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VIVIANA GADDIS vs CREATIVE HAIR DRESSERS, INC., 09-005042 (2009)

Court: Division of Administrative Hearings, Florida Number: 09-005042 Visitors: 21
Petitioner: VIVIANA GADDIS
Respondent: CREATIVE HAIR DRESSERS, INC.
Judges: SUZANNE F. HOOD
Agency: Commissions
Locations: St. Augustine, Florida
Filed: Sep. 16, 2009
Status: Closed
Recommended Order on Tuesday, January 12, 2010.

Latest Update: Mar. 18, 2010
Summary: The issue is whether Respondent discriminated against Petitioner based on her national origin.Petitioner did not prove that Respondent discriminated against her based on her national origin by terminating her employment.
09-5042ro

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


VIVIANA GADDIS,

)





)




Petitioner,

)





)




vs.

)

)

Case

No.

09-5042

CREATIVE HAIR DRESSERS, INC.,

)

)




Respondent.

)




)





RECOMMENDED ORDER


A final hearing was conducted in this case on November 19, 2009, in St. Augustine, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.


APPEARANCES


For Petitioner: David W. Glasser, Esquire

116 Orange Avenue

Daytona Beach, Florida 32114


For Respondent: Bradley J. Hansen, Esquire

Qualified Representative Creative Hair Dressers, Inc. 1577 Spring Hill Road, Suite 500

Vienna, Virginia 22182 STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner based on her national origin.

PRELIMINARY STATEMENT


On April 22, 2009, Petitioner Viviana Gaddis (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Creative Hair Dressers, Inc. (Respondent), discriminated against Petitioner based on her national origin, contrary to Section 760.10, Florida Statutes (2008). Specifically, Petitioner accused Respondent of terminating her employment because she spoke Spanish in the workplace.

On July 31, 2009, FCHR issued a Notice of Determination: Cause. On August 21, 2009, Petitioner filed a Petition for Relief with FCHR, requesting an administrative hearing. On September 16, 2009, FCHR referred the petition to the Division of Administrative Hearings.

A Notice of Hearing dated October 15, 2009, scheduled the hearing for November 19, 2009.

During the hearing, Petitioner testified on her own behalf and presented the testimony of two additional witnesses.

Petitioner offered six exhibits (P1-P6) that were accepted as evidence.

Respondent presented the testimony of four witnesses. Respondent offered nine exhibits (R1-R8 and R10) that were accepted as evidence.

On December 10, 2009, Petitioner filed a Notice of Receipt.


The notice stated that Petitioner had received a digital transcript dated December 9, 2009. Petitioner did not file a copy of the digital transcript with the Division of Administrative Hearings.

On December 21, 2009, Respondent filed its Proposed Recommended Order. Petitioner filed her Proposed Recommended Order on December 22, 2009.

The Court Reporter filed a copy of the Transcript on December 22, 2009.

FINDINGS OF FACT


  1. Respondent is a subsidiary of Ratner Companies.


    Respondent operates a chain of salons, including the Cobblestone Hair Cuttery Salon (Cobblestone) in St. Augustine, Florida, and the Town Center Hair Cuttery Salon (Town Center) in Palm Coast, Florida.

  2. Petitioner was born in Buenos Aires, Argentina, of Hispanic origin. She speaks Spanish as her first language and English as her second language.

  3. Petitioner has extensive experience as a hairdresser.


    She was licensed in Maryland in 1975 and in Florida in 1989. Petitioner has owned her own salons in Maryland and Florida.

  4. In the fall of 2007, Francesca Souza, Respondent's salon leader at Town Center interviewed Petitioner for a

    position as a hair stylist. Ms. Souza was impressed with Petitioner's experience as a stylist. Ms. Souza also believed that Petitioner's ability to speak Spanish would help improve service to the area's large population of Spanish-speaking clients.

  5. Because Ms. Souza did not have a position available at the time, she referred Petitioner to Cobblestone. The salon leader at Cobblestone hired Petitioner as a hair stylist.

