This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on July 16, 2008, in Tallahassee,
Florida.
1025 North Everitt Avenue, Apt. A-3 Panama City, Florida 32401
The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Petitioner Judy A. Sorey (Ms. Sorey) filed an Employment Claim of Discrimination with the Florida Commission on Human Relations (Commission) on September 12, 2007. She complained that she had been discriminated against by Respondent Mastercorp, Inc. (Mastercorp), because of race and retaliated against because she reported discrimination. On January 29, 2008, the Commission issued its "Notice of Determination: Cause." This referred only to the complaint of retaliation. "No cause" was found for complaints of a hostile work environment or disparate treatment based on race. Ms. Sorey thereafter filed a Petition for Relief with the Commission from an Unlawful Employment Practice on March 3, 2008. The Petition and allied papers were forwarded to the Division of Administrative Hearings on March 21, 2008, and it was filed on March 24, 2008. The matter was set for hearing on May 2, 2008.
Ms. Sorey requested a continuance and asked that the case be put in abeyance. This request was granted in an Order Granting Continuance and Placing Case in Abeyance filed April 1, 2008.
The case was eventually set for hearing on July 16, 2008, and was heard that date.
Ms. Sorey proceeded at the hearing on all three complaints. She testified and offered four exhibits into evidence. Two were admitted. MasterCorp presented the testimony of two witnesses
and offered three exhibits into evidence. All three exhibits were accepted.
A Transcript was filed on July 31, 2008. Respondent asked for additional time to file its proposed recommended order.
Ms. Sorey did not object. The parties were given until August 21, 2008, to file their proposed recommended orders.
Ms. Sorey filed her "Recommended Order" on August 20, 2008.
Mastercorp filed its "Recommended Order" on August 21, 2008.
References to statutes are to Florida Statutes (2006) unless otherwise noted.
Ms. Sorey is an African-American woman who at the time of the hearing was a resident of Panama City, Florida.
Mastercorp was Ms. Sorey's employer at all relevant times and is engaged in the business of providing housekeeping and cleaning services to timeshare resorts in the State of Florida and elsewhere. Mastercorp has its headquarters in Crossville, Tennessee.
Ms. Sorey was employed by Mastercorp at a resort in Panama City called the Landmark, from August 2005 until Mastercorp's contract with Landmark ended in September 2006.
Ms. Sorey began her employment with Mastercorp at Landmark as a housekeeping supervisor. She was eventually
assigned to the laundry. It was while working in the laundry at Landmark that she alleged discriminatory treatment.
Ms. Sorey was supervised by an executive housekeeper (EH) and an assistant EH. The EH and assistant EH are management level employees who are supervised by area, district, or regional managers, and ultimately by corporate managers working out of the Crossville office. An EH is responsible for all operations at a client property, including budgeting and supervising all Mastercorp employees located there.
Miguel Palacios began his career with Mastercorp in 2004 as an assistant EH and worked his way up to EH at a client property in the Orlando area. Later, he was used as a roving manager by Mastercorp. As a roving manager, he was assigned to "problem properties." It was his job to ameliorate whatever was causing a property to be a "problem property."
Mr. Palacios was assigned to Landmark because operations there were unsatisfactory and, as a result, Mastercorp was in danger of losing its contract. Mr. Palacios was instructed to support the existing EH at Landmark. Later, he took charge of the operation and ran it until a new EH, Wilmer Gonzalez, was hired. Ms. Sorey was working at Landmark when Mr. Palacios assumed his duties there.
Debbie Green was one of Mastercorp's housekeeping supervisors at Landmark. Ms. Green is an African-American.
Because of her excellent performance, Ms. Green became
Mr. Palacio's acting assistant while he was in charge of the Landmark property.
Mastercorp's Vice President of Operations, David Maier, visited the Landmark property in March 2006 and told Ms. Sorey that he was impressed with her work in the laundry. He complimented her on the good job she was doing there. Mr. Maier made a remark to Ms. Sorey to the effect that she should be her "own boss." Ms. Sorey interpreted this to mean she could run the laundry as she wished, and without supervision. This was the first of several incorrect assumptions made by Ms. Sorey.
