STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA LISSIMORE SIMMONS,

Petitioner,

vs.

HAMILTON PRODUCTS, INC.,

Respondent.

)

)

)

)

) Case No. 07-2221

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 17, 2007, in Ocala, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brenda Lissimore Simmons, pro se

1818 Northwest Martin Luther King Avenue

Ocala, Florida 34475

For Respondent: Garry D. Adel, Esquire

Blanchard, Merriam, Adel & Kirkland, P.A.

Post Office Box 1869 Ocala, Florida 34478

STATEMENT OF THE ISSUE

The issue is whether Respondent retaliated against Petitioner for filing a prior complaint with the Florida Commission on Human Relations (FCHR) in violation of Section 760.10, Florida Statutes (2006).

PRELIMINARY STATEMENT

On October 16, 2006, Petitioner Brenda Lissimore Simmons (Petitioner) filed an Employment Complaint of Discrimination with FCHR. The charge alleged that Respondent Hamilton Products, Inc. (Respondent) had retaliated against Petitioner by harassing her because she had filed a prior complaint with FCHR.

On April 13, 2007, FCHR issued a Determination: No Cause.

On May 11, 2007, Petitioner filed a Petition for Relief. On May 16, 2007, FCHR referred the petition to the Division of Administrative Hearings.

On June 4, 2007, the undersigned issued a Notice of Hearing, scheduling the case for hearing on July 17, 2007.

During the hearing, Petitioner testified on her own behalf.

She did not present the testimony of any other witnesses. Petitioner offered Petitioner’s Composite Exhibit No. P1, which was accepted as evidence.

Respondent presented the testimony of two witnesses.

Respondent offered Respondent’s Exhibit Nos. R1, R2, and R3. Respondent’s exhibits were accepted as evidence.

The parties declined to file a transcript of the proceeding. On July 25, 2007, Respondent filed a Proposed Recommended Order. As of the date that this Recommended Order

was issued, Petitioner had not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent is an employer as defined by Section 760.01(7), Florida Statutes (2006). Respondent manufactures various animal-related products, such as horse tack and pet collars.

2. Petitioner is an African-American female. Beginning on January 13, 2003, and at all times relevant here, Respondent employed Petitioner as a production-line assembler.

3. Martha Robinson, a white female, has worked for Respondent for over 17 years. Ms. Robinson was Petitioner’s direct supervisor for most of the time that Petitioner worked for Respondent.

4. JoAnn Lake is Respondent’s production manager.

   
   

   Ms. Lake was Ms. Robinson’s immediate supervisor.

   
   

5. On December 27, 2005, Petitioner filed a charge of discrimination with FCHR. The charge alleged that Respondent had discriminated against Petitioner based on her race. On April 20, 2006, FCHR entered a Final Order dismissing Petitioner's discrimination charge.

6. Respondent has a disciplinary point system which is described in Respondent’s Employee Handbook. Under the system, employees are assessed points for unexcused absences, tardiness,

   or leaving work early. Employees can recoup lost points after a 30-day period without a disciplinary occurrence. When employees accrue 20 points, they are subject to a three-day suspension.

   Employees are subject to suspension or termination the second time they accumulate 20 disciplinary points.

7. All supervisors and Penny Peterson, Respondent's personnel director, are responsible for tracking the disciplinary-point totals for employees. Supervisors send Ms. Peterson a written notice every time they assess disciplinary points.

8. When there is a discrepancy in the point total between the supervisors' records and Ms. Peterson's personnel records, Respondent first reviews supporting documentation. If the supporting documentation supports Ms. Peterson's calculation of points, her total point count becomes official. If the supporting documentation does not support Ms. Peterson's total, the supervisors' calculation of points becomes the official count.

9. During Petitioner’s employment, Respondent issued Petitioner five verbal warnings and nine written warnings for accumulating too many disciplinary points. Petitioner typically carried a high balance of disciplinary points.

10. On May 10, 2006, Respondent suspended Petitioner for three days for accumulating 22 points. When she returned to

    work, Petitioner thanked her supervisors for giving her a five- day vacation for Mother's Day.

11. On July 27, 2006, Petitioner asked Ms. Robinson how many disciplinary points Petitioner had accrued. Ms. Robinson erroneously informed Petitioner that she had 14 points. Petitioner then left work before the end of her work day.

