting termination decision. Respondent has done so. It established by credible evidence that Petitioner's supervisors at the OCCC were informed that Petitioner was spreading rumors regarding alleged affairs between various employees and/or supervisors. Moreover, Respondent has articulated that such rumors were disruptive to the workforce, caused lack of productivity, and raised issues with regards to employees' respect for their supervisors. The undisputed testimony shows that Respondent believed that allowing an employee to continue working while spreading rumors about supervisors would not only disrupt the workforce, but would also undermine the authority of individuals with supervisory responsibility.

23. Petitioner has failed to demonstrate that the reasons given for her termination by Respondent were not Respondent's true reasons, but were, in fact, pretexts for inverse race discrimination. As stated in the Findings of Fact, any allegation that one of Petitioner's supervisors, Ramirez, terminated Petitioner from the OCCC because of her race (Caucasian) is unsubstantiated. Quite the contrary, other

    individuals involved in the decision to terminate Petitioner's employment from the OCCC were, in fact, Caucasian.

    Additionally, the undisputed testimony and evidence proves that Caucasian individuals working under Ramirez were promoted from restroom cleaners through and including supervisory positions by Ramirez. Petitioner has presented no evidence that Respondent treated her differently than other individuals in the workforce.

24. From the testimony and the exhibits, Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no credible testimony by any of the witnesses that the reason for Petitioner's termination was because of her race, white. Petitioner may not rely on a mere refutal of the employer's stated reason to establish pretence. Bare allegations and unsupported legal conclusions do not show pretext intentional discrimination in violation of the law. Bush v. Barnett Bank of Pinellas County, 916 F.Supp. 1244, 1254 (M.D. Fla. 1996); Grigsby v. Reynolds Metal Co., 821. F.2d 590, 597 (11th Cir. 1987). Petitioner has failed to establish that (i) that reason was false and (ii) discrimination was the motivating factor for the employment action taken. St. Mary's Honor Center v. Hicks, supra; Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1985).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief.

DONE AND ENTERED this 7th day of March, 2002, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 7th day of March, 2002.

COPIES FURNISHED:

Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP

450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Mary J. Hall

1821 Ernest Street

Maitland, Florida 32794

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

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

Docket for Case No: 01-003353

Orders for Case No: 01-003353