Pursuant to notice, Jeff B. Clark, duly-designated Administrative Law Judge of the Division of Administrative Hearings, held a final hearing in this case on October 7, 2008,
in Orlando, Florida.
For Respondent: Bridgett D. Escobar, Esquire
and Perdomo, P.A.
Whether Petitioner, Craig Tapper, was subjected to a hostile work environment as a result of his race and national origin and retaliation, as alleged in his Petition for Relief.
On July 23, 2008, Petitioner, Craig Tapper, timely filed a Petition for Relief which alleged unlawful employment practices by Respondent, Publix Super Markets, Inc., which included allegations of a hostile work environment based on his race and national origin and retaliation. The case was forwarded to the Division of Administrative Hearings (DOAH) on the same day by the Florida Commission on Human Relations (FCHR). On July 29, 2008, an Initial Order was sent to both parties requesting mutually convenient dates for a final hearing.
Based on the response of the parties, the case was scheduled for final hearing on October 7, 2008, in Orlando, Florida.
The case was presented as scheduled. Petitioner testified on his own behalf. Respondent presented the testimony of six witnesses: Rentia Dawsey, Kris Kolczynski, Tammy Taylor, Ryan Bowles, Kendall Brown, and Ron Calkins. The parties jointly stipulated and entered 35 exhibits into evidence; they were marked Respondent's Exhibits 1 through 35.
The hearing transcript was filed with DOAH on October 31, 2008. On the same day, Respondent requested an extension of the previous deadline for filing proposed recommended orders until November 12, 2008. The motion was granted. Respondent filed its Proposed Recommended Order on November 12, 2008. Petitioner filed his Proposed Recommended Order on November 17, 2008. Even though Petitioner's Proposed Recommended Order was filed late, it was considered by the undersigned. Respondent's motion to strike Petitioner's Proposed Recommended Order is denied.
All references are to Florida Statutes (2007), unless otherwise noted.
Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:
Petitioner, an black male, born in Jamaica, was employed by Respondent as a department head/stock clerk and is classified as an "associate." He started his employment with Respondent in June 2006 and was "resigned"1 on December 5, 2007.
Respondent owns and operates retail grocery stores in Florida. Respondent employs more than 15 people.
Respondent provided an Associate Handbook ("Handbook") to Petitioner when he was employed. The Handbook contains a "Policy Statement on Harassment, Including Sexual Harassment" ("Harassment Policy") and information regarding a Formal
Complaint Procedure. The pertinent portion of the policy states:
Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on race, color . . . national origin. . .
Harassment based on any of these factors will not be tolerated. . . [I]n order for the Company to deal with the problem [of discrimination/harassment], offensive conduct or situations must be reported to the correct person. If you work in a store and want Publix to address your concern, you must report it to your Store Manager, District Manager, or Associate Relations Specialist. . . Formal complaints may also be lodged with the Manager of Equal Employment Opportunity (MEEO) through the Formal Complaint Procedure. If you choose to use these complaint resolution procedures, you'll be treated courteously.
Your complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem.
Registering the complaint will in no way be used against you, nor will it have adverse effect on your employment. . . .
Furthermore, Publix' "Rules of Unacceptable Conduct" prohibit the use of derogatory racial slurs and profanity. The "Rules of Unacceptable Conduct" are posted in the break room and the training room.
The Attendance and Punctuality Policy" states, "[a]ssociates who miss 2 entire shifts without calling will be terminated." Associates are required to personally call in and
speak with a manager two hours before their scheduled shift if they plan to miss work.
On January 29, 2007, Petitioner was scheduled to work, but did not call or show up. As a result, Petitioner was suspended for a week and received a written "Associate Counseling Statement" ("Counseling Statement"), which instructed that he "must call himself when he is not going to be here" and that he "must call in for all shift [sic] he can not fulfill." He was further warned that a failure to improve would result in his discharge.
On February 19, 2007, Petitioner was counseled and suspended for one week for "his 6th absent [sic] this 6 month period."
Despite this warning, on May 20, 2007, Petitioner was again a "no call-no show." Petitioner was issued a Counseling Statement for failing to call in and speak with a manager before missing his scheduled shift. Petitioner was warned again that he "must call in 2 hours prior to his shift, call in personally and speak to a manager." This Counseling Statement contains the following admonition: "The next occurrence of not following proper procedures will result in a one week suspension. The next occurrence of a no show/no call will result in termination."