When a district manager questioned her placement in the laundry, she attempted to contact Mr. Maier for clarification, but was not able to do so.
Payment for working overtime at Landmark was permitted only when approved by the EH. This was a policy dictated by the requirement for Mastercorp to remain within its budget.
Ms. Sorey approached Mr. Gonzalez and Mr. Palacios and informed them that she did not have enough time to complete her laundry during normal working hours and expressed a desire to work and be paid overtime. When rebuffed, Ms. Sorey became frustrated by the demands on her, which, it is found, were substantial.
Eventually, Ms. Sorey brought a friend in to help her and the friend was put on the Mastercorp payroll. This
alleviated some of the stress felt by Ms. Sorey. Subsequently, a corporate quality inspector named Nell Wilson came to Landmark in June 2006 and gave her department a 100 percent grade on its evaluation and provided a certificate of dedication. Neither Mr. Palacios nor Mr. Gonzalez found time to present the certificate to her.
Mr. Palacios, a Puerto Rican, traveled to his native land on vacation in June of 2006 and returned with souvenirs for some of the employees at Landmark. These souvenirs included coffee mugs, liquor, and key chains. He presented Ms. Sorey with a coffee mug. She asserted that she was offended by the coffee mug. She referred to it as an "old devil cup" and considered it to be an inappropriate reflection on her race.
Ms. Sorey related at the hearing, "I don't know nothing about Puerto Rico. Coming back here giving me no cup, calling me no black devil." It is clear how a person lacking sophistication in an international sense, or at least a Caribbean sense, could misinterpret the nature of the mug.
The mug was black with a Puerto Rican flag superimposed upon it. On one side of the flag were the words "Puerto" and on the other, "Rico." Overlaid on the flag was a figure that vaguely resembled a man that was variously colored green, yellow, and red, and which appeared to be wearing a blue
suit. The figure wore a cape with a yellow lining. The mug had the word "Vejigantes" written on it.
In certain parts of Puerto Rico, Vejigantes are masks worn by dancers in carnivals. They represent various things such as strength and harmony. The masks are part of Puerto Rican culture and have nothing to do with race except that the festival itself may have had roots in Africa.
Although Ms. Sorey appeared to be grateful at the time she was given the mug, two or three days later she called Gloria Turner, the general manager of the Landmark, telling her that she was offended by it. This was relayed to Mr. Palacios who went to Ms. Sorey and told her that he meant no offense and offered to provide her with another gift in return for the mug. She refused this offer.
Several days later Mr. Palacios counseled Ms. Sorey because she had worked overtime without approval and was not following the direction of Mr. Gonzalez. This was memorialized in a written memorandum dated June 25, 2006.
Subsequently, Ms. Sorey submitted a handwritten complaint, dated July 3, 2006, to Mastercorp's employee leasing company, Oasis. This was forwarded to Mastercorp because
Ms. Sorey was an employee of Mastercorp.
The aforementioned document was four and one-half pages long and complained about work issues relating to time and
amount of work. The sole issue that could be interpreted as addressing race was this sentence: "Miguel Palacio went to Puerto Rico and when he came back he came to the laundry and gave me a black cup and on the cup was a body and a face like a devil like he is call me a black devil. This face had red horn on it and at the top of the cup have these letter 'Vejigantes.'"
The July 3, 2006, memorandum was the only complaint that Mastercorp received from Ms. Sorey, and, as noted above, it was received indirectly. Nevertheless, Whitney Stoker, an employee in the human resources department in the Crossville, Tennessee headquarters was tasked to conduct an investigation into the matter.
In effecting her investigation, Ms. Stoker interviewed Mr. Palacios. She attempted to contact Ms. Sorey by telephone on five occasions. She left messages imploring Ms. Sorey to provide her with details surrounding her complaint. Ms. Sorey had an ample opportunity to amplify the information contained in the complaint, but chose not to provide additional information.
