STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANITA J. BEATY,
Petitioner,
vs.
PUBLIX SUPERMARKETS, INC.,
Respondent.
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) Case No. 02-0690
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RECOMMENDED ORDER
Upon due notice, this cause came on for a disputed-fact hearing May 8-9, 2002, in Tallahassee, Florida, before Ella Jane
Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: John P. Contini, Esquire
Marlon E. Bryan, Esquire
Law Office of John P. Contini 950 South Pine Island Avenue Suite 1003
Plantation, Florida 33324
For Respondent: Tammie L. Rattray, Esquire
Kevin M. Smith, Esquire Ford & Harrison, LLP
101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602-5133
STATEMENT OF THE ISSUES
Whether Respondent Employer committed an unfair employment practice against Petitioner Employee by discriminating against her on the basis of her sex (pregnant female) or by a hostile work environment.
PRELIMINARY STATEMENT
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on or about February 16, 1999, alleging that she was denied a job class code change from bakery clerk to cashier while pregnant in October 1998.
On January 14, 2002, the Commission entered its Determination: No Cause.
On February 19, 2002, Petitioner filed a Petition for Relief with the Commission, adding additional concerns about "a hostile work environment."1 On February 19, 2002, the case was referred to the Division of Administrative Hearings.
At the commencement of final hearing, rulings were made on the record in response to several motions filed less than five days before hearing or made orally on the record. Petitioner presented the oral testimony of Shirley Poling, Tami Glover, Jennie Daniels Sammons, and Scott Beaty, and testified on her own behalf. Petitioner had Exhibits P-1, P-2, and P-3 admitted in evidence. Exhibits P-4 and P-5 were objected-to and not admitted. Respondent presented the oral testimony of Rosalind
Williams, Kim Wilkinson, Pam Walls, and Barry Long, and had Exhibits R-1 through R-3 and R-5 through R-7 admitted in evidence. Joint Exhibits A-C were admitted in evidence. Exhibit R-4 was withdrawn as cumulative since it was included within Joint Exhibit C.
At the close of hearing, the parties waived their right to file a transcript of proceedings and agreed to a time frame for filing their respective Proposed Recommended Orders.
Rather than providing a full transcript as contemplated by Chapter 120, Florida Statutes, the parties attached different transcribed "excerpts" and "excerpts of excerpts" of testimony to their respective Proposed Recommended Orders. These bits and pieces of testimony were struck by an Order entered June 18, 2002, because the omissions made the excerpts inherently unreliable. However, the parties may provide the Commission with a complete official transcript attested-to by the court reporter present at the hearing, if they wish.
On June 17, 2002, Respondent had moved to strike Petitioner's late-filed Proposed Recommended Order. The time provided by Rule 28-106.204, Florida Administrative Code, for Petitioner to respond in writing in opposition to that Motion ran on July 1, 2002. No response in opposition has been filed with the Division. Therefore, the Motion is granted, and Petitioner's Proposed Recommended Order is hereby struck.
FINDINGS OF FACTS
Petitioner gave birth to a stillborn child after an on- the-job accident on November 25, 1998, while in Respondent's employ. She believes she would not have fallen if she had been transferred to another department and that, but for the failure to transfer her to a front office (line cashier) position, her baby would be alive.
In making the following Findings of Fact, every effort has been made to reconcile testimony and exhibits so that each witness may be found to speak the truth, but where these Findings of Fact diverge from the construction of events related by any witness(es), or omit testimony or parts thereof, it is because the witness or witnesses were not found entirely credible or the information was irrelevant or immaterial. Where there is an equipoise of evidence, that also is indicated.
Respondent is a supermarket chain with stores and employees throughout Florida and several states. It constitutes an "employer" as statutorily defined by the Florida Civil Rights Act, Chapter 760, Florida Statutes.
Petitioner's family has a history of successful employment with Respondent. She began working for Respondent in 1995, at the age of 16, as a part-time front end clerk (bagger) in Respondent's Store No. 231. Over approximately two years, she successfully held positions there as a bagger, stock crewman, and
bakery clerk. During all of her employment, she got regular quarterly raises in her hourly wage.
Respondent issues an Associate Information and Benefits Handbook to all employees a/k/a "associates."
The Handbook contains an Open Door Policy which states, in pertinent part:
If something bothers you, or if you need clarification of a Publix policy or procedure, please talk to a manager about it. Always remember, as a Publix associate, you can talk to anyone in management. Just
remember -- you can discuss your problem with anyone in management all the way to the top level. Also, your Retail Associate Relations Specialist is available to assist you with any matter at any time. We hope you will use our Open Door policy whenever needed and as often as necessary -- it's there to work for you! (Emphasis in original). (Joint
Exhibit C).
The Handbook also contains an Equal Employment Opportunity Policy, Policy Statement on Harassment Including Sexual Harassment, and information regarding the Employer's Formal Complaint Procedure, which provides in pertinent part,
Equal Employment Opportunity: Publix prohibits discrimination based on . . .
pregnancy. . . . If any associate experiences, or is otherwise made aware of, a violation of Publix's policy prohibiting discrimination, he or she is strongly encouraged to use the Open Door Policy.
