vs.
Respondent.
) Case No. 07-1973
In accordance with notice this cause came on for formal administrative proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Tallahassee, Florida, on August 15, 2007. The appearances were as follows:
Respondent: Kevin E. Hyde, Esquire
One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240
The issues to be resolved in this proceeding concern whether, Respondent discriminated against the Petitioner based
upon her race or sex and whether she was subjected to retaliation after complaining to the Respondent concerning the
alleged harassment.
This cause arose when a Charge of Discrimination was filed with the Florida Commission on Human Relations (Commission) by the Petitioner, Deborah Pate. The charge alleged that the Respondent, Homes of Merit (HOM); discriminated against the Petitioner because of her race and sex and that when she purportedly complained to HOM's management about the alleged harassment, that the Petitioner was subjected to retaliation by the Respondent.
The Charge of Discrimination was investigated by the Commission and a finding of "No Cause" was entered by the Commission on April 12, 2007. In essence, the Commission found in its investigative report, supporting the finding of No Cause, that any harassment which was perpetrated on the Petitioner did not involve either race or sex, and that a prima facie case of retaliation was not shown because the Petitioner was not engaged in a protected activity at the time she was allegedly subjected to retaliation by termination. This was evidenced by the fact, according to the Commission, that the complaints made to supervisors by the Petitioner did not relate to harassment predicated on racism or gender.
The Petitioner elected to contest the Commission's decision by filing a Petition for Relief. In due course the Petition for Relief was transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge for formal adjudication.
The cause came on for hearing as noticed. At the hearing the Petitioner presented two witnesses and offered two exhibits, both of which were admitted into evidence. The Respondent presented three witnesses and offered twelve exhibits, all of which were admitted into evidence. Upon conclusion of the proceedings the hearing record was transcribed and the parties were given a time period to submit proposed recommended orders. The Respondent timely submitted its Proposed Recommended Order which has been considered in this rendition of this Recommended
Order.
The Petitioner became employed on October 10, 2005, at HOM. She worked as a general laborer and finisher at times pertinent to this case. HOM is a manufacturer of mobile and modular homes at its Lake City, Florida, plant. It has in excess of 15 employees and is therefore a statutory employer with the meaning of Section 760.02(2), Florida Statutes (2006).
The Petitioner has a number of blemishes on her employment record with the Respondent. She had performance
problems prior to the events leading up to the termination of her employment. She was disciplined for an incident occurring on December 21, 2005, for failure to report to required overtime work, as well as for insubordination. Steve Weeks, the Respondent's Production Manager, deemed the failure to report for required overtime work to be insubordination and a violation of the company's attendance policy.
She received an employee warning notice on May 3, 2006, regarding a perceived need for her to "pickup the pace and for her attendance." Mr. Weeks told Ms. Pate that she needed to increase her production pace and needed to work on her attendance and work quality. The Petitioner was given to understand that her employment could be terminated for further violations.
The Petitioner maintains she has been subjected to "harassment." Specifically, she complains that her co-workers in the finishing department harassed her by "bumping into me and playing threatening songs, threatening, talking about they were going to beat my behind, you know, just constantly threatening." Her complaints concern Priscilla Berry, Katherine Belford, and Melody Adkins. Melody Adkins is a white female, Priscilla Berry and Katherine Belford are African-American females. Most of the Petitioner's complaints concern Katherine Belford and Priscilla Berry.
The Petitioner admits that these individuals never indicated they were committing any alleged harassing acts because of the Petitioner's race or gender. She further acknowledges that the harassment "may not have been for my race" and that the harassment "might have been because I was a female and I was doing my job and I didn't hang with that certain group" of females. No male employees are alleged to have threatened or harassed the Petitioner and she never complained to her direct supervisor, Tommy Smith, concerning any problems related to her race or gender.
