WILLIAM L. GRANT, )
vs. )
Respondent. )
Case No. 05-4110
This cause came on for final hearing on March 15, 2006, and June 28, 2006, in Panama City, Florida, before Diane Cleavinger, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: William L. Grant, pro se
For Respondent: Rebecca S. Daffin, Esquire
Whether Petitioner was the subject of an unlawful employment practice.
On June 17, 2005, Petitioner, William L. Grant, filed a Charge of Discrimination against Respondent, DJ Enterprises of Panama City, Inc. The Charge of Discrimination alleged that Respondent discriminated against Petitioner based on sex when Respondent terminated Petitioner. On September 25, 2005, the Florida Commission on Human Relations (FCHR) entered its Notice of Determination: No Cause on Petitioner’s Charge and advised Petitioner of his right to file a Petition For Relief in this matter. On November 3, 2005, Petitioner filed a Petition for Relief against Respondent. The Petition essentially alleged the same act of discrimination as the original Charge of Discrimination. The Petition For Relief was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in his own behalf and offered one exhibit into evidence. Respondent presented the testimony of two witnesses and offered four exhibits into evidence.
Respondent filed a Proposed Recommended Order on August 7, 2006. Petitioner did not file a Proposed Recommended Order.
DJ Enterprises of Panama City, Inc., owns and operates five Taco Bell restaurants in North Florida, including the Taco Bell Restaurant in Marianna, Florida. All Taco Bell franchises
are required to conform to certain corporate guidelines regarding the quality of food and service. The guidelines also contain minimum standards for restaurant appearance as well as guidelines for the personal grooming of employees. In addition, all franchises are required to comply with federal and state laws regulating food-service employees, including regulations governing the restraint of body and facial hair. See Chapters two through four, FDA Food Code, and Florida Administrative Code Rule 61C-4.010(3).
Each of Respondent’s restaurants has a Restaurant General Manager (RCG) who reports directly to Eric Baker, Director of Operations. His office is in Panama City, Florida, but he can be reached by cell phone at any time, and his number is posted in each store. Mr. Baker also visits each store about once a week to oversee operations.
In May 2004, Petitioner, William L. Grant, was employed as a crew member at the Taco Bell restaurant located in Marianna, Florida. At the time of his employment, Mr. Grant was given a copy of the company’s handbook containing the grooming policy as well as the Champs Excellence Review (CER) For Team Members.
The grooming policy required all employees, including Mr. Grant, to wear a hairnet or a stocking cap in conjunction with a Taco Bell hat. Stocking caps are panty hose-like caps
that have been cut off and knotted or are purchased without the knot. Specifically, Respondent’s hair policy required all employees to keep their hair neat, clean and above the collar and eyebrows. An employee’s hair was to be kept within the circumference of the Taco Bell hat, with the hat seated firmly on the head. The policy included both men and women.
The purpose of the grooming policy was to create the desired corporate appearance, and conform to health and safety requirements. From time to time, as long as state health requirements were met, Mr. Baker made exceptions to the hair policy when employees were going to attend special occasions. Both men and women, including Petitioner, benefited from the temporary relaxing of the hair policy. However, maintenance of the hair policy was and is an ongoing problem at all of Respondent’s restaurants.
When Mr. Grant was hired, his hair was not a problem.
As time went on, however, his hair became longer and bushier. The volume of his hair would not fit within the circumference of the Taco Bell hat even though Mr. Grant wore a stocking cap over his hair. Mr. Grant’s hair did not fit within the hat at the hearing when, with stocking cap on, he placed the Taco Bell hat on his hair. Indeed the hat did not sit firmly on Mr. Grant’s scalp, but sat, somewhat wobbly, on Mr. Grant’s hair with his hair bulging to the sides from underneath the hat.
In October 2004, Mr. Grant was given a written warning for failing to maintain a clean-shaven appearance as required by the uniform policy. Mr. Grant had also been counseled and verbally warned prior to the write-up about maintaining his appearance.