Associates may also file a formal complaint under the Formal Complaint Procedure.
Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on . .
. pregnancy. . . . [I]n order for the Company to deal with the problem [of discrimination], offensive conduct or situations must be reported to the Store Manager, District Manager, Support Department Manager or your Regional Associate Relations Specialist.
Formal complaints may also be lodged with the Manager of Equal Employment Opportunity through the Formal Complaint Procedure. Any person electing to utilize these complaint resolution procedures will be treated courteously. The complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem, and registering the complaint will in no way be used against the associate nor will it have adverse effect on the individual's employment status.
Formal Complaint Procedure: If an associate believes that he or she has not been treated properly, he or she should bring this to the attention of the appropriate persons in Publix Management. There are several avenues associates can use to voice their concerns, including the Open Door policy and the Formal Complaint procedure.
The Formal Complaint Procedure is a formal method of having your concerns addressed and documented. (Emphasis in the original). (Joint Exhibit C).
Petitioner received a copy of the Handbook when she was hired, and again when she transferred into the Bakery Department. Petitioner signed and initialed a document indicating she had read and understood the Handbook.
Store 231 is divided into distinct departments: Grocery, Bakery, Deli, Meat, Produce, and the Common Area. In descending order of scope and authority, there is a Store Manager, several Assistant Store Managers, a Common Area Manager, and a Department Manager for each department.
At all times material, Barry Long was the Common Area Manager and Anita Blanchard was the Bakery Manager of Store 231.
Some of the jobs in the Common Area include line cashier, bagger, and office staff. In addition to supervising these associates, Mr. Long's job includes oversight of the flow of money throughout the store, cash accounting, handling of customer complaints, cleanliness of the front of the store (including the public restrooms), and overall appearance and safety of the parking lot.
The duties of a bakery clerk, the position Petitioner filled at all times material, are set out in its job description as follows:
•Finishes products such as filling or
icing doughnuts and/or pastries.
•Takes and/or fills special orders for customers.
•Packages, labels, and prices products for self-service.
•Maintains and fills bakery trays, display cases, and ingredient bins.
•Operates the scale and bread slicer.
•Unloads, organizes, and restocks supplies.
•Follows sanitation and safety guidelines.
•Assists in cleaning duties.
•Assists in other duties as assigned. Duties are performed primarily in the
Bakery department. A Bakery Clerk may be exposed to various temperature changes and work environments. Work includes walking, standing, repetitive arm and hand movements, eye-hand coordination, walking, lifting of product weighing up to 60 lb., bending, and working with hands in hot water or [sic] extended periods of time, along with frequent interaction with customers and associates. (P-1)
A butter cream (cake icing) bowl was used in the bakery. Bakery clerks had to lift it from a waist-high table and place it in a freezer or place it on a "wheely cart," roll the wheely cart to the dishwasher, and lift the bowl into the dishwasher. This bowl weighed 60 pounds and was awkward to maneuver. When there was more than one bakery clerk on the same shift, they could, and did, help each other with the butter cream bowl, but because Petitioner often worked the closing shift alone, she sometimes had to do the dishes alone, including handling the butter cream bowl.
Bakery clerks also had to go to another part of the store at approximately 3:00-3:30 p.m., each day, when frozen bakery goods were unloaded from delivery trucks. The bakery clerks then transferred such goods to "birds" (eight-foot-high narrow shelves) and rolled the birds on pallets or floats to the bakery. In the foregoing tasks, bakery clerks were sometimes assisted by "after-school kids" or stock crewmen, but when the
goods arrived in the bakery, all the bakery clerks had to get the pies, cream cakes, etc., into a freezer quickly so they would not melt. This involved lifting trays of three cream cakes or trays of six pies at a time. The average weight per filled tray was
10-12 pounds. The bakery clerks then stretched upward, reached in, and "threw" the trays onto high freezer shelves.
For all reaching activities, bakery clerks were instructed to use one of two ladders provided. Many bakery clerks broke this rule and climbed on a table to place goods on shelves or in the freezer. Whenever she saw a clerk climb on the table, Anita Blanchard ordered her down and told her to use a ladder. Petitioner knew this before she fell from the table in October 1998. (See Findings of Fact 1 and 37)
Whenever a bakery clerk became pregnant, Ms. Blanchard followed the Employer's policy and allowed the bakery clerk to keep working, without any change of duties, until the pregnant employee brought in a medical excuse specifying what accommodations she might need. When a medical note was presented for restrictions due to pregnancy or for any other reason,
Ms. Blanchard adjusted the employee's workload accordingly. If a note from a doctor was not presented, however, Ms. Blanchard did not grant any bakery clerk any accommodations, except on one occasion, when, at Bakery Clerk Shirley Poling's request, Ms.
Blanchard spoke to Ms. Poling's doctor on the phone and then let
Ms. Poling go home early without presenting a written medical excuse.
