vs. ACCUSTAFF,
Respondent.
) Case No. 07-1525
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on June 8, 2007, in Pensacola, Florida.
The issue is whether Respondent or its employees engaged in sexual harassment of Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Based upon the investigation of a complaint of discrimination filed by Petitioner, the Florida Commission on Human Relations ("FCHR") issued a Determination: No Cause on March 2, 2007. Petitioner filed a Petition for Relief from an Unlawful Employment Practice on March 26, 2007. Upon receipt and review of the Petition, FCHR transmitted it to the Division of Administrative Hearings for the assignment of an administrative law judge, and for a formal administrative proceeding pursuant to Subsection 120.57(1), Florida Statutes. Upon due notice, a hearing was conducted by the undersigned in Pensacola, Florida, on June 8, 2007.
At the hearing, Petitioner testified on her own behalf and offered Exhibits numbered 1 and 2, both of which were admitted into evidence. Respondent presented the testimony of Julie J. Wells, Glenn Burnett, Kathy Atchley, Zedie L. Johnson, Darlene Brown, and Rex McCurley and offered Exhibits numbered 1 through 9, all of which were admitted into evidence.
The parties did not order a transcript of the proceedings. Following the hearing, Respondent filed its Proposed Findings of Fact and Conclusions of Law on June 18, 2007. Petitioner did not make a post-hearing submittal.
References to statutes are to Florida Statutes (2006) unless otherwise noted.
Petitioner, Jeanette Stallworth, was assigned to a temporary general service/cleaning position with the Santa Rosa Island Authority ("SRIA"), and her first day of work was
July 21, 2006.
Respondent, AccuStaff, provides recruiting and payroll services to clerical and light industrial business and governmental entities.
At the time of her employment, like any other new employee, Petitioner was informed verbally that she should contact AccuStaff if she encountered any problems on the job.
Petitioner was given a new hire brochure that instructs all employees to report harassment of any kind to the AccuStaff office.
Petitioner signed an Employment Application Certification which stated, in part: "I further understand that if hired by the Company, I must abide by all of the Company's rules and regulations as set forth in the Orientation Packet.
. . . [i]t is my responsibility to promptly inform the Company of any problems that I encounter while on assignment. If
at any time you believe that you have been subjected to illegal discrimination or harassment, or if you know such conduct is occurring, you have an obligation to report it."
Petitioner agreed to the above conditions and signed to certify that she read and understood these conditions of employment.
On August 21, 2006, Respondent received a call from SRIA stating that Petitioner was not to return to their site for work. The reasons given for its decision to request that Petitioner not return was that she had demonstrated inappropriate conduct on the job. The stated inappropriate conduct consisted of Petitioner harassing her co-workers with insults, sexually explicit comments, and gestures.
Prior to the August 21 call, Petitioner had been moved to different work groups as a result of her co-workers' complaints concerning her behavior.
Petitioner testified that Mr. Zedie Johnson had made lewd and sexually explicit comments about her, and had offered her beer while on the job. Petitioner did not complain to anyone about the comments at the time they were allegedly made.
Petitioner testified that a co-worker named Keith had twisted her arm on another occasion in the truck when she tried to change the radio station.
Petitioner later complained to a supervisor named Max about Mr. Johnson and Keith. She was assigned to other work groups away from Mr. Johnson and Keith.
Petitioner believed that Kathy Atchley was given preferential treatment on the job because she was friendly with Mr. Buck Lee, one of the SRIA Commissioners, even though she had a poor attendance record.
On August 20, 2006, a Sunday, Petitioner delivered a letter to Mr. Lee, by slipping it under his door and by putting it on the desks of two of her supervisors. The letter set forth her complaints of favoritism toward some of the employees, especially the drivers of the trucks. She alleged that an employee drank alcohol on the job, that another stole a blue beach umbrella, that she was sexually harassed, and that although she gets along with everybody, no one wants to work with her.
Petitioner wants to work in a peaceful environment and to be left alone by her co-workers whom she alleged harassed her.
Ms. Darlene Brown testified that, although Petitioner was a good worker, she could not get along with anyone on the various work crews. The SRIA had no where else to place Petitioner for work purposes.
Petitioner was told by Respondent on August 22, 2006, that she could not return to work with the SRIA, and that Respondent would consider her for future work assignments.
Respondent typed up Petitioner's verbal statement concerning the alleged harassment and asked Petitioner to sign it. Petitioner refused.
Respondent agreed to investigate Petitioner's complaint and to call her when they found suitable jobs for her.
Respondent contacted Mr. Johnson to question him about his involvement with Petitioner. He denied any inappropriate behavior or comments on his part. He stated that it was Petitioner who blurted out inappropriate comments and made rude gestures.
Respondent asked Petitioner's female co-workers if they had ever witnessed any inappropriate behavior by the male co-workers. They all replied that they had not, but that they had witnessed Petitioner's rude offensive remarks and gestures.
Respondent believed that SRIA took appropriate measures when told of possible harassment by separating Petitioner from those she claimed harassed her.
Respondent believed that SRIA took appropriate action, especially in light of the fact that it was a case of one employee's word against another concerning the alleged harassment.
Based upon the information provided to it by SRIA, Respondent believed that SRIA had a legitimate business reason for not allowing Petitioner to return to the work site.