During his employment, Mr. Grant’s work performance was generally good, and he interacted well with the customers. Eventually, Mr. Grant expressed an interest in becoming a Shift Manger. Mr. Baker thought he would be a good candidate for the position and decided to promote Mr. Grant on the condition that Mr. Grant agree to cut his hair or otherwise get his hair in compliance with the Taco Bell grooming policy so that Mr. Grant would present a neat, more serious corporate appearance.
Mr. Grant was agreeable to the condition.
In January 2005, DJ Enterprises began the process of training Mr. Grant to become a Shift Manager at the Marianna location. Mr. Grant was sent to a state-sponsored Certified Professional Food Manager’s Class in Panama City, Florida. He also ran shifts on a limited basis beginning around February 23, 2005.
After some training, Mr. Grant informed Mr. Baker that he did not want to cut his hair. Mr. Grant also told two Taco Bell site inspectors, when they inquired about his hair that he would not cut his hair. In a meeting on March 5, 2005,
Mr. Grant told Mr. Baker that he did not need to cut his hair because he could get another stocking cap that would better contain his hair. Mr. Baker agreed to give Mr. Grant additional time to comply with the grooming policy. Mr. Baker prepared a memorandum of understanding that Mr. Grant signed on March 8, 2005. This agreement required Mr. Grant to comply with the grooming policy or give a two-week notice of his intent to quit.
On Saturday, March 12, 2005, Mr. Grant arrived for his 8-4 p.m. shift but clocked out and left without permission around 10:50 a.m. Mr. Grant was upset about a change in his schedule. Mr. Grant was particularly upset because he had been removed from the Monday schedule which meant he was not going to get overtime hours that week.
That same day, Mr. Baker visited the Marianna Taco Bell and immediately saw that customers were backed up.
Mr. Baker asked the Manager-in-Charge, Brianna Thomas, why she was running so far behind. Ms. Thomas informed Mr. Baker that she was short-staffed because Mr. Thomas had walked off the job without her permission. She reported that Mr. Grant was unhappy with his work conditions, such as his pay rate and hours, and that he was openly complaining in front of other crew members.
Mr. Baker instructed Ms. Thomas to “write-up” Mr. Grant for walking out on the shift.
Mr. Baker was very concerned over Mr. Grant’s behavior and immediately tried to contact Mr. Grant at his house to obtain an explanation from Mr. Grant. Mr. Baker was unsuccessful in reaching Mr. Grant; he tried again later that day and was again unsuccessful. Mr. Baker left a message with Mr. Grant’s sister, Shelita Grant, who also worked at Taco Bell. Mr. Baker also instructed Ms. Thomas to continue to call
Mr. Grant and leave a message for Mr. Grant to call Mr. Baker. Mr. Grant never returned the calls from Mr. Grant or Ms. Thomas.
Mr. Grant returned to work on Sunday but made no effort to contact Mr. Baker. The memorandum Ms. Thomas had prepared regarding Mr. Grant’s leaving the job was given to him. Mr. Grant signed the memorandum and wrote a rebuttal stating that he told the manager he was not going to work Saturday if he did not get to work Monday also.
Mr. Baker decided to terminate Mr. Grant for his behavior on the morning of March 12 and for failing to return his telephone calls. The termination was effective March 23, 2005. Mr. Baker, although concerned that Mr. Grant did not intend to cut his hair or take the necessary steps to get his hair in compliance with the grooming policy, did not terminate Mr. Grant for any reason related to his hair.
There was no evidence that Mr. Grant’s termination was based on discriminatory policies regarding hair.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.
The Florida Civil Rights Act, Chapter 760, Florida Statutes, prohibits discrimination in the material terms or conditions of employment based on race, sex, religion, origin or handicap. The Act is, in part, based on the Federal Civil Rights Act and federal court decisions regarding the federal law can be used to interpret Chapter 760.