On August 28, 2007, Dennis Sacca, grocery manager, overheard Petitioner say, "I am tired of being treated like a nigger." Sacca later walked up to Kendall Brown, an African- American grocery clerk, and said, "Go tell the nigger that I sent him some help."
Brown relayed the message to Petitioner. Petitioner reported the incident to Ron Brassel, a former store manager and who is African-American, and an investigation was immediately conducted. Brassel informed the district manager who also participated in the investigation.
During the investigation, Petitioner wrote a statement for Brassel in which he stated "[a]s far as the incident [sic] myself and Dennis sat down and spoke about the statement he made [and] we both worked it out. I would like very much for this to go no further than it being documented, I don't want Dennis fired, transferred, demoted or any action being taken against him on my behalf. As I said we both worked it out, he made a mistake and he already said he was sorry for saying it; I forgave him and we [sic] back to business." (Emphasis in original).
Despite Petitioner's written statement requesting that Sacca not be disciplined, on September 26, 2007, Dwayne Bryant, district manager, suspended Sacca for one week. Bryant also reviewed Publix' Harassment Policy with Sacca and issued Sacca a
written Counseling Statement warning Sacca that the next violation of Publix' Harassment Policy would "result in further disciplinary action such as removal from management or termination . . ." Petitioner never heard Sacca use the word "nigger" again.
Petitioner was also given a Counseling Statement for using the word "nigger." In the "Associate Comments" section of the Counseling Statement, which is where the associate has the opportunity to note their disagreement with the counseling, there is no statement denying that Petitioner used the word "nigger."
Several employees, including other African-American associates, have heard Petitioner use the word "nigger" on various occasions. Rentia Dawsey was employed at the same store as an assistant customer service manager. Dawsey, who is African-American, heard Petitioner used the word "nigger" at the store frequently. She specifically remembered an incident where she asked an associate to check with the store manager before she marked anything down, and Petitioner said, "[w]hat, you don't trust the nigger?" Brown, who worked with Petitioner, heard Petitioner say in the back room, "nigger, what's up" or "nigger this." Ron Calkins, grocery manager and Petitioner's direct supervisor, remembers overhearing Petitioner in the cooler saying, "he was nothing but the store nigger." Calkins
verbally counseled Petitioner warning him that he could not use that language as it may be offensive to customers who overhear him.
Petitioner claims that after Sacca was suspended, Calkins and Bowles, another employee, began harassing him, because they were unhappy with what had happened to Sacca. Petitioner failed to utilize the established complaint procedures regarding this alleged harassment. No other employee confirms these allegations; in fact, they testified that they never heard Bowles or Calkins say anything derogatory toward Petitioner or behave any differently toward him after the incident with Sacca. Petitioner's allegation of the harassment by Calkins and Bowles is not deemed credible.
There is no credible evidence of discrimination based on national origin.
In October of 2007, Kris Kolczynski became the new store manager.
On Friday, November 30, 2007, Petitioner was detained and taken to the Orange County Jail for matters unrelated to his employment. On the morning of December 2, 2007, Kolczynski was notified by another employee that Petitioner did not show up for work, because he was in jail. Later that day, a woman, apparently Petitioner's girlfriend, came to the store and informed Kolczynski that Petitioner would not be coming in.
Petitioner failed to call in and was absent again for his scheduled shift on December 3, 2007. Accordingly, Kolczynski called Tammie Taylor in Human Resources that same day to explain that Petitioner had been a "no call-no show." Taylor is a regional retail associate relations specialist who provides employment advice to management employees.
Taylor informed Kolczynski that the standard practice within is that if an employee does not come to work for three consecutive days, they are "resigned." Accordingly, Taylor advised Kolczynski that if Petitioner did not show for a third consecutive shift "to resign him" for job abandonment. Taylor advised Kolczynski to resign Petitioner, rather than terminate him so that Petitioner would be eligible for rehire at other Publix stores. Associates, who are terminated, are not eligible for rehire at Publix for a year.
