STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case before Jeff B. Clark, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on January 28, 2009, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Judith Monteiro, pro se

13738 Lavender Avenue

Hudson, Florida 34667

For Respondent: Thomas J. Birchfield, Esquire

Qualified Representative Fisher and Phillips, LLP

220 West Main Street, Suite 2000 Louisville, Kentucky 40202

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner as stated in the Petition for Relief in violation of Chapter 760, Florida Statutes (2007).

PRELIMINARY STATEMENT

On October 1, 2008, Petitioner, Judith Monteiro, filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations (FCHR) alleging that Respondent, Atria Windsor Woods: "(1) Unjustified/discriminatory accusation of misdemeanor money theft from residents apt. approx. 50% of Atria's employees have keys to all apartments[;]

1. Publicly discriminated at workplace in front of employees and residents by police & E.D. Director Jennifer Astudo[;] (3) I was the only individual accused regarding this matter[;] (4) Pasco City Complaint Affidavit (PCSO FLO 510000) dismissed. Copy enclosed[;] [and] (5) No offer of apology or Job reinstatement ever offered."

   On September 18, 2008, FCHR issued a "Right to Sue" letter regarding her claim indicating that the Equal Employment Opportunity Commission had investigated the case and determined that it was "unable to conclude that the information obtained during its investigation established violations of the statutes." The "Right to Sue" letter advised that a Petition for Relief could be filed.

   In her initial Charge of Discrimination filed with the Equal Employment Opportunity Commission on July 23, 2007, Petitioner checked boxes indicating that her charge of discrimination was based on "sex" and "retaliation." Later, in

   her narrative claim in the same document, she states, "I believe I was discriminated against in violation of the Age Discrimination in Employment Act of 1967 and Title VII of the Civil Rights Act of 1964, as amended."

   The Petition for Relief was timely filed with FCHR. On October 2, 2008, FCHR referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a hearing on the allegations of employment discrimination made by Petitioner. On October 3, 2008, an Initial Order was sent to both parties requesting mutually convenient dates for a final hearing. Based on the response of the parties, a final hearing was scheduled on November 20, 2008, in New Port Richey, Florida.

   On October 14, 2008, Thomas J. Birchfield, Esquire, a member of the State of Kentucky Bar, sought acceptance as a qualified representative. Mr. Birchfield was accepted as a qualified representative by Order dated October 24, 2008.

   On October 29, 2008, the parties filed a Joint Motion to Continue Hearing that was granted on November 4, 2008. The case was rescheduled for January 28, 2009.

   The hearing was held on January 28, 2009, as rescheduled.

   
   

   Petitioner testified on her own behalf and presented the testimony of Richard Suchy and David Eshelman. Respondent presented three witnesses: Judy Nicholson, Kimberly Adams, and

   Jennifer Astudo. Respondent offered three exhibits that were received into evidences and marked Respondent's Exhibits 1 through 3.

   The Transcript of Proceedings was filed with the Division of Administrative Hearings on February 11, 2009. Both parties timely submitted Proposed Recommended Orders.

   All statutory references are to Florida Statutes (2007), unless otherwise noted.

   FINDINGS OF FACT

   
   

   Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence:

   1. Respondent, Atria Windsor Woods, provides retirement and assisted living facilities and employs more than 15 persons.

   2. Petitioner, Judith Monteiro, was hired as a housekeeper in 2002 at the age of 57.

   3. On or about November 29, 2006, Petitioner was discharged from her employment with Respondent. She was advised that she was discharged for violating company policy regarding entering an apartment while the occupant was absent due to hospitalization.

   4. Petitioner testified that she entered an apartment of an absent occupant when she smelled spoiled food, disposed of the spoiled food, and reported the matter to her supervisor. On

      the following day, a theft of approximately $150.00 was reported from the apartment.

   5. Petitioner appears to be the victim of disgruntled relatives of the apartment's occupant who, apparently, complained about the purported theft to Respondent and confusing rules about when to enter an unoccupied apartment and who was authorized to enter an unoccupied apartment.