Ms. Pate spoke to Supervisors Weeks and Smith in an effort to stop the harassment and threats. In response to her complaints Mr. Weeks talked to the supervisors and employees involved in the incidents Ms. Pate complained about and told them they were not to bring personal problems to the work place. Mr. Smith separated the Petitioner from Ms. Belford and
Ms. Berry because of the antagonism that had developed between them. He directed her to perform her duties in a different location in order to alleviate the hostilities.
The Petitioner called the HOM corporate office on June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent directed the Regional Human Resources Director, William Allen,
to investigate the Petitioner's complaints. Mr. Allen spoke to the Petitioner by phone on June 29, 2006, and arranged a meeting
with her for July 11, 2006. The Petitioner told Mr. Allen during that phone conversation that she was being harassed and threatened and that the supervisor was not doing anything to alleviate the matter. She told him that "they" were discriminating against her because she was a black woman and the supervisors were still doing nothing to alleviate her harassment, in her view.
The Petitioner met with Mr. Allen on July 11, 2006.
Mr. Allen also met with other employees. The plant had been shut down during the first week of July and immediately thereafter on July 11, 2006, the Petitioner had the meeting with Mr. Allen. She found him responsive to her complaints. He took notes during the meeting with the Petitioner and with the other employees he interviewed. The Petitioner complained that she was being harassed and threatened by the above-referenced women on the job, that she "went up the chain of command" to get the harassment to stop but that it had not stopped. She did not complain to Mr. Allen that she was being harassed based on her gender or her race, however. Mr. Allen determined that the problem between Ms. Pate and the other employees was based upon difficulties in "getting along well" or, in effect, personality differences. He also determined that the Respondent had responded to the prior complaints by separating Ms. Pate from working with the employees about whom she had complained.
On July 13, 2006, Mr. Smith observed Ms. Pate out of her assigned work area while using a cell phone. The use of a cell phone during working hours, and in working areas, violates company policy. Mr. Smith asked Ms. Pate to report to the plant office to speak to Mr. Weeks. Upon arriving at the office, the Petitioner told Mr. Smith and Mr. Weeks that she was leaving because she did not feel well. Mr. Weeks told Ms. Pate that she could leave the premises, but she would have to bring in a physicians note to prevent the absence from being unexcused. She returned to work the next scheduled work day and did not bring in a physician's note as directed. The previous work day's absence was thus an unexcused absence.
Mr. Weeks decided to terminate the Petitioner's employment for her attendance problems and for her failure to submit a doctor's note justifying her absence of July 13, 2006. Her unexcused lack of attendance caused her to have excessive absences in violation of the Respondent's adopted attendance policy.
The Petitioner's employment was terminated on July 17, 2006. The Petitioner never told Mr. Weeks that she felt her employment was being terminated in retaliation for her having called the corporate office to complain, or that she was being harassed because of her race and gender.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
Section 760.10(1)(a), Florida Statutes (2006), provides that:
It is an unlawful employment practice for an employer:
To discharge or 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.
Section 760.10(7), Florida Statutes (2006), provides that:
It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice . . .
Chapter 760, Florida Statutes, the "Florida Civil Rights Act," is essentially a reflection of Title VII of the Federal Civil Rights Act of 1964. The Florida courts have therefore used the same analysis when considering claims under the Florida Act as is used in decisions employed in resolving claims under Federal Title VII. See Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385, 1387 (11th Cir. 1998);
Castleberry v. Chadbourne, Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002).
The Petitioner has not offered evidence that could constitute direct evidence of discrimination. She has offered no evidence of conduct or remarks made by others which blatantly indicate discriminatory animus based upon race or sex. Only the most blatant remarks or actions, whose intent could mean nothing other than to discriminate on the basis of race or sex, or some other impermissible discriminatory factor, can constitute direct evidence of discrimination. See Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002).
The Petitioner's charge of discrimination and the retaliation charge can thus be established only by circumstantial evidence using the framework established in the case of McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802-804 (1973).
