STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN JOHNSON,

Petitioner,

vs. CIRCLE K,

Respondent.

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) Case No. 10-1697

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RECOMMENDED ORDER

A final hearing was conducted in this case before

Diane Cleavinger, Administrative Law Judge with the Division of Administrative Hearings, on July 1, 2010, in Pensacola, Florida.

APPEARANCES

For Petitioner: Carolyn Johnson, pro se

Post Office Box 4671 Pensacola, Florida 32507

For Respondent: Kathleen Raughton

Qualified Representative

25 West Cedar Street, Suite 100 Pensacola, Florida 32502

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender, race, religion or disability.

PRELIMINARY STATEMENT

On October 19, 2009, Petitioner Carolyn Johnson (Petitioner) filed an Employment Complaint of Discrimination against Respondent Circle K. In Section C of the Complaint form, Petitioner checked all of the boxes except the box for marital status in the section of the form that indicates the cause of the discrimination the Complainant is alleging.

However, the specific factual allegations of the Complaint alleged only that Respondent discriminated against Petitioner based on sex, race, religion and disability contrary to Section 760.10(1)(a), Florida Statutes (2008). All of the specific factual allegations involved the same facts and incidents that were involved and determined in Petitioner’s earlier action in Case No. 09-0205.

The Florida Commission on Human Relations (FCHR) investigated Petitioner's Employment Complaint of Discrimination. On March 18, 2010, FCHR issued a Determination: No Cause. On March 25, 2010, Petitioner filed a Petition for Relief with FCHR, alleging facts similar to her Complaint. FCHR referred the Petition for Relief to the Division of Administrative Hearings to conduct a formal hearing in this matter.

At the hearing, and contrary to clearly established law, FCHR did not make arrangements to preserve the testimony at the

final hearing, either by sending a court reporter or a recording device with someone to operate it. See § 120.57(1)(g), Fla.

Stat. (2009); Fla. Admin. Code R. 28-106.214; North Dade Security Ltd. Corp. v. Dept. of State, 530 So. 2d 1040 (Fla. 1st DCA 1988), and Poirer v. Dept. of Health & Rehab. Servs., 351 So. 2d 50 (Fla. 1st DCA 1977). The parties were informed of the agency’s policy to not provide an official means of preserving the testimony at the final hearing. Neither party hired a court reporter to preserve the hearing. All parties elected to proceed with the hearing without preservation of the record.

Therefore, there is no record of the final hearing, except for exhibits, if any, received into evidence and this Recommended Order.

During the hearing, Petitioner testified on her own behalf and presented the testimony of one witness. Petitioner offered three exhibits into evidence. However, the exhibits were returned to her so that she could either make copies of them or put them in a form that could be viewed by this tribunal. The record was held open for the submission of these exhibits.

Respondent did not present any witnesses but offered one exhibit into evidence.

After the hearing, Petitioner filed a letter as her Proposed Recommended Order on July 26, 2010. Petitioner's late- filed Exhibits 1 and 2 were attached to the letter. Petitioner

did not submit Exhibit 3, which was allegedly a CD of pictures showing Petitioner's injuries from an incident where she received burns at work. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent operates a chain of retail stores/service stations, some of which include a deli. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008).

2. Petitioner is an African-American female. She began working for Respondent sometime in 2006.

3. 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.

4. 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.

5. 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 returned to work.

   
   

6. 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.

7. 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. The injury was eventually treated pursuant to Florida’s workers’ compensation law.

8. Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury.

9. Petitioner claimed that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. This claim was not established by the evidence in this case and was found not credible in Petitioner’s earlier action against Circle K. Petitioner did testify about her doctor’s evaluation and treatment of her arm/shoulder. However, even with this testimony, the evidence in this case did not establish that Petitioner suffered any significant impairment that would

   
   

   constitute a disability/handicap under Chapter 760, Florida Statute.

10. 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.

11. 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.

12. At the Bayfront store, Petitioner worked in the deli with Amy Williams, a white female, and Channel Pritchett, a black female. Ms. Williams was the deli supervisor.

    Ms. Pritchett was the deli cook. Petitioner’s duties included cleaning and waiting on customers. Ms. Williams did not know about Petitioner's alleged shoulder injury.