When Petitioner was 18, she became engaged to Scott Beaty, a 28-year-old who had a criminal record for drugs.
Mr. Long irritated Petitioner by repeatedly asking her if she really wanted to get married. She answered him a few times and then ignored him and would not respond. She did not complain to him or to anyone up the chain of command about these comments.
Petitioner married Mr. Beaty on December 20, 1997. In June, 1998, she became pregnant. She immediately told Mr. Long. He repeatedly asked her if she really wanted to bring a child into "this" (presumably into the world), and this annoyed her. However, she ignored these remarks and did not complain to
Mr. Long or to anyone up the chain of command about them.
Petitioner had a heavy schedule in that she was working and going to college at the same time. When her pregnancy was approximately eight weeks along, she slipped, coming out of the bakery freezer and fell on her tailbone. She accepted her doctor's representations that this made little difference so early in a pregnancy. She continued to work, but she reported the incident, and it was written-up by Chris Green, the male Assistant Bakery Manager, within 48 hours as required by the Employer.
According to Petitioner, "common sense told [her]" that the bakery clerk position was not good for her baby, but she "did not want to use [her] pregnancy as an excuse," because she had heard derogatory remarks about Shirley Poling's doing so. (See Findings of Fact 21 and 45). At some point, she sent two letters to Anita Blanchard and Chris Greene, asking that she not have to close the bakery out or wash dishes anymore, but she admitted that she did not get a medical excuse requesting these or any accommodations. Therefore, she never, at any time, presented a doctor's excuse to anyone in the Employer's chain of command.2
Petitioner's view that the bakery clerk job was dangerous to a child in utero was not shared by other female bakery clerks or former bakery clerks, Kim Wilkinson, Rosalind Williams, or Pamela Walls, all of whom had been pregnant at some time while working in Store 231's Bakery Department under Anita Blanchard. Shirley Poling considered lifting the butter cream bowl and handling the birds and floats too strenuous for her during her pregnancy, but conceded all she needed to avoid these tasks or get help with them was to present a suitable medical excuse to Ms. Blanchard. This was confirmed by the other bakery clerks, some of whom testified that Ms. Blanchard was solicitous and particularly kind in minor ways during their pregnancies, with or without a medical note, but that Ms. Poling was regarded as a slacker or whiner by themselves and Ms. Blanchard.
Petitioner testified that "first," she asked Barry Long for a transfer out of the Bakery Department, but what precisely she said or when she made this first request is disputed. Since she had told him that she was pregnant, she may have assumed he knew that was the reason she wanted to transfer, but Petitioner was less than clear in her testimony as to what she asked
Mr. Long for the first time. The second time she approached him, she said, "Barry, I have got to get out of here; this job is killing me." Petitioner admits that she said this only once, and Mr. Long does not remember that language being used.
Petitioner accepted as true store gossip that Assistant Manager Larry Rosignol had gotten an underage employee pregnant and married her and that Bagger Tami Glover became pregnant from an affair with a different Assistant Manager and had a dispute with Mr. Long about her employment duties during that pregnancy. (See Findings of Fact 46-52). Petitioner was also aware from conversations with Jennie Daniels Sammons, a former employee, that Jennie had used the Employer's "Confidential Hotline" to complain about Barry Long's treatment of her during her pregnancy and that nothing substantial had come of the Employer's Human Resources investigation of Ms. Sammons' "anonymous" complaint. (See Finding of Fact 54). Petitioner did not personally witness any interaction between any of these pregnant women and Mr. Long or Mr. Rosignol. All the grapevine accounts were prejudicial to
the assistant managers and to Mr. Long and contained elements beyond those proven at hearing as set forth in Findings of Fact 46-58. Nonetheless, Petitioner relied on the gossip.
Petitioner further testified that Larry Rosignol always winked at her when he spoke to her and one time he said something like, "I'll tell you what I'd like to do." She did not recall the context of this comment but described Mr. Rosignol as a notorious flirt. She also related that two times she saw
Mr. Long "looking [lustfully] at me."
Petitioner also expected the Store Manager to back up his under-managers' business decisions.
Accordingly, Petitioner elected not to "use her pregnancy" or call the Confidential Hotline when she did not immediately get a transfer out of the Bakery Department. She chose to use what she called "a different approach." In October 1998, she put in a "Register an Interest" form for an Office Staff Associate position in the office. She was specifically interested in an office cashier position because it was a promotion track to management positions. Petitioner also testified that upon Ms. Blanchard's recommendation, she registered an interest for a cake decorator position in the Bakery Department, a position which has lighter duty than a bakery clerk position, but a cake decorator is not on a promotion track. Apparently, Ms. Blanchard would be the one to determine
if Petitioner were laterally transferred to a cake decorator position. Petitioner provided no further direct information as to why she did not get this position, but from her stated belief that one "could not get ahead in the Bakery Department unless someone died," it is inferred that there were no available cake decorator positions when she registered that interest.