  6. At Cobblestone, Petitioner had problems following Respondent's Fair and Equal Treatment Policies. The problems were based on allegations that Petitioner was taking customers out-of-turn, doing services that customers did not want, and being confrontational in the shop in front of clients.

  7. After Respondent was coached and counseled about not making clients or associates uncomfortable, Petitioner's ability to get along with other stylists improved. There were never any issues at Cobblestone with Petitioner’s speaking Spanish.

  8. In April or May of 2008, Petitioner transferred to Town Center because it was closer to her home. For approximately two months, Petitioner experienced no problems working at Town Center.

  9. Town Center was a multi-cultural salon. Ms. Souza spoke several languages in addition to English, including Spanish and Portuguese. Other bi-lingual stylists included the

    following: (a) Natalie, who was from Thailand and spoke Chinese and Cambodian; (b) Andrea, who was from Jamaica and spoke French; and (c) Maria, who was from Puerto Rico and spoke Spanish.

  10. Other stylists, who spoke only English, included the following: Courtney; Jessica; Monica; Jasmine; Stacy; Christine; Melissa; Eugenia; and Michael Ann. From the beginning, Petitioner believed that these stylists formed a clique that attempted to exclude other stylists.

  11. Respondent did not have a policy prohibiting stylists from speaking a foreign language to each other or to customers in the salon. Bi-lingual stylists usually spoke to their customers according to their national origin when necessary to make the customers feel comfortable.

  12. Initially, Petitioner sometimes spoke Spanish to Francesca and Maria. Some of the stylists in the "clique" complained that Francesca and Petitioner should speak English to each other in the salon because they were in the United States.

  13. Francesca then informed Petitioner that they should speak English to each other. Francesca explained to Petitioner that some of the stylists might feel as if Francesca favored Petitioner and that speaking English would make everyone feel more included.

  14. In June 2008, Petitioner was working at Town Center when two sisters of Hispanic origin came in for service. One sister was treating the other for a special occasion.

  15. Diane was due to take the next walk-in client.


    Therefore, Diane asked the sister being served to sit in her chair.

  16. After the sisters told Diane what service they wanted, Stacy made a comment in English to Diane that she was not competent to do the service. Apparently, one or both of the sisters understood Stacy's comment. The sister receiving the service became upset, stating, in Spanish, that she did not want Diane to do her hair.

  17. At that point, Petitioner intervened. Speaking in Spanish to the sisters, Petitioner assured them that Diane was competent to perform the service and that Stacy had made a childish comment.

  18. The incident grew worse when Petitioner overhead Courtney complaining to the "clique" about Petitioner’s speaking Spanish to Diane's customers. Petitioner also understood that members of the "clique" were being critical of her and the sisters.

  19. As the "clique" talked among themselves, the sisters became even more upset. Apparently the sisters and Petitioner believed that the other stylists were making fun of the sisters

    and Spanish-speaking people in general. Eventually, Petitioner called Ms. Souza, who was on vacation.

  20. Courtney also spoke to Ms. Souza. Courtney yelled that Petitioner should be fired, that she was a troublemaker, that she should not be speaking Spanish, and that she had caused the whole problem.

  21. Ms. Souza talked to the sisters on the phone. She made arrangements to compensate them for the incident.

    Ms. Souza later talked to Petitioner, asking whether she had caused the problem. Petitioner responded that the "clique" was jealous of her and were discriminating against her because she spoke Spanish.

  22. After the incident with the sisters, personality conflicts developed between the "clique" and Petitioner. They could not get along and did not trust each other.

  23. When Petitioner began working at Town Center, the salon had an honor system in place to determine which stylist would get the next walk-in client. Petitioner took advantage of the honor system by taking clients out-of-turn. Ms. Souza then instituted a walk-in list that the stylists signed when they came to work. As they took clients, they were supposed to scratch their name off the top of the list and write it at the bottom.

  24. Petitioner also took advantage of the walk-in list by not scratching her name off the top of the list after taking a client. The other stylists would then scratch off Petitioner's name or white it out and write it at the bottom. When this happened, Petitioner and the other stylists would bicker with each other. Petitioner never admitted she had done anything wrong and always complained that the other stylists were picking on her.