Under the methodology laid down by that decision, a prima facie case of race or gender discrimination must include a demonstration that: (1) the Petitioner belongs to a racial minority; (2) that she was subjected to an adverse employment action; (3) that other employees outside her protected classification, who were similarly situated in terms of their conduct, were treated more favorably (or that she was replaced by an employee outside of her protected classification) and (4)
that she was qualified to perform her job. See Hollifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
The first and second elements of the prima facie case have been met by the Petitioner. She is female and African- American. She was also terminated from her employment. She did not establish, however, the third element of her prima facie
case by the fact that she did not identify any comparator employees who were outside of her protected class and who were treated more favorably by the Respondent with regard to its response to any complaints of harassment, or with regard to any discipline imposed for similar conduct in purported violation of employer policy with regard to attendance and compliance with required duties. She did not show that she was replaced after she was terminated by an employee outside of her protected class.
Since she did not show that any similarly situated employees outside her protected class were treated more favorably, she has not established a prima facie case of race or gender discrimination. Therefore, for that reason, her Petition must be dismissed.
The Petitioner also claims that a "hostile work environment" existed based upon her race or gender. A claim of unlawful harassment based upon a sexually or racially hostile work environment is established by a showing of discriminatory
conduct so severe or pervasive that it creates a hostile work environment by altering the terms and conditions of the complaining person's employment. See Snoke v. Staff Leasing, Inc., 43 F. Supp. 2d 1317, 1326 (M.D. Fla. 1998).
Specifically, the Petitioner must show that: (1) she belongs to a protected group; (2) that she was subjected to un- welcomed harassment; (3) that the harassment was based on a protected characteristic such as sex or race; (4) that the harassment was so severe or pervasive that it altered the terms and conditions of her employment; and (5) that there are grounds to hold the employer liable either directly or indirectly. Id.
The first element of the prima facie case can be established by the Petitioner in that she is a member of a protected group and that the treatment that she received was un- welcomed. The Petitioner, however, failed to adduce any persuasive evidence to show that the third element of a hostile work environment claim existed because she did not adduce evidence that the conduct that she complained of amounted to discrimination because of her protected status. The Petitioner did not show that her co-workers treated her the way they did because she is female or because she is African-American. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, (1998) (a plaintiff claiming sexual harassment must prove that the conduct at issue constituted discrimination because of sex).
There was no persuasive evidence that any person harassed the Petitioner because of her gender or her race. The Petitioner never complained to the Respondent's management that the conduct of the female co-workers toward the Petitioner was because of her race or gender. The Petitioner vaguely testified that the harassment might have been related to her gender, but admitted that all of the alleged harassers were female and that their conduct might had been related to Pate's "not hanging with that certain group" of females. The Petitioner provided no evidence from which a protected class can be discerned as the basis for the conduct of Ms. Pate's alleged harassers. Her claim for a hostile work environment thus must fail.
The claim regarding a hostile work environment must also fail because the fourth element of her prima facie case does not exist because the conduct complained of was not "severe and pervasive" enough to constitute harassment. To be severe and pervasive "[the] objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. at 1327 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)). The conduct the Petitioner complains of, co-workers bumping into her, threatening her, playing loud songs is more akin to "boorish behavior" that, while it may be disagreeable, does not rise to
the level of harassment protected by Title VII. See Speedway Super America, LLC v. Dupont, 933 So. 2d 75, 84 (Fla. 5th DCA 2006) (". . . [F]ederal courts require that the conduct/harassment be more than merely insulting or rude and boorish behavior.") See also Mullis v. Brown and Williamson Tobacco Corporation, not reported in F. Supp. 2nd, 2005 WL 1229720 at 11, (M.D. Ga. 2005) (order granting summary judgment) ("[t]here is little doubt that plaintiff was treated in a boorish manner by several of her fellow employees. As the Eleventh Circuit has made clear, however, boorish behavior does not always equate with sexual harassment, and it is obvious that it did not on this set of facts").