The job description for Office Staff Associate is almost exclusively devoted to bookkeeping, banking, and accounting functions and responsibilities. These positions handle and account for all cash in the store. The minimum qualifications for Office Staff positions provide in pertinent part:
must be at least 18 years of age
experience as an office cashier and
must not have received a positive test result on a company-sponsored drug test within the last six months. (R-5)
Barry Long informed Petitioner she was not qualified by experience for the office staff openings soon to occur due to two female office staff members taking maternity leave. He ultimately filled these positions with qualified persons during the regular employees' maternity leaves.
Petitioner testified that she next told Mr. Long that she would work as a line cashier for six months so as to get promoted to Office Staff, and that although she repeatedly asked him for a transfer to a line cashier position, for which she was
qualified, Mr. Long did not grant the transfer. Mr. Long denies that this request was ever made.
The foregoing minimum requirements for Office Staff do not specify six months' experience as a line cashier; they specify experience as an office cashier. If there is a separate job description for office cashier that requires six months' service as a line cashier, it was not presented at hearing. Therefore, Petitioner's reasoning as to why the line cashier position would have helped her reach an Office Staff management track position is flawed, and her testimony concerning this conversation with Mr. Long thereby becomes less credible than his.
Petitioner also maintained that she wanted to transfer to line cashier if only to protect her unborn child. She testified that for that purpose, she arranged with non-pregnant line cashier Rose Texera (phonetic spelling), to "swap" positions. Petitioner testified that she did not tell Bakery Manager Anita Blanchard that she wanted to "swap" because of her pregnancy, but she did present Ms. Blanchard with the "swap" idea, and Ms. Blanchard did not oppose it. Petitioner did not present the "swap" idea directly to Mr. Long, who was Ms. Texera's immediate superior, but she believes that Anita Blanchard did. Petitioner testified Ms. Blanchard told her that Mr. Long said Petitioner did not have enough available working
hours because Petitioner was a part-time employee. Petitioner did not verify with Mr. Long that the foregoing conversation ever took place. Ms. Blanchard was not called to testify, and no witness corroborated Petitioner. Mr. Long denied any such arrangement was presented to him.
Petitioner tested out of college algebra and announced to Mr. Long that she had become available to work anytime on Mondays, Wednesdays, and Fridays and to do the closing shift on Tuesdays and Thursdays. This would have made her available for 30-35 hours per week, which was virtually full-time availability. She maintains that Mr. Long then said that he had made up his schedule for the week and he would see about next week. She assumed Mr. Long knew she was talking about a line cashier position and that Mr. Long was talking about a line cashier schedule. Mr. Long was not examined at hearing about this version of events.
Petitioner testified that in October 1998, after months of requesting a transfer to line cashier, she went to the office and said to Mr. Long, referring to her request to transfer to line cashier, "So what's up, Barry, are we going to do this or what?" and he replied, "You need to wait until after you have that young'un." Petitioner claims that three other women employees overheard this exchange. None of these women were called to corroborate her version of this event.
Petitioner complained about the "young'un" comment to Anita Blanchard. Ms. Blanchard told Petitioner that if it bothered her, she should report it to the Store Manager himself. Petitioner told a male Assistant Manager (not Mr. Rosignol) who replied, "He's not allowed to do that. If [Barry] said that, he s--t in his hat." Petitioner still did not feel she would get a fair deal from any of the male managers in Store 231. The Handbook said she could talk to anyone at any level of management, inside or outside the store, but Petitioner misinterpreted the instructions, and believed she
could not skip any levels of management and still be heard by the next highest manager.
It is not clear from Petitioner's testimony whether she reported the "young'un" comment to the Employer's Confidential Hotline at this point in October 1998, or after she returned to work in 1999. From the evidence as a whole, however, it is probable she waited until 1999. (See Finding of Fact 44). The Employer's Human Resources Investigator then came from Jacksonville and interviewed Mr. Long. Mr. Long told the investigator he never made the alleged "young'un" comment. At hearing, Mr. Long again denied making the alleged "young'un" comment.
The alleged "young'un" comment and the questions related to why Petitioner would want to have a child (see Finding
of Fact 18), are the only comments Petitioner claims were related to her pregnancy, although she also testified that Mr. Long asked her one time, "Are you ready?" and then laughed when she said she was. She thought he was referring to her transfer request when she answered, but in retrospect, she thinks he was just teasing her.
On November 25, 1998, while still a bakery clerk, and knowing it was contrary to the Employer's safety policy, Petitioner climbed up on a table to put cream cake packages away overhead in the freezer. Getting down, her foot slipped, and she fell on the table, landing on her buttocks.
Petitioner did not report the fall at that time because, by experience, she believed she had 48 hours in which to report it. Over the next 48 hours, while she was on regularly scheduled leave at her home, she had cramping and then the baby ceased to move. She was admitted to the hospital and delivered a stillborn child. It is unclear when Petitioner got around to reporting the fall to her Employer. (See Finding of Fact 44.)
A line cashier's job description is as follows:
Weighs and scans customer product.
Greets customers and responds to their questions.
•Accepts payment and counts back the change.
•Handles cash and other media accurately.