  25. The greater weight of the evidence indicates that the "clique" resented Petitioner’s speaking Spanish to her clients when it was not necessary because they assumed that Petitioner was talking about them. There is no persuasive evidence that the "clique" resented Petitioner’s speaking Spanish because she was from Argentina of Hispanic origin. To the contrary, a member of the "clique" occasionally requested Petitioner's assistance in communicating with a Spanish-speaking client.

  26. The evidence also shows that Petitioner was very aggressive in soliciting clients and selling retail products. Her list of clients that would request her services grew quickly. She often had the highest sales per week and/or month of retail products.

  27. The members of the "clique" may have been jealous of Petitioner's rapid success but they also resented the methods she used to increase her commissions as set forth in Ms. Souza's

    testimony and the documentation memorializing her counseling and coaching conversations with Petitioner.

  28. On August 6, 2008, Ms. Souza had a conversation with Petitioner outside the salon. During the conversation,

    Ms. Souza informed Petitioner that she was creating an environment in the salon that was uncomfortable to stylists and others in the following ways: (a) arguing with Jasmine about a client; (b) bickering on the floor; and (c) intervening with Stacy's recommendations to a client by making derogatory remarks about the quality of Stacy's work. At the conclusion of this conversation, Petitioner agreed to stop that kind of behavior.

  29. On August 8, 2008, Ms. Souza had a conversation with Petitioner regarding the two technical complaints. First, a client was unhappy with an "updo" done by Petitioner. Additionally, Petitioner tried to charge the client $40 for the service after Monica had quoted the client a $25 price.

    Ms. Souza had to redo the hair style and charged the client $25.


  30. Second, a client came in with a very uneven hair cut.


    Petitioner refused to cut the client's hair the way she wanted it because it would, in Petitioner's opinion, look bad.

  31. On September 6, 2009, Ms. Souza wrote a letter to Stephanie Melstein, Respondent's district leader. The letter reviews the problems Ms. Souza was having with Petitioner as follows: (a) taking clients out-of-turn, then getting defensive

    when confronted by another stylist; (b) leaving the salon without cleaning up at closing; (c) not crossing her name off the walk-in list so that she remains at the top of the list;

    (d) talking to clients sitting in another stylist's chair, frequently saying things contrary to what the stylist and client have discussed; (e) walking to the front of the salon and striking up a conversation with a walk-in client, then putting the client's name in the computer as a "request" for herself, even though the client did not care who performed the service;

    (f) making derogatory comments about people's sexual orientation and/or religion; (g) walking away and pretending to be busy when presented with an ethnic client that she does not want to serve; and (h) claiming that the whole salon is out to get her because of jealousy.

  32. In the September 6, 2008, letter, Ms. Souza requested that Ms. Melstein let her know how much information is needed to terminate a person without repercussion to Ratner Companies.

    Ms. Souza did not want to be seen as a weak salon leader, but she also did not want to have the salon involved in a lawsuit by a disgruntled employee.

  33. On September 12, 2008, Ms. Souza gave Petitioner a verbal warning regarding the following: (a) not taking clients in order according to the walk-in policy by skipping over other names; (b) interfering with other stylists; and (c) leaving

    early without management approval. Ms. Souza advised Petitioner that her actions were creating an uncomfortable environment for clients and co-workers. Ms. Souza also stated that any future violations in these same areas will result in termination.

  34. Petitioner hand delivered a letter dated September 16, 2008, to Ms. Souza and Ms. Melstein at a monthly salon meeting. According to the letter, Petitioner had been picked on by the "clique" since her first week at work.

