CYNTHIA C. BARBER,
vs.
Respondent.
) Case No. 02-1430
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,
Jeff B. Clark, held a formal administrative hearing in this case on June 11, 2002, in Orlando, Florida.
For Petitioner: Cynthia C. Barber, pro se
For Respondent: Amanda J. Green, Esquire
Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc.
("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR") alleging that on or during a period ending on October 28, 1997, Respondent had discriminated against her because of race and gender. (The Charge of Discrimination is dated "1/28/98" by Petitioner but the document was notarized on the "28th of January, 1999"; apparently, this is an amendment to the original Charge of Discrimination which is not included in the case file.) No evidence was received as to the actual filing date of the Charge of Discrimination.
After an investigation of the allegations FCHR issued a "Determination: No Cause" letter, indicating that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The referenced letter further advised Petitioner of her right to seek an administrative hearing within 35 days of her receipt of the Notice of Determination: No Cause, and provided a Petition for Relief form to be utilized in filing the Petition for Relief.
On April 4, 2002, Petitioner filed a Petition for Relief specifically alleging that Respondent violated the Florida Civil Rights Act of 1992 by: "A) Company Rules and Regulations Hand
Book was not inforced [sic]; B) Discrimination of employee; C) Firing employee without reason; D) Denial of benefits for unemployment." (On May 16, 2002, the denial of unemployment benefits claim was stricken in response to Respondent's motion to dismiss.)
On April 9, 2002, FCHR forwarded the case to the Division of Administrative Hearings requesting that it be assigned to an Administrative Law Judge to conduct all necessary proceedings and submit recommended findings. On April 11, 2002, an Initial Order was forwarded to the parties.
On April 23, 2002, the case was set for final hearing in Orlando, Florida, on June 11, 2002.
On June 7, 2002, Respondent filed a Motion for Summary Final Order. This motion was considered in conjunction with this Recommended Order.
At the final hearing Petitioner offered herself as a witness and did not offer any documentary evidence. Respondent presented three witnesses: Steve Lewis, MPI project manager; Ralph Pizzuti, a former MPI employee; and Robert McCandless, an MPI job-site foreman. Respondent offered three exhibits which were entered into evidence as Respondent's Exhibits 1-3.
The Transcript of proceedings was filed with the Division of Administrative Hearings on July 8, 2002. Respondent filed a
Post-Hearing Brief in the Form of Proposed Findings of Fact and Conclusions of Law.
Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent.
Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers.
Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers.
When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay.
In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti
was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority.
In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been
used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon.
Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily.
On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing.
Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees.
Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office.
Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning.
Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that
Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that
Mr. Bateman would be fired the following day.
The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation.
Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site.
Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told
Mr. Lewis that the atmosphere was "too hostile."
On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman.
Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site.
Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued.
During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again."
Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site,
Petitioner did not make any complaint to MPI management about the re-location.
After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday.
On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available.
Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57 and 760.11, Florida Statutes.
Subsection 760.01(1) and (2), Florida Statutes, read as follows:
(1) Sections 760.01-760.11 and 509.092
shall be cited as the "Florida Civil Rights Act of 1992."
(2) The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
Section 760.10, Florida Statutes, is the specific statutory provision in the Florida Civil Rights Act which prohibits unlawful discrimination in employment settings. Provisions of Section 760.10, Florida Statutes, applicable to the allegations of this case read, as follows:
Unlawful employment practices.–
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Subsection 760.02(7), Florida Statutes, reads as follows:
"Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Respondent is an "employer" as defined.
The provisions of the Florida Civil Rights Act are to be read in pari materia with parallel federal civil rights legislation, and, accordingly, reliance on federal civil rights case law is appropriate in interpreting Florida civil rights law. Bass v. Board of County Commissioners, Orange County,
Florida, 256 F.3d 1095, 1109 (11th Cir. 2001); Brand v. Florida
Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
Cases involving allegations of violations of Section 760.10, Florida Statutes, like those involving violations of federal civil rights legislation, are subject to a shifting burden of proof. Petitioner has the burden of proof in this case to show that she was discriminated against on the basis of gender and/or race. In addition, she must prove that the work environment was so hostile that she had no choice other than to quit and that she was subject to retaliatory action by her employer based on her objections to gender and racial harassment. The ultimate burden of persuasion (by a preponderance of the evidence) always rests on the party claiming violation of the statute. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
The typical discrimination case usually involves two shifts of the burden of going forward with the evidence. The initial burden falls on the party alleging the discriminatory conduct. In order for the case to proceed, Petitioner must establish a prima facie case of the alleged discrimination. Accomplishing this task requires the complaining party to prove that:
She is a member of a protected group;
An adverse employment action took place;
She and a similarly situated non- protected person received dissimilar treatment; and
Sufficient evidence, circumstantial or direct exists to infer a causal connection between the alleged disparate treatment and the protected classification.