    Ms. Robinson subsequently assessed Petitioner an additional three points and sent the notice to the personnel office.

12. Contrary to Ms. Robinson's records, Petitioner actually had 18 points on July 27, 2006. When Respondent assessed another three points for leaving work early, Petitioner had a total of 21 disciplinary points.

13. On or about August 7, 2006, Ms. Robinson was on leave.

    
    

    Therefore, Ms. Lake informed Petitioner that she had 21 points and was due to be suspended. Petitioner protested the suspension, stating that she only had 17 points according to Ms. Robinson.

14. Ms. Lake checked Ms. Robinson's records that showed Petitioner had 17 points. Ms. Lake sent Petitioner back to work and conferred with David Brakefield, the plant manager, and

    Ms. Peterson. Petitioner's personnel records confirmed that she had accumulated 21 disciplinary points.

15. Ms. Lake enforced Petitioner's three-day suspension on August 8, 2006, through August 10, 2006. Petitioner had a doctor's excuse for missing work on August 11, 14, and 15, 2006.

16. Petitioner returned to work on August 16, 2006. That same day, Petitioner informed Ms. Robinson that she was quitting her job because it was too stressful. Petitioner told

    Ms. Robinson that she was resigning based on her psychologist's recommendation.

17. During the hearing, Petitioner presented no evidence, not even her own testimony, to contradict Ms. Peterson's point total, showing that Petitioner had 21 disciplinary points on July 27, 2006.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2006).

19. Section 760.10(7), Florida Statutes (2006), makes it unlawful for an employer to discriminate against any person because that person opposed an unlawful employment practice, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing.

20. Petitioner met her burden of proving a prima facie case of retaliation. She established, by a preponderance of the evidence, that she engaged in a protected activity, by filing a prior discrimination charge, and that she subsequently suffered an adverse employment action. See Burlington Northern & Santa Fe Railway, Co. v. White, 126. S. Ct. 2405, 165 L. Ed. 2d 345 (2006). However, Petitioner did not meet her ultimate burden of proof, i.e. that there was a causal link between the protected activity and the adverse employment decision. See Wrighten v. Metropolitan Hospitals, Inc. 726 F.2d 1346, 1354 (9th Cir. 1984). See Meeks v. Computer Assocs. Int'l., 15 F.3d 1013, 1021(11th Cir. 1994); Casey v. Wal-Mart Stores, Inc., 8 F. Supp. 2d. 1330, 1338 (N.D. Fla. 1998).

21. On the other hand, Respondent proffered a legitimate non-discriminatory reason for the adverse employment action. See Casey, 8 F. Supp. at 1338. Respondent showed that Petitioner was suspended because she had too many disciplinary points. Petitioner has not shown that her suspension was a pretext for retaliation. See Id.

22. Additionally, Respondent is not guilty of constructive discharge because there is no evidence that a reasonable person in Petitioner's position would have been compelled to resign. See Rowell v. Bellsouth Corp., 433 F.3d 794, 806-807 (11th Cir.

    2005). Petitioner's suspension was based on an objective standard: an accumulation of more than 20 points.

23. Finally, Respondent is not guilty of retaliatory harassment. Petitioner did not show that the "workplace [was] permeated with discrimination, intimidation, ridicule, and insult . . . sufficiently severe or pervasive . . . to alter the conditions of the victim's employment." See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). There is no evidence that Respondent's suspension of Petitioner created a hostile work environment.

24. Petitioner has failed to show that Respondent retaliated against her. Respondent properly suspended Petitioner who subsequently resigned for personal reasons. Discrimination laws "cannot be transformed into a palliative for every workplace grievance, real or imagined by the simple expedient of quitting." See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3rd Cir. 1992).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Florida Commission on Human Relations enter a final order dismissing the Petitioner's charge of retaliation.

DONE AND ENTERED this 15th day of August, 2007, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2007.

COPIES FURNISHED:

Brenda Lissimore Simmons

1818 Northwest Martin Luther King Avenue Ocala, Florida 34475

Garry D. Adel, Esquire Blanchard, Merriam, Adel

& Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denis Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 07-002221

Orders for Case No: 07-002221