A final hearing was conducted in this case on March 31, 2009, by video teleconference between Pensacola, Florida, and Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender.
On August 20, 2008, Petitioner Carolyn Johnson (Petitioner) filed an Employment Complaint of Discrimination against Respondent Circle K. The complaint alleged that Respondent had discriminated against Petitioner based on sex contrary to Section 760.10(1)(a), Florida Statutes (2008). According to the complaint, the date of the most recent discrimination took place on January 20, 2008.
On December 11, 2008, the Florida Commission on Human Relations (FCHR) issued a Determination: No Cause.
On January 11, 2009, Petitioner filed a Petition for Relief with FCHR. FCHR referred the petition to the Division of Administrative Hearings on January 14, 2008.
On January 27, 2009, Administrative Law Judge Barbara Staros issued a Notice of Hearing. The notice scheduled the hearing for March 31, 2009.
On March 17, 2009, Petitioner filed a letter regarding the merits of the case. On March 19, 2009, Judge Staros issued a Notice of Ex Parte Communication, putting the letter on the record and advising Petitioner to provide Respondent with a copy on any written communication filed with the Division of Administrative Hearings.
During the hearing, Petitioner testified on her own behalf and presented the testimony of six witnesses. Petitioner
offered three exhibits that were accepted as evidence. Respondent did not present any witnesses or offer any exhibits.
The parties did not file a transcript of the proceeding.
Petitioner filed post-hearing submissions on the following dates: April 2, 2009; April 7, 2009; April 9, 2009; April 14, 2009; and April 16, 2009. It appears that Petitioner failed to send copies of these documents to Respondent. For that reason, Petitioner's post-hearing submissions have not been considered here. Respondent did not file a proposed recommended order.
Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). Respondent operates a chain of retail stores/service stations, some of which include a deli.
Petitioner, an African-American female, began working for Respondent sometime in 2006. Petitioner was still working for Respondent on August 20, 2008, when she filed her complaint with FCHR.
Petitioner took the job initially because it would provide her with more hours. It also provided benefits, such as the opportunity to buy health insurance and to enjoy a paid vacation.
In January 2008, Petitioner's job responsibilities included cleaning and stocking shelves during the night shift at
Respondent's store located on Cervantes Street, Pensacola, Florida. The Cervantes store did not have a deli.
Alvin Philyaw, a white male, was the manager at the Cervantes store. Bill Fuller, a white male, was the store's assistant manager. Robert Wensel, another white employee at the Cervantes store, took care of the trash.
Two other employees worked at the Cervantes store during the relevant time period. Obrien Sullivan, race unknown, worked as a cashier. Khia, last name unknown, was from Hawaii and worked as a cashier.
The night crew sometimes stood around and talked with each other. Petitioner listened to and participated in the conversations. The crew joked around and teased one another on a regular basis.
On at least one occasion Petitioner, Mr. Sullivan, Mr. Fuller, and maybe others, discussed the Wicca religion in general. The subject came up because either Mr. Fuller had friends that were participating members of the religion or Petitioner raised the topic.
Neither Mr. Sullivan nor Mr. Fuller had ever been members of the Wicca religion. The group talked about the religion being based on witchcraft.
The conversation(s) about the Wicca religion was never directed at Petitioner. However, Petitioner somehow assumed
that either Mr. Fuller or Mr. Sullivan said a satanic prayer and cast a spell on her.
On another occasion, someone in the night crew asked Petitioner if she was a Muslim because she always covered her hair. Petitioner was offended and informed the co-worker that it was none of his business but she was an Islamic Christian.
During another shift, Mr. Wensel pointed to a male outside the store and asked Petitioner if the person was her lover. Petitioner should have known that the co-worker was teasing. However, when Petitioner reacted negatively, another co-worker asked if Petitioner was racist because she would not date a white man. Petitioner again was offended, stating that she was an independent woman, did not date anyone, would not date a white man, and would not date anyone from that geographical area.
One time, Mr. Fuller and Mr. Wensel pretended that Mr. Fuller had knocked Mr. Wensel to the floor. When Petitioner saw Mr. Wensel on the floor calling her name, she did not know that Mr. Wensel and Mr. Fuller were just pretending. Petitioner was offended when she realized they were joking.
Mr. Fuller never threw Mr. Wensel against the building or put a broom up his rectum. Petitioner's testimony in this regard is not credible.
Likewise, Mr. Fuller never inquired whether sex was the reason that Petitioner had so much energy to wash the coolers. Additionally, Mr. Fuller never asked Petitioner whether she wanted to be his lover. Contrary to Petitioner's testimony, the night crew did not discuss sexual activities on a regular basis.