  35. In the September 16, 2008, letter, Petitioner's complaints included, but were not limited to, the following:

    (a) someone was scratching out Natalie's and Petitioner's names on the walk-in list when they had a request customer as if they had taken a walk-in client; (b) someone was telling Natalie's and Petitioner's request customers that they were scheduled to work on days they were off; (c) Ms. Souza warned Petitioner about Lynn and Melissa and advised Petitioner not to speak Spanish because the stylists would think Ms. Souza was favoring Petitioner; (d) Ms. Souza talked about some of the stylists behind their backs; (e) Michael Ann left work early one day without permission; (f) Monica was 45 minutes late one day, leaving a client waiting for her; (g) Lynn was 35 minutes late with no repercussions; (h) Michael Ann left the salon for an hour without clocking out, leaving a client waiting that Lynn had to service; (i) Lynn leaves the salon for coffee without

    clocking out; (j) the smokers take more breaks than non-smokers;


    (k) the "clique" discriminated against the two Spanish sisters and Petitioner; (l) Lynn falsely accused Petitioner of being a thief for hiding Lynn's lunch; (m) the "clique" members go to lunch then expect someone to check in the clients and have them wait until the "clique" members return; (n) Ms. Souza feels that Petitioner has a chip on her shoulder; (o) Petitioner cannot speak Spanish with her Spanish-speaking clients because the "clique" finds it offensive; (p) Monica refused to give Petitioner her paycheck, placing it on a high shelf;

    (q) Francesca falsely stated that Petitioner had four complaints on redo haircuts; (r) Lynn and the "clique" mistreated a person in training at the salon; (s) someone put a bag of bleach on Petitioner's lunch; (t) the "clique" is jealous that Petitioner has so many requests in such a short time; (u) someone erased some of Petitioner's chemical service appointments and put them under the name of other hairstylists; (v) someone scratched over Petitioner's initials on the chore list and placed another name there as if Petitioner did not do her chore, then told Ms. Souza that Petitioner left early without doing her chore; (w) Michael Ann wanted to smoke so she gave her walk-in to Jessica even though Petitioner was next in line; (x) Michael Ann leaves work early when Monica is on duty as assistant salon leader with no repercussion; (y) Stacy refused to cut the hair of a child on

    the walk-in list, asking Petitioner to cut the child's hair instead; and (z) the "clique" members get together to gossip about Petitioner getting a written warning report.

  36. After receiving the September 16, 2008, letter from Petitioner, Ms. Melstein went to the Town Center to investigate Petitioner's allegations. Ms. Melstein spoke to the Town Center staff, including Petitioner and Ms. Souza.

  37. Ms. Melstein reminded Petitioner and Ms. Souza that Respondent did not have a policy prohibiting speaking a foreign language in a salon. Ms. Melstein also reminded them that Respondent did have a policy prohibiting any conduct that created an uncomfortable environment for clients and staff. Finally, Ms. Melstein made it clear that if a stylist needed to speak a foreign language to make a client feel comfortable, the stylists certainly could do so.

  38. During her investigation, Ms. Melstein had conversation with all of the staff regarding the allegations in Petitioner's September 16, 2008, letter. Ms. Melstein concluded that there were personality conflicts among the stylists but that no one was being discriminated against.

  39. On or about October 1, 2008, Ms. Souza had a conversation with Petitioner regarding her failure to attend a mandatory salon meeting. Ms. Souza also instructed Petitioner to stop soliciting clients for a mortgage business by getting

    and/or giving out cell phone numbers and e-mail addresses and by giving mortgage company business cards to the clients.

  40. On October 18, 2008, Ms. Souza counseled Petitioner about taking clients out of turn. She also advised Petitioner about the importance of placing the names of clients in the computer.

  41. On or about November 3, 2008, Petitioner improperly charged a client for a foil service. At that time, the stylists were supposed to charge $3 per foil up to six foils and $45 for a partial foil of seven to twelve foils. Petitioner charged the client $3 per foil for eight foils, thereby undercharging the client $21. This is a terminable offense under Respondent's Fair and Equal Treatment Policy. The greater weight of the evidence indicates that Petitioner did not have permission to charge the client $3 per foil for eight foils.