•Utilizes strong interpersonal skills.
Packages groceries as needed.
•Keeps the checkstand area neat and clean.
•Assists in other duties as assigned.
Duties are performed primarily at the front-end area of the store with exposure to outside weather conditions at times. Work includes standing at checkstand for prolonged periods, repetitive arm and hand movements, and moving and lifting of product at checkstand, along with continuous interaction with customers and associates. (P-2)
Petitioner testified that, regardless of the job description, she knew that as a line cashier she would be required to lift 50-pound sacks of dog food, but that she thought that she could get help with these items from the baggers.
Bakery clerk and line cashier are each entry-level, wages-per-hour positions, with substantially the same benefits. It is undisputed that they could be considered "lateral."
Mr. Long testified that in approximately August 1998, a Super WalMart had opened down the street and had a $50,000, per week, adverse impact on sales at Store 231. Mr. Long's Common Area was heavily affected. With the precipitous drop in customer and revenue numbers, Store 231 had more line cashiers than were really needed. Mr. Long did not need to schedule as many hours or as many people after August 1998, as he did before that date. He addressed the problem by slowly tapering schedules down and not filling line cashier positions. Due to the crucial financial
nature of Office Staff positions, he did fill the Office Cashier positions as described above.
Petitioner did not demonstrate that there were any line cashier vacancies during the period that she was allegedly requesting to transfer into such a position. Petitioner did not prove that anyone else similarly situated to herself who was not pregnant, was granted such a transfer between June and November 1998. She also did not prove that Mr. Long hired anyone new as a line cashier during that period when she was requesting the transfer. Her only evidence that a line cashier position could
have been created for her relates to the "swap" arrangement with Rose Texera. (See Finding of Fact 31.)
Petitioner did not formally complain to higher levels of management about the failure to transfer her to line cashier until after she returned from Family Medical Leave, sometime in January 1999, following the tragic stillbirth and funeral of her child. It is unclear whether she was given a line cashier position immediately after her return because she wrote a letter accusing the Employer of causing the death of her child, or if the Employer offered her a line cashier position as a proposed resolution to the instant February 9, 1999, Charge of Discrimination filed with the Florida Commission on Human Relations on or about February 16, 1999. (Joint Exhibit A). Petitioner has been serving as a line cashier ever since.
Shirley Poling, Rosalind Williams, Kim Wilkinson, and Pam Walls experienced no discriminatory treatment or commentary from Barry Long related to their pregnancies. Shirley Poling overheard comments by co-workers that she was a "wuss" because she did not work normally through her pregnancy.
Tami Glover worked as a bagger at Store 231. The work done by a bagger is to put the customer's product in bags, put the bags in a cart, wheel the cart to the customer's car, load the bags into the customer's car, and bring back the cart used and other stray carts anyone else has left in the parking lot. Sometimes, customers buy heavy water bottles and 50-pound bags of dog food, which baggers have to lift in and out of the carts.
Tami Glover testified that Barry Long put her on "cart duty." Assignment to "cart duty" meant she had primary accountability for returning carts from the parking lot during a one-hour time slot during each shift that she worked as a bagger. She maintained that Mr. Long made this assignment within the same conversation during which she told him she was pregnant by one of the Assistant Managers (not Larry Rosignol).3 She considered
Mr. Long's putting her on "cart duty" to be discrimination against her as a pregnant female. However, she admitted that she never provided Mr. Long with a medical excuse stating she could not, or should not, do this task or any of the other tasks involved in being a bagger.
Mr. Long was entirely credible that one of his office staff subordinates, using a blind rotation system, put Ms. Glover first on the cart list, the first day he instituted the cart list; that the cart list was instituted to ensure that someone was accountable each hour for the carts that were not otherwise being brought into the store; that each bagger would take an hour's turn at this task each shift (a fact Ms. Glover admitted was true); that the Employer had a written policy against any associate moving more than five carts at a time; and that, therefore, he had no reason to believe cart duty would be bad for the pregnant Ms. Glover.
Ms. Glover asked Mr. Long for a transfer to avoid heavy lifting, but she presented no medical excuse. Mr. Long told her, "We aren't training cashiers now." How this conversation relates to the time frame when Petitioner was requesting a transfer is unclear.
Ms. Glover orally complained to Mr. Long about the cart list, about having to lift heavy dog food bags and water bottles, and about having to go into the parking lot at all during her pregnancy. She also claims Mr. Long told her she looked like "a cow" when she was pregnant, a comment he adamantly denied. She never filed a formal complaint with the Employer against
Mr. Long.
If Mr. Long had acquiesced in all Ms. Glover's accommodation requests, the only part of a bagger's duties she would have been performing would have been putting some of the customers' product into bags. Since Ms. Glover produced no written medical restrictions, Mr. Long had no reason to grant her requests.
Accordingly, Ms. Glover's testimony does not support any discrimination or hostile work environment emanating from Mr. Long or the Employer.