Even if the Petitioner had established a prima facie case the Respondent adduced evidence of a legitimate business reason for the employment action taken. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998) and Faragher supra. In order to avail itself of this defense the Respondent must show that it exercised reasonable care to prevent and correct promptly any sexual or racial harassment type of behavior. It must also show that the plaintiff "unreasonably failed to take advantage of any preventative [sic] or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765; Faragher, supra at 807.
The Respondent took reasonably appropriate steps to prevent or alleviate the harassment, even had the harassment been predicated on issues of race or sex discrimination. The Respondent has a policy that forbids discrimination and harassment and allows employees to complain to supervisors or others above them in the chain of command. Even if the alleged harassment had been based upon the protected status of race or sex, it was committed, if at all, by co-employees, not by any supervisory personnel of the Respondent. The Petitioner knew of and utilized these procedures of the Respondent and made her complaint up the chain of command in order to get the conduct to stop.
She was not satisfied with the response and called Mr. Nugent at the corporate office about the matter. He immediately directed Mr. Allen, the Regional Human Resources Director to investigate her complaints. Mr. Allen called Ms. Pate and set-up a personal interview with her about the
matter on an expedited schedule. He spent two days at the plant site interviewing the Petitioner as well as other employees. He determined that the complaints were related to personality conflicts and not due to reasons of unlawful discriminatory harassment. Mr. Allen also found that the Respondent, through Supervisor Weeks, had effectively responded to the complaints, by separating the Petitioner and her alleged harassers so that
they would no longer work in close proximity to each other. Mr. Weeks had directed all employees "to leave their personal problems at home" and to act in a professional manner while at work.
Mr. Allen thus concluded that termination of the harassers was unwarranted and not required to prevent further incidents between the Petitioner and her co-workers. In any event, the preponderant evidence establishes that any harassment which occurred was not based upon the protected status claimed by the Petitioner, race or sex. The Respondent's action in response to the Petitioner's complaints satisfies the first element of the affirmative defense provided in the Faragher and Ellerth decisions. See also Ritchie v. Stamler Corp., 205 F.3d 1346 (6th Cir. 2000) 2000 U.S. App. Lexis 568 (full text) (finding that an employer's policy contained clear direction for employees to report harassment and stated that sexual harassment would not be tolerated, therefore the employer had "exercised reasonable care to prevent and correct sexually harassing behavior").
The second part of the affirmative defense to a claim predicated upon a hostile work environment, supported by the Faragher and Ellerth decisions, has been established by the Respondent. That is, the preventive or corrective opportunities to alleviate the harassment, or to prevent it, provided by the
Respondent, were not reasonably taken advantage of by the Petitioner. The Petitioner did complain "up the chain of command" concerning the alleged harassment, but never complained to the Respondent's management, including Mr. Allen, that any harassment was based upon her race or sex. Nevertheless, she now attempts to predicate her claim of discrimination, including that based upon a hostile work environment, upon claims of racial or sexual discrimination. She thus did not reasonably take advantage of the preventive or corrective opportunities provided by the employer. The failure to report the protected basis upon which she now claims the alleged harassment was predicated, quite reasonably may have prevented the Respondent from undertaking further investigation or remedial action because it was not timely informed of the racial or gender basis for claimed discrimination.
This defense thus obviates establishment of the Petitioner's claim based upon hostile working environment and also tends to show that the employment action taken against her was taken for non-discriminatory reasons, and was not based upon a pretext for what amounted to gender or race-based discrimination.
Retaliation Claim
The Petitioner's claim for retaliation must also fail.
Retaliation can occur because of two forms of protected
activity: either opposition or participation. See Equal Employment Opportunity Commission v. Total System Services,
Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). Under the "opposition clause," an employer may not retaliate against an employee because the employee "has opposed any practice made an unlawful employment practice by this subchapter." See 42 U.S.C.