  42. On November 5, 2008, Ms. Sousa terminated Petitioner's employment at Town Center. According to the conference report form, Petitioner was terminated for the following reasons:

    (a) knowingly failing to charge clients properly by under- ringing sales and quoting incorrect prices; (b) creating an uncomfortable environment for clients and staff; (c) mistreating other associates by selling products to clients while other stylists are servicing those clients; (d) discrediting stylists with derogatory comments statement to clients; and (e) trying to

    coax clients into her chair while the clients were waiting for another stylist.

  43. The transaction detail report confirms that on November 3, 2008, Petitioner improperly charged for a foil service. Additionally, the transaction detail report reflects twelve instances of improper charging (over-ringing and/or under-ringing) by Petitioner prior to November 3, 2008.

  44. After being terminated, Petitioner complained to Naté Venkatesen, the human resources director for Ratner Companies. Petitioner stated that other associates in the salon also were improperly charging clients. As a result, Respondent performed an investigation and subsequently initiated coaching and counseling for all associates at the salon. There is no evidence that the stylists involved in the coaching had the same type of disciplinary history or problems following policies as Petitioner.

  45. In a letter dated December 5, 2008, Ms. Venkatesan agreed to reinstate Petitioner to her original position at full pay. Ms. Venkatesan also told Petitioner she would receive full back-pay from November 5, 2008, until December 12, 2008. According to the letter, Petitioner would be entitled to all benefits, including the company-paid trip to Cancun in May 2009. Finally, the letter stated that Petitioner needed to respond to

    the letter by December 12, 2008, or Respondent would assume she was not interested in returning to work.

  46. Petitioner declined to accept Petitioner's offer of reinstatement. She did not want to start all over in building her clientele and sales at another salon.

  47. Respondent never told Petitioner she could not return to Town Center. However, Ms. Venkatesan told Petitioner she did not think it would be a good idea for Petitioner to return to Town Center.

  48. After she was terminated, Petitioner looked for work for about three and a half weeks before finding a job at the Paradise Day Spa. Petitioner worked at the Paradise Day Spa for eight months until September 2009, when that company went out of business. A short time later, Petitioner found a job in a barber shop where she continued to work at the time of the hearing.

  49. When Petitioner worked for Respondent, she accrued a week's paid vacation after working for one year. She earned an average of $400 per week in commissions from services and an additional $300 per week in tips and retail sales. Up through the date of termination, Petitioner earned $18,763.07 gross pay and $15,312 net pay from Respondent.

  50. Petitioner earned $959.64 in 2008, working for the Paradise Day Spa. She earned approximately $129 per week at the Paradise Day Spa.

  51. Petitioner earns approximately $200 per week at the barber shop. Her earnings there are based on a 50 percent commission for each service she performs.

    CONCLUSIONS OF LAW


  52. 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 (2009).

  53. It is unlawful for an employer to discriminate against any individual based on such individual's national origin. See

    § 760.10(1)(a), Fla. Stat.


  54. The Florida Civil Rights Act (FCRA), Sections 760.01 through 760.11, Florida Statutes, as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. 2000e et seq., and 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).


  55. Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated

    against her. See Florida Dep't of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1991).

    Disparate Treatment


  56. Petitioner can establish a case of discrimination alleging disparate treatment through direct evidence, statistical evidence, or circumstantial evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997). Petitioner has not presented any statistical evidence.

  57. Petitioner also failed to produce any direct evidence of discrimination based on national origin. Direct evidence of discrimination is evidence that, if believed, establishes the existence of discriminatory intent behind an employment decision without any inference or presumption. See Maynard v. Board of Regents of the Division of Universities of the Florida Department of Education, 342 F.3d 1281, 1289 (11th Cir. 2003); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997); Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356 (M.D. Fla. 2001). Evidence that only suggests discrimination, or that is subject to more than one interpretation, does not constitute direct evidence of discrimination. Id.

  58. Additionally, in order for a statement to constitute direct evidence of discrimination, it must be made by the employer or its agents, must specifically relate to the challenged employment decision, and must reveal blatant

    discriminatory animus. See Jones v. Bessemer Carraway Medical Center, 151 F.3d 132 (11th Cir. 1998).

