ROBERT L. YOUNG, JR.,
vs.
Respondent.
) Case No. 04-0192
Pursuant to notice, a formal hearing was held in this case on April 1, 2004, in Shalimar, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.
For Petitioner: Robert L. Young, Jr., pro se
For Respondent: Faye R. Rosenberg, Esquire
Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
On January 14, 2003, Petitioner, Robert L. Young, Jr., (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent, Bruno's Food World, Inc. (Respondent), discriminated against him on the basis of race in violation of Section 760.10, Florida Statutes. Petitioner specifically alleged that he suffered adverse employment actions when Respondent transferred him and later ended his employment. On August 11, 2003, Petitioner filed an Election of Rights Form with FCHR withdrawing his Charge of Discrimination and proceeding to an administrative hearing.
Petitioner did not file a formal Petition for Relief.
However, the case was transmitted to the Division of Administrative Hearings based on Petitioner’s Charge of Discrimination.
At the hearing, Petitioner testified in his own behalf.
Respondent called four witnesses to testify and offered 12 exhibits into evidence. After the hearing, Respondent filed a Proposed Recommended Order on April 15, 2004. Petitioner filed a Proposed Recommended Order on May 15, 2004.
Petitioner is an African-American male. As such, he is a member of a protected class.
Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation.
In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store.
On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason.
Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their
discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change.
The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity.
There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual.
Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred.
In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner.
Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems.
Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been
instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations.
Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card.
Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy.
More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied
giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination.
Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part.
Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she
was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable.
Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told
Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive.
In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio,
Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization.
The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny
Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that
Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated.
Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action
should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause. § 120.57(1), Fla. Stat.
Under the provisions of Section 760.10(1)(a), Florida Statutes, 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.”
FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
The Supreme Court of the United States established in McDonnell-Douglass Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII such as the one at bar. This analysis was reiterated and refined in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate, non- discriminatory reason for the action taken against Petitioner. Once this non-discriminatory reason is offered by Respondent, the burden then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding
discrimination, “[t]he fact finder must believe the petitioner’s explanation of intentional discrimination.” Hicks, 509 U.S.
at 519.
In Hicks, the Court stressed that even if the fact- finder does not believe the proffered reason given by the employer, the burden remains with the petitioner to demonstrate a discriminatory motive for the adverse employment action. Id.
Here, Petitioner has alleged race discrimination. In order to establish a prima facie case of discrimination based upon race Petitioner must establish:
That he is a member of a protected class;
That he was qualified for his position;
That he suffered an adverse employment action; and
That he was treated less favorably than similarly situated employees who were not members of his protected class.
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
In this case, there is no dispute as to Petitioner's membership in a protected class, Petitioner’s qualifications for the position he held, or that his termination constituted an adverse employment action.
However, there was no evidence that Petitioner's transfer constituted an adverse employment practice. The
evidence did not demonstrate any significant change in Petitioner’s duties or conditions of employment. Likewise, the evidence did not show any change in Petitioner’s pay or benefits. Given this lack of evidence the transfer was not adverse. See Davis v. Town of Lake Park, Fla., 245 F.3d 1240 (11th Cir. 2001)(holding that, to prove adverse employment action in a case under Title VII's anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment); Tarrance v.
Montgomery County Bd. Of Educ., 157 F. Supp. 2d 12l61 (M.D. Ala. 2001) (holding a black employee was not subjected to adverse employment action, for purposes of discrimination suit under Title VII, when he was transferred from one position to another, without change in benefits, salary or rank). Therefore Petitioner‘s claim of racial discrimination regarding his transfer should be dismissed.
Even assuming arguendo that Petitioner established a prima facie case regarding the transfer, Respondent articulated a legitimate, non-discriminatory reason for Respondent's transfer.
Moreover, Petitioner was transferred to the Niceville store on November 4, 2001. For a charge to be timely filed, it must be filed within 365 days of the discriminatory act. See 42
U.S.C. Section 2000e-5(e)(1); EEOC v. Joe's Stone Crabs, Inc.,
296 F.3d 1265, 1271 (11th Cir. 2002). Accordingly, only those claims arising within 365 days prior to the filing of the discrimination charge are actionable. Joe's Stone Crabs, 296 F.3d at 1271. Because Petitioner did not file his charge until January 15, 2003, his allegation that his transfer to the Niceville store was based on discriminatory reasons is time- barred. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
On the other hand, Petitioner’s termination was an adverse employment action which was timely filed. However, Petitioner cannot establish the fourth requirement of a prima facie case, i.e., that the employer treated similarly situated employees outside the class more favorably.
Employees are similarly situated when they are involved in similar misconduct yet disciplined in different ways. Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 537 (11th Cir. 1992).
The burden is on Petitioner to show the similarity between his conduct and that of other employees who were treated differently, and not on the employer to disprove their similarity. Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989). Thus, Petitioner must show his violation of Bruno's anti-harassment policy and alcohol policy were similar to that of non-African American employees and that more severe
discipline was imposed on Petitioner than that imposed on the non-African Americans employees for similar violations. See
Jones, 977 F.2d at 537; and Moreland v. Miami-Dade County, 255
F. Supp 2d 1304 (S.D. Fla. 2003). The evidence was insufficient regarding either Mr. Johnson or Mr. Gaston to permit any comparison of their situations with Petitioner’s termination. Moreover, no complaints were made to Respondent regarding either of these employees. On the other hand, Petitioner had four complaints filed against him. Lacking evidence of similarity, Petitioner has failed to establish a prima facie case of racial discrimination.
Even assuming arguendo that Petitioner established a prima facie case, the company's finding that Petitioner violated the company's anti-harassment policy and alcohol policy, even if wrong, was a legitimate, non-discriminatory explanation for the decision to terminate the employment of Petitioner. See Chapman v. AI Transport, 229 F.3d 1012, 1030-31 (llth Cir. 2000)(holding defendant may terminate an employee for good or bad reason without violating federal law); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)(holding an employee may be fired "for good reason, bad reason, reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason"). In this case, Petitioner violated those policies and Respondent’s finding was not wrong.
In summary, Petitioner’s position that he suffered discrimination based on race, is not supported by a preponderance of the evidence. Respondent presented a non- discriminatory, non-pretextual reason for any adverse employment action taken with respect to Petitioner. Moreover, a portion of Petitioner’s claims are time-barred. Therefore, this cause
should be dismissed.
That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in
Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Robert L. Young, Jr.
Faye R. Rosenberg, Esquire Corporate Counsel
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.