Jennie Daniels Sammons had worked successfully for Store 231 as a bagger, line cashier, and produce clerk. When Barry Long transferred into Store 231 in October 1997, she was again a line cashier and pregnant. When she was less than 12 weeks pregnant and not in the store, she began to bleed. Her doctor orally ordered her to a week of bed rest. At 10:30 p.m., the night before she was to report for her 11:00 a.m. shift at the store, she realized she should tell the Employer she would not be in for a week. She telephoned the store, and Mr. Long answered. At that point, they did not know each other or anything about each other. Ms. Sammons testified that she told Mr. Long the equivalent of "I am bleeding and cannot leave the bed for a week." He testified she gave him no details beyond the equivalent of "I'm sick and can't come in for a week." He told her to provide him with a written medical excuse before her
regularly scheduled shift the next day at 11:00 a.m., or he would write her up. This was the Employer's usual policy and procedure. Ms. Sammons managed to timely present the written medical excuse to Mr. Long, but at great inconvenience to her mother who took off work to deliver it. Accordingly, Mr. Long did not write her up.
Ms. Sammons did not respect Mr. Long due to their acrimonious first encounter. For that event, and because she felt Mr. Long was not treating her properly, either due to her pregnancy or because she was not "available," Ms. Sammons reported him to the Employer's Confidential Hotline. She believes that the Employer's Human Resources Office either telephoned the Store Manager or sent someone to Store 231 to investigate her complaint and that her identity was revealed, because all the managers "treated [her] like a queen" for a few days and then went back to business as usual. However, aside from her vague testimony that the cute, flirtatious girls got more attention and time from all the managers, including
Mr. Long, than did the pregnant and/or unavailable women, she could describe no "discrimination."
Thereafter, on or about December 19, 1997, Mr. Long wrote-up a counseling sheet on Ms. Sammons, as required by the Employer's policy, because her till was short. Ms. Sammons
conjectured that Mr. Long deliberately took the money from her till to make her look bad or get rid of her.
Five-and-a-half weeks before her expected delivery date, Ms. Sammons began labor. The labor was not extreme, and in an effort to stop or delay it, her doctor ordered her home to rest. She went to Store 231 on her way home from her doctor's office and told the women in the office she was "standing here in labor." Mr. Long came out of the inner office and she handed him the note. The note is not in evidence, and Ms. Sammons could not remember how explicit it was. Mr. Long read the note and asked if Ms. Sammons could finish out the week. She knew he asked this because he did not want to be left short-handed or have his shift schedule disrupted. She testified that she was offended at what she perceived as Mr. Long's insensitivity and felt she had to go on shift because of his comment. Later that day, she went on early maternity leave because Mr. Long said something more that offended her, the substance of which she did not recall when testifying. She chose to stay home with her baby after her maternity leave ran out.
Ms. Sammons left on maternity leave around Easter (Spring) 1998. This was well before the Super WalMart drained away much of Store 231's business, making line cashiers plentiful, and well before Petitioner became pregnant.
Accordingly, Ms. Sammons' testimony does not establish any specific hardship in working conditions or discrimination due
to her pregnancy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.
The threshold issue is one of the scope of the foregoing jurisdiction. When Petitioner filed her February 9, 1999, Charge of Discrimination on or about February 16, 1999, she
claimed:
In October, 1998, I was denied a job class code change in my position as Bakery Clerk to Cashier . . . . I believe I was discriminated against because of my sex, Female, Pregnancy . . .. (Joint Exhibit A)
That limited issue is all the Commission had reviewed at the time it entered its proposed final agency action of "Determination: No Cause," on February 19, 2002.
When Petitioner timely filed her Petition for Relief, however, her allegations had expanded to:
Beaty was the subject of a hostile work environment created by certain managers and supervisors . . .. Beaty and numerous other female employees were compelled to endure a hostile working environment on a daily basis
. . .. Beaty and numerous other female employees were subject to constant sexual verbal abuse, sexual verbal disdain, and repeated comments by Assistant Store Manager
Larry Rosignol and Common Area Manager, Barry Long . . .. The pattern of conduct on the part of Mr. Rosignol and Mr. Long was directed exclusively at female employees and pregnant female employees who were forced to endure constant sexual assaults on a daily basis. (Joint Exhibit B).
The Commission never had an opportunity to consider the charge of "hostile work environment" which was raised more than 365 days after it allegedly occurred.
The Recommended Order in Schwartz v. Guy M. Tunnell, Bay County Sheriff's Office, DOAH Case No. 99-4043 (June 29, 2001) held:
A precondition to the jurisdiction of discrimination actions under Chapter 760, Florida Statutes, before the Division is that a charge of discrimination must be filed before the Florida Commission on Human Relations within 365 days of the last act of alleged discrimination. If a particular type of discrimination is not timely claimed, it cannot be added by the Petition for Relief or other means over objection after the 365 days have passed. Miller v. Levy County, DOAH Case No. 97-3732 (Recommended Order
November 26, 1997; Final Order adopting in toto August 4, 1998); Lannon v. Barnett Banks, Inc., DOAH Case No. 93-5465 (Recommended Order February 23, 1995; no Final Order); Luke v. Pic 'N' Save Drug Company, Inc., DOAH Case No. 94-0294 (Recommended Order August 25, 1994; Final Order adopting in toto December 8, 1995); Austin v. Florida Power Corp., DOAH Case
No. 90-5137 (Recommended Order June 20, 1991; Final Order adopting in toto October 24, 1991.