Ms. Stoker also conducted an Internet search into the matter of the "Vejigantes" mask that was featured on the mug, using the Yahoo search engine. She discovered that it was indeed a character signifying various aspects of Puerto Rican culture and related to festivals held in some Puerto Rican
towns. She discovered that it had nothing to do with race or insulting someone.
Mastercorp's contract with Landmark was by its terms set to expire in September 2006. In July or August 2006 it became clear that Mastercorp would not obtain another contract with Landmark and, therefore, there would be no more work there for Mastercorp's employees. However, a new opportunity for work arose in Mastercorp's contract at Club Destin, in Destin, Florida.
Mr. Palacios took nine of the Panama City employees to the Destin job. There were not enough positions in Destin available for everyone who had been employed at the Landmark job. He did not consider race in deciding who would be offered employment in Destin. He was not concerned about the complaint Ms. Sorey had made. Ms. Sorey did not ask to be employed at Destin, and Mr. Palacios did not ask her to work there.
Ms. Sorey did not complain at the time that she was not offered one of the positions in Destin. One of the employees employed at the Destin property was Donna Ponds, an African-American. She was trained at Landmark, but was hired in anticipation that she would work at Club Destin. She was hired as the EH at Club Destin.
No evidence was adduced that indicated that anyone of another race was treated differently or more favorably than
Ms. Sorey.
Mr. Palacios did not need any help in the laundry at Club Destin because the property manager there was successfully using foreign exchange students. Ms. Sorey expressed no desire to move to the Destin facility at the time staffing decisions were being made. During the hearing she was asked, "Did you want to go to Destin." She answered, "Not really."
Ms. Sorey's allegations of harassment, disparate treatment, and retaliation were precipitated by her anger at management due to having to work hard and not being allowed to incur overtime; the pressure she felt at not having enough time to complete her duties; and her opinion that she was not sufficiently recognized for her work in the laundry. No evidence whatsoever was adduced that adverse working conditions were precipitated by racial prejudice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.11(7) Fla. Stat. (2007).
Subsection 760.02(1), Florida Statutes, states that the "Florida Civil Rights Act of 1992" (the Act) comprises Sections 760.01 through 760.11, and 509.092, Florida Statutes.
Ms. Sorey is an "aggrieved person," and Mastercorp is an "employer" as defined by Section 760.02, Florida Statutes.
Pursuant to Subsection 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race.
Pursuant to Subsection 760.10(7), Florida Statutes, it is an unlawful employment practice for an employer to discriminate against a person because that person has, "opposed any practice which is an unlawful employment practice" or because that person "has made a charge . . . under this section."
The Act is patterned after Title VII of the Federal Civil Rights Act, 42 U.S.C. Section 2000E et seq. Federal case law interpreting Title VII is applicable to cases arising under the Act. See Florida Department of Community Affairs v. Bryant,
586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
There was no direct evidence of race discrimination adduced at the hearing, so Ms. Sorey must prove disparate treatment, if she can, through the burden-shifting mechanism outlined by the U. S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
To establish a claim of disparate treatment under the McDonnell Douglas framework, Ms. Sorey must establish a prima facie case of race discrimination. If she does so, Mastercorp may offer a legitimate, nondiscriminatory reason for its actions. If it does so, Ms. Sorey must prove that Mastercorp's reason is a pretext for race discrimination, if she is to prevail.
In order to prove a prima facie case, Ms. Sorey must show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) she was treated differently than similarly-situated employees of a different race; and (4) that she was qualified for the job or job benefit at issue. See Gillis v. Ga. Dep't of Corr., 400 F.3d 883 (11th Cir. 2005).
Ms. Sorey is a member of a protected class because she is an African-American. She was qualified to run the laundry at the Landmark property. The failure to offer her a job at the Destin property was not an adverse employment action. Even if it was, there is no evidence that in such failure was a product of discrimination because there is no evidence that similarly situated employees of a different race were treated differently. Accordingly, Ms. Sorey has failed to prove a prima facie case.