On December 4, 2007, Petitioner was scheduled to begin work at 7:00 a.m.; however, he did not call in until 11:00 a.m., four hours after his scheduled shift. This was a "no call-no show" according to Publix' policy, which requires associates to call in two hours before their scheduled shift.
Because Petitioner was a "no call-no show" for three consecutive days, Kolczynski followed Taylor's recommendation and "resigned" Petitioner's employment.
Petitioner claims that he attempted to call Publix twice from the jail, but the store would not accept collect calls. Contrary to Petitioner's allegations, there is no written or even unwritten policy prohibiting accepting collect calls.
When Petitioner contacted Kolczynski, he was informed that his services were no longer needed at Publix and that he was considered "resigned" because he failed to call in and personally inform a manager that he would miss his scheduled shifts. Subsequently, Petitioner contacted Taylor. Taylor informed Petitioner again that he was "resigned" for failing to call in or show up for work for three consecutive days.
Kolczynski received calls from about two or three Publix store managers regarding whether Petitioner was "rehirable." Kolczynski informed them that Petitioner was resigned for job abandonment for failing to show up to work for three consecutive days, but that he was eligible for rehire. Kolczynski did not mention anything about the Sacca incident, and he did not tell them not to hire Petitioner.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 760.11(7), Florida Statutes (2008).
The Florida Civil Rights Act of 1992, as amended (Chapter 760, Florida Statutes), was patterned after Title VII of the Civil Rights Act of 1964, and Federal case law interpreting Title VII is applicable to cases arising under the Florida Act. Green v. Burger King Corp., 728 So. 2d 369 (Fla. 3d DCA 1999); Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 522 So. 2d 852 (Fla. 3d DCA 1987); School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed the unlawful employment practices as alleged in his Petition for Relief. Florida Department of Transportation v. J.W.C. Company,
Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color or national origin. § 760.10(1)(a), Fla. Stat.
In an employment discrimination case, such as this, a burden-shifting analysis is applied: (1) Petitioner must first establish a prima facie case of discrimination; (2) Respondent may then rebut the prima facie showing by articulating a legitimate, non-discriminatory reason for the employment action in question; and (3) Petitioner then bears the ultimate burden
of persuasion to establish that Respondent's proffered reason for the action taken is merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas model, proof of a prima
facie case raises a presumption that the employer's decision was motivated by discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
Once this presumption is raised, Respondent is able to rebut it by introducing admissible evidence of a reason, which if believed by the trier of fact, supports a finding that discrimination or retaliation was not the cause of the challenged employment action. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987); and Equal Opportunities Employment Commission v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The employer is required only to "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The employer "need not persuade the court that it was actually motivated by the proffered reasons[,] . . . [i]t is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254. This burden is characterized as "exceedingly light." Perryman
v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).
Where Respondent meets this burden, Petitioner has the opportunity to demonstrate that Respondent's articulated reason for the adverse employment action is a mere pretext for discrimination. McDonnell Douglas Corp. v. Green, supra, 411
U.S. at 804; Roberts v. Gadsden Memorial Hospital, 835 F.2d 793, 796 (11th Cir. 1988). This demonstration merges with Petitioner's ultimate burden of showing that Respondent intentionally discriminated against Petitioner. Hicks, supra,
509 U.S. at 511; Pignato v. American Trans Air, Inc., 14 F.3d 342, 347 (7th Cir. 1994). Put another way, once Respondent succeeds in carrying its intermediate burden of production, the ultimate issue in the case becomes whether Petitioner has proven that Respondent intentionally discriminated against him because of his race or national origin. Turnes v. AmSouth Bank, N.A.,
36 F.3d 1057, 1061 (11th Cir. 1994). Once Respondent produces evidence of a legitimate, non-discriminatory reason for the challenged action, any presumption of discrimination or retaliation arising out of the prima facie case "drops from the case." See Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 1001 (11th Cir. 1983), cert. denied, 466 U.S. 929 (1984); Navy Federal Credit Union, 424 F.3d at 405. The ultimate burden remains upon Petitioner to prove that Respondent intentionally
discriminated. Burdine, supra, 450 U.S. at 256. Stated another way, "the ultimate question in a disparate treatment case is not whether the plaintiff establish a prima facie case or demonstrate a pretext, but 'whether the defendant intentionally discriminated against the plaintiff.'" Pashoian v. GTE Directories, 208 F. Supp. 2d 1293, 1308 (M.D. Fla. 2002).