  59. In this case, the comments that Petitioner should not speak Spanish because she was in the United States of America were made by co-workers with no supervisory authority. Such statements were unrelated to any adverse employment decision by Ms. Souza and Ms. Melstein.

  60. Additionally, Respondent had no policy against its stylists speaking foreign languages in its salons. Ms. Souza and Ms. Melstein both told Petitioner that she could speak Spanish to her clients if necessary to make them feel comfortable. Ms. Souza advised Petitioner to speak English to her and Maria so that no one would feel uncomfortable and everyone would feel included. Petitioner failed to show direct evidence of discrimination based on national origin.

  61. In a case lacking direct evidence of discrimination, the burden of proof is allocated as set forth in McDonnell Douglas Corp. v. Green, 441 U.S. 792, 802-805 (1973). In that case, an employment discrimination case based on circumstantial evidence involves the following 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.

    Id.


  62. To establish discrimination in discipline or by unlawful termination, Petitioner must show the following:

    (a) she belongs to a protected group such as being born in a foreign country and speaking a foreign language; (b) she was qualified for the job; (c) she was subjected to an adverse employment action; and (c) a similarly-situated employee engaged in the same or similar misconduct but did not receive similar discipline or termination. See Nicholas v. Board of Trustees, 251 Fed Appx. 637, 642 (11th Cir. 2007).

  63. To determine whether employees are similarly situated, one must consider whether "the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).

  64. In order to make that determination, courts "require that the quantity and quality of the comparator's misconduct be nearly identical to prevent . . . second-guessing employers' reasonable decisions and confusing apples with oranges.” Id. at 1368.

  65. Petitioner failed to present evidence that she was similarly situated with any other employee relative to her

    failure to follow Respondent's Fair and Equal Treatment Policy. Some of the other stylists may have been guilty of undercharging or overcharging customers, a level-3 offense warranting termination after the first violation. Respondent required those stylists to attend a coaching/counseling session and did not fire them. However, no other stylists had repeated infractions at more than one level of violations like Petitioner. Therefore, she has not proven her prima facie case of unlawful termination.

  66. Moreover, Respondent had multiple legitimate non- discriminatory reasons for terminating Petitioner's employment. All of the reasons involved Petitioner's refusal to heed

    Ms. Souza's repeated warnings against violating Respondent's policies.

  67. Petitioner has not proved that Respondent's reasons for terminating her were a pretext for discrimination. Petitioner created an uncomfortable environment in the salon because she was unable to get along with any of the staff. Respondent did not intentionally discriminate against Petitioner when it decided to terminate Petitioner's employment.

    Hostile Work Environment


  68. To prove a case of hostile work environment, 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 the protected characteristic of national origin; (d) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and thus, create a discriminatorily abusive work environment; and

    (e) the employer is responsible for that environment under a theory of either direct or vicarious liability. See Miller v. Kenworth of Dothan, 277 F.3d (11th Cir. 2002).

  69. In this case, Petitioner has not shown that her co- workers' conduct was so severe or pervasive as to create an objectively hostile or abusive work environment. See Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997).

  70. 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).

  71. Here, the alleged harassment first occurred when some of the stylists objected to Petitioner and Ms. Souza speaking to each other in Spanish. Ms. Souza then advised that she and Petitioner should speak English to be more inclusive and to prevent anyone thinking she favored Petitioner.

  72. The next incident occurred when the two Spanish- speaking sisters came in for service. That incident blew up when Petitioner intervened by speaking Spanish to the sisters, who obviously also understood English.

  73. When Petitioner complained that she was being discriminated against because she spoke Spanish, Ms. Souza and Ms. Melstein tried to counsel Petitioner and the other stylists. Everyone was advised that stylists should speak a foreign language to a client if necessary to make them feel comfortable. However, by that point in time, the other stylists and Petitioner did not trust each other. The other stylists were all too willing to confront Petitioner every time she broke a rule such as taking a client out-of-turn. The bickering and hostility that took place was the result of Petitioner's behavior and not because she was born in Argentina and occasionally spoke Spanish in the salon.