   6. Petitioner presented no direct or circumstantial evidence that her discharge was based on age, sex, or any other right actionable under Chapter 760, Florida Statutes, the Florida Civil Rights Act.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2008).

   8. Section 760.10, Florida Statutes, in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age or sex or to retaliate against an employee for exercising any protected right. Chapter 760, Florida Statutes, entitled the Florida Civil Rights Act, adopts the legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000, et seq.; King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d

      1370 (N.D. Fla. 1998); Carlson v. WPLG/TV-10, Post-Newsweek Stations of Florida, 956 F. Supp. 994 (S.D. Fla. 1996).

   9. The United States Supreme Court has established an analytical framework within which courts should examine claims of discrimination, including claims of age discrimination. In cases alleging discriminatory treatment, Petitioner has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997).

   10. Petitioner can establish a prima facie case of discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial evidence under the framework set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973); or (3) by establishing statistical proof of a pattern of discriminatory conduct. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). If Petitioner cannot establish all of the elements necessary to prove a prima facie case, Respondent is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

   11. To establish a prima facie case of discrimination, Petitioner must show: that she is a member of a protected class; that she suffered an adverse employment action; that she

       received disparate treatment than other similarly-situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between her age or sex and the disparate treatment. Andrade v. Morse

       Operations, Inc., 946 F. Supp. 979 (M.D. Fla. 1996).

       
       

   12. Petitioner made a prima facie showing that due to her age, she is a member of a protected class and that she suffered an adverse employment action--she was discharged. However, Petitioner failed to make a prima facie showing that she received dissimilar treatment than individuals in a

       non-protected class or that there was any bias against Petitioner. Even if evidence of bias did exist, which it does not, it was insufficient to infer a causal connection between Petitioner's age or sex and the alleged disparate treatment.

   13. Petitioner's case is predicated on her statement that she was unjustly fired because she entered an unoccupied apartment to remove spoiled food. There is no indication that the proffered reason for her firing was not valid. Other than her apparent belief that she was treated unfairly, Petitioner offered no other evidence, direct, circumstantial, or statistical of the alleged discrimination.

   14. If Petitioner had satisfied her burden of establishing a prima facie case of discrimination, an inference would have arisen that the adverse employment action was motivated by a

       discriminatory intent. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green,

       411 U.S. 792 (1973). The burden would have then shifted to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id.

   15. Respondent articulated a legitimate, non- discriminatory reason for its action. Respondent demonstrated that Petitioner's violation of company policy regarding the entry of an unoccupied apartment was the reason for her discharge.

   16. Once Respondent successfully articulates a non- discriminatory reason for its action, the burden shifts back to Petitioner to show that the proffered reason is a pretext for unlawful discrimination. Petitioner must provide sufficient evidence to allow a reasonable fact-finder to conclude that the proffered reason is not the actual motivation for the adverse employment action. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998).

   17. Petitioner may show that Respondent's articulated reason is a pretext by showing that the non-discriminatory reason should not be believed; or by showing that, in light of all the evidence, discriminatory reasons more likely motivated the decision than the proffered reason. Id. Petitioner did neither. Petitioner failed to present any evidence showing that

       Respondent either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.

   18. 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] "

   19. To establish a prima facie case for retaliation under Subsection 760.10(7), Florida Statutes, Petitioner must demonstrate that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and

2. 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).

20. There was no evidence that Petitioner was engaged in a statutorily-protected activity or that her dismissal was in any way related to her exercise of a statutorily-protected activity. No evidence was presented of retaliation.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Atria Windsor

Woods, did not discriminate against Petitioner, Judith Monteiro, and dismissing the Petition for Relief.

DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2009.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas J. Birchfield, Esquire Fisher and Phillips, LLP

220 West Main Street, Suite 2000 Louisville, Kentucky 40202

Judith Monteiro

13738 Lavender Avenue

Hudson, Florida 34667

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: 08-004934

Orders for Case No: 08-004934