In its Final Order in Schwartz, entered April 17, 2002, the Commission rejected that paragraph of the Recommended Order, as applied to the facts of that case, in view of the extensive Charge of Discrimination filed in that case, and stated that the paragraph quoted from the Recommended Order is not precedent for the decision of future cases. However, the Commission has not overruled the cases cited therein.
Due to the ambiguity of the Final Order in Schwartz and the concept that "hostile work environment" can be a continuing pattern, Petitioner was permitted to present any evidence which might fall within the four corners of the Petition for Relief. Petitioner was precluded from presenting any evidence or mere gossip/hearsay about managers who were not named in the Petition for Relief or about the named managers' (Long's and Rosignol's) sexual relations with anyone other than an employee.
However, this is by no stretch of the imagination a "handicap" discrimination case. Pregnancy is not viewed at law as a handicap. Petitioner requested no accommodation for a handicap, for pregnancy, or for a medical condition (symptom) associated with either. Indeed, Petitioner brought to the Employer no medical excuse to support any of her requests.
The shifting burdens of proof in disparate treatment cases are set out most cogently in Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991):
The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp v. Green, 411 U.S. 792 (93 S.CT. 1817, 36 L.Ed. 2d 668
(1973), which was then revisited in detail in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reasons for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. (Citations omitted).
Id. at 1185-1186.
Petitioner is female. She was pregnant, a condition exclusive to females. If she can establish discrimination on the basis of pregnancy, it constitutes discrimination on the basis of her sex (gender). Pinchback v. St. John's County Sheriff's Department, 7 FALR 5369 (August 12, 1985).4
Petitioner's, Ms. Poling's, Ms. Glover's and
Ms. Sammons's claims of disparate treatment on the basis of pregnancy arise more from being treated all the same with each other and with every other employee, until and unless they presented a medical excuse, rather than from any disparate treatment on the basis of their pregnancies.
Although Mr. Long denied making the comment, I conclude Petitioner to be credible when she testified that Mr. Long said "You need to wait until after you have that young'un." However, having observed the candor and demeanor of both Petitioner and Mr. Long, and having heard all the testimony, I cannot conclude that Mr. Long understood they were talking about a requested transfer to line cashier. Based on Petitioner's testimony that she "did not want to use [her] pregnancy," her failure to bring him a medical excuse, and the vagueness of her single "this job is killing me," comment, I also am not satisfied that Mr. Long understood Petitioner was asking to transfer on the basis of her pregnancy. Under these circumstances, Mr. Long was not lacking in veracity on other matters simply because he testified that the
"young'un" comment never took place. Admittedly, Mr. Long's credibility is not enhanced by his telling Petitioner that he might schedule her next week in response to her telling him she could work more hours, or by his not telling her she could not have the line cashier transfer because he had more line cashiers than he needed, but Mr. Long is credible that he was not aware at any time that Petitioner wanted a line cashier position rather than an office cashier position.
Assuming arguendo that Petitioner, through the foregoing conversations, established a prima facie case, that does not end the legal analysis.
There is no statutory or case law requirement that an employee be transferred just because s/he wants to be.
Petitioner does not dispute that the WalMart opening had hurt the Employer's business. Mr. Long is believable that he did not need more cashiers.
Respondent Employer is not required to do more than present its non-discriminatory reasons. It is not required to persuade. The standards of proof still require that Petitioner show the employer's evidence is merely a pretext for discrimination. See, generally Bass v. Bd. Of County Commissioners of Orange County, 242 F.3d 996, 1014 (11th Cir. 2001); Simmons v. Camden County Bd. Of Educ., 757 F. 2d 1187 (11th Cir. 1985) cert. den. 474 U.S. 981, 106 S. Ct. 385 (1985).
The employer's burden of proof is "merely one of production, not persuasion, and is exceedingly light," Buzzi v. Gomez, 62 F. Supp. 2d 1344, 1356 (S.D. Fla. 1999) (internal citations omitted.) Even mixed discriminatory and non-discriminatory reasons will not defeat the employer's case.
Petitioner has no real knowledge that her idea to "swap" positions with Rose Texera was presented to Mr. Long by Ms. Blanchard. He says it was not.5 Nor do employees unilaterally get to decide who works in what department within an employer's operation. Therefore, Petitioner did not demonstrate that any non-pregnant person, male or female, was placed in a line cashier position when she was not. She has not met the shifting burden of proof for proving disparate treatment.
Also, in purely legal terms, the proximate cause of Petitioner's fall from the table was not Mr. Long's failure to transfer her, or her working in the bakery, but her working in the bakery in a manner contrary to Respondent Employer's safety policy requiring use of a ladder and contrary to her immediate supervisor's specific instructions.