§ 2000E-3(a). Under the "participation clause," an employer may not retaliate against an employee because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding, under this subchapter." See Id.
The participation clause does not protect an employee's complaint or involvement with regard to an internal investigation prior to the filing of a formal charge of discrimination. EEOC v. Total Systems Services, 221 F.3d 1171 (11th Cir. 2000); Harris v. State of Florida, Department of Financial Services, 2006 WL 354203 (N.D. of Fla. 2006).
Since the Petitioner had not filed a charge of discrimination at the time she made her complaints to the Respondent's management the analysis must be limited to whether the Petitioner established a prima facie case of retaliation under the opposition clause. In order to so establish a prima facie case of retaliation, the Petitioner must demonstrate: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the protected
expression and the adverse action. Harper v. Blockbuster Entertainment Corporation, supra. The Petitioner claims that she was terminated because she complained to the Respondent about the conduct of her co-workers toward her. However, her complaints were not protected activity under the opposition clause. "[A]n employee's statement or communication cannot be deemed to be in opposition to an unlawful employment practice unless it refers to a specific practice of the employer that is allegedly unlawful. 'Vagueness as to the nature of the grievance . . . prevents a protest from qualifying as a protected activity.'" Guess v. City of Miramar, 889 So. 2d 840, 847 (Fla. 4th DCA 2004) (quoting Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 823 (S.D. Texas 1998).
The Petitioner admitted that she never complained to the Respondent's management that the conduct of the harassers was based upon her sex or race. Such vague general complaints are not the type that amount to protected conduct. "Title VII .
. . does not set forth 'a general civility code for the American work place.'" Burlington Northern and Santa Fe Railroad Company v. White, 126 S. Ct. 2405, 2415 (2006) (quotation omitted).
Thus, the Petitioner has not established the first element of her prima facie case of retaliation.
The other element of her prima facie case of retaliation has not been established either, because she did not
demonstrate any connection between her complaint and the decision to terminate her employment. There was an intervening event that led to her termination. On July 13, 2006, the Petitioner violated company policy by using a cell phone during work hours and by being outside her work area when doing so.
She also failed to bring a physician's note justifying her absence from work after leaving for the remainder of the day when she was called to the office to speak to Mr. Weeks and Mr. Smith concerning the violations of company policy. The
preponderant, persuasive evidence shows that her employment was actually terminated for violation of the attendance policy and the policy concerning cell phone use and for leaving her work area. This was the intervening event which actually led to her termination and her termination had nothing to do with retaliation for any complaints she had made, which were not complaints about protected activity in any event.
Further, the Respondent's efforts to maintain, distribute, and enforce a policy preventing discriminatory conduct and to provide a mechanism for employees to report a complaint of any such conduct directly to its personnel department, demonstrated an exercise of reasonable care to prevent discriminatory conduct, including harassment. Faragher, supra at 807. The provision of this mechanism also tends to establish that there was no retaliatory intent by the Respondent
directed at the Petitioner concerning any complaints she had made, whether legally protected or otherwise. Therefore the employment termination decision was not based upon retaliatory reasons.
In summary, there has been no persuasive evidence to establish that the Petitioner was terminated based upon reasons of her race or her gender. Likewise, there has been no persuasive, preponderant evidence to establish that she was harassed or discriminated against during her employment by the maintenance or condonation of a hostile work place environment, predicated on either race or sex/gender discrimination. Moreover, for the reasons determined above, the Petitioner was not shown to have engaged in any statutorily protected conduct but, even if she had, an intervening cause, violation of company policy, occurred which led to her termination, rather than her termination being predicated on a retaliatory effort directed at any protected conduct by the Petitioner. Consequently, for these reasons, the Petitioner has failed to establish that her termination was based upon reasons of race or gender discrimination or retaliation.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and
demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.
DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2007.
Kevin E. Hyde, Esquire Foley & Lardner LLP
One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240
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
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.