A prima facie case of hostile work environment and harassment based upon race or national origin must be established by demonstrating that: (1) Petitioner belongs to a protected group; (2) he was subjected to unwelcome harassment;
the harassment was based on his race or national origin;
the harassment was sufficiently severe or pervasive to alter the terms and conditions of his employment and create an abusive working environment; and (5) a basis for holding Respondent liable. Gupta v. Florida Board of Regents, 212 F.3d 571, 582-83 (11th Cir. 2000)(citing Mendoza v. Borden Inc., 195 F.3d 1238, 1245 (11th Cir. 1999)(en banc), cert. denied, 531 U.S. 1076 (2001).
A hostile work environment claim is established upon proof that "the workplace is permeated with discriminatory intimidation, ridicule, and insult." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To determine whether harassment in a work environment is sufficiently severe or pervasive to constitute a hostile work environment, four factors
should be considered: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee's job performance. Id.
Petitioner has established that he is a member of a protected class by virtue of his race and national origin. He was well-qualified for his position and continued in his employment from late August 2007, when Sacca uttered the racially-charged word "nigger," until December 4, 2007. Further, Petitioner was the subject of adverse employment action; he lost his job or was "resigned." However, Petitioner has failed to demonstrate that Respondent's reasons for his termination were pretextual, that he was subjected to racial discrimination that resulted in his termination, or that the workplace was hostile.
The evidence is clear that Petitioner frequently used the term "nigger" in referring to himself and others. It is equally apparent that at least on one occasion Sacca, Respondent's employee, used the same term. Petitioner exercised Respondent's "anti-harassment" policy, and both he and Sacca were admonished for the use of the offensive term.
The "[m]ere utterance of a racial epithet that engenders offensive feelings in an employee," but does not alter
the conditions of employment, does not present an actionable situation. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)(citing Rogers v. EEOC, 454 F.2d 234, 237 (5th Cir. 1971).
Although Petitioner alleges that other employees were hostile and unlawfully discriminated against him after Sacca's suspension, he did not pursue the alleged discrimination through Respondent's "anti-harassment" procedures, and his allegations are not supported by the evidence. Other employee witnesses observed no hostility in the work environment. In addition, Respondent aggressively investigated Sacca's offensive conduct of which Petitioner complained and appropriately punished the wrongdoer. This appropriate remedial action resulted in the cessation of the alleged harassment.
It is evident that Petitioner lost his job because he was frequently "no show-no call" in violation of Respondent's "Attendance and Punctuality Policy." Having been counseled on numerous occasions and having received two, one-week suspensions, Petitioner failed to follow established procedure when he was absent from work for three consecutive days. Respondent had advanced a valid reason for Petitioner's forced resignation. That reason is not a pretext, but is supported by a preponderance of the evidence.
Subsection 760.10(7), Florida Statutes, provides that it is an unlawful employment practice to "discriminate against
any person because that person has opposed any practice which is an unlawful employment practice under [the FCRA] "
To establish a prima facie case for retaliation under Subsection 760.10(7), Florida Statutes, Petitioner must demonstrate that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and
(3) there is a causal relation between the two events. Hinton v. Supervision International, Inc. 942 So. 2d 986, 990 (Fla. 5th DCA 2006); Guess v. City of Miramar, 889 So. 2d 840, 846 (Fla. 4th DCA 2004).
While Petitioner engaged in a statutorily-protected activity, Petitioner has failed to demonstrate that his job loss was because he objected to the offensive term that both he and Sacca used. Because of this, Petitioner failed to make a prima facie case of retaliation. Tatt v. Atlanta Gas Light Company, 138 Fed. Appx. 145 (11th Cir. 2005).
RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice.
DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008.
1/ "Resigned" is a "word of art" for Publix; Petitioner was involuntarily terminated, but by classifying his termination as a "resignation," Petitioner is available for immediate rehiring instead of having to wait one year.
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
& Perdomo, P. A.
Bridget D. Escobar, Esquire Ford & Harrison, LLP
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.