See Pugh v. Heinrich, 695 F. Supp. 533, 540 (M.D. Fla. 1988).
In a case involving an alleged hostile work environment due to racial and gender harassment, such as this, Petitioner must prove:
She belongs to a protected class;
She was subjected to harassment;
The harassment was based on her race or gender; and
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 (M.D. Fla. 1999).
In addition, to establishing a prima facie case of a hostile work environment, Petitioner must establish that MPI knew or should have know of the existence of continuing racial or gender-based harassment and failed to take prompt action to end it. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998); Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000): Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999).
In order to establish a prima facie case of retaliation, Petitioner must show:
She was engaged in a protected activity;
She suffered an adverse employment action; and
There was a causal link between her protected activity and the adverse employment action.
Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2002); Farley v. Nationwide Mut. Ins., 197 F.2d 1322, 1336 (11th
Cir. 1999); Mortensen, supra, at 1124.
If Petitioner meets the threshold of establishing a prima facie case, the burden shifts to MPI to come forward with a legitimate non-discriminatory business reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
It is uncontested that Petitioner is a member of a protected class. She was subjected to gender and racial harassment by Chris Bateman. Without question, his conduct exceeded the bounds of "horseplay" and was malicious and motivated by Petitioner's gender and race. Mr. Bateman was a plumber, Petitioner's co-worker, not her supervisor.
In determining whether a work environment is sufficiently hostile or abusive to violate an employee's civil rights, the circumstances must be fully examined, including the frequency of the questioned conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it interferes with an employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).
In a constructive discharge case a Petitioner must allege and prove that the employer intentionally rendered the working conditions so intolerable that the employee was compelled to quit involuntarily. Steele v. Offshore Shipbuilding, 867 F.2d 1311, 1317 (11th Cir. 1989); Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1530 (11th Cir. 1985). To find constructive discharge the trier of fact must be satisfied that working conditions were so difficult or unpleasant that a "reasonable person in the employee's shoes would have felt compelled to resign." Watkins v. Bowden, 105 F.3d 1344 (11th Cir. 1997); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987).
While Mr. Bateman's offensive conduct reflects his personal racial and gender bias, it was not imputable to MPI, the employer. The U.S. Supreme Court in Faragher, supra, explicitly 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 798. Mr. Bateman's offensive conduct was not proven to be so frequent or pervasive that knowledge of its occurrence must be imputed to MPI. The offensive conduct was infrequent and isolated; it involved conduct over a period of less than 24 hours. When Petitioner informed Mr. Pizzuti, MPI's job-site supervisor, of the objectionable conduct, he promptly took action. The evidence reflects that Mr. Bateman was fired the day following the "dirt rock" incident and the day of the "bitch/nigger" incident, and that Mr. Pizzuti immediately advised his supervisor, Mr. Lewis, of the incidents. Mr. Lewis assured Petitioner that Mr. Bateman's conduct was inappropriate, that something would be done about it, that she wouldn't be exposed to such further offensive conduct, and asked her to return to work. MPI's response was timely and appropriate. No evidence was presented to indicate that Mr. Bateman's offensive conduct was pervasive or tolerated.
Petitioner returned to work for MPI following her altercations with Mr. Bateman. No evidence was presented of a continuing hostile work environment.
Days later, after taking a scheduled day-off, Petitioner telephoned the answering service to find her job assignment for the following day, she was advised that she was scheduled "off." She called the answering service the following day and got the same answer. She then telephoned MPI's office and attempted to speak to Mr. Lewis, finding Mr. Lewis to be on vacation, she asked to speak to the "owner." Petitioner was advised that the "owner" was not available. This ended her effort to discover why she had been scheduled "off." She did not attempt to contact Mr. McCandless, her job-site supervisor at MPI's Walt Disney World job-site, or do anything else in pursuit of continued employment with MPI. She never returned to employment at MPI. No evidence of retaliation has been presented.
While evidence was presented that Petitioner was a member of a protected class and was the victim of one or two isolated incidents of harassment, one clearly racial and gender based, she failed to present a prima facie case of a hostile work environment effecting a constructive discharge or retaliation by MPI.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice.
DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002.
Cynthia C. Barber 1704 Hawkins Avenue
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Amanda J. Green, Esquire Ford & Harrison, LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