Sexual harassment is a form of gender discrimination prohibited by Title VII and the Florida Civil Rights Act. When making a claim of sexual harassment, there are two possible forms that can be alleged: hostile work environment and quid pro quo
Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1339 (M.D. Fla. 1999).
To prove a claim of "hostile work environment," which is the type of sexual harassment this Petition for Relief alleges, an employee must prove five elements: (1) that the employee belongs to a protected class; (2) that the employee was subjected to unwelcome harassment; (3) that the harassment was based on the employee's sex; (4) that the harassment affected a "term, condition, or privilege of employment;" and, (5) that the employer knew or should have known of harassment and failed to intervene. Succar v. Dade County School Board, 229 F.3d 1343, 1344-1345 (11th Cir. 2000); Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982).
Four factors are considered in determining whether harassment objectively altered an employee's terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L.Ed. 2d 295, (1993); Mendoza v Borden, Inc.,
195 F.3d 1238, 1246 (11th Cir. 1999). The environment must be one that a "reasonable person would find hostile or abusive" and that "the victim . . . subjectively perceive[s] . . . to be
abusive." Harris v. Forklift Systems, Inc., supra, at page 21. Furthermore, the objective severity of the harassment should be judged from the perspective of a reasonable person in the Petitioner's position, considering all the circumstances. Harris v Forklift Systems, Inc., at page 23.
I accept Ms. Glover's direct testimony of being extra- maritally impregnated by a manager not named in the Petition. The gossip about Mr. Rosignol's premarital sexual relations with the underage female employee who became his wife was not proven as fact. Both situations would be contrary to the Employer's Policy. Given one's value system, such activities also may be viewed as unwise, immoral, or irresponsible, but they remain a fact of life in modern times. No evidence of a quid pro quo situation was presented. The proven comments of the managers
were ambiguous, sporadic, and did not demonstrably interfere with any complaining witness's job performance. Petitioner was able to ignore most of the comments. She continued to get quarterly raises.
The assertion that hers was a "hostile work environment" has not been proven.
Upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief and the Charge of Discrimination.
DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 18th day of July, 2002.
ENDNOTES
1/ See the Conclusions of Law as to jurisdictional limits of the Charge of Discrimination and Petition for Relief.
2/ Exhibit P-3, a note written by Petitioner's obstetrician six months after the stillbirth, does not constitute a "medical records" exception to Chapter 90, Florida Statutes' prohibition against hearsay. It was admitted in evidence, over objection, pursuant to Section 120.57(1)(c), for the limited purpose of "explaining or supplementing" Petitioner's direct testimony as to her state of mind, related in Finding of Fact 1, that the fall killed her healthy child in utero and her further testimony that she did not provide a medical excuse to the employer during the material period of time. However, P-3's recitation that Petitioner was "told" not to lift over 20 pounds and to go on light duty immediately before the fall, that a pathology report, not in evidence, showed specific medical damage which lead to the stillbirth, and the opinion that this damage was induced by the fall, may not be used for findings of fact, over objection,
because these recitations constitute opinions of an expert who was not subject to cross-examination.
3/ Tami Glover was 18, and separated from her husband, when she claimed to have had consensual sexual relations with an Assistant Manager (not Mr. Long or Mr. Rosignol) and became pregnant. She was outraged because she believed her lover had described her to other managers as "a good lay." This type of relationship is forbidden by the Employer's "no-conflict" policy, which, if brought to the attention of any higher manager would result in one of the employees being terminated or transferred.
Apparently, no one, including Ms. Glover, notified any higher manager.
4/ Peripherally, it is noted that Petitioner seeks "back pay." Precisely what "back pay" she seeks is problematic since she was on Family Medical Leave for the stillbirth from approximately November 25, 1998, to sometime in January 1999. She had begun to work 30-35 hours per week in the Bakery Department at the time of the accident, and if, as she contends, she was only seeking a lateral transfer to a position with identical or substantially similar benefits, the only relief available, if she were to prevail in this forum, would be to award her the lateral transfer and admonish the Employer against past discrimination and against any future similar acts. Since Petitioner was placed in a line cashier position as of January or February 1999, no relief is now indicated beyond an admonition.
5/ Petitioner's testimony that Ms. Blanchard told her what Mr. Long said is second degree hearsay and not probative of anything that occurred between Ms. Blanchard and Mr. Long.
COPIES FURNISHED:
John P. Contini, Esquire Marlon E. Bryan, Esquire
Law Office of John P. Contini 950 South Pine Island Avenue Suite 1003
Plantation, Florida 33324
Tammie L. Rattray, Esquire Kevin M. Smith, Esquire Ford & Harrison, LLP
101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602-5133
Cecil Howard, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
Suite 100
Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 07, 2002 | Agency Final Order | |
| Jul. 18, 2002 | Recommended Order | Petitioner failed to rebut employer`s non-discriminatory reasons. Proximate cause of stillbirth; appropriate recovery; and ambiguous, sporadic, and non-interfering managerial comments are discussed. Recommend dismissal of charge and petition. |