If one assumes arguendo that a prima facie case was established, Mastercorp demonstrated that its decision as to who
would be given the opportunity to work at the Destin property was based on business reasons having nothing to do with discrimination.
Although it is unfortunate that Ms. Sorey felt hurt with regard to the mug given to her by Mr. Palacio, a gift gone awry due to cultural differences does not amount to evidence of racial discrimination.
In order to prove a hostile working environment she must demonstrate: (1) that she belonged to a protected class;
(2) that she was subjected to unwelcome harassment; (3) that the harassment was based on her race; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive work environment; and (5) some basis for holding the employer liable. See Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999).
Ms. Sorey's complaints with regard to harassment concerned pressure she felt as a result of management goading her to effect more production per day than she thought reasonable. She objected to being harassed about inventory and having too much work. These matters were not related to her race.
In order to establish a prima facie case of retaliation under the Act, Ms. Sorey must demonstrate: (1) that
she engaged in statutorily protected activity; (2) that she suffered an adverse employment action; and (3) that there is a causal relation between the two events. See Donovan v. Broward County Bd. of Comm'rs, 974 So. 2d 458 (Fla. 4th DCA 2008) and Harper v. Blockbuster Entn't Corp., 139 F.3d 1385, 1388 (11th Cir. 1998).
In Burlington Northern & Santa Fe Railway v. White,
548 U.S. 53 (2006), the U. S. Supreme Court noted that the scope of the retaliation provision is broader than that of Title VII's substantive discrimination provisions. As the Court noted, the anti-retaliation provision seeks to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. In the Burlington Northern case, unlike the case at bar, there was no doubt that Ms. White had been discriminated against, and there was sufficient evidence available to persuade a jury that her employer changed her job status when she complained.
The five-page written complaint Ms. Sorey submitted is primarily a complaint about working conditions that have nothing to do with discrimination. Her misunderstanding as to the significance of the "Vejigantes" mug does not elevate the document to a statutorily protected activity.
A simple Yahoo search by Ms. Whitney revealed that the "Vejigantes" figure was unrelated to racism and demanded the
conclusion that Ms. Sorey was mistaken in her claim that its presentation to her was a racial attack. Therefore, it may be concluded that she did not oppose, ". . . any practice which is an unlawful employment practice." Her complaint then became solely one of mistreatment on the job having nothing to do with racial discrimination. Complaining about nondiscriminatory job issues is not a statutorily protected activity under the Act.
Even if one assumes that her complaint was a statutorily protected activity, she did not suffer an adverse employment action at the hands of Mastercorp. In September 2006, Mastercorp's contract with Landmark ended and most of Mastercorp's employees at that site were laid off. No one discharged Ms. Sorey. The job simply ended.
The third prong that must be proved to establish a case of retaliation requires evidence that an action was taken in response to a statutorily protected complaint. To prove this type of causal connection, Ms. Sorey was only required to prove that the protected activity and adverse action were not "wholly unrelated." See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999).
In Ms. Sorey's case, the evidence is clear that the person who could have offered her the opportunity to work in Destin, Mr. Palacios, gave no thought to her complaint when determining who would be employed in Destin. In other words,
there was no relation whatsoever between the complaint, which, as noted, was not a statutorily protected complaint, and his hiring decisions for the new job in Destin. Thus, retaliation could not have occurred.
Ms. Sorey may have been over-worked and treated poorly in her occupation as a laundress in a large timeshare facility. She may have been harassed by superiors who wanted more production than was reasonable. Her treatment by her supervisors may have been deplorable. But evidence that the actions of Mastercorp were based on matters involving race is completely lacking.
Employment Practice be DISMISSED.
DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2008.
1025 North Everitt Avenue, Apt. A-3 Panama City, Florida 32401
Larry Kranert, 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.