Subsequent to Petitioner's assignment with SRIA, Respondent never denied her job placement out of retaliation or for any other reason. Respondent offered Petitioner temporary seasonal work with a plant nursery on August 31, 2006, and on September 26, 2006. Petitioner turned down both of these opportunities due to a lack of reliable transportation and distance from her home.
On September 29, 2006, Respondent offered Petitioner another three-day work assignment which she accepted. Petitioner failed to show up for the assignment, however, and did not call to report her absence.
Petitioner only worked at the job with SRIA for one month, from July 21 through August 21, 2006.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
Pursuant to Subsection 760.10(1), Florida Statutes, it is unlawful for an employer to discharge, refuse to hire, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, based on the employee's race, gender, or national origin.
Federal discrimination law may properly be used for guidance in evaluating the merits of claims arising under
Section 760.10, Florida Statutes. See Brand v. Florida Power
Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the Supreme Court articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial evidence. The McDonnell Douglas decision is persuasive in this case, as is St. Mary's Honor Center v. Hicks, 509 U.S. 502,
506-07 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, the plaintiff (Petitioner herein) has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA), aff'd, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the plaintiff succeeds in making a prima
facie case, then the burden shifts to the defendant (Respondent herein) to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this
burden of rebutting the plaintiff's prima facie case, then the plaintiff must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell
Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.
In Hicks, the Court stressed that even if the trier- of-fact were to reject as incredible the reason put forward by the defendant in justification for its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question of whether the defendant intentionally had discriminated against him. Hicks, 509 U.S. at 511. "It is not enough, in other words, to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." Id. at 519.
In cases involving alleged racial bias in the application of discipline for violation of work rules, the plaintiff, who must be a member of the protected class, must demonstrate: 1) that she did not violate the work rule, or
2) that she engaged in misconduct similar to that of a person outside of the protected class, and that the disciplinary measures enforced against her were more severe than those enforced against other persons who engaged in similar conduct. McCalister v. Hillsborough County Sheriff, 211 Fed. Appx. 883, 2006 U.S. App. LEXIS 31617 (11th Cir. Dec. 20, 2006); Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). This is, more
generally stated, "to present a prima facie case of racial discrimination, an employee must show that: 1) he is a member of a protected class; 2) he was subjected to an adverse employment action; 3) his employer treated similarly situated employees outside of the protected class more favorably than he was treated; and 4) he was qualified to do the job." A plaintiff is similarly situated to another employee only if "the quantity and quality of the comparator's misconduct [are] nearly identical." Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).
In order to prove intentional discrimination, Petitioner must prove that Respondent intentionally discriminated against her. It is not the role of this tribunal (or any court, for that matter) to second-guess Respondent's business judgment. As stated by the court in Chapman v. AI Transport, 229 F.3d 1012, 1031 (11th Cir. 2000), "courts do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how mistaken the firm's managers, the [Civil Rights Act] does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior (citations omitted). An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."
Petitioner does not claim here that she was discriminated against because of her race. SRIA has other employees in similar positions to Petitioner's. Petitioner makes a claim that a co-worker who happens to be white gets preferential treatment even though she has a poor attendance record. However, Petitioner produced no evidence, either directly or through her cross-examination of Respondent's employees, that she had knowledge of this co-worker's time records or her actual comings and goings at the work site. Accordingly, Petitioner's preferential treatment claim is not supported by the evidence.
Petitioner's claims of sexual harassment are similarly not supported by the evidence she produced at hearing. She claims to have been the victim of rude and offensive remarks, gestures, and suggestions by her male co-workers. These same male co-workers, as well as a female co-worker, testified that not only was there no sexual harassment directed toward Petitioner, but that she was the one who blurted out inappropriate sexual remarks while on the job, and engaged in rude and offensive gestures and suggestive behavior. In a case of a dispute in facts, such as here, the testimony of multiple witnesses, and their supervisor, Darlene Brown, to whom they reported Petitioner's behavior on the job, are supported by the greater weight of the evidence. Simply put, Petitioner was
unable to prove that she had been sexually harassed while a member of the beach clean-up team.
Petitioner contends that SRIA's decision not to allow her to continue on the beach clean-up crew was not reasonable because she was a good employee who was singled out by the other employees for unfair treatment. She further contends that at least one other employee with a poor attendance record was allowed to continue working because she spoke directly with
Mr. Lee. The greater weight of the evidence supports the position that SRIA made its decision not to allow Petitioner to continue in her employment on the basis of legitimate,
non-discriminatory reasons.
Respondent made a genuine effort to place Petitioner in other positions for which she was qualified. On two occasions, Respondent attempted to place Petitioner in a plant nursery job for which she was qualified, but Petitioner turned down the job both times due to problems she had with transportation and distance to the job. When Respondent found a temporary position for Petitioner which she could take, Petitioner failed to appear at the work site at the appointed time, and failed to call Respondent to say she would not make the job. Respondent has done more than what is required of it to help Petitioner find employment. Clearly, Respondent is under no obligation to do more to assist Petitioner.
Petitioner sincerely believes she was treated wrongfully in her employment with Respondent at the SRIA work site. The evidence produced at hearing, however, failed to support her claims. The SRIA provided legitimate,
non-discriminatory reasons for Petitioner's termination from her employment. Respondent could not force SRIA to continue Petitioner's employment, and made great efforts to secure her other employment in the greater Pensacola area. The greater weight of the evidence clearly indicates that Respondent did not commit an unlawful employment practice.
RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief.
Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2007.
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.