Petitioner was offended by many of the night crew's conversations. However, the men never used racial slurs when referring to or about Petitioner. The only racial slurs heard in the store were made by customers referring to each other.
Mr. Fuller never put his hand on Petitioner's backside, cursed at her, stuck his tongue out at her, or pulled her nose. Mr. Fuller did put his finger in Petitioner's face on one occasion. He never did it again because Petitioner objected.
Mr. Fuller heard that Petitioner was accusing him of being a devil worshiper. Mr. Fuller asked Petitioner to stop spreading false rumors about him. Mr. Fuller did not threaten Petitioner.
Petitioner did not complain to Mr. Philyaw about any of the above-referenced incidences that offended Petitioner. Petitioner did tell Mr. Philyaw that the night crew was discussing voodoo. Petitioner did not tell Mr. Philyaw that the witchcraft conversation was directed at her.
Mr. Philyaw never made a comment of any kind about Petitioner's weight. Mr. Philyaw gave Petitioner a size 5X replacement uniform because that is the size Petitioner requested. Mr. Philyaw did not know that Petitioner really needed a size 3X uniform.
Petitioner claims that she called Respondent's hotline to complain about Mr. Fuller's alleged sexual harassment in November 2007. Petitioner's complaint indicates that Respondent (corporate) called her back after reaching the conclusion that no sexual harassment had occurred. More importantly,
Mr. Philyaw was unaware of Petitioner's sexual harassment claim until she filed her complaint with FCHR.
On or about January 2, 2008, Petitioner and Mr. Wensel were in the store's cooler. Petitioner was unloading a shopping cart when Mr. Wensel, who was subject to panic attacks, fell towards Petitioner. Petitioner reached with one arm to catch Mr. Wensel. After the incident, Petitioner and Mr. Wensel went back to work.
The store's video camera did not capture the incident.
If the incident had been recorded, the store's employees could not have erased the video tape. The tape is always preserved for 90 days.
On or about January 15, 2008, Petitioner told
Mr. Fuller that she had injured her shoulder when Mr. Wensel
fell on her. Mr. Fuller told Petitioner to discuss it with Mr. Philyaw.
Petitioner then talked to Mr. Philyaw. He told Petitioner that, pursuant to store policy, she should have immediately reported the accident. After finding nothing on the video tape about the fall, Mr. Philyaw told Petitioner and
Mr. Wensel to file written reports about the accident.
Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury. The workers' compensation claim is not at issue here.
Petitioner erroneously claims that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. Petitioner's testimony in this regard is not credible.
Around January 18, 2008, Mr. Philyaw learned that the Cervantes store was losing employee hours. Mr. Philyaw asked Petitioner if she would like to transfer to the store on Bayfront Street, Pensacola, Florida, where she could get more hours, work in the deli, and keep her benefits. Petitioner agreed.
Petitioner went to Respondent's main office to speak with Jackie Ridgeway. Petitioner requested the transfer to the full-time position in the Bayfront store's deli.
Petitioner worked with Amy Williams, a white female, and Channel Pritchett, a black female, in the deli at the Bayfront store. Ms. Williams was the deli supervisor.
Ms. Pritchett was the deli cook. Petitioner assisted by cleaning and waiting on customers. Petitioner never told Ms. Williams about Petitioner's alleged shoulder injury.
One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Ms. Pritchett thought the accident was funny.
Petitioner's glasses were broken when the pan fell.
The incident was an accident and not the result of witchcraft or any malicious intent.
Needless to say, Petitioner and Ms. Pritchett did not get along very well. They each complained to Ms. Williams about the other. Ms. Williams eventually told Petitioner that she needed to learn how to get along with everyone.
Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Petitioner did not like having to drive 50 miles round trip to work a shift at the Cantonment store.
There is no evidence that Respondent gave Petitioner the Cantonment work assignment for any improper purpose. Petitioner worked at the Cantonment store because that is where Respondent temporarily needed her services.
Petitioner also worked with Marilee Hawkins, a white female, in the deli at the store on Barrancas Street, Pensacola, Florida. One day in October 2008, a piece of paper caught fire under the steam box.
Petitioner reached in with tongs, picked up the paper, and put the fire out in the deli sink. The fire did not injure Petitioner who went on working her shift as usual.
Felicia Williamson, race unknown, was Petitioner's manager/supervisor at some point in time. According to Petitioner, Ms. Williamson fired Petitioner for moving too slowly. Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance.
Petitioner testified that she was unable to perform her job better because of the injuries she suffered while working for Respondent. There is no competent medical evidence to substantiate Petitioner's claims about her many medical problems. The date of Petitioner's termination is unknown.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11(4)(b), Florida Statutes (2008).