13. One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Petitioner's glasses were broken when the pan fell. The incident was an accident and not the result of witchcraft or any malicious intent. Again, there was no evidence of any discrimination based on race, religion or disability.

    
    

14. Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Felicia Williamson, who is also African-American, was Petitioner's manager/supervisor. While at the Cantonment store, a black customer asked Petitioner if she was Muslim and would she marry a Muslim man. There was nothing in this conversation or the evidence that indicated Circle K was involved in this man’s inquiries. Likewise, there was nothing in this conversation or the evidence that demonstrated any discrimination by Circle K based on Petitioner’s race, religion or disability.

15. After working at the Cantonment store, Petitioner was transferred to the deli at the store on Barrancas Street, Pensacola, Florida.

16. One day around October 30, 2008, a piece of sandwich 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. Petitioner was slightly burned by the fire, but continued to work her shift. Petitioner’s burns eventually healed. Again, the evidence demonstrated that this incident was an accident. However, the evidence did not demonstrate that this incident resulted in any significant injury to Petitioner or that her injury constituted a disability/handicap under Chapter 760, Florida Statutes.

    
    

17. At some point, Petitioner returned to the Cantonment store. Petitioner alleged that around November 6, 2008,

    Ms. Williamson fired Petitioner for moving too slowly.

    
    

    Ms. Williamson claims she did not terminate Petitioner, but that Petitioner walked out of the store and did not return.

    Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance. However, there was no substantial evidence to determine whether Petitioner was terminated or whether she quit. Likewise, there was no substantial evidence to determine the reason for Petitioner separating from her employment. Petitioner attributed her termination to the fact that Ms. Williamson was mean and abusive. However, Petitioner also testified that Ms. Williamson was “mean and abusive” to everyone. This evidence is insufficient to demonstrate any discrimination on the part of Ms. Williamson or Circle K.

18. Given these facts, the evidence did not demonstrate that Petitioner was physically handicapped/disabled or suffered an adverse employment action because of her race, religion or disability. For the same reasons, the evidence did not demonstrate that Petitioner was retaliated against based on her earlier action against Circle K. Therefore, the Petition for Relief should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11(4)(b), Florida Statutes (2010).

20. Section 760.10(1)(a), Florida Statutes (2008), states as follows:

    1. 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 that is an unlawful employment practice. § 760.10(7), Fla.

       Stat. (2008).

       
       

21. 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).

22. 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).

23. 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.

24. 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.

25. In this case, Petitioner raised issues and facts related to discrimination based on sex and retaliation in her Petition for Relief and at hearing that were determined in her

    
    

    prior action against Circle K, Case No. 09-0205. Indeed, there was no material difference between the facts raised in the earlier action and the instant action. Therefore, the decision in the earlier action is res judicata to the issues and facts raised in the Petition for Relief in this action and cannot be relitigated here. As such, Petitioner’s claims based on sex and retaliation should be dismissed. See Wager v. City of Green Cove Springs, 261 So. 2d 827, (Fla. 1972).

26. Additionally, 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 or any other form of discrimination.

27. Further, 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, there was no credible evidence to support Petitioner's claim that she was disabled due to her burns or that she was discriminated against based on her race, religion or disabilty/handicap.

28. Put simply, there is no credible evidence, beyond Petitioner's wild conjecture, that Circle K, or any other

employee, discriminated against Petitioner based on her sex, race, religion or disability/handicap. Finally there is no evidence that Petitioner had a disability/handicap. For the same reasons, the evidence did not demonstrate that Petitioner was retaliated against based on her earlier action against Circle K. Therefore, the Petition for Relief should be dismissed.

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice.

DONE AND ENTERED this 2nd day of September, 2010, in Tallahassee, Leon County, Florida.

S

S. Diane Cleavinger

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 2nd day of September 2010.

COPIES FURNISHED:

Carolyn Johnson

Post Office Box 4671 Pensacola, Florida 32507

Joyce Clemmons Circle K

25 West Cedar Street, Suite 100 Pensacola, Florida 32502

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

Derick Daniel, Executive Director 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: 10-001697

Orders for Case No: 10-001697