  74. Petitioner has not proved that the offensive comments were anything more than mere offensive utterances on a few intermittent occasions. The statements about Petitioner’s speaking Spanish certainly did not interfere with Petitioner's job performance. Her aggressive methods of getting clients and selling products made her one of, if not, the most successful hairdressers in the salon.

  75. Furthermore, Petitioner has not shown that Respondent is liable for the co-workers’ statements. 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).

  76. In this case, Ms. Melstein conducted an investigation and counseled the staff, including Petitioner, regarding the need to speak a foreign language to clients if the stylist was bi-lingual. There is no persuasive evidence that members of the "clique" continued to tell Petitioner not to speak Spanish after Ms. Melstein's visit. The hostility between the "clique" and Petitioner may have continued but not because of Petitioner's national origin.

RECOMMENDATION


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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 12th day of January, 2010, 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

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


Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2010.


COPIES FURNISHED:


David W. Glasser, Esquire Glasser & Handel

116 Orange Avenue

Daytona Beach, Florida 32114


Bradley J. Hansen, Esquire Ratner Companies, LC

1577 Spring Hill Road, Suite 500

Vienna, Virginia 22182


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

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: 09-005042
Issue Date Proceedings
Mar. 18, 2010 Agency Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
Jan. 28, 2010 Exceptions to the Recommended Order filed.
Jan. 12, 2010 Recommended Order cover letter identifying the hearing record referred to the Agency.
Jan. 12, 2010 Recommended Order (hearing held November 19, 2009). CASE CLOSED.
Dec. 22, 2009 Transcript filed.
Dec. 22, 2009 (Petitioner's) Proposed Recommended Order filed.
Dec. 21, 2009 Respondent Creative Hairdressers, Inc.'s Proposed Recommended Order filed.
Dec. 21, 2009 Notice of Filing of Respondent Creative Hairdressers, Inc.'s Proposed Recommended Order filed.
Dec. 10, 2009 Notice of Receipt (of Transcript) filed.
Nov. 19, 2009 CASE STATUS: Hearing Held.
Nov. 17, 2009 CASE STATUS: Motion Hearing Held.
Nov. 17, 2009 Plaintiff's Response to Defendant's First Request for Production of Documents filed.
Nov. 17, 2009 Notice of Service Petitioner's Verified Answers to Respondent's First Set of Interrogatories filed.
Nov. 17, 2009 Petitioner's Exhibit List (exhibits not attached) filed.
Nov. 17, 2009 Petitioner's Witness List filed.
Nov. 12, 2009 Respondent's Supplement to Witness List filed.
Nov. 12, 2009 Respondent's Witness List filed.
Nov. 12, 2009 Motion to Compel Discovery Responses filed.
Nov. 04, 2009 Notice of Appearance (filed by D. Glasser).
Oct. 15, 2009 Order of Pre-hearing Instructions.
Oct. 15, 2009 Notice of Hearing (hearing set for November 19, 2009; 10:00 a.m.; St. Augustine, FL).
Oct. 09, 2009 Unilateral Response to Initial Order filed.
Oct. 07, 2009 Respondent's First Set of Document Requests filed.
Oct. 07, 2009 Respondent's First Set of Interrogatories filed.
Oct. 01, 2009 Respondent's Response to Petitioner's Petition for Relief filed.
Sep. 29, 2009 Order Accepting Qualified Representative.
Sep. 28, 2009 Request for Representation by a Qualified Representative filed.
Sep. 16, 2009 Initial Order.
Sep. 16, 2009 Charge of Discrimination filed.
Sep. 16, 2009 Notice of Determination: Cause filed.
Sep. 16, 2009 Determination: Cause filed.
Sep. 16, 2009 Petition for Relief filed.
Sep. 16, 2009 Transmittal of Petition filed by the Agency.

Orders for Case No: 09-005042
Issue Date Document Summary
Mar. 18, 2010 Agency Final Order
Jan. 12, 2010 Recommended Order Petitioner did not prove that Respondent discriminated against her based on her national origin by terminating her employment.
Source:  Florida - Division of Administrative Hearings

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