Section 760.10(1)(a), Florida Statutes (2008), states as follows:
It is an unlawful employment practice for an employer:
(a) To discharge or to 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.
Additionally, it is unlawful for an employer to retaliate against any person because that person has opposed any practice which is an unlawful employment practice. § 760.10(7), Fla.
Stat. (2008).
The Florida Civil Rights Act (FCRA), Sections 760.01 through 760.11, Florida Statutes (2008), as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42
U.S.C.S. 2000 et seq. Federal case law interpreting Title VII is applicable to cases arising under the FCRA. See Green v. Burger King Corp., 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999); Florida State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996).
Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated or retaliated against her. See Florida Dep't of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner can establish a case of discrimination or retaliation through direct evidence or circumstantial evidence.
See Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997). In this case, Petitioner has not shown any direct evidence of discriminatory or retaliatory intent.
Under McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-805 (1973), an employment discrimination case based on circumstantial evidence involves the following burden-shifting analysis: (a) the employee must first establish a prima facie case of discrimination; (b) the employer may then rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for the employment action in question; and (c) the employee then bears the ultimate burden of persuasion to establish that the employer's proffered reason for the action taken is merely a pretext for discrimination.
Petitioner arguably raised issues in her Petition for Relief and at hearing that were not pled in the Employment Complaint of Discrimination reviewed by FCHR. The new issues appear to involve discrimination based on race, gender, religion, and possibly disability. Because Petitioner failed to raise these issues before FCHR, they have not been considered here.
Petitioner alleges that she was seriously burned in October 2008, as a result of a steam box fire. There is no merit to Petitioner's allegation about this accident because she continued to complete her shift without complaint. Moreover,
this accident occurred after Petitioner filed her complaint with FCHR.
Petitioner's Employment Complaint of Discrimination included facts about Mr. Wensel's fall in the cooler and about the pan hitting Petitioner in the face. The only credible evidence indicates that these incidences were accidents and not the result of a spell cast by a co-worker.
Sexual Harassment
To prove a prima facie case of sexual harassment, Petitioner must establish the following: (a) she belongs to a protected group; (b) she was subjected to unwelcome harassment;
(c) the harassment was based on her gender; (d) the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment; and (e) a basis for holding Respondent liable. See Gupta v. Florida Bd. of Regents, 212 F.3d 571. 582-583 (11th Cir. 2000).
In this case, there is no credible evidence that Mr. Fuller, or any other co-worker, sexually harassed Petitioner. In any event, Petitioner has not shown that
Mr. Fuller's conduct, in putting his finger in Petitioner's face one time, was so severe or pervasive to create an objectively hostile or abusive work environment. See Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997).
In determining whether harassment objectively alters an employee's terms or conditions of employment, the following factors must be considered: (a) the frequency of the conduct;
(b) the severity of the conduct; (c) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (d) whether the conduct unreasonably interferes with the employee's job performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Here, the alleged harassment was intermittent at most.
Mr. Fuller never said or did anything that amounted to more than an offensive utterance. For the most part, Petitioner's co- workers engaged in generalized conversations and practical jokes that only Petitioner found objectionable.
Furthermore, Petitioner has not shown that Respondent is liable for the co-workers' alleged offensive statements and actions. The people involved were not Petitioner's supervisors and did not have power to take any tangible, adverse employment action against Petitioner.
If an alleged harasser is not the employee's supervisor, then the employer may only be held liable for the harasser's conduct if the employer knew or should have known of the harassment and failed to take prompt remedial action. See Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003).
There is no credible evidence that Respondent became aware of Petitioner's allegations against Mr. Fuller and other co-workers before Petitioner filed her complaint with FCHR. By that time, Petitioner was no longer working in the Cervantes store.
Retaliation
To support a prima facie case of retaliation, Petitioner must prove the following elements: (a) she participated in a protected activity; and (b) she was subjected to an adverse employment action. See Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201, (11th Cir. 2001).
Petitioner engaged in a protected activity by calling Respondent's hotline in November 2007. However, there is no credible evidence that Petitioner suffered retaliation as a result of her call.
Petitioner voluntarily transferred to the Bayfront store so that her hours would not be cut and so she could keep her employee benefits. At that point in time, Mr. Philyaw did not know about Petitioner's allegations against Mr. Fuller or any other co-worker.
Thereafter, Respondent had legitimate non- discriminatory, non-retaliatory, reasons for temporarily assigning Petitioner to work in at the Cantonment store and subsequently, terminating Petitioner's employment for poor work
performance. There is no evidence that Respondent's reasons for these actions were a pretext for discriminatory or retaliatory intent.
That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice.
DONE AND ENTERED this 12th day of May, 2009, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2009.
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.