In McDonnell Douglas Corp. v. Green, 411 U.S. 992, 802, 93 S. Ct. 1817,36 L. Ed. 2d 668 (1973), the U.S. Supreme Court determined that, in cases involving employment discrimination, the Petitioner has the burden to establish by a preponderance of the evidence that he or she has been the subject of discriminatory action by the employer. The Petitioner carries this burden by establishing a prima facie case. McDonnell. Once the Petitioner has established the elements of a prima facie case, the burden of going forward with the evidence shifts to the employer to articulate a non- discriminatory basis for its employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the employer meets this burden, the Petitioner must show by a preponderance of the
evidence that the proffered reason was pretextual or otherwise motivated by unlawful reasons. St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511, 112 S. Ct. 2742, 125 L. Ed. 2d 407
(1993). At all times, the ultimate burden of proof remains with the Petitioner and even if the Petitioner succeeds in discrediting the employer’s proffered reasons, the trier of fact may conclude that the employer did not intentionally discriminate against the Petitioner. Reves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000).
To establish a prima facie case of gender discrimination, a Petitioner must allege and prove that he was treated differently than a similarly situated female and that the different treatment was because of his sex. The Petitioner must offer evidence to show the following: 1) he was subjected to adverse job action; 2) his employer treated similarly situated employees outside his gender more favorably; and 3) he was qualified to do the job. Wright v. Southland Corporation, 187 F.3d 1287, 1290 (11th Cir. 1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The pivotal question in a disparate treatment case is always whether the employer’s actions were motivated by a discriminatory intent. Discriminatory intent may be proven by direct or circumstantial evidence of discrimination.
In this case, Mr. Grant’s Petition for Relief claims that Respondent violated the Florida Civil Rights Act, in that the grooming policy treats men and women differently and that he was unfairly terminated because he refused to cut his hair.
The evidence showed that all Respondent’s employees were required to have a neat and clean appearance with hair that is kept above the collar and eyebrows and under or within the circumference of the Taco Bell cap with the cap seated firmly on the head of the employee. Additionally, the evidence showed that all employees were required to wear a hairnet or a stocking cap in conjunction with the Taco Bell hat.
Some exceptions were permitted for short periods of time for special occasions. There was no substantial evidence that the exception was applied differently to men and women. There was no competent evidence that the hair policy was discriminatory as written or applied. Consequently, Petitioner’s claim that he was treated differently in regards to his hair is without merit.
Moreover, even if Petitioner was treated differently regarding his hair, the Eleventh U.S. Circuit Court of Appeals wrote, in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), that differing hair length standards for men and women do not violate Title VII and do not violate Florida law. Harper, 139 F.3d at 1387 (citing Ranger Ins. Co.
v. Bal Harbour Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989). Therefore, Petitioner’s claim of sexual discrimination based on his hair is without merit and should be dismissed.
Finally, Petitioner is unable to establish a prima facie case since he cannot show that he was treated less favorably than females who were similarly situated.
In Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1997), a summary judgment case for the defendant, the court wrote that in determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. Id. at 1368-69.
The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed. Id. We require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges. See Dartmouth Review v.
Dartmouth College, 889 F.2d 12, 19 (1st Cir. 1989) (Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.) Id.
In the present case, the evidence was clear that Mr. Grant was terminated for walking off the job and not responding to his employer’s repeated calls to discuss his
actions. While the employer had some concerns that Mr. Grant would not get his hair under control, he was not terminated because of his hair. There was no evidence that a female manager engaged in similar misconduct was not terminated. Thus, there was no evidence that Mr. Grant was similarly situated to any female employee. Moreover, Respondent’s actions of walking off his job and not returning his employer’s repeated phone calls formed a reasonable, non-discriminatory basis for Petitioner’s termination. There was no evidence that demonstrated Petitioner’s rationale was a pre-text for otherwise discriminatory action. Therefore, Petitioner has not established a violation of the Florida Civil Rights Act, and the Petition For Relief should be dismissed.
That the Florida Commission on Human Relations enter a Final Order finding that there was no competent evidence that Respondent violated the Florida Civil Rights Act and dismissing the Petition For Relief.
DONE AND ENTERED this 18th day of September, 2006, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2006.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
William L. Grant 4203 Pine Street
Rebecca S. Daffin, Esquire
